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2005 DIGILAW 697 (PAT)

Kameshwar Mahto And Pandey Umesh Bihari Verma v. State Of Bihar

2005-08-05

CHANDRAMAULI KR.PRASAD

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Judgment Chandramauli Kumar Prasad, J. 1. Petitioners in both the writ applications are the employees of the Bihar State Food and Civil Supplies Corporation Limited and they are aggrieved by the action of the Corporation in retiring them at the age of 58 years and their prayer is to quash the orders by which they have been asked to retire on attaining the age of 58 years. Their further prayer is to direct the respondent Bihar State Food & Civil Supplies Corporation Limited, to continue them in service till they attain the age of 60 years. 2. Kameshwar Mahto, petitioner in CWJC No. 8579 of 2005 has averred that he was initially appointed by the Bihar State Food and Civil Supplies Corporation Limited, hereinafter referred to as the Corporation to the post of Assistant Godown Manager on the recommendation of the Bihar Public Service Commission whereas Pandey Umesh Bihari Verma, petitioner in CWJC No. 6861 of 2005 was initially appointed on the post of Salesman. The State Government in the department of Finance, by resolution as contained in memo dated 24.3.2005, resolved to enhance the age of superannuation of its employees from 58 to 60 years. The resolution further stated that steps for amending Rule 73 of the Bihar Service Code shall be separately carried out. It is relevant here to state that Rule 73 of the Bihar Service Code, inter alia, provides for age of superannuation of the State Government employees. 3. It is the stand of the petitioners that the service conditions as applicable to the employees of the State Government from time to time were made applicable to the employees of the Corporation and as such, the resolution of the State Government enhancing the age of superannuation from 53 to 60 years, shall be applicable to the employees of the Corporation also. 4. Counter affidavit has been filed in which it has been stated that the Corporation is a private company and competent to determine the service conditions of its employees and the decision of the State Government enhancing the age of superannuation, ipso facto, shall not apply to the employees of the Corporation unless the same is adopted by the Corporation. 5. Counter affidavit has been filed in which it has been stated that the Corporation is a private company and competent to determine the service conditions of its employees and the decision of the State Government enhancing the age of superannuation, ipso facto, shall not apply to the employees of the Corporation unless the same is adopted by the Corporation. 5. It has been specifically contended that the Board of Directors of the Corporation, in its meeting held in May, 2005, decided that the retirement age shall continue to be 58 years for all the employees working in the Corporation. The Chief of Administration of the Corporation, by order dated 9.7.2005, has communicated the decision of the Board and has stated that "since the Board of Directors have decided that the age of retirement in the Corporation shall remain 58 years, the post of all the employees who have retired after attaining the age of 58 years" ceases to exist. It has been also stated that because of the financial constraints, the Corporation has decided not to enhance the age of retirement to 60 years. 6. It has also been stated that the decision taken by the Jharkhand Government to create a Directorate of Civil Supplies to take over the business and activities of the Corporation, would also render a large number of employees jobless. 7. Mr. Ram Balak Mahto, Senior Advocate appears on behalf of the petitioner in CWJC No. 8579 of 2005 whereas petitioner of CWJC, No. 6861 of 2005 is represented by Mr. Ranjeet Kumar. Junior Counsel to GP VIII appears for the State. Mr. J.P. Shukla, Senior Advocate appears for the Corporation. 8. Mr. Mahto submits that the reason which weighed with the Corporation for not enhancing the age of retirement from 58 to 60 years, i.e. a large number of employees of the Corporation becoming jobless on account of creation of the Directorate of Civil Supplies by the Government of Jharkhand is not germane and as such, the decision taken is illegal. I do not find any substance in this submission of Mr. Mahto. What should be the age of retirement, is the prerogative of the employer and the Court exercising the power of judicial review, does not interfere with the same unless same is arbitrary or shocking to the conscience of the Court. I do not find any substance in this submission of Mr. Mahto. What should be the age of retirement, is the prerogative of the employer and the Court exercising the power of judicial review, does not interfere with the same unless same is arbitrary or shocking to the conscience of the Court. Here, the Corporation had taken into consideration its financial condition and employees becoming surplus and jobless for arriving at the decision and concluded that the enhancement of age of retirement from 58 to 60 years shall not be in the interest of the Corporation. In my opinion, the decision taken by the Corporation, not to enhance the age of superannuation is on relevant consideration and in no way, same can be termed to be arbitrary calling for interference by this Court in exercise of its writ jurisdiction. 9. In has also been submitted that the Corporation in past had adopted the service conditions as applicable to the employees of the State Government to its own employees and hence the present decision of the State Government, enhancing the age shall also be applicable to the Corporations employees. I do not find any substance in this submission of the learned counsel for the petitioner. 10. It is common ground that Corporation is a juristic person and an independent legal entity and therefore competent to regulate the service conditions of its employee. Merely the fact that in past, some of the service conditions of the State Government employees were made applicable to the Corporations employees, that by itself shall not make the decision in respect of the age of superannuation automatically applicable to the employees of the Corporation. In the present case, Corporation has specifically decided not to enhance the age of superannuation, hence in my opinion the case of the petitioners shall not be governed by the resolution of the State Government, 11. Petitioner Kameshwar Mahtos appointment on the recommendation of the Bihar Public Service Commission, in my opinion, shall not make him a State Government employee and therefore can not claim benefit as that of such employee. 12. To put the record straight, Mr. Petitioner Kameshwar Mahtos appointment on the recommendation of the Bihar Public Service Commission, in my opinion, shall not make him a State Government employee and therefore can not claim benefit as that of such employee. 12. To put the record straight, Mr. Ranjeet Kumar has contended that the order signed by the Chief of Administration dated 9.7.2005 communicating the decision of the Board of Directors declining to enhance the age of superannuation is not addressed to any authority and this renders the decision illegal in the eye of law. This argument of Mr. Kumar has been noted to keep the record straight and deserves to be rejected outright. The order as communicated by the Chief of Administration shall be applicable to each and every employee of the Corporation and it is in the nature of a general order and as such, not required to be forwarded to any particular individual. 13. In the result, I do not find any merit in both the writ applications and they are dismissed accordingly.