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Allahabad High Court · body

2008 DIGILAW 2166 (ALL)

SHYAMA v. DISTRICT MAGISTRATE, GHAZIPUR

2008-10-21

SANJAY MISRA

body2008
JUDGMENT Hon’ble Sanjay Misra, J.—Heard Sri M.R. Gupta learned counsel for the petitioner. List has been revised none appears on behalf of respondent Nos. 2 and 3. Learned Standing Counsel is present on behalf of respondent No. 1. Counter affidavit filed by respondent Nos. 2 and 3 is available on record. Rejoinder has been filed. 2. The petitioners who are 15 in number have filed this writ petition challenging the illegality of the impugned orders (Annexures 1 to 15) dated 16/17.8.1995 passed by the respondent No. 2 Executive Engineer, Municipal Board, Ghazipur whereby the petitioners have been retired after attaining the age of 58 years and before 60 years by exercising his power under Fundamental Rule 56(C) of Financial Handbook Part II to IV. 3. Learned counsel for the petitioner has assailed the impugned orders mainly on the ground that the provisions of Fundamental Rules are applicable to Government servants and would not apply to Class IV employees of the Municipal Boards inasmuch as Regulations regarding the service conditions of Class IV employees of Municipal Board’s have already been framed under the U.P. Municipalities Act, 1916 wherein the age of retirement is provided as 60 years and therefore the impugned order is illegal and liable to be set aside. 4. In the counter affidavit filed on behalf of respondents it has been stated that the Fundamental Rules are applicable to the petitioners and other employees of Nagarpalika and by retiring the petitioners after the age of 58 years and below the age of 60 years it cannot be said to be illegal. However, in reply to the averments made in paragraph 5 and 6 to the writ petition wherein the Regulations framed under the Municipalities Act have been referred to it has not been replied effectively inasmuch as it has been stated that paragraph 5 of the writ petition needs no reply and paragraph 6 and 7 of the writ petition are incorrect and denied and that the Fundamental Rules are applicable in the case of the petitioners also. Apart of the aforesaid defence no other ground has been taken to justify the passing of the impugned orders. 5. Apart of the aforesaid defence no other ground has been taken to justify the passing of the impugned orders. 5. Having considered the submission of learned counsel for the parties it will be seen that there are Regulations published in the U.P. Gazette Extraordinary dated 11.6.1965 under the provisions of U.P. Municipalities Act, 1916 known as the “Retention and Retirement of Servants of Municipal Boards Regulation, 1965.” The aforesaid regulation has been filed as Annexure alongwith the writ petition and is quoted hereunder : 1. These regulations may be called the “Retention and Retirement of Servants of Municipal Boards Regulations, 1965.” 2. They shall come into force with effect from the date of their publication in the Gazette. 3. (i) Subject to the provisions of sub-regulation (2), the age of retirement from service of all servants of all Municipal Boards below the age of sixty years on June 30, 1964, or appointed thereafter, shall be sixty years, beyond which no one shall ordinarily be retained in the service of the Municipal Boards. (ii) The Appointing Authority may require a servant to retire on his attaining the age of 58 years on three month’s notice, if the servant concerned is physically unfit or is inefficient : Provided that nothing in this sub-regulation shall apply to those servants of the Municipal Board who were fifty years of age or above on December 31, 1955. (iii) A servant of the Municipal Board may on attaining the age of 38 years voluntarily retire after giving three month’s notice to the Appointing Authority. In the case of the servant against whom disciplinary proceeding are pending or contemplated, this notice shall be effective only when it is accepted by the Appointing Authority. A notice once given by the servant shall not be withdrawn without the permission of the Appointing Authority. 4. Extension in service may be allowed up to the age of 62 years for special reasons to be recorded by the Appointing Authority : (i) for any period exceeding one year at a time; or (ii) unless the servant concerned is physically fit and efficient. 6. 4. Extension in service may be allowed up to the age of 62 years for special reasons to be recorded by the Appointing Authority : (i) for any period exceeding one year at a time; or (ii) unless the servant concerned is physically fit and efficient. 6. It will be seen from the aforesaid Regulations which were published in the U.P. Gazette, Extraordinary, dated 11th June, 1965 that the age of retirement of all servants of Municipal Boards shall be 60 years and the Appointing Authority may require a servant to retire at the age of 58 years on three months notice if such servant is physically unfit or is inefficient. An extension of two years has also been provided after attaining 60 years in Regulation No. 4. Therefore, when Regulations have been framed under the Municipalities Act the petitioners were entitled to continue till the age as mentioned in Regulation 3 referred to above particularly when they were all below the age of 60 years as on 30.6.1964 referred to in Regulation 3(1) and the circumstances mentioned in Regulation 3(iii) do not exist in the present case. 7. From the impugned orders it appears that the authority has exercised his power under Fundamental Rule 56(C) where the Government servant can be required to retire after attaining the age of 58 years. Since the Regulations with respect to age of retirement and retention have been framed under U.P. Municipalities Act the petitioners claim that retirement at the age provided under the Regulations would apply in their cases and exercise of power by the Appointing Authority under Fundamental Rule 56(C) could not have been exercised by him. In the counter affidavit no reasons have been shown for exercising the power under Fundamental Rule 56(C) although the Regulations were published and notified in the year 1965 and the impugned orders have been passed in the year 1995. The respondents have also not brought on record any other reason for retiring the petitioner such as being physically unfit or inefficient and have given three months pay as provided under sub-clause (C) of Fundamental Rule 56. Consequently, in the absence of any effective pleading for defending the impugned orders and in view of the Regulations of 1965 referred to above the impugned orders cannot be sustained and are liable to be set aside. 8. Consequently, in the absence of any effective pleading for defending the impugned orders and in view of the Regulations of 1965 referred to above the impugned orders cannot be sustained and are liable to be set aside. 8. In paragraph 2 of the writ petition the petitioners have given their date of birth to state that they had not attained the age of 60 years in the year 1995 when the impugned orders were passed and in fact were entitled to continue till the age of 60 years. 9. From the aforesaid circumstances it appears that the claim of the petitioners requires to be accepted. The writ petition is therefore allowed. The impugned orders (Annexures 1 to 15) dated 16/17.8.1995 are set aside. Since during the pendency of this writ petition all the petitioners have attained the age of 60 years it would be appropriate that the respondent No. 2 the Executive Officer, should consider the question as to whether the petitioners would be entitled to be paid their salary/wages for the period they have been prevented from discharging their duties by virtue of the impugned orders till they have actually attained the age of 60 years. Such consideration may be made by the respondent No. 2 within a period of four months from the date a certified copy of this order is produced by the petitioners before him. 10. The circumstances of this case indicate that the petitioners have been deprived of working under the respondents till attaining the age of 60 years by the impugned orders. Such deprivation is contrary to the provisions of the Regulations of 1965. Article 21 of the Constitution of India clearly states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Such a provision finds place in Part III of the Constitution of India relating to Fundamental Rights of the citizens. The Fundamental Right so enshrined under Article 21 being guaranteed Fundamental Right is of a wide scope and the expression “life” does not connote a mere animal existence or continue drudgery through life. It included right to livelihood, better standard of living etc. as has been held by the Hon’ble Supreme Court in several decisions. 11. The Fundamental Right so enshrined under Article 21 being guaranteed Fundamental Right is of a wide scope and the expression “life” does not connote a mere animal existence or continue drudgery through life. It included right to livelihood, better standard of living etc. as has been held by the Hon’ble Supreme Court in several decisions. 11. In the case of Kapila Hingorani v. State of Bihar, AIR 2005 SC 980 , the Hon’ble Supreme Court was considering a case of non-payment of salary for a number of years of the employees of a public sector undertaking. It found that the State was bound to pay the salary of the employees on the ground that the employees have human rights and fundamental rights under Article 21 which the State is bound to protect. Therefore, the respondent No. 2 while taking a decision as directed above is required to consider such aspect of the matter. 12. No order is passed as to costs. ————