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2008 DIGILAW 570 (PAT)

Gopaljee Sahay v. Bihar State Electricity Board

2008-04-04

KISHORE K.MANDAL, S.K.KATRIAR

body2008
Judgment Sudhir Kumar Katriar, J. 1. The petitioner of Gopaljee Sahay V/s. The Bihar State Electricity Board and Ors., C.W.J.C. No. 4220 of 1999 has preferred this appeal in terms of Clause 10 of the Letters Patent of the High Court of Judicature at Patna, and is aggrieved by the judgment dated 30.9.1999, whereby the action of the respondent authorities in varying the terms and conditions relating to superannuation, and the consequent retirement of the petitioner after completion of 37 years of service or 58 years of age, whichever is earlier, has been upheld. We shall go by the description of the parties occurring in the writ petition. 2. The basic facts for the disposal of the appeal are not in dispute and may be briefly indicated. The petitioners date of birth is 24.12.1942. He became an Engineering Graduate from the Patna Engineering College in 1961. He had joined the services of the Bihar Government as Engineer Assistant/Technical Assistant in P.W.D. department. In response to advertisement dated 23.7.1961 (Annexure-1) of the respondent Bihar State Electricity Board (hereinafter referred to as the Board ), the petitioner had applied for the post of Assistant Engineer (Civil). According to the advertisement, the candidates beyond the age of 28 years as on 1.1.1961, were ineligible to apply, but no lower age limit for the applicant was indicated. The petitioner was appointed and joined the services of the Board on 11.6.1962, when he was 19 years and 6 months of age. The Board had then not framed its own Regulations prescribing the age of superannuation and had Mutatis Mutandis adopted the Bihar Government Service Rules/Code. Accordingly 55 years was the age of superannuation for the category of employees of the petitioner in the Board. 2.1 In terms of Section 79(c) of the Electric Supply Act, 1948 (hereinafter referred to as the Act), the Board for the first time framed its Regulations known as Bihar State Electricity Service Regulations 1976 (hereinafter referred to as the 1976 Regulation). According to 1976 regulation, the employees of the Board of the category of the petitioner were to retire on attaining the age of 58 years. According to 1976 regulation, the employees of the Board of the category of the petitioner were to retire on attaining the age of 58 years. The relevant portion is reproduced hereinbelow for the facility of quick reference: (i) All employees in the categories of Appendix A shall automatically retire on attaining the age of 58 years; and all employees in Appendixes B and C shall retire automatically at the age of 60 years; Provided, however, that the Board may, in any general or special case, extend the age of superannuation in respect of any particular category of employees up to the age of 60 years; (ii) (a) On the date an employee reaches the age of superannuation he shall demit office immediately on his own even without being asked or directed to do so. (b) Failure to demit office on reaching the age of superannuation shall not entitle an employee to any pay and allowances beyond the date of superannuation. 2.2 In exercise of the powers conferred upon the Board under Section 79(c) of the Act, the Board decided that such officers, who joined the services of the Board as an officer and had completed 37 years of service under the Board or have attained the age of 58 years, whichever is earlier, should be made to retire from the Boards service. A copy of the notification dated 9.9.1997 is marked Annexure 3 to the writ petition. This was followed by another notification under Section 79(c) of the Act dated 6.12.1007 (Annexure-4), purported to be in continuation of the said notification dated 9.9.1997 (Annexure-3), that the following three categories of employees will retire from the services of the Board who have completed 40 years of service of the Board or have attained the age of 58 years, whichever is earlier: (i) Those employees of the Board who joined the Boards service as Workmen but who were later promoted as officer. (ii) Those officers who joined the services of the Board as Junior Electrical Engineer or Overseer prior to 1976 and, (iii) Those officers of the Board who joined the service of the Board as Engineer Asstt. Prior to 1976. This was followed by the order dated 23.4.1999 (Annexure-2). The petitioners date of retirement was fixed as on 30.6.1999, leading to the present writ petition which has been dismissed by the judgment dated 30.9.1999. 3. Prior to 1976. This was followed by the order dated 23.4.1999 (Annexure-2). The petitioners date of retirement was fixed as on 30.6.1999, leading to the present writ petition which has been dismissed by the judgment dated 30.9.1999. 3. While assailing the validity of the impugned action, learned Counsel for the writ petitioner submits that it is a case of invidious discrimination and the respondent authorities have without any rationale created two categories of employees within one group. The category of employees which include the petitioner and who started in the officers cadre of the Board as Assistant Engineer on the one hand, and the other group who had started as Engineer Assistant and after promotion became officers, on the other, form one cadre. Therefore, different terms and conditions for continuance in service and retirement is impermissible. He relies on the following reported judgments: (i) Punjab State Electricity Board, Patiala and Anr. V/s. Ravinder Kumar Sharma and Ors., , 1986 4 SCC 617 ; (ii) Food Corporation of India V/s. Om Prakash Sharma and Ors., AIR 1998 SC 2682 , paragraphs 16 and 19; (iii) K.R. Lakshman and Ors. V/s. Karnataka Electricity Board and Ors., AIR 2001 SC 595 . 3.1 He next submits that the learned writ Court has erred in relying on the judgment in Chairman, Railway Board and Ors. V/s. C.R. Rangadhamaiah and Ors., 1997 6 SCC 623 , paragraphs 20 and 24. He also submits that the Full Bench judgment of this Court in Ragjawa Narayan Mishra V/s. The Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board and Ors., 2006 1 PLJR 410 is inapplicable to the facts and circumstances of the present case. 4. Learned Counsel for the respondent Board has supported the impugned action. He submits that no discriminatory treatment has been meted out to the petitioner. The Assistant Engineer and the Engineer Assistant belong to two different categories, whose minimum age of entry into service was different, and the impugned clause in the order dated 6.12.1997 (Annenxure-4) has been inserted which has a rational nexus with the object sought to be achieved. They come from two different sources and are dissimilarly circumstanced. In any case, no employee can exceed 58 years of age. He relies on the following reported judgments: (i) Life Insurance Corporation of India and Ors. They come from two different sources and are dissimilarly circumstanced. In any case, no employee can exceed 58 years of age. He relies on the following reported judgments: (i) Life Insurance Corporation of India and Ors. V/s. S.S. Srivastava and Ors., , AIR 1987 SC 1527; (ii) State of West Bengal and Ors. V/s. Gopal Chandra Paul and Ors., , AIR 1996 SC 547 , paragraph 4. 4.1 He next submits that the petitioner had joined the service when the retirement age for the employee was 55 years, which was later on enhanced to his benefit to 58 years. He next submits that the petitioner has not been deprived of the benefits of past service(s). He also submits that the retirement age with detailed terms and conditions about retirement of different categories is essentially a matter of policy and can be interfered with only on limited grounds. He relies on the following reported judgments: (i) K. Nagaraj and Ors. V/s. State of Andhra Pradesh and Anr., AIR 1985 SC 551 ; (ii) Osmania University V/s. V.S. Muthurangam and Ors., AIR 1997 SC 2758 ; (iii) State of Punjab and Ors. V/s. Ram Lubhaya Bagga, AIR 1998 SC 1703 . 4.2 He lastly submits that the petitioner has entered into the service at the age of 19 years and 6 months, in a situation when the minimum age of entry into service was 21 years. Having taken the advantage then, he cannot raise the grievance at the stage of retirement by claiming benefits at both ends. 5. We have perused the materials on record and considered the submissions of learned Counsel for the parties. We must first of all deal with the petitioners grievance of discriminatory treatment. The factual position is that the petitioner had joined the services of the Board as an Assistant Engineer, a gazetted post, in a situation when 55 years was the age of superannuation, and 21 years was the minimum age for entry into the service. It is correct to state that the advertisement (Annexure-1) did not incorporate that 21 years was the minimum age of entry into the service, though it did mention that 28 years was the maximum age for entry. It is another matter that the petitioner had entered into the service at the age of 19 years and 6 months. It is correct to state that the advertisement (Annexure-1) did not incorporate that 21 years was the minimum age of entry into the service, though it did mention that 28 years was the maximum age for entry. It is another matter that the petitioner had entered into the service at the age of 19 years and 6 months. We are not finding fault with the petitioners pre-mature entry into service because it may have been for various reasons. For example, it is a possible situation that the Board had just been created and it may be finding it difficult to get competent Engineers to man the posts. Surely no fraud, misrepresentation or the like has been attributed to him. In this background, it appears to us that the petitioner has failed to realise that he got advantage of the situation by pre-mature entry into service and was also benefited by subsequent enhancement of the retirement age to 58 years. 6. This was followed by the Circular dated 9.9.1997 (Annexure-3), whereby another condition was inserted in the terms and conditions of service of the category of employees of the petitioner to the effect that "...An officer who has completed service of 37 years under the Board and has attained the age of 58 years, whichever is earlier, shall be made to retire from Boards service...". The petitioner does not raise any grievance about the insertion of this condition. He, however, raises the grievance, and has tried to set up a case of discriminatory treatment, allegedly brought about by the aforesaid notification dated 6.12.1997 (Annexure-4). We shall discuss Annexure-4 hereinafter. Such service conditions have to be taken as a whole. Law is well settled that terms and conditions of service can always be altered to the prejudice of the employees, so long it is uniformly applicable to the group of employees. Reference may be made to the judgment of the Supreme Court in K. Nagaraj V/s. State of Andhra Pradesh (supra). That was a case where the Government of Andhra Pradesh had reduced the age of retirement of its employees from 58 years to 55 years and was upheld by the Supreme Court. 7. Reference may be made to the judgment of the Supreme Court in K. Nagaraj V/s. State of Andhra Pradesh (supra). That was a case where the Government of Andhra Pradesh had reduced the age of retirement of its employees from 58 years to 55 years and was upheld by the Supreme Court. 7. On the other hand, the other category of employees in relation to whom the grievance of discriminatory treatment is raised had started as Engineer Assistant, commonly known as Overseers and were in the non-gazetted rank, whose minimum age of entry into service was 18 years. Those of such Engineer Assistants who were in due course promoted to the rank of gazetted officers and formed a common cadre with the category of officers like the petitioner. In other words, the two joined the cadre of gazetted officers from two different cadres/streams/sources and ultimately merged into one, which means that they were from altogether different background and different terms and conditions of service. The minimum age of entry into service for them was 18 years, the minimum educational qualifications were lesser, and were lower in status. They were non-gazetted employees (workmen in the Board) and their age of superannuation was 58 years which was later on raised to 60 years (vide Regulation 78 of the Board). The relevant portion of the impugned notification (Annexure-4) has already been reproduced in paragraph 2.2 hereinabove. 7.1 The petitioner thus raises a grievance that once the two categories of employees merged into a common category of gazetted officers, then it is no longer open to the Board to treat them differently. In other words, in the submission of the petitioner, the petitioner could complete 37 years of service but had to retire before completing 58 years of age. On the other hand, the category of employees governed by Annexure-4 are in an advantageous position. They started earlier (although in the lower category of workmen) and would be in harness for a longer duration. It appears to us that the two categories of employees are dissimilarly circumstanced and cannot, therefore, be similarly treated. The Supreme Court has observed in its pronouncements that the category of employees who started at a lower level can be given extra benefit treating them differently. In fact, it can be part of a policy decision to treat them differently. It appears to us that the two categories of employees are dissimilarly circumstanced and cannot, therefore, be similarly treated. The Supreme Court has observed in its pronouncements that the category of employees who started at a lower level can be given extra benefit treating them differently. In fact, it can be part of a policy decision to treat them differently. The petitioner does not seem to realise that no employee who started service in the Board in the cadre of officers can continue beyond 58 years of age. The Supreme Court has observed as follows in its judgment in the case of Life Insurance Corporation of India and Anr. V/s. S.S. Srivastava and Ors., AIR 1987 SC 1527 : Having regard to the lower emoluments and other benefits which the employees belonging to Class III and Class IV are entitled to get from the Corporation and the higher emoluments and other benefits to which officers belonging to Class I and Class II are entitled and also the nature of their work and the powers enjoyed by them we are of the view that fixation of different ages of retirement to the different classes of employees would not by itself be violative of Articles 14 and 16 of the Constitution. In Tejinder Singh V/s. Bharat Petroleum Corporation Ltd., 1986 4 SCC 237 this Court has observed at p. 239 (of SCC): (at p.52 of AIR) thus: Thus Court in Workmen V/s. Bharat Petroleum Corporation Ltd., AIR 1984 SC 356 directed the retirement age of the clerical staff of the Refinery Division of respondent 1 to be fixed at 60 years. Petitioners have contended that the disparity in the age of retirement between two groups of employees gives rise to discriminatory treatment. This stand is not tenable for more than one reason. Clerical staff and officers of the management staff belong to separate classifications and no argument is necessary in support of it. Petitioners have not contended and perhaps could not legitimately contend, that the two classes of officers stand at par. In the Workmen case itself, this Court did not extend the benefit of superannuation at the age of 60 to all clerical staff but limited the same to that category of employees working in the Refinery Division, Bombay. Petitioners have not contended and perhaps could not legitimately contend, that the two classes of officers stand at par. In the Workmen case itself, this Court did not extend the benefit of superannuation at the age of 60 to all clerical staff but limited the same to that category of employees working in the Refinery Division, Bombay. Classification on the basis of reasonable differentia is a well known basis and we are of the view that the petitioners are not entitled in the facts of the case to seek support from Article 14 for their claim. 7.2 It appears from paragraph 6 of the counter affidavit that the Board was faced with the problem of continuance of employees beyond 37 years in the case of officers, and beyond 42 years in the case of workmen. It was found that though several officers had already completed 37 years but had not attained 58 years of age. The problem was bigger in the cases of workmen who were continuing in service beyond 42 years of service. This was creating a lot of problems in the Board. Therefore, Annexures 3 and 4 were issued as a policy decision to solve this problem. 7.3 We are, therefore, of the view that the regulation which has given a shorter length of service to the category of employees of the petitioner in contradistinction to the other category who initially started on a non-gazetted post is based upon valid classification and has a rational nexus with the object sought to be achieved. 8. Learned Counsel for the respondents has relied on the judgment of the Supreme Court in Life Insurance Corporation of India and Anr. v/s. S.S. Srivastava and Ors. (supra). That was a case where 16 officers working in the Insurance Department of the Government had joined the Corporation on need being felt that their services were required by the Corporation. Before their services were taken over by the Corporation, their age of retirement was fixed at 60 after negotiations, though the retirement age of the employees directly recruited by the Corporation was fixed at 58. The Supreme Court held that fixation of retirement age at 60 years of the 16 officers from the Government of India was not open to challenge by those directly recruited by the Corporation after its formation whose retirement age was fixed at 58. The Supreme Court held that fixation of retirement age at 60 years of the 16 officers from the Government of India was not open to challenge by those directly recruited by the Corporation after its formation whose retirement age was fixed at 58. There was no similarity between the two groups. It was further observed that judicial notice can be taken of different ages of retirement in several services in the country and that in almost all the public sector corporations, central service and the State service, 58 years of age was considered to be a reasonable age at which officers can be directed to retire from their service. It was, therefore, concluded that fixation of different ages of retirement for Class III and Class IV employees on the one hand, and Class I and II Officers, on the other, by itself is not violative of Articles 14 and 16. The ratio of the judgment fully supports the case of the respondents. 8.1 Learned Counsel for the respondents has next relied on the judgment of the Supreme Court in State of West Bengal and Ors. V/s. Gopal Chandra Paul and Ors. (Supra), wherein it has been held that different age of superannuation can be prescribed for the inspecting staff and the teaching staff in the same department, even though the Supreme Court noticed the factual position that stray cases of transfer from the teaching staff to the Inspecting staff and the posts were even interchangeable, notwithstanding which different ages of retirement were permissible. The judgment supports the case of the respondents. 8.2 The respondents have also relied on the judgment of the Supreme Court in the case of K. Nagaraj V/s. State of A.P. (supra). Relevant extracts from those observations are set out hereinbelow: Inevitably, the public administrator has to counterbalance conflicting claims while determining the age of superannuation. On the one hand, public service cannot be deprived of the benefit of the mature experience of senior employees; on the other hand, a sense of frustration and stagnation cannot be allowed to generate in the minds of the junior members of the services and the younger sections of the society. The balancing of these conflicting claims of the different segments of society involves minute questions of policy which must, as far as possible, be left to the judgment of the executive and the legislature. The balancing of these conflicting claims of the different segments of society involves minute questions of policy which must, as far as possible, be left to the judgment of the executive and the legislature. These claims involve considerations of varying vigour and applicability. Often, the Court has no satisfactory and effective means to decide which alternative, out of the many competing ones, is the best in the circumstances of a given case. 8.3. That was a case where the Government of Andhra Pradesh had reduced the age of its employees from 58 years to 55 years on the basis of the recommendation of a Commission that this will create new avenues of employment for the youth which was an integral part of any policy governing the fixation of retirement age. The same surely did not involve the question of discriminatory treatment. The Supreme Court observed that the action of the authorities was neither arbitrary nor irrational, and was in fact actuated and influenced by the valid consideration. It was also stated that indeed this is a matter of policy decision and was upheld. In other words, the judgment from one angle supports the respondents case that fixation of retirement age is essentially a policy decision and should not normally be interfered with. 9. I must now deal with the judgments relied on by learned Counsel for the petitioner. He has first of all relied on the judgment of the Supreme Court in Punjab State Electricity Board, Patiala and Anr. V/s. Ravinder Kumar Sharma and Ors. (supra). That was a case where out of a combined seniority list comprising persons holding different qualifications (Diploma-holders and Non-Diploma holders), it was held that no discrimination can be made amongst them by fixing quota based on qualifications. Such fixation of quota resulting in supersession of eligible non-Diploma holders by Diploma holders in promotion was held illegal, arbitrary, and discriminatory, and being violative of Articles 14 and 16. The judgment related to issues relating to promotion and is of no help in determining the issue in hand. 9.1 Learned Counsel for the petitioner next relied on the judgment of the Supreme Court in Food Corporation of India V/s. Om Prakash Sharma and Ors. (supra). The judgment related to issues relating to promotion and is of no help in determining the issue in hand. 9.1 Learned Counsel for the petitioner next relied on the judgment of the Supreme Court in Food Corporation of India V/s. Om Prakash Sharma and Ors. (supra). The same discussed issues similar to the judgment in Punjab State Electricity Board V/s. Ravinder Kumar Sharma (supra), and is for the same reason inapplicable to the facts and circumstances of the present case. 9.2. Learned Counsel for the petitioner has also relied on the judgment of the Supreme Court in K.R. Lakshman and Ors. V/s. Karnataka Electricity Board and Ors. (Supra). That was a case where the respondent Board had amended the regulation providing ratio of 1:1 between technically qualified direct recruits and technically unqualified (promotees) persons as against 35% quota available to them. Classification was made to ameliorate stagnation of technically unqualified promotees. It was held that it did not result in discriminatory treatment and was not violative of Article 14. The judgment once again deals with a different proposition and does not appear to us to be relevant in the present context. 10. On a review of the judgments cited by the learned Counsel for the parties, it appears to us that the impugned decision of the respondent authorities is meant to govern two different streams of employees constituting the category of officers. One started on a non-gazetted post, and the another started on a gazetted post. Insertion of condition of 40 years and 37 years respectively for them is a matter of policy and was made to tide over the crisis in the Board and has a rational nexus with the object sought to be achieved. The Board was faced with the problem that many of the employees of the former category were working beyond 42 years of service. It was similarly noticed that officers of the latter category had completed 37 years of service but had not attained 58 years of age. 18 years of age is the minimum age of entry for the former, and 21 years for the latter. Annexures 3 and 4 were, therefore, issued to solve this problem. We are, therefore, of the view that the classification of the two groups/streams, although they have merged into one common cadre at a later stage, is based on valid classification with a rational object to be achieved. Annexures 3 and 4 were, therefore, issued to solve this problem. We are, therefore, of the view that the classification of the two groups/streams, although they have merged into one common cadre at a later stage, is based on valid classification with a rational object to be achieved. The contention advanced by learned Counsel for the petitioner as to discriminatory treatment is hereby rejected. 11. Retirement age is a matter of policy and the Courts should normally not interfere with the same unless it is arbitrary, irrational or in violation of the Constitutional norms. We do not find any justification to interfere with the policy decision which has taken care of a vexed problem in the Board, and is the best Judge to find out a reasonable and practical solution. The Supreme Court has held in Osmania University V/s. V.S. Muthurangam and Ors. (Supra) that fixation of retirement age is essentially a matter of policy and is framed on the basis of the "felt need of the administration". 12. The petitioner had entered into service at a point of time when the retirement age was 55 years of age which was later on enhanced to his advantage to 58 years, and one condition was attached to it by Annexure-3 that every officer who started as a gazetted officer shall retire on completion of 37 years of service or 58 years of age, whichever is earlier. The petitioner indeed does not challenge the validity of Annexure-3. Therefore, he must take the entire package of terms and conditions of service as a whole and not on pick and choose basis. He only alleges discriminatory treatment on account of Annexure-4 which has been rejected hereinabove. Furthermore, the petitioner entered into service when he was only 19 years and 6 months and at a point of time when the minimum age of entry into service was 21 years. If he had been appointed at the age of 21 years or thereafter, he would not have remained in service for more than 37 years, because he would have retired on attaining 58 years of age leaving no grievance to the petitioner. The petitioner fails to realise that no employee of his stream can exceed 58 years of age. 13. If he had been appointed at the age of 21 years or thereafter, he would not have remained in service for more than 37 years, because he would have retired on attaining 58 years of age leaving no grievance to the petitioner. The petitioner fails to realise that no employee of his stream can exceed 58 years of age. 13. Learned Counsel for the respondents has relied on the Full Bench judgment of this Court in Ragjawa Narayan Mishra V/s. The Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board and Ors. (supra), paragraphs 8, 9 and 17 of which speak for themselves and are reproduced hereinbelow for the facility of quick reference: 8. Thus, the entry age in service of the petitioner of the first writ petition is 16 years, 5 months and 19 days, whereas, in second writ petition the age of the petitioner is 17 years, 6 months and 1 day. It is, therefore, an admitted fact that both the petitioners got entry into employment of the respondent Board before attaining the age of majority. 9. There is no dispute about other aspects that both the petitioners were directed to be superannuated by the impugned orders in both the writ petitions on completion of the service period of 40 years, and not the superannuation age of 58 years which has been raised as a grievance by both the petitioners by knocking the door of justice by invocation of the provisions and filing these two writ petitions under Article 226 of the Constitution of India. ... 17. Thirdly, it is settled and established proposition of law and principles of jurisprudence that a person who takes undue advantage by one or other reasons at the entry point in the service cannot be allowed to urge that he be given higher benefit and if it is urged then, clearly, it goes to show that something wrong or irregular has been done, at the entry point, in service. So the settled principle, also creates a very strong impediment in getting the relief from this Court which is exercising extraordinary, prerogative, equitable and discretionary writ jurisdiction by invocation of the provision of Article 226 of the Constitution of India. 14. So the settled principle, also creates a very strong impediment in getting the relief from this Court which is exercising extraordinary, prerogative, equitable and discretionary writ jurisdiction by invocation of the provision of Article 226 of the Constitution of India. 14. Learned Counsel for the respondents is right in his submission that the petitioner has not been deprived of the benefits of past services, and would not have gained more by way of post-retirement benefits even if the clause had stipulated, "37 years of service or 58 years of age, whichever was later". 15. By order dated 25.6.1999, passed in the instant writ petition, the petitioner was allowed to continue beyond 37 years of service with his undertaking to refund the entire salary and emoluments if the writ petition fails. The relevant portion of the order is reproduced hereinbelow: ...But this Court makes it very clear that whatever pay and emoluments the petitioner receives as a result of this order is conditional. The petitioner who is present in Court undertakes through the counsel that in the event the writ petition fails, in that case, the petitioner undertakes to refund the entire pay and emoluments, which he receives as a result of continuance of this interim order. 16. By order dated 2.12.1999, passed in the present appeal, recovery of excess payment of salary beyond 37 years of service was stayed until further orders. In view of dismissal of the writ petition and the present appeal, the petitioner shall refund the entire salary and emoluments received by him for having functioned beyond 37 years of service. 17. In the result, we agree with the judgment of the learned Single Judge. We do not find any merit in this appeal and is accordingly dismissed. In the circumstances of the case, however, there shall be no order as to costs. Kishore K.Mandal, J. 18 I agree.