Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 1435 (MP)

Mathuro v. State of M. P.

2008-12-11

S.K.GANGELE

body2008
ORDER Gangele, J. -- 1. The petitioner has filed this petition under Article 226 of the Constitution of India challenging her retirement on the basis of 60 years of age. 2. The petitioner was appointed as Safai Kamgar in Municipal Council, Sabalgarh in the year 1965. After attaining the age of 60 years, she has been retired vide order dated 9.2.1999, passed by Municipal Council, Sabalgarh with effect from 28.2.1999. The main ground of challenge in this writ petition is that the petitioner is entitled to continue in service upto the age of 62 years because the State Government has given benefit of class IV employees to continue in service upto the age of 62 years. Similar benefit has been given to the employees of the Madhya Pradesh State Municipal Service (Executive). Subsequently, the State Government has also given the benefit of age of retirement of 62 years to class IV employees of Municipalities but that benefit has been given from the date of issuance of notification i.e. 27.9.2003. 3. The respondents-State in the return has stated that the petitioner was working as Safai Kamgar in the Municipalities of Sabalgarh vide notification dated 27.3.2003. The Safai Kamgar of the Municipallities have been given the benefit of age of retirement of 62 years from the date of issuance of notification. The petitioner already retired from service in the year 1999, hence, she is not entitled to the benefit to continue in service upto the age of 62 years. 4. Shri C.P. Singh, learned counsel for the petitioner has submitted that the petitioner is also entitled to the benefit of age of retirement of 62 years at par with the class IV employees of the State Government. The learned counsel further submitted that the State Government has given the benefit of 62 years to the class IV employees of the Municipalities in the year 2003 and the benefit should have been given to the petitioner also. 5. Contrary to this, Shri M.P.S. Raghuvanshi, learned counsel for the Municipal Council has submitted that the petitioner is an employee of the Municipality. The petitioner is not entitled to the benefit of 62 years of age. The same argument has been advanced by learned Deputy Advocate General on behalf of the State. 6. 5. Contrary to this, Shri M.P.S. Raghuvanshi, learned counsel for the Municipal Council has submitted that the petitioner is an employee of the Municipality. The petitioner is not entitled to the benefit of 62 years of age. The same argument has been advanced by learned Deputy Advocate General on behalf of the State. 6. From the facts of the case, it is clear that the petitioner has retired after attaining the age of 60 years with effect from 28.2.1999. She has been working as Safai Kamgar. The petitioner was an employee of the Municipal Council. According to section 94 of the Madhya Pradesh Municipalities Act, 1961, every Municipal Council having an income of five lacs of rupees or more shall have power to employ a certain cadre in the Municipalities. It is an admitted fact that the petitioner was appointed by the Municipality under the aforesaid provision of the law. The service of the petitioner has been governed by the rules named as 'Madhya Pradesh Municipal Employees Recruitment and Conditions... Rules, 1968' (hereinafter called as the 'Rules of 1968') framed by the State Government in exercise of the powers conferred by sub-section (1) of section 355 read with section 95 of Madhya Pradesh Municipalities Act, 1961. Rule 23 of the aforesaid rules prescribes the age of superannuation. As per the aforesaid rule, the superannuation of the Municipal employees is 58 years and for class IV employees, the age of superannuation shall be determined by the Government. The relevant rule is as under : "23. (1) Age of superannuation. -- The age of superannuation for Municipal employees other than class IV employees shall be 58 years. For class IV employees the age of superannuation shall be as determined by the Government." 7. The State Government has issued an ordinance named as 'The Madhya Pradesh Shaskiya Sevak (Adhivarshiki Ayu) Tritiya Sanshodhan Adhyadesh, 1998' (hereinafter called as the 'Ordinance of 1998'). As per the aforesaid ordinance, the age of superannuation of class IV Government servants has been fixed as 62 years. The aforesaid ordinance was published in the "Madhya Pradesh Gazette (Extraordinary)", dated 26th September, 1998. The Local Self Government and Development Department further amended the rule 29 of M.P. State Municipal Service (Executive) Rules, 1973 and by the aforesaid amendment the age of the superannuation of the employees of the Municipal Service has been fixed as 60 years. The aforesaid ordinance was published in the "Madhya Pradesh Gazette (Extraordinary)", dated 26th September, 1998. The Local Self Government and Development Department further amended the rule 29 of M.P. State Municipal Service (Executive) Rules, 1973 and by the aforesaid amendment the age of the superannuation of the employees of the Municipal Service has been fixed as 60 years. Subsequently, the State Government has also issued another notification with regard to the age of superannuation of class IV employees of the Municipalities under rule 23 of the Recruitment Rules, 1998. By the aforesaid notification dated 27.9.2003, copy of which has been filed as Annexure R-1, the age of retirement of class IV employees of Municipalities including Safai Kamgar has been fixed as 62 years. However, from the aforesaid facts, it is clear that the members of M.P. State Municipal Service have been given the benefit of 60 years of age of retirement vide a Gazette Notification, dated 26th September, 1998 at par with the employees of the State Government because the State Government employees have also been given the benefit of age of retirement of 60 years of age upto class III employees by the ordinance, 1998 with effect from 26th September, 1998 and the class IV employees of Municipal Council have been given the benefit of the age of superannuation of 62 years from 27.9.2003. The petitioner, who retired on 28.2.1999 has been left out from the aforesaid benefit. It is clear that the members of M.P. State Municipal Service have been given the benefit of age of retirement from the same date which has been given to the Government employees and only class IV employees of Municipalities have been given the benefit of age of superannuation from the year 2003. No reasons have been given by the respondents in the return that why the aforesaid benefit has not been given to the petitioner, who was a IV class employee of the Municipalities from the year 1998, as has been given to the member of M.P. State Municipal Service at par with the Government employees. 8. No reasons have been given by the respondents in the return that why the aforesaid benefit has not been given to the petitioner, who was a IV class employee of the Municipalities from the year 1998, as has been given to the member of M.P. State Municipal Service at par with the Government employees. 8. A Constitutional Bench of the Hon'ble Supreme Court in the case of Lachhman Dass v. State of Punjab, reported in AIR 1963 SC 222 , with regard to protection under Article 14 of the Constitution of India has held as under : "The law is now well settled that while Article 14 prohibits discriminatory legislation directed against one individual or class of individuals, it does not forbid reasonable classification, and that for this purpose even one person or group of persons can be a class. Professor Willis says in his Constitutional Law, p.580 'a law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it'. This statement of the law was approved by this Court in Charanjit Lal Chowdhury v. Union of India. There the question was whether a law providing for the management and control by the Government, of a named company, the Sholapur Spinning and Weaving Company Ltd. was bad as offending Article 14. It was held that even a single company might, having regard to its features, be a category in itself and that unless it was shown that there were other companies similarly circumstanced, the legislation must be presumed to be constitutional and the attack under Article 14 must fail. In Ram Krishna Dalmia v. Justice S.R. Tendolkar [SCR at p.297:AIR at p.547], this Court again examined in great detail the scope of Article 14, and in enunciating the principles applicable in deciding whether a law is in contravention of that article observed : that a law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others that single individual may be treated as a class by himself." 9. The same principle has been laid down by the Hon'ble Supreme Court in the case of State of Mysore v. P. Narsinga Rao, reported in AIR 1968 SC 349 , wherein it was observed that : "It is well settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be some relational nexus between the basis of classification and the object intended to be achieved by the statute or the rule. As we have already stated, Articles 14 and 16 form part of the same constitutional code of guarantees and supplement each other. In other words, Article 16 is only an instance of the application of the general rule of equality laid down in Article 14 and it should be construed as such. Hence, there is no denial of equality of opportunity unless the person or persons who are alleged to have been situated with the person or persons who are alleged to have been favoured. Article 16(1) does not bar a reasonable classification of employees or reasonable tests for their selection." 10. The Hon'ble Supreme Court further in the case of M.P. Rural Agriculture Extension Officers Association v. State of M.P. and another, reported in 2005(1) JLJ 36 = (2004)4 SCC 646 ], with regard to Article 14 and class legislation, has held as under : "15. Article 14 forbids class legislation but permits reasonable classification subject to the conditions that it is based on an intelligible differentia and that the differentia must have a rational relation to the object sought to be achieved." 11. It is clear from the law laid down by the Hon'ble Supreme Court that the Article 14 forbids class legislation, however, it permits reasonable classification. It is clear from the law laid down by the Hon'ble Supreme Court that the Article 14 forbids class legislation, however, it permits reasonable classification. In the present case, by issuing the notification Annexure R-1, dated 27.9.2003, by which the Government has prescribed the age of superannuation of 62 years of class IV employees of Municipalities including Safai Kamgar. Two classes of class IV employees of Municipalities have been created. One class of employees is, who have been retired between the period of 1998-2003 and other class of employees who have been retired after the notification. The second class of employees have been given the benefit of retirement of the age of 62 years but the earlier class of employees have been denied the aforesaid benefit. However, the benefit of retirement at par with the State Government employees have been given to the members of M.P. State Municipal Service at par with the State Government employees. No reasons have been assigned by the respondents-State Government as to why the class IV employees of the Municipalities have not been given the benefit of age of superannuation from the same date as has been given to the members of M.P. State Municipal Service. The rule 23 of the 'Madhya Pradesh Municipal Employees Recruitment and conditions... Rules, 1968' gives power to the State Government to fix the age of superannuation of class IV employees and that power has to be exercised by the State Government, keeping in mind the Constitutional provisions and protection of Article 14 of the Constitution of India. In my opinion, the petitioner, who was retired in the year 1999 was also entitled to the benefit of age of 62 years on the basis of Article 14 because she has been retired at the age of 60 years when at that time the benefit of retirement of age of 62 years has been given by the State Government to its employees and same benefit has been given to the class IV Municipal employees by the Government from 2003. 12. Consequently, the petition of the petitioner is allowed. It is held that the petitioner is entitled to continue in Municipal service upto the age of 62 years. 12. Consequently, the petition of the petitioner is allowed. It is held that the petitioner is entitled to continue in Municipal service upto the age of 62 years. However, looking to the facts of the case, the petitioner shall not be entitled for arrears of salary on the principle of 'no work no pay' and on the fact that the petitioner has filed this petition after a delay of two years. However, the petitioner will be entitled other post retiral benefits on the basis of her date of retirement. No order as to cost.