J.K. Mohanty, J.
1. The petitioner was appointed as a Tracer on 13-6-1956 in the Electricity Department of Government of Orissa and his services were placed under the Balasore Electrical Division. According to the petitioner, from the date of appointment he became a civil servant and the provisions of Orissa Service Code (for short 'the Code') were applicable to him. Orissa State Electricity Board (for short 'the Board') was constituted on. 1-3-1961 and the petitioner became an employee under the Board. He was promoted to the post of Draftsman and joined the post on 3-8-1961. Since then he was working in the same post till 18-7-1977, the date on which he was forced to retire from service on completion of his 58th years of age. The petitioner claims that even though his services were placed under the Board, by virtue of Irrigation and Power Department Resolution dated 19-10-1965 (Annexure-2) he was to be treated as a Government servant for all purposes. His services were illegally terminated on completion of the age of 58 years though according to the rules he should have continued till the completion of his 60th year as provided under rule 71 of the Code, as he is a Workman. He has come up with the prayer that the order of termination passed by the Executive Engineer, Balasore Electrical Division, retiring him on 18-10-1977 is illegal and is to be quashed and he should be deemed to have continued till the completion of 60 years and is entitled to all service benefits till then.
2. Opposite party No. 2, the Board, in their counter stated that as per the Government of Orissa, Irrigation and Power Department Resolution dated 19-10-1965, those who opted to serve under the Board were deemed to have been finally transferred to Board service with effect from l-6-1962 or the actual date of relief from the Government service, whichever was later. As the . petitioner joined prior to 1- 6-1962, he shall be deemed to have been finally transferred to the Board with effect from 1-6-1962. The petitioner is not a Workman nor the proviso to Rule 71 of the Code is applicable to his case as the Board had fixed the age of superannuation of its employees (except class--IV employees) at 55 years which subsequently raised to 58 years. The relevant resolutions have been filed as Annexures-A & B.
3. Mr. Rath, learned counsel appearing for the petitioner, argued that the petitioner is governed by the Orissa Service Code and he being a Workman, as per the second proviso to Rule 71 of the Code, he should be retained in service till the age of 60 years. He laid much emphasis on Annexure--2, the Resolution dated 19-10-1965 of the Irrigation and Power Department wherein it has been categorically mentioned that the Government Servants (non-gazetted) deputed to serve under the Board and recruited- by the Government before 1-6-1962 shall be treated as Government staff for all purposes. All non-gazetted staff recruited by the Board thereafter shall be governed by the Rules framed by the Board. Annexure-4 also makes it absolutely clear that the petitioner has been made to retire under Rule 71 of the Code with effect from 18-10-1977 as he completed the age of 58 years. He also placed reliance on Annxure-7, the letter written by the Deputy Secretary to Government on 2-11-1978 to the Secretary of Board that the petitioner should be allowed to continue in service till the 60th years of age and he should be reinstated forthwith.
4. Learned counsel for the Board, however, submitted that after 1965 no non-gazetted officer was allowed to continue in Government Service and all Government servants serving under the Board were treated as employees of the Board. He relied on Government of Orissa, Irrigation and Power Department Resolution dated 19-10-1965, the same Resolution on which the petitioner relies, which is as follows:-
GOVERNMENT OF ORISSA IRRIGATION AND POWER
No. Estt-(EI)-IID--19/65-22752/E Dt. 19. 10. 65Sub : Conditions of service of Government servants on deputation to the Orissa State Electricity Board.
* * * *(II) GAZETTED (Non-Engineering) AND NON-GAZETTED OFFICERS.
(a) The gazetted (non-Engineering) and non-gazetted Government employees (both permanent and temporary) who were home in the establishments under the Chief Engineer, Electricity prior to 1-6-1962 and,
(i) Who have been continuing in service under the Board by the date of issue of these orders, or,
(ii) Who have been serving on deputation outside the Board's office on the date of issue of these orders, or,
(iii) Who have been serving otherwise on deputation in the Community Development and Panchayat Raj (Community Development) Department in a non-permanent capacity on the date of issue of these orders,
Shall be eligible to exercise option within three months from the date of issue of this Resolution, either to serve under the Board and cease all connection with the Government service, or revert to Government service.
The option once exercised shall be final and irrevocable. If no option is exercised during the prescribed period, it will be held that the person have opted for service under the Board. Those who opt to serve under the Board, shall be deemed to have been finally transferred to the Board service with effect from 1-6-1962 or the actual date of relief from Government service to join the Board, whichever is later.
(b) The permanent Government servants opting for service under the Board should be deemed to have been absorbed permanently in the Board's service. The Board will formally confirm them in the permanent posts. The temporary employees opting for service under the Board will be eligible for confirmation in permanent posts under the Board in accordance with the rules applicable to them under Government on the date of transfer.
* * *Learned counsel for the Board also relied on Annexure-A, the resolution of the Board dated 24th June, 1969, wherein it has been provided that Class I, II and III staff of the Board including the State Government servants working under the Board should retire in the manner indicated in the resolution when they reach the age of 55 years (raised to 58 years vide Annexure-B). The petitioner is admittedly a Class-Ill employee of the Board. As such he should retire on the completion of his 58 year. Regarding Annexure-4, learned counsel submitted that merely because the Executive Engineer, Balasore Division, has wrongly mentioned that the petitioner was being retired according to Rule 71 of the Code, that will not confer any right on the petitioner. It is only a wrong quoting of the provision. Regarding Annexure-7, learned counsel submitted that it is a letter written by the Deputy Secretary to Government to the Secretary of the Board to allow the petitioner to continue in service till his completion of 60th year. But the Board is not bound by such advice as it is an independent entity and is governed by its own rules and regulations.
5. There is considerable force in the arguments advanced by the learned counsel for the Board. As per the resolution of the Irrigation and Power Department, all non-gazetted employees serving under the Board, who were borne in the establishments under the Chief Engineer, Elactri-city prior to 1-6-1962, were asked to exercise option either to serve under the Board or revert to Government service. The petitioner has not produced anything to show that he wanted to revert to Government service. On the other hand, it appears that he has opted to serve under the Board. In the circumstances, he is to retire on competition of the age of 58 years as per the Board's resolution, and Rule 71 of the Code has no application to his case.
6. In view of our finding that the Orissa Service Code has no application to the petitioner, a decision on the question whether he is a Workman and is to continue till the completion of his 60th year under the second proviso to Rule 71 of the code does not arise.
7. In the result, therefore, the writ petition has no merit which is accordingly dismissed. There shall be no order as to costs.
P.C. Mishra, J.
8. I agree.