Baij Nath Dubey v. Secretary Of U. P. , Sainik Punarvas Nidhi
2004-09-10
M.A.KHAN, U.K.DHAON
body2004
DigiLaw.ai
JUDGMENT : U.K. Dhaon, M.A. Khan, JJ. This is an appeal arising out of the judgment and order dated 16.12.2002 passed by the learned single Judge, thereby dismissing the writ petition. 2. The Appellant had filed the writ petition before the learned single Judge claiming the relief of mandamus commanding the opposite parties not to retire the Appellant at the age of 58 years and also for quashing the decision dated 19.3.1999 reducing the age of retirement. 3. According to the Appellant, he is an ex-service man of the Army and retired as Hawaldar Clerk at the age of 44 years. Thereafter, the Appellant was appointed on the post of Clerk in U.P. Sainik Nidhi on 25.9.1987. He was subsequently confirmed on the said post and at that time the age of retirement of the employees of U.P. Sainik Nidhi was 60 years. On 19.3.1999, the Managing Committee decided that the age of the employees of U.P. Sainik Nidhi will be 58 years in place of 60 years. The Appellant was thus retired at the age of 58 years on 31.12.2000. Aggrieved by the said retirement, the Appellant made a representation to the Secretary of U.P. Sainik Nidhi and prayed that his age of retirement should be 60 years. 4. The opposite parties filed counter-affidavit and pleaded that U.P. Sainik Nidhi is a Charitable Trust, which is governed under the provisions of Charitable Endowment Act, 1890. The scheme of the administration of Sainik Nidhi and its employees are not directly under the control of the State Government or the Central Government. The State Government issued a Government order No. 1102 dated 5.11.1985 directing the age of superannuation at the age of 58 years and the Appellant was subsequently retired at that age. The representation of the Appellant was also decided by the Managing Committee, in which it was decided that the age of retirement has been reduced from 60 years to 58 years as per provisions of Section 5(2) of the Charitable Endowment Act, 1890. The decision of the aforesaid Managing Committee is based on authority given to it in the Scheme of the administration. It has further been stated that the appointment of the Appellant was temporary and he had always knowledge of his retirement age. 5.
The decision of the aforesaid Managing Committee is based on authority given to it in the Scheme of the administration. It has further been stated that the appointment of the Appellant was temporary and he had always knowledge of his retirement age. 5. The learned single Judge considered the submissions of both the parties and held that the service conditions of the Appellant establish that the retirement age of the Appellant was 58 years and thus the Appellant was retired at the age of 58 years on 31.12.2000. Accordingly, the writ petition was dismissed by the learned single Judge. Aggrieved by the said judgment and order, the present special appeal has been filed. 6. It has been argued by the Appellant in person that the order of retirement of the Appellant is unconstitutional and illegal and the Appellant was supposed to retire at the age of 60 years as when he joined the service, the age of retirement was 60 years and the Appellant was made to know that he was to retire after attaining the age of 60 years and it is a case of breach of promise. The Petitioner has relied upon the decisions of Hon'ble the Supreme Court in Mysore State Road Transport Corporation Vs. Mirja Khasim Ali Beg and Another, (1977) 2 SCC 457 ; Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, (1979) 2 SCC 409 and Union of India v. Anglo Afghan Agencies AIR 1968 SC 718 . 7. We have heard the Appellant in person and gone through the record. 8. U.P. Sainik Punarvas Nidhi is a charitable trust constituted under the provisions of the Charitable Endowment Act, 1890. The object of the Nidhi is charitable for the welfare of Ex-servicemen and their dependents. U.P. Sainik Punarvas Nidhi is being managed by the Managing Committee under the Chairmanship of His Excellency the Governor of U.P. The Managing Committee in its meeting held on 18.5.1999, resolved that the age of superannuation of the employees who were appointed after 1.4.1983 will be 58 years. The Appellant who was an Ex-serviceman of the Indian Army was appointed by the order dated 25.9.1987 on a Class III post of clerk. In pursuance of the decision of the Managing Committee dated 18.5.1999, the Petitioner attained the age of superannuation on 31.12.2000 and has also received all the retiral benefits.
The Appellant who was an Ex-serviceman of the Indian Army was appointed by the order dated 25.9.1987 on a Class III post of clerk. In pursuance of the decision of the Managing Committee dated 18.5.1999, the Petitioner attained the age of superannuation on 31.12.2000 and has also received all the retiral benefits. The question whether the employer can reduce the age of superannuation of an employee was considered by this Court as well as by Hon'ble the Supreme Court on various occasions. In 1984, the age of superannuation of the employees of the Zila Parishad was reduced from 60 years to 58 years and the said decision of the Zila Parishad was challenged before this Court by way of writ petitions. This Court while dismissing the writ petitions held that the employer has right to reduce the age of retirement. The said judgment is in Madan Mohan Pandey v. Zila Parishad, Sultanpur and Anr. 1989 (7) LCD 478. The contention of the Appellant that he has right to continue upto the age of 60 years irrespective of the resolution dated 18.5.1999 passed by the Managing Committee cannot be accepted and the principle of Promissory Estoppel will not apply. Hon'ble the Supreme Court in Jit Ram Shiv Kumar and Others Vs. State of Haryana and Others, (1981) 1 SCC 11 , has held that it is the settled law of this Court that the principle of estoppel is not available against the Government in exercise of legislative, sovereign or executive power. The case law cited by the Appellant are not applicable to the facts of the present case as the Petitioner was appointed after 1983 and in pursuance of the resolution of the Managing Committee the age of superannuation was reduced of all the employees who were appointed after 1.4.1983 from 60 years to 58 years. The decision of the Managing Committee is binding upon the employees of the Nidhi. We find no illegality or impropriety in the judgment and order passed by the learned single Judge. 9. In the result, the appeal fails and is dismissed.