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2019 DIGILAW 669 (CAL)

Nilmoni Roy v. Union of India

2019-06-26

AMRITA SINHA

body2019
JUDGMENT : 1. The petitioner is a member of the Border Security Force (BSF). He joined service on 9th April, 1984. He is due to retire from service with effect from 30th June, 2019 on attaining his age of superannuation on completion of 57 years. 2. According to Rule 12 of the BSF Group "A" (General Duty Officers) Recruitment Rules 2001, as amended, the age of superannuation of the officers holding posts higher than that of a rank of Commandant is 60 years and for the officers of other ranks the age of retirement is 57 years. The aforesaid age of retirement is the same in case of the other Central Allied Police Forces (CAPFs) governed under the corresponding Acts and Rules. 3. The members of CAPFs felt aggrieved by the difference in the age of superannuation amongst the members of the same Force. Several writ petitions were filed before the Hon'ble High Court at Delhi with a prayer that the retirement age of the members of CAPFs up to the rank of Commandant which was fixed at 57 years be enhanced to 60 years to be at par with the officer above the rank of Commandant. Generally speaking, the prayer was for a uniform age of retirement for all members of the Force. 4. On 31st January, 2019 the Hon'ble High Court at Delhi passed a common judgment in the matter of Dev Sharma vs Indo Tibetan Border Police & Anr. along with other similar matters and disposed of the writ petitions inter alia holding that fixing separate age of retirements is unconstitutional and accordingly struck down the same. Consequently Rule 12 of the BSF (General Duty Officers) Recruitment Rules 2001 was also struck down. The Court held that the same was discriminatory and violative of Articles 14 and 16 of the Constitution. 5. The Court directed that unless the said judgment is further challenged, the respondents shall implement the same across the Board to all members of the CAPFs without insisting on each of them approaching the Court for identical relief. 6. The Court further directed that the Ministry of Home Affairs in consultation with the CAPFs will take all consequential steps for implementation of the judgment including arriving at a decision as regards the retirement age which will be uniform for all members of CAPFs irrespective of their rank bringing all of them at par. 6. The Court further directed that the Ministry of Home Affairs in consultation with the CAPFs will take all consequential steps for implementation of the judgment including arriving at a decision as regards the retirement age which will be uniform for all members of CAPFs irrespective of their rank bringing all of them at par. The Court fixed a time limit of four months for implementation of the judgment. 7. The Court observed that the judgment will not have the effect of reinstatement of the employees who have already retired. However, for the purpose of calculation of retirement benefits including pension and gratuity the differential period (in the event of enhancement of retiral age) will be added to the period of service actually rendered by each of them. 8. Being aggrieved by the aforesaid judgment the Union of India preferred a Special Leave Petition before the Hon'ble Supreme Court which stood dismissed by an order dated 10th May, 2019. The time period to implement the aforesaid judgment expired on 31st May, 2019. 9. The petitioner has also annexed copy of the order dated 27th May, 2019 passed by the Delhi High Court in the matter of Sh. P.V. Girivasan & Ors. vs Union of India & Ors. Wherein the Court held that the petitioner was entitled to the similar relief as passed in the case of Dev Sharma (supra). The Court directed that the employee shall not superannuate on attaining the age of 57 years. The Court stayed the superannuation date of the petitioner till the respondents take a decision in terms of the judgment passed in the case of Dev Sharma (supra) or till the petitioner attains the age of 60 years or till the disposal of the writ petition whichever is earliest. The petitioner has annexed several orders passed by the Madras High Court in similar matters directing the employee concerned to continue in service. 10. The petitioner has drawn attention of the Court to a communication dated 26th April, 2019 made on behalf of the Deputy Inspector General, SHO BSF Kolkata to the Head Quarters, SB, FTR (Pers) Branch forwarding the copy of the orders passed by the different High Courts in similar matters relating to increase of retirement age upto 60 years. Copy of the said letter was forwarded to the 179 Battalion, BSF (Estt. Copy of the said letter was forwarded to the 179 Battalion, BSF (Estt. Branch) wherein it has been mentioned that no order for the increase of the retirement age from 57 years to 60 years has been received by the Government. The officer may be informed that he will retire at the age of 57 years till any order is received by the Government of India. 11. The petitioner has also annexed copy of the Office Memorandum dated 31st May, 2019 issued by the Legal Officer-I, Ministry of Home Affairs which mentions that the petitioners who have obtained the interim stay order of the age of superannuation may be allowed to provisionally continue in service subject to a decision taken by the Ministry. It further mentioned that a review petition has been filed by the Union of India before the Hon'ble Supreme Court in connection with the SLP and implementation of order of the Hon'ble Court may be subject to a final decision of the said review petition. Incompliance of the order of the Ministry the employee has been allowed to continue provisionally beyond his superannuation age of 57 years subject to the final decision taken by the Ministry. The petitioner submits that he stands in the same footing and is entitled to similar relief. He prays for enhancement of his age of retirement in terms of the order passed by the Hon'ble Delhi High Court in the case of Dev Sharma (supra). 12. The learned counsel appearing on behalf of the respondent Union of India submits that the same Bench which passed the order in the case of Dev Sharma, (supra) by a subsequent order dated 4th February, 2019 in the matter of Ram Chander Kasania & Anr. vs Union of India & Ors. has passed order in respect of superannuated employees wherein the Court directed the respondents to continue issuing PPOs as and when they superannuate on the basis of the Rules as they stood prior to the judgment. vs Union of India & Ors. has passed order in respect of superannuated employees wherein the Court directed the respondents to continue issuing PPOs as and when they superannuate on the basis of the Rules as they stood prior to the judgment. The Court directed that in the event the respondents decide to implement the judgment by fixing the uniform age of superannuation at 60 years or any age beyond 57 years, then depending on the date from which the change will take effect, the direction of the Court in paragraph 72 of the judgment of Dev Sharma would not have the effect of reinstatement of those who have already retired, and the same would not come in the way of the respondents deciding to reinstate such of those members who would not have reached the uniform age of superannuation as determined. The respondents will issue appropriate consequential orders at that stage. The learned counsel for the respondents also relies upon two unreported orders dated 20th December, 2018 and 21st December, 2018 passed by the learned Single Judge of this Court in similar matters wherein the Court directed the parties to exchange affidavits and fixed the matter for hearing. The Court made it clear that in the event the petitioner succeeds in the writ petition he will be deemed to be in service even after 31st December, 2018 till the extended age of superannuation. 13. It has been submitted that recovery of money from a superannuated employee may not be feasible in the event the writ petition fails or the review application of the Union succeeds before the Supreme Court. 14. From the submissions advanced by the parties and the documents relied upon by them it appears that the issue in question is presently under consideration before the Ministry of Home Affairs. The formal decision to extend the age of superannuation by way of implementation of the direction passed by the Hon'ble Delhi High Court in the matter of Dev Sharma (supra) is waiting. The SLP filed against the said judgment has been dismissed. The time to implement the said judgment has expired on 31st May, 2019. No order has yet been passed in the review petition filed in connection with the SLP. The BSF has allowed one of its employees to continue provisionally beyond the superannuation age of 57 years. The SLP filed against the said judgment has been dismissed. The time to implement the said judgment has expired on 31st May, 2019. No order has yet been passed in the review petition filed in connection with the SLP. The BSF has allowed one of its employees to continue provisionally beyond the superannuation age of 57 years. By dismissing the SLP the Supreme Court affirmed the judgment passed in the case of Dev Sharma (supra) and as such the order passed in the case of Ram Chander Kasania (supra) will have less persuasive value. Moreover, the order in the case of Ram Chander Kasania (supra) was passed in respect of the employees who had already retired from service. In the case at hand the petitioner is still in service. 15. The Delhi High Court yet in another similar case (Sashi Kant Chaturvedi & Anr. -vs- Union of India & Ors.) Passed order as recently as on 10th June, 2019 in tune with the judgment passed in the case of Dev Sharma (supra). 16. I agree with the order passed by the learned Judge of this Court considering similar matters that the issue cannot be decided without exchange of affidavits. The respondents are directed to file their affidavit in opposition within a period of six weeks, reply if any, be filed within two weeks thereafter. 17. Let the matter appear in the list after completion of affidavits. However as an interim measure, I direct that there will be stay of the age of superannuation of the petitioner who is due to retire on 30th June, 2019 on attaining 57 years of age till the petitioner attains the age of 60 years or till the date of disposal of the present writ petition whichever is earlier. 18. It is made clear that in case the writ petition fails and/or in the absence of any formal order of extension of the age of superannuation by the Ministry of Home Affairs, the petitioner will not be entitled to claim any retiral benefit including pension and gratuity beyond his notified date of superannuation i.e. 30th June, 2019. 19. The aforesaid interim order is passed keeping in mind that the petitioner is still in service. 19. The aforesaid interim order is passed keeping in mind that the petitioner is still in service. In case, the employee is made to retire by the time the Ministry takes a decision to raise the age of superannuation, then, instead of extending service benefit(s) to the employee by treating him to be in deemed service without actually obtaining any service from him, it is always better that the employee is made to serve and paid for the service rendered by him. Similarly, if the review petition of the respondents succeed before the Supreme Court and the age of superannuation remains unaltered, then the employee will not be entitled to claim any retiral benefits on account of his extended period of service. In this way an equitable balance of both the parties may be maintained in the interregnum. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.