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2023 DIGILAW 291 (JHR)

Kanahayia Mishra v. State of Jharkhand

2023-03-03

S.N.PATHAK

body2023
JUDGMENT : S.N. Pathak, J. Heard the parties. 2. Petitioners have approached this Court with a prayer for direction upon the respondents to consider the age of superannuation of petitioners, who are Class-III and IV employees as 62 years in terms of the rules under which the present petitioners were appointed, in view of the fact that the present petitioners were appointed in the year 1972 and as per the Statutes of Ranchi University their age of retirement would be 62 years and they are appointed prior to the commencement of the Bihar State University Act, 1976. 3. As per the factual matrix, the petitioners were appointed initially in the year 1972 against the sanctioned vacant post after following due procedure of law and thereafter, their services were confirmed from the respective date of their joining by way of notification dated 22.02.1994 (Annexure-1) issued by the respondent. It is the case of the petitioners that at the time of their appointment, Bihar State University Act, 1976 was not incorporated and hence, they were guided by a Statute known as the Ranchi University Statutes. The other terms and conditions of service was determined by the said rules and Rule 223 specifically provides that the age of superannuation would be 62 years. However, the respondent-authorities have not considered the same and as such, the petitioner preferred representation before but till date no order has been passed and hence, the petitioners have been constrained to knock the door of this Court. 4. Mr. Vishal Kumar Trivedi, learned counsel for the petitioners submits that the service condition of the present petitioners cannot be changed in contravention to Statues of the Ranchi University prevalent at the relevant time. Learned counsel further submits that University Act was incorporated in the year 1976 and hence, the employees appointed prior to 1976 would not be guided by the Ranchi University Act. Learned counsel further argues that at the time of appointment, the present petitioners were guided by the Ranchi University Code which provides that the age of superannuation would be 62 years and subsequently, the same cannot be altered to the disadvantage of the employees. Learned counsel further argues that at the time of appointment, the present petitioners were guided by the Ranchi University Code which provides that the age of superannuation would be 62 years and subsequently, the same cannot be altered to the disadvantage of the employees. Learned counsel further argues that Section-67 of the Jharkhand State University Act, 2000 should not affect the accrued right and benefit already available to the present petitioners under the Bihar State University Act, 1976 as well as services statutes under the Act which has been duly adopted by the State of Jharkhand and the same is arbitrary and discriminatory and violative of the rights guaranteed by Articles 14 and 16 of the Constitution. 5. Per contra, counter-affidavit has been filed. Learned counsel appearing for the respondent-State vehemently opposes the contention of learned counsel for the petitioners and submits that from the date of promulgation of the Bihar State Universities Act, 1976, the service conditions including the age of retirement of the University’s Employees are being guided by the provisions made in the Bihar State Universities Act, 1976. After bifurcation of the States and creation of new State i.e. State of Jharkhand, the service conditions including the age of retirement of the University’s employees are guided by the Jharkhand State Universities Act, 2000. Learned counsel further argues that the State Government is empowered enough to make lawful and proper amendment in Jharkhand State Universities Act, 2000 as it is a State Act. Learned counsel further argues that the age of retirement of the non-teaching employees appointed prior to 1976, have been reduced from 62 years to 60 years in the year 2003 by enforcement of Jharkhand State University (Amendment) Act, 6 of 2003 and the petitioners are challenging the said provisions after lapse of more than 9 years, which is barred by limitation. Learned counsel accordingly submits that there is no merit in the instant writ application and the same is fit to be dismissed. 6. Mr. A.K. Mehta, learned counsel for the respondent-University places heavy reliance on the judgment of this Court passed in case of Jharkhand Rajya Vishwavidyalaya Awam Mahavidyalaya Karamchari Sangh & Anr. Vs. the State of Jharkhand & Ors., reported in 2008 (2) JLJR 165 and submits that issue involved in this case is no more res-integra and the same has been set at rest. Vs. the State of Jharkhand & Ors., reported in 2008 (2) JLJR 165 and submits that issue involved in this case is no more res-integra and the same has been set at rest. In view of the ratio laid down in the said case, the petitioner is not entitled for any relief. 7. Be that as it may, having heard the rival submissions of learned counsel for the parties and upon perusal of the documents brought on record, this Court is of the considered view no interference is warranted in this case. Admittedly, fixation of age of retirement of the employees of the State Government is a policy decision which cannot be interfered by the High Court sitting under Article 226 of the Constitution. However, interference can be made if the policy decision is itself against the Constitutional Mandate and as such, it can be declared ultra-vires by the Court. In the instant case situation is otherwise. 8. Before delving deep into the matter, it would be proper to examine Section-67(a) of Bihar/ Jharkhand State Universities Act, 1976. The legislative history of Section 67(a) of the Bihar State Universities Act, 1976, is as follows:- “(i) The original Section 67(a) reads as under- 67. Retirement from service.- (a) Save as otherwise expressly provided in this Act, the date of retirement of any teaching or non-teaching employee, other than inferior servants, of the University or any College, shall be the date on which he attains the age of sixty years: Provided that such teachers, who do not opt for the pay- scales revised with effect from the 1st day of January, 1973, and such non- teaching employees, who are in the service of University from a date prior to the commencement of this Act, shall retire after attaining the age of sixty-two years; Provided further that no University shall extend the period of service of or re-appoint any teaching or non-teaching employee after his completing the age of 60 or 62 years, as the case may be,” (ii) By Amendment Act, 3 of 1990, Section 67(a) was substituted and after the substitution, the said Section 67(a) reads as under:— “67. Retirement from service.— (a) Save as otherwise expressly provided in this Act, the date of retirement of a teaching employee of the University or of a college with effect from the April, 1986 shall be the date on which he attains the age of 62 years. The date of retirement of non-teaching employee (other than inferior servant) shall be the date on which he attains the age of 60 years, but the date of retirement of such non-teaching employee who is in the service of the University prior to the commencement of this Act, shall be the date on which he attains the age of 62 years; Provided that the University shall, in no case, extend the period of service of any of the teaching or non-teaching employee or reappoint him after he attains the age of 60 or 62 years as the case may be.” (iii) Section 67(a) was again substituted by Act, 17 of 1993 and thereafter, relevant Section 67(a) read as under: 67. Retirement from service.— (a) Notwithstanding anything to the contrary contained in any Act, Rules or any judgment or decree of a Court, the date of retirement of a teaching employee of the University or of a College shall be the date on which he attains the age of sixty years. The date of retirement of non-teaching employee (other than the inferior servants) shall be the date on which he attains the age of sixty years; Provided that the date of retirement of such non-teaching employee, who is in the service of the University prior to the commencement of the Bihar State Universities Act, 1976 (Bihar Act, 23, 1976) shall be the date on which he attains the age of sixty-two years: Provided further that the University shall, in no case, extend the period of service of any of the teaching or non-teaching employee after he attains the age of sixty or sixty-two years, as the case may be: Provided further also that re-appointment of teachers after retirement may be made in appropriate case up to the age of sixty-five years in the manner laid down in the Statutes made in this behalf in accordance with the guidelines of the University Grants Commission. (iv) There was no amendment subsequent to 1993 in Section 67(a), prior to its adoption by the newly created State of Jharkhand. (iv) There was no amendment subsequent to 1993 in Section 67(a), prior to its adoption by the newly created State of Jharkhand. After creation of the State of Jharkhand, the said provision of Section 67(a) was amended by the Jharkhand State Universities (Amendment) Act, 2002 and the amended Section 67 (a) read as under:— In Section 67, for sub-section (a), the following sub-section shall be substituted, namely:— Notwithstanding anything to the contrary contained in any Act, Rules or any judgment or decree of a Court, the date of retirement of teaching and non-teaching employee of the University or of a College shall be the date on which he/she attains the age of sixty years. Provided that appointment of teacher after retirement may be made in appropriate cases up to the age of sixty-five years in the manner laid down in the Statute made in this behalf in accordance with the guidelines of the University Grants Commission. The said Section 67(a) was again amended by the Jharkhand State Universities (Amendment) Act, 2005 and the amended Section 67(a) reads as under:— “Notwithstanding anything to the contrary contained in any Act, Rules or any judgment or decree of a Court, the date of retirement of teachers of University or College and those officers declared equivalent to them by the statute of the University, with effect from the date of notification of this Act in the official Gazette, shall be the date on which he/she attains the age of sixty-two years; the date of retirement of non-teaching employee shall be the date on which he/she attains the age of sixty years”. 9. The arguments of learned counsel for the petitioner that once right has accrued in favour of the petitioner, the same cannot be snatched or withdrawn and non-teaching employees of the Universities/ Colleges cannot be made to retire till they attains the age of 62 years, as per the Statutes. The said argument of learned counsel for the petitioner is not acceptable to this Court and rather, it is misconceived. As per Section-67(a) of the Act, the age of retirement of a non-teaching employee of the University shall be the age when he attains the age of 60 years. From perusal of the records, it appears that after enactment of Bihar State Universities Act, 1976, several amendments were made. Section 67(a) was substituted by Act 17 of 1993. As per Section-67(a) of the Act, the age of retirement of a non-teaching employee of the University shall be the age when he attains the age of 60 years. From perusal of the records, it appears that after enactment of Bihar State Universities Act, 1976, several amendments were made. Section 67(a) was substituted by Act 17 of 1993. Under the substituted Section, the age of retirement of both teaching and non-teaching employees was 60 years. Even after creation of the State of Jharkhand, Section 67(a) has been amended by Act of 2002 by which the date of retirement of both teaching and non-teaching employee was fixed as 60 years. 10. From the aforesaid amendments brought by the State, it appears that there has been fluctuations in fixing the age of superannuation by the Legislatures in respect of teaching and non-teaching employees. The law is very clear on this point that if any amendments has been brought by the State which is a policy decision and the Court should restrain from interfering into the same. The Hon’ble Apex Court in case of Aravali Golf Club v. Chander Hass, (AIR 2008 SC Supp 360) and in case of Govt. of A.P. v. P. Laxmi Devi has observed that the court must maintain judicial restraint in matters relating to the legislative or executive domain. Section-67(a) has been completely substituted in 2002 and the age of retirement of non-teaching employees of the Universities/ Colleges was fixed as 60 years. Due to substitution in Section-67(a) in 2002, those non-teaching employees cannot claim that their age of retirement should be 62 years according to the earlier proviso which is non est or non-existent from the year 2002. 11. Similar issue fell for consideration before the Hon’ble Apex Court in case of N. Lakshmana Rao & Ors. Vs. State of Karnataka & Ors., reported in (1976) 2 SCC 502 , which reads as under: “25. The question of retirement age was considered by this Court in Bishun Narain Mishra v. State of U.P. [ AIR 1965 SC 1567 : (1965) 1 SCR 693 : (1966) 1 LLJ 45 ] The State Government in that case raised the age of superannuation from 55 to 58 years and again reduced the age to 55 years. It was held that there is no provision which takes away power of the Government to increase or reduce the age of superannuation. It was held that there is no provision which takes away power of the Government to increase or reduce the age of superannuation. When the rule only deals with the age of superannuation and the government servant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of the service amounts to removal within the meaning of Article 311.” 12. There is no quarrel to the fact that a government servant enjoys the status of government servant and he cannot be removed and his services cannot be terminated except in accordance with the provisions of Constitution. Fixing an age of retirement does not amount to removal or termination. Similar issue fell for consideration before the Division Bench of this Hon’ble Court in case of Jharkhand Rajya Vishwavidyalaya Awam Mahavidyalaya Karamchari Sangh & Anr. Vs. the State of Jharkhand & Ors., reported in 2008 (2) JLJR 165 , in which their Lordships were of the view that no interference can be made in the policy decision of the State and State is empowered to make amendments in the Act and the Act prevalent as on date shall be applicable in case of age of retirement of employees. The relevant para of the said judgment reads as under: “14. As per the above ratio, there is no constitutional limitation to reduce the age of retirement as there is no provision which takes away the power of the Government to increase or reduce the age of superannuation. The Government servant enjoys the status of the Government servant. Of course, he cannot be removed and his services cannot be terminated, except in accordance with the provisions of the Constitution. But, fixing an age of retirement is well within the power of the State Legislature which has got competence to amend the State Universities Act and such fixation reducing the age of superannuation does not amount to removal or termination of service of the petitioners. Therefore, the petitioners cannot claim vested right over the same.” 13. The reliance of learned counsel for the petitioner in case of Franklin Baxla & Anr. Vs. Union of India & Ors., reported 2016 SCC Online Jhar. 3305, is of no help to the petitioner as the same is not applicable in the instant case. Therefore, the petitioners cannot claim vested right over the same.” 13. The reliance of learned counsel for the petitioner in case of Franklin Baxla & Anr. Vs. Union of India & Ors., reported 2016 SCC Online Jhar. 3305, is of no help to the petitioner as the same is not applicable in the instant case. However, the Court was of the view that no interference can be made in the policy decision of the State. What should be the age of retirement, that can be decided by the State. It is a power vested in the State to decide such age of superannuation. Where there is a power vested in the State, there is no corresponding right vested in the non-teaching staff and similarly there is no duty, much less a public duty, vested in the State that the State must enhance the age of superannuation. Once there is no public duty vested in the State, there is no question of violation of the so-called public duty whatsoever arises and, hence, no writ of mandamus can be issued upon the State for enhancing the age of superannuation. 14. As a logical sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, no interference is warranted in the instant writ petition and the same is hereby dismissed.