No. 99 : In accordance with the provisions of Regulation 10 of the D.R.T.A. (Conditions of Appointment and Service) Regulations 1952 as framed by the erstwhile D.R.T.A. which are still in force in terms of Section 516(2)(a) of the D.M.C. Act, the employees of this Undertaking are to retire on attaining the age of 55 years provided their services are not otherwise terminated earlier. The Municipal Corporation of Delhi vide its resolution No. 450 of its meeting held on 5-9-1963 had raised the age of superannuation from 55 years to 58 years in respect of the employees of the Undertaking subject to the following terms and conditions : (a) .............................. (b) .............................. (e) Notwithstanding the conditions stipulated above and the decision to extend the age of superannuation from 55 to 58 years, the appointing authority may require an officer or an employee to the D.T.U. to retire after he attains the age of 55 years after giving three months' notice without assigning any reason. The Officers and employees shall also have the option of retiring after giving three months' notice to the appointing authority after attaining the age of 55 years. (f) The drivers of the D.T.U. shall get the benefit of the enhanced retirement age subject to their being found fit in every respect after a thorough medical examination by the Medical Officer/Officers of the D.T.U. every year after they have attained the age of 55 years. The first examination shall be carried out immediately after or before they have attained the age of 55 years. If as a result of such medical examination they are found unfit for further service, they would be retired from the service of the Undertaking without any notice.'
It is not disputed that D.R.T.A. (Conditions of Appointment and Service) regulations of 1952 were saved by virtue of Section 516 of the Delhi Municipal Corporation Act, 1957. The said regulations and the office order were saved by Section 4(e) of the Delhi Road Transport Laws (Amendment) Act 1971 read with Road Transport Corporation Act 1950. It is not necessary to deal with this point any further since it is an admitted case of the respondent-corporation that the action against the petitioner was taken under clause (f) of office order No. 99 reproduced above.
(2) The petitioner attained the age of 55 years on 21-1-1979 as his recorded date of birth is 21-1-1924. Inaccordance with clause (f) of the office order he was directed to undergo medical examination by the Medical Board of the respondent-corporation in order to adjudge his suitability for extension beyond the age of 55 years. The petitioner was adjudged and declared medically fit by Medical Board on 1-1-1979 and was, thereforee, granted extension of service up to 31-1-1980 in terms of the said office order. Before completion of the said period of extension, the petitioner was again asked to undergo another medical test on 30-11-1980 for another extension. He accordingly appeared before the Medical Board and was found fit. Accordingly, the petitioner was given another extension up to 31-1-1981 vide communication of the respondent-corporation dated 26-12-1979. Though the petitioner had been given extension up to 31-1-1981 but he was served with an office order dated 1-2-1980 stating that he had attained the age of 55 years on 21-1-1979 and that he was being served three months' notice w.e.f.2-2-1980 to the effect that services of the petitioner shall be terminated by way of retirement w.e.f. 1-5-1980.
(3) The petitioner made representations on receipt of the aforesaid notice of retirement. However, the representations did not find favor with the Corporation and hence the order bad been challenged by the present petition.
(4) It Is alleged in the petition that in terms of clause (f) of the office order No. 99, the petitioner was entitled to continue up to the age of 58 years unless he was found medically unfit at an earlier occasion. It has further been submitted that the petitioner having been found fit and extension having been granted to him, he could not be made to retire at an early date. The respondent-corporation contested the petition and filed the written statement. In the written statement, it has been pleaded that the services of the petitioner were terminated in accordance with cla.use (e) of the office order No. 99.
(5) The petitioner filed the rejoinder affidavit wherein the challenged the validity of clause (e) as being ultra virus Articles 14 and 16 of the Constitution.
(6) The question for consideration is whether clause (e) of the office order is ultra virus Articles 14 and 16 of the Constitution and the petitioner was entitled to the benefit of clause (f) of the said offices order.
(7) In Kirpa Ram Gupta v. R.K. Talwar and others 1969 SLR 897, the Full Bench of Allahabad High Court had the occasion to consider the validity of fundamental Rule 56. The said rule at the relevant time was, as under
'56(A)Except as otherwise provided in other clauses of this rule the date of compulsory retirement of a government servant, other than a government servant in inferior service is the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement with the sanction of the 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. Provided that; (i) the appointing authority may at any time, without assigning any reason, require the Government servant to retire on three months notice or pay in lieu of the whole or part thereof, after he attains the age of 55 years, or such lessee age as together with the period of notice in lieu of which the pay is substitute would aggregate to 55 years, so, however, that in the case of pay being given in lieu of the whole or part of such notice the said period shall stand added to the .government servant's qualifying service for the purposes of calculating the pension and death-cum-retirement gratuity due to him and for no other purpose; or (ii) the government. servant may, after attaining the age of 55 years, voluntarily retire after giving 3 months' notice to the appointing authority.'
R.S. Pathak, J. (as his lordship then was) speaking for the majority after discussing the entire case law, on the subject, came to the conclusion that as the rule stands it gives to the appointing authority an undefined and uncontrolled discretion in deciding whether one government servant should be retired prematurely, while another is allowed to run his normal span. In view of this finding, the rule as it stood was held to be ultra virus Articles 14 and 16 of the Constitution.
(8) In Air India v. Nargesh Meerza and others, the Supreme Court had the occasion to consider the validity of Regulations 46 and 47 of Air India Employees Service Regulations. The relevant portions of the said Regulations are:
'46.Retirement age: Subject to the provisions of sub-regulation (ii) here of an employee shall retire from the service of the Corporation upon attaining the age of 58 years instead in the following cases when he/she shall retire earlier. (c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place within four years of service or of first pregnancy whichever occurs earlier. 47. Extension of Service : Notwithstanding anything contained in Regulation 46, the services of any employee, may, at the option of the Managing Director but on the employee being found medically fit, be extended by one year at a time beyond the age of retirement for an aggregate period not exceeding two years, except in the case of Air Hostesses and Receptionists where the period will be ten years and five years respectively.'
The Supreme Court, in paragraph 117 of the Report came to the conclusion that so far as the Air Hostesses are concerned under the Regulation the discretion is to be exercised by the Managing Director to extend the period up to 10 years. In other words the spirit of the Regulation is that an Air Hostess if medically fit is likely to continue up to the age of 45 by yearly extensions given by the Managing Director. Unfortunately, however, the real intention of the Makers of the Regulations has not been carried out because the Managing Director has been given an uncontrolled, unguided and absolute discretion to extend or not to extend the period of retirement in the case' of Air Hostesses after the age of 35 years. The words 'at the option' are wide enough to allow the Managing Director to exercise his discretion in favor of one Air Hostess and not in favor of the other which may result in discrimination.
(9) After giving my careful consideration to clause (e) of office order No. 99, I am of the opinion, that the name would fall in the same mischief as were the Rules & Regulations in the aforesaid two cases. In this clause also the appointing authority has been given uncontrolled and unguided power to retire any employee at the age of 55 years and retain the others till the age of 58 years. It does not provide any guide lines and in these circumstances this rule has to be held to be ultra virus Articles 14 and 16 of the Constitution of India.
(10) The only other clause which remains for consideration is clause (f) of the said office order. According to the said clause obviously a driver is entitled to continue up to the age 58 years if he is found medically fit by the medical board of the Corporation. On completion of every year after he attains the age of 55 years. In the present case, the petitioner had admittedly been declared medically fit for the said second extension also and there was no reason to serve him with the impugned notice of retirement. Even during the course of arguments in this case, I had permitted the learned counsel, for the Corporation to produce the relevant record to show if there was anything found against the petitioner after he had been given the second extension. The record accordingly was produce and it was found that nothing had been found against the petitioner after the order dated 26-12-1979 whereby he had been given extension up to 31-1-1981. In these circumstances, it has to be held that the impugned order/notice dated 1-2-1980 was invalid and unconstitutional.
(11) For the reasons recorded above, rule is made absolute with the directions that the petitioner will be deemed to be in service till be attained the age of 58 years and would be entitled to benefits thereof. Since the petitioner has already attained the age of 58 years, the question of any direction regarding reinstatement does not arise. In the circumstances, the petitioner will also be entitled to his costs. Counsel's fee Rs. 500.00 .