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2006 DIGILAW 316 (JHR)

Saligram Choubey v. State Of Jharkhand

2006-04-04

M.Y.EQBAL

body2006
JUDGMENT M.Y. Eqbal, J. 1. In this writ application petitioner has challenged the order as contained in letter dated 28.2.2005 by which he has been compelled to retire on attaining the age of 58 years. 2. Petitioner was appointed as Constable in the year 1971 and his date of birth as recorded in the service book is 2.2.1947. According to the petitioner since the age of superannuation of government employee is 60 years, he shall superannuate in 2007. It is contended that respondents wrongly considered the age of superannuation of the petitioner as 58 years on the ground that the age of superannuation of the Govt. employee at the relevant time in the State of Bihar was 58 years. 3. In the counter-affidavit filed by respondent No. 2, it is stated that while the petitioner was posted at Sahebganj as A.S.I. he was tentatively allocated to Bihar Cadre as per letter dated 20.7.2002. Petitioner, thereafter, superannuated on 28.2.2005 by district order No. 236/2005 dated 1.3.2005. On the date of superannuation of the petitioner no notification was issued by the Govt. of Bihar enhancing the age of superannuation from 58 years to 60 years. The Govt. of Bihar issued notification on 23.3.2005 i.e. after superannuation of the petitioner. It is contended that in the letter date 29.3.2005 issued by Govt. of India, Ministry of Personnel, P.G. and Pension, Department of Personnel and Training, New Delhi, it has been clarified that those personnel who are posted in the State of Jharkhand and have attained the age of 58 years between 26.10.2004 and 23.3.2005 have been allocated to the State of Bihar, will be treated as superannuated on the date of attaining the age of 58 years and they will get their pensionary/retrial benefits from the successor State of Bihar. It is further contended that the Home Department, State of Jharkhand also issued an instruction vide order dated 28.10.2005 on the point of superannuation of the petitioner with effect from 28.2.2005. 4. The only question that falls for consideration in the instant writ application is as to whether the impugned letter of superannuation issued by the State of Jharkhand superannuating the petitioner on attaining the age of 58 years is illegal, arbitrary and discriminatory? Before deciding this question, I would first like to state few facts of the case. 5. 4. The only question that falls for consideration in the instant writ application is as to whether the impugned letter of superannuation issued by the State of Jharkhand superannuating the petitioner on attaining the age of 58 years is illegal, arbitrary and discriminatory? Before deciding this question, I would first like to state few facts of the case. 5. Petitioner was appointed as Constable in 1971 and he was promoted to the post of A.S.I. In paragraph 9 of the counter affidavit filed by respondent No. 2, it is stated by the respondent that while the petitioner was posted in Sahebganj district in the State of Jhakhand, he was tentatively allocated Bihar Cadre as per letter No. 825/P dated 20.7.2002 received from the Director General of Police, Jharkhand, Ranchi. Nothing has been stated in the counter affidavit as to when petitioner was finally allocated Bihar Cadre and whether he was relieved from Sahebganj for joining in the State of Bihar. Even after tentative allocation of Bihar Cadre, petitioner continuously worked and was paid salary by the State of Jharkhand till he attained the age of 58 years on 28.2.2005. By that time, the State of Jharkhand enhanced the age of superannuation from 58 years to 60 years vide notification dated 26.10.2004. The State of Bihar came with a notification-dated 23.3.2005 enhancing the age of superannuation of government employee from 58 years to 60 years. The respondents have referred letter dated 29.3.2005 issued by Govt. of India, Ministry of Personnel and the same has been annexed as Annexure-B and B/1 to the writ application. This letter was issued by Desk Officer, Govt. of India, Ministry of Personnel, P.G and Pension, Department of Personnel and Training to the Chief Secretary of the Govt. of Bihar and Jharkhand. The letter reads as under : No. 28/43/2004-SRS Government of India Ministry of Personnel, P.G. and Pension Department of Personnel and Training. Lok Nayak Bhawan, Khan Market New Delhi the March, 2005. To, The Chief Secretary, Government of Bihar, Patna. The Chief Secretary Government of Jharkhand, Ranchi. The Stale Advisory Committee, Bihar is in the process of allocation of State Service Personnel between the successor States of Bihar/Jharkhand. In the meantime, Government of Jharkhand has raised the aye of superannuation from 58 years to 60 years vide their notification dated 26.10.2004 whereas the Govt. The Chief Secretary Government of Jharkhand, Ranchi. The Stale Advisory Committee, Bihar is in the process of allocation of State Service Personnel between the successor States of Bihar/Jharkhand. In the meantime, Government of Jharkhand has raised the aye of superannuation from 58 years to 60 years vide their notification dated 26.10.2004 whereas the Govt. of Bihar has raised the age of superannuation for its employees vide its notification on 24.03.2005. 2. Keeping in view the overall situation, the matter has been examined and the undersigned is directed to advise that (a) those personnel who are posted in the State of Jharkhand and have attained the age of 58 years between 26.10.2004 and 23.3.2005 have been allocated to the State of Bihar, will be treated as superannuated on the day of attaining the age of 58 years and they will get their pensionary/retrial benefits from the successor State of Bihar. (b) those personnel who are posted in Bihar and have attained the age of 58 years on or after 26.10.2004 and have retired but allocated to the successor State of Jharkhand will resume their duty/post in the State of Jharkhand and they will get salary from State of Jharkhand w.e.f. the date of assuming the charge and their salary service will be counted in continuity for the purpose of pensionary/retrial benefits but they will not get any salary for the period for which they have not worked due to their retirement in the State of Bihar; and (c) all those personnel who have completed 58 years of age on or after 26.10.2004 may be provisionally relieved to the respective successor State as recommended in the Revised Final Allocation List pending their final allocation by the Central Government if no representation has been received against their proposed allocation; It is requested that the action taken in the matter may kindly be intimated to the Central Government immediately. Yours faithfully Sd/- (A.K. Srivastava) Desk Officer 6. Prima facie, in my opinion, decision of the respondents as contained in the aforesaid letter particularly para 2(a) is highly discriminatory and violative of Article 14 of the Constitution of India. 7. This matter has been considered by a Division Bench of this Court elaborately in WPS No. 4716 of 2005 and held that Clause 2(a) of the said guidelines as contained in the letter-dated 29.3.2005 is arbitrary. 7. This matter has been considered by a Division Bench of this Court elaborately in WPS No. 4716 of 2005 and held that Clause 2(a) of the said guidelines as contained in the letter-dated 29.3.2005 is arbitrary. This case is squarely covered by the said judgment passed by this Court. 8. In the facts and circumstances of the case, this writ application is allowed and it is held that petitioner shall continue in service of the State of Bihar till he attains the age of 60 years. The State of Bihar is directed to issue proper notification for posting of the petitioner and pay him full salary of the intervening period during which he was forced to remain out of service.