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2016 DIGILAW 1263 (JHR)

Ram Lakhan Shah v. State of Jharkhand

2016-08-12

ANANDA SEN

body2016
JUDGMENT : Ananda Sen, J. The petitioner, in this writ application, has prayed for a mandamus directing the respondents to enhance the age of superannuation from 58 years to 60 years, in respect of the employees of the Jharkhand Area Lift Irrigation Corporation (herein after referred to as ' JHALCO'). He further prays to quash letter dated 07.12.2006, by which he was informed that he will superannuate w.e.f. 31.12.2006. 2. In the undivided State of Bihar, Bihar Hill Area Lift Irrigation Corporation Ltd. (hereinafter to be referred to as 'BHALCO'), was a Government of Bihar undertaking, a Company, registered under the Companies Act, 1956. The object of BHALCO was to promote water resources to the cultivators in the hilly area of Chotanagpur and Santhal Pargana. The headquarter of BHALCO was at Ranchi. 3. This petitioner was working in BHALCO as an “Amin”. After reorganization of the State of Bihar, the newly formed State of Jharkhand in its Cabinet meeting approved the proposal for establishing JHALCO. 4. JHALCO was established as a Company, registered under the Companies Act. The services of the employees of erstwhile BHALCO was taken over by JHALCO. The petitioner opted to join in JHALCO and his joining was duly accepted. 5. The Government of Jharkhand vide its resolution no. 5836 dated 20.10.2004, enhanced the age of superannuation of its employees from 58 years to 60 years. 6. The petitioner claims, that, pursuant to the said resolution of the Government of Jharkhand, several Government undertakings, had enhanced the age of superannuation, of their employees from 58 years to 60 years, but JHALCO, which is also an undertaking of the State of Jharkhand, has not extended the said benefit to its employees. The petitioner was informed vide letter dated 07.12.2006 that he will retire, after completing 58 years of age, w.e.f. 31.12.2006. Aggrieved by the said letter dated 07.12.2006, by which the petitioner was informed that he would superannuate w.e.f. 31.12.2006, the petitioner has preferred this writ application, not only praying for quashing the said letter, but also seeking mandamus directing the respondents to enhance the age of superannuation from 58 years to 60 years. 7. Counsel for the petitioner submits that the State Government has enhanced the age of superannuation of its employees, from 58 years to 60 years. 7. Counsel for the petitioner submits that the State Government has enhanced the age of superannuation of its employees, from 58 years to 60 years. He submits that since JHALCO is an undertaking of the State Government, so the employees of JHALCO should have been extended the same benefit of enhancement of the age of superannuation. He further submits that Jharkhand State Mineral Development Corporation, which is also an undertaking of the State, has enhanced the age of superannuation of its employees. Thus, the petitioner along with other employees of JHALCO should be entitled to get the same treatment. He further points out before this Court that Urban Development Department, Government of Jharkhand, has resolved that the age of superannuation of employees of all Municipalities and the employees of Notified area Committees will be enhanced from 58 years to 60 years. The petitioner seeks parity with those employees. 8. JHALCO, by filing a counter affidavit, has opposed the writ application. It is stated that JHALCO is an independent Company, and it is floated and formed for being run as a commercial Organization. The Board of Director of the said Company takes independent decision in respect of the policy matter of the Company. It has been submitted, that the Board of Directors, in its meeting dated 27.06.2007 had taken a decision to enhance the age of superannuation of its employees, from 58 years to 60 years, but it was decided to implement the said enhancement w.e.f. 01.07.2007. Copy of the resolution has been brought on record. He further submits that since a decision has been taken to enhance the age of superannuation from 58 years to 60 years w.e.f. 01.07.2007, the petitioner cannot derive any benefit as he already stood superannuated w.e.f. 31.12.2006. It has been further mentioned that such decision, to enforce the enhanced age of superannuation w.e.f. 01.07.2007, was based on financial assessment of the Corporation. It is pleaded that the service conditions of the employees of JHALCO are guided by its own rule and the decision of the Board of Directors of JHALCO. Thus, service conditions of the employees of JHALCO are not the same as that of the State Government employees. 9. I have heard the counsel for the parties and have gone through the pleadings. Thus, service conditions of the employees of JHALCO are not the same as that of the State Government employees. 9. I have heard the counsel for the parties and have gone through the pleadings. The prayer of the petitioner is that the age of superannuation of the employees of JHALCO should be revised from 58 years to 60 years, which in fact, has been accepted by the JHALCO, but, with effect from 1.7.2007. The petitioner is aggrieved by the date of implementation, as he superannuated before the cut-off date, on attaining the age of 58 years. 10. JHALCO is a Company incorporated under the Companies Act and has a Board of Directors. The said Company is an independent Company. The service conditions of the employees of JHALCO is different, than that of the service conditions, of the employees of the State of Jharkhand. The employees of JHALCO are getting benefit of pay and allowances according to the Rules and service conditions framed by the JHALCO. JHALCO in its meeting of the Board of Directors have decided to enhance the age of superannuation from 58 years to 60 years w.e.f. 01.07.2007. The reason as to why the said decision, was effective from 01.07.2007 has been put forward in the minutes of the meeting dated 27.06.2007. It has been mentioned that the said decision has been taken after evaluating the financial position of the company in the first quarter of the financial year 2007-2008. This clearly suggests that only after assessing the financial position of the Company a conscious decision has been taken by the Board of Directors to enhance the age of superannuation of the employees from 58 years to 60 years with effect from 1.7.2007. 11. The Hon'ble Supreme Court in the case of Sureshchandra Singh and others V. Fertilizer Corporation of India Limited and others, reported in (2004) 1 SCC 592 , has held that application of a decision to enhance the age of superannuation in terms of Government Policy, in respect of employees of public sector enterprises is dependent upon so many factors that are to be taken into account, in the light of the peculiar characteristics of each company or corporation department. 12. 12. In the case of Fertilizer Corporation of India Limited (supra), the Central Government took a policy decision to increase retirement age of Central Government employees and the said benefit was sought for by the employees of Fertilizer Corporation of India Limited. Fertilizer Corporation of India Limited declined to raise the age of superannuation of its employees on the ground that the company is one of the highest loss making company, in the country and the financial condition of the Company is bad and even there is no capacity to pay the salaries of the employees. Considering the position, the Hon'ble Supreme Court has held that a public sector enterprises take its own decision, which is dependent on the many factors like financial viability etc. After considering the entire issue the Hon'ble Supreme Court has held that there is no illegality on the part of the Fertilizer Corporation in not enhancing the age of superannuation. The Hon'ble Supreme Court further held that the employees of one Public Sector Corporation could not be treated as alike the others, since every Corporation will have to take into account, their separate circumstances, so as to formulate its own policy. Hon'ble Supreme Court further held that the argument of discrimination of the appellants vis-a-vis employees of other corporation cannot be accepted. 13. Applying the said principles, I find that the petitioner is seeking parity with that of the employees of other Corporation of the State of Jharkhand and with the employees of the State of Jharkhand. Since JHALCO is a separate Company, they are governed by their own policy formulated by the Board. JHALCO has to take a decision after taking into consideration their own financial viability while implementing a particular policy. JHALCO while enhancing the age of superannuation, had decided to implement the same w.e.f. 1.7.2007. The said cut-off date was fixed after taking into consideration the financial position of JHALCO in the first quarter of the financial year 2007-2008. JHALCO is an independent body to take a decision after taking into consideration the factors, which is prevalent in the company. 14. In these circumstances, the theory of discrimination will not be applicable in the case of the petitioner. Each Public Sector undertaking is an independent body/entity and is free to have its own service conditions as per law. JHALCO is an independent body to take a decision after taking into consideration the factors, which is prevalent in the company. 14. In these circumstances, the theory of discrimination will not be applicable in the case of the petitioner. Each Public Sector undertaking is an independent body/entity and is free to have its own service conditions as per law. Employees of different corporations would not be treated alike, since, every Corporation have to take into account their respective separate circumstances while formulating or adopting a policy. Thus, argument of discrimination raised by the petitioner vis-a-vis the employees of several other Corporation cannot be accepted. 15. Since the cut-off date to enhance the age of superannuation with effect from 1.7.2007 has been taken after evaluating the financial condition of the Company, I find no illegality has been committed by the JHALCO. Further the petitioner cannot claim parity, with employees of other Corporation or with that of the State also. 16. Thus, I find no merit in this writ application. The same is dismissed. Application dismissed.