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Sham Lal Sood Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 1660 of 1970
Judge
Reported inAIR1972P& H241
ActsCentral Civil Services (Part B State Transferred Employees) Rules, 1953 - Rule 9(4)
AppellantSham Lal Sood
RespondentUnion of India and anr.
Cases Referred(Delhi). Union of India v. Jagan Nath
Excerpt:
.....by this date in any case will be construed as an exercise of option for the central rules and conditions of service. jagan nath decided 19-9-69. what was considered in that case was the meaning of the words 'provincial government' in the note to fundamental rule 56(c) and it was held that the service in the erstwhile patiala state as well as in the patiala and east punjab states union amounted to service under a provincial government. that case is clearly distinguishable. with very great respect i am in complete agreement with the conclusion on the facts of the case of the status of jagan nath being determined under the provisions of the central civil services (part b states transferred employees) rules, 1953, as he did not become the employee of the union of india on april 13, 1950..........as amended from time to time and all the permanent or temporary service rendered by him under the state government prior to absorption was to be treated as permanent and temporary service rendered under government. since the position of the transferred ministerial servants as post-1938 entrants in service was crystallized under these rules, they were to be treated as post-1938 entrants for the purposes of fundamental rule 56 as amended in 1965. the amended provision in that rule with regard to post-1938 entrants is clause (a) and not clause (c) which is being invoked by the petitioners. clause (c) would have applied to the petitioners if rule 9 of the central civil services (part b states transferred employees) rules, 1953 had not been there. it is true that these rules were enacted in.....
Judgment:
ORDER

1. This judgment will dispose of C. W. No. 1660 of 1970, Sham Lal Sood v. Union of India and C. W. No. 8 of 1971, Roshan Lal Sharma v. Union of India as common questions of law and fact arise in both these petitions.

2. Sham Lal Sood, petitioner in C. W. No. 1660 of 1970, joined service as a Clerk in the Postal Department of the erstwhile Patiala State on April 25, 1931 and was confirmed in that post with effect from November 26, 1935. With effect from August 20, 1948, the Patiala and East Punjab States' Union (hereinafter called the Pepsu State) was formed by the merger of Eight Punjab States, including Patiala, and all the employees of those covenanting States became the employees of the Postal Administration of that Union. The Constitution of India was brought into force with effect from January 26, 1950, as a result of which the Postal Department of the Pepsu State was amalgamated with the Postal Department of the Union of India with effect from April 13, 1950, and the permanent staff working on that date was given option either to elect the Central scales of pay and allowances and other conditions of Service or elect to be governed by the pre-absorption conditions of service vide Government of India, Ministry of Finance Communication No. F. 5(14)-E/III/51 date June 13, 1951. In terms of that communication, the petitioner gave his option on October 25, 1951, electing the Central scales of pay and allowances and other conditions of service. Thereafter, a clarification was issued by the Government of India on December 10, 1951, according to which the words 'as for post-1938 entrants' were to be added to the second sub-para of page 5 of the original communication dated June 13, 1951. The case of the respondents is that under the option exercised by the petitioner he had to retire at the age of 58 years, which is the age of superannuation of post-1938 entrants. The case of the petitioner, on the other hand, is that he is governed by clause (c) of Fundamental Rule 56, under which his age of superannuation is 60 years as he is a pre-1938 entrant into service.

3. Roshan Lal Sharma, petitioner in C. W. No. 8 of 1971, was appointed as a Clerk in the Postal Department of the erstwhile State of Patiala on March 8, 1934 and was confirmed in that post with effect from that very date. He also became an employee of the Pepsu State after its formation and exercised his option in favour of Central scales of pay and allowances and other conditions of Service like Sham Lal Sood. He also claims to be pre-1938 entrant and, therefore, entitled to continue in service till attaining the age of 60 years, which is the age of superannuation under clause (c) of Fundamental Rule 56.

4. In both the cases, therefore, the question of determination is whether the age of superannuation of the petitioners is 60 years under clause (c) of Fundamental Rule 56 or 58 years under clause (a) of that Rule. That Rule, in so far as relevant prior to its amendment in 1965, read as under:--

'F. R. 56(a) Except as otherwise provided in the other clauses of this Rule, the date of compulsory retirement of a Government servant other than a ministerial servant is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the Local Government on public grounds, which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances.

(b) (I) A ministerial servant who is not governed by sub-clause (ii) may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient, up to the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing and with the sanction of the Local Government.

(ii) A ministerial servant-

(1) who enters Government service on or after the 1st April, 1938 or

(2) who being in Government service on the 31st March, 1938 did not hold a lien or a suspended lien on a permanent post on that date

shall ordinarily be required to retire at the age of 55 years. He must not be retained after that age except on public grounds, which must be recorded in writing and with the sanction of the Local Government and he must not be retained after the age of 60 years except in very special circumstances.

5. According to this Rule, ministerial servants who had entered into service before April 1, 1938, or held a lien or a suspended lien on a permanent post on March 31, 1938 were ordinarily to be retained in service, if they continued efficient, up to the age of 60 years. This Rule was amended in 1965 and the relevant provisions of the amended Rule are as under:--

'F. R 56(a) Except as otherwise provided in this rule, every Government servant shall retire on the day he attains the age of fifty-eight years.

(b) A workman who is governed by these rules shall be retained in service till the day he attains the age of sixty years.

(c) A ministerial Government servant who had entered Government service on or before the 31st March, 1938, and held on that date-

(i) a lien or a suspended lien on a permanent post

(ii) a permanent post in a provisional substantive capacity under clause (d) of Rule 14 and continued to hold the same without interruption until he was confirmed in that post, shall be retained in service till the day he attains the age of sixty years.

Note: For the purpose of this clause, the expression 'government service' includes service rendered in a former Provincial Government'

6. Under this Rule, a ministerial servant, who entered Government service on or before March 31, 1938, or held a lien or a suspended lien on that date was entitled to be retained in service till the date he attained the age of 60 years. Every ministerial Government servant, who entered Government service after March 31, 1938, was to retire on attaining the age of 58 years.

7. The President of India also framed the 'Central Civil Services (Part B State Transferred Employees) Rules, 1953', which were deemed to have come into force in the case of transferred employees from the Patiala and East Punjab States' Union on April 13, 1950. The relevant rule is Rule 9(4) which reads-

'For the purpose of determining the age of retirement for ministerial Government servants the provisions of Fundamental Rule 56(b)(ii) shall apply.'

This rule read along with Fundamental Rule56(b)(ii) as in force in 1953 shows that the ministerial servants of the Pepsu State transferred to the Union of India were to be treated as having entered Government service on or after April 1, 1938 or who being in Government service on March 31, 1938 did not hold a lien or a suspended lien on a permanent post on that date and were, therefore, ordinarily to be required to retire at the age of 55 years. Rule 9(2) of these Rules also shows that a transferred employee who elected the Central Rules was to be subjected to the Revised pension Rules as applicable to post-1938 entrants as amended from time to time and all the permanent or temporary service rendered by him under the State Government prior to absorption was to be treated as permanent and temporary service rendered under Government. Since the position of the transferred ministerial servants as post-1938 entrants in service was crystallized under these Rules, they were to be treated as post-1938 entrants for the purposes of Fundamental Rule 56 as amended in 1965. The amended provision in that Rule with regard to post-1938 entrants is clause (a) and not clause (c) which is being invoked by the petitioners. Clause (c) would have applied to the petitioners if Rule 9 of the Central Civil Services (Part B States Transferred Employees) Rules, 1953 had not been there. It is true that these Rules were enacted in 1953 but they were given retrospective effect from April 13, 1950, in the case of the transferred employees from Pepsu State and it is well known that a Legislature can make retrospective legislation. The power of the President of India to make rules under Article 309 of the Constitution is a legislative power. It has also been held by their Lordships of the Supreme Court in Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889, that--:

'.......... once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government.'

Paragraph 5 in the communication dated June 13, 1951 read as under--:

'(5) The permanent staff in service on the date of the Federal Financial Integration will be given the option either to elect the Central scales of pay and allowances and other conditions of Service or retain the pre-absorption scales of pay and allowances and other conditions of service. Those who elect the former will be governed by the Government of India Rules and conditions of service in all matters while those who elect the latter will continue to be governed by their pre-absorption rules and conditions of service. The option, which should be exercised in a clear and unambiguous manner before 31st March, 1952, once exercised, will be final. Failure to exercise any option or any ambiguous exercise of option by this date in any case will be construed as an exercise of option for the Central rules and conditions of service.

For the purpose of these orders, the term 'the Central scales of pay and allowances and other conditions of Service' will mean such scales of pay and allowances and conditions of service as are applicable to post-1931 entrants to Central Government Services. In regard to pension the Revised Pension Rules promulgated in the Ministry of Finance office memorandum No. F. 3(1)-Est (Spl)/47, dated the 17th April, 1951, as amended from time to time will be applicable.

Orders will be issued separately as to the manner in which past service will be reckoned for purposes of leave and pension under the new conditions of service'

8. The petitioners gave their option in terms of this paragraph and, therefore, the conditions service applicable to them were those as were applicable to post-1931 entrants to Central Government services. On December 10, 1951, the words 'as for post-1938 entrants' were added at the end of second sub-para of paragraph 5, which only related to the calculation of pension. According to these communications, the petitioners were governed by the conditions of service as applicable to post-1931 entrants in Government service. If the matter had rested only with these communications, the petitioners would have been governed by clause (c) of the Fundamental Rule 56 as amended in 1965, but the difference has been made by Rule 9 (4) of the Central Civil Services (Part B States Transferred Employees) Rules (1953), which determined the status of the transferred ministerial servants from Pepsu as that of entrants in Government service after March 31, 1938 and for this reason clause (a) of Fundamental Rule 56 applies to them and not clause (c). A similar view has been taken by a Division Bench of the Andhra Pradesh High Court in Writ Appeal No. 316 of 1969 (A. P.) Postmaster-General, Andhra Pradesh Circle, Hyderabad v. Mohd. Abdul Hamid Khan decided on 4-12-1970. A contrary view has, however been taken by a learned Judge of the Himachal Bench of the Delhi High Court in Jagan Nath v. Union of India, 1969 Ser LR 551 (Delhi) holding that Fundamental Rule 56(c) applied to a ministerial Government servant who entered service of the erstwhile Pepsu State on or before March 31, 1938 and this view was upheld by a Division Bench of the Court in L. P. A. No. 15 of 1969 (Delhi). Union of India v. Jagan Nath decided 19-9-69. What was considered in that case was the meaning of the words 'Provincial Government' in the note to Fundamental Rule 56(c) and it was held that the service in the erstwhile Patiala State as well as in the Patiala and East Punjab States Union amounted to service under a Provincial Government. That case is clearly distinguishable. In that case the petitioner Jagan Nath was an employee of the Patiala State and on the formation of the Pepsu he became an employee of that State. On the merger of Pepsu with the State of Punjab with effect from November 1, 1956, he became an employee of the Punjab Government. At the time of re-organization of the State of Punjab, he was allocated to the Union Territory of Himachal Pradesh, the employees of which Territory were governed by Fundamental Rules and the question therefore arose whether Jagan Nath had to retire on attaining the age of 58 years under clause (a) of Fundamental Rule 56 or on attaining the age of 60 years under clause (c) of that Rule. The decision of that question depended on whether the service in the erstwhile Patiala State and Pepsu was to be considered as service rendered in a former Provincial Government and it was decided that that service was to be considered as having been rendered under the Provincial Government. With very great respect I am in complete agreement with the conclusion on the facts of the case of the status of Jagan Nath being determined under the provisions of the Central Civil Services (Part B States Transferred Employees) Rules, 1953, as he did not become the employee of the Union of India on April 13, 1950 like the petitioners in these cases. He became an employee of the Union Territory of Himachal Pradesh on or after November 1, 1966, and to him Central Civil Services (Part B States Transferred Employees) Rules 1953, did not apply. With reference to those Rules, I have already held that the petitioners in the two petitions before me were to be treated as post-1938 entrants. In either case the service rendered in a former 'Provincial Government' as per the note to clause (c) of Fundamental Rule 56, is neither relevant nor of any significance. The learned counsel for the petitioners cannot, therefore, derive any assistance from the judgments of the Delhi High Court. The judgment that directly covers the point is the one rendered by the Andhra Pradesh High Court (Supra) as it takes into consideration the provisions of the Central Civil Services (Part B States Transferred Employees) Rules 1953, and with respect I express my complete agreement with it.

9. In C. W. No. 8 of 1971, an additional point has been taken in the replication to the following effect:--

'............... despite the judgment of the Andhra Pradesh High Court, many officials who were formerly serving in the Princely States have been allowed to continue up to 60 years in view of the judgment of Simla Bench of Delhi High Court and their cases are exactly similar to that of the petitioner. Their names inter alia, are as under:--

(1) Shri Nand Lal Sharma, Superintendent, Accountant General's Office Chandigarh;

(2) Shri Jagdish Sahai, Dubey Assistant, Accountant General's Office Chandigarh;

(3) Shri Ram Murti Sharma, Assistant Treasury Office, Simla.'

10. It is not stated whether the employees mentioned above became the employees of the Union of India on April 13, 1950, or as a result of any other allocation thereafter. This allegation is, therefore, not sufficient to bring out the discrimination. Moreover, it is open to the Union of India to retain any employee in its service even after attaining the age of superannuation which is by way of concession and not by way of right. Their Lordships of the Supreme Court have ruled that no person has a right to claim a concession and, therefore, assuming that the three persons named in the replication have been retained in service after attaining the age of 58 years, it does not entitle a petitioner to a writ of mandamus directing the respondents to retain him also in service up to the age of 60 years. If the age of superannuation in his case is 58 years, as I have held above, he cannot claim to remain in service till he attains the age of 60 years merely because some other officials have been retained in view of the decision of the Delhi High Court. In the absence of full facts, it is not easy to determine whether the cases of those three officials are akin to the cases before the Delhi High Court or are akin to the cases of the petitioners before me or before the Andhra Pradesh High Court. This additional fact mentioned in the replication is also of no help to the petitioner.

11. For the reasons given above, there is no merit in these writ petitions, which are dismissed but without any order as to costs as the question of law involved was by no means as easy one.

12. Petitions dismissed


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