Jagat Narayan, C.J.
1. This petition under Articles 226 and 227 of the Constitution has been referred to a Division Bench by a learned single Judge.
2. The petitioner was born on 17-9-1911. He was appointed to a post in the Jaipur Municipal Council on 5-9-43. At that time the Council was a department of the Government of Jaipur. With effect from 1-11-46 the Municipal Council became autonomous and option was given to the employees to opt for State service or municipal service. The petitioner opted for municipal service. The City of Jaipur Municipal Act, 1943 was continued by the Rajasthan Administration Ordinance No. 1 of 1949 on the integration of the State of Jaipur with Rajasthan. The City of Jaipur Municipal Act was repealed by Section 2 of the Rajasthan Municipalites Act, 1959 which was brought into force with effect from 17th October, 1959. Section 297 of the Rajasthan Act gave power to the State Government to frame rules prescribing the conditions of service of the municipal employees including the fixation of their age of superannuation. On 20th May, 1963 the Local Self-Government Department Notification No. F. 18(a)(2)DLB/63 dated 20-5-63 was issued which ran as follows:--
Doubts have been expressed as to whether the age of superannuation in respect of municipal employees should be 55 years or 58 years. The point has been carefully considered by the State Government and in pursuance of the provisions contained in Clause (i) of Sub-section (2) of Section 297 of the Rajasthan Municipalities Act, 1959, it is hereby ordered that the date of compulsory retirement of a municipal employee is the date on which he attains the age of 55 years, An employee could, however, be retained beyond the age of superannuation (i.e., 55 years) with the prior approval of the State Government.
It appears that the Government proposed to raise the retirement age of Government servants as well as municipal employees to 58 years and on July 30, 1963, Local-Self Government Department Notification No. Tax/F. 53 (Misc) DLB/63 was issued directing that pending further orders municipal employees should be retained in service till the age of 58 years.
3. On 24th October, 1963 the Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963 came into force, under Rule 36 of which, the State Government made applicable to the municipal employees the Rajasthan Service Rules, 1951 (except provisions relating to pension and payment of medical allowances (as amended from time to time). The age of superannuation is prescribed under Rule 56 of the R.S.R. The age of superannuation was 58 years under these rules in October, 1963 having been raised from 55 years to 58 years by Finance Department Notification No. F. 1 (84) FDA (Rules) 62 dated 31-8-63.
4. Rule 56 of the R.S.R. was again amended so as to reduce the age of superannuation from 58 years to 55 years by Finance (Expenditure-Rules) Department's Order No. F. 1 (42) FD/Exp-Rules/67-I dated 13-6-67. The amended Rule 56 was made applicable to municipal employees under Local Self-Government Department Notification No. Tax (Rules)/F. 53 (Misc) DLB/63 dated 22-6-67 which was issued in exercise of the rule making powers under Section 297 of the Rajasthan Municipalities Act, 1959. Along with the amendment of Rule 56 the Government had issued instructions in Notification No. F. 1 (42) FD (Exp-Rules) 67-II dated 13-6-67. That notification was also made applicable to municipal employees.
5. The petitioner attained the age of superannuation, i.e., 55 years, on 17-9-66. A notice was served on him by the Municipal Commissioner on 22-6-67 that he would be retired from service from 1-7-67 under the new age of superannuation which had become applicable to him by the notification of 22-6-67. On receipt of this notice, the petitioner applied for leave to which he had become entitled. Instruction No. VIII of the notification dated 13-6-67 which was made applicable to him by notification dated 22-6-67 ran as follows:--
A Government servant who had to his credit an amount of privilege leave not exceeding 120 days before 1st July 1967 shall apply for such leave and shall be paid due leave salary. However, if the amount of privilege leave due is less than thirty days, he shall be allowed leave salary for thirty days in relaxation of Rules 91, 92, 94 and 97 of the Rajasthan Service Rules.
6. Only two days privilege leave was due to the petitioner up to 30-6-67. In accordance with the above instruction he was granted privilege leave for 30 days from 1-7-67. On 8-8-67 the petitioner filed the present writ petition. It has been contested on behalf of the Municipal Council and the State of Rajasthan.
7. The contention of the petitioner runs thus. The Legislature has not authorised the State Government to apply the rules framed by it under Section 297 of the Rajasthan Municipalities Act, 1959 retrospectively and therefore the rules made by the State Government under that provision cannot have retrospective effect. When the Municipal Council, Jaipur, became an autonomous body on 1-11-46 and the petitioner opted for Municipal service he ceased to be governed by the rules relating to the Government servants under the State of Jaipur. No new rules were framed by the Municipal Council, Jaipur. The result was that the petitioner was entitled to continue in the service of the Municipal Council of Jaipur so long as he was mentally and physically fit. By the application of the order dated 20-5-63 his age of superannuation was fixed at 55 years. This order thus took away his vested right of continuing in service for a longer period. Its action was thus retrospective in character and as the order was passed in exercise of the rule making power under Section 297 it could not operate retrospectively. Further, under the Rajasthan Service Rules, 1951, which were applied to the municipal employees under Rule 36 of the Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963, the age of superannuation was 58 years. It could not be reduced to 55 years by the Government by making a rule under Section 297 for, that amounted to giving retrospective effect to the rule.
8. The contention on behalf of the respondents on the other hand is that the rules framed under Section 297 from time to time and referred to above cannot be considered to be retrospective. They were only prospective.
9. We have heard the learned Counsel for the parties at length on this aspect of the case and we are satisfied that the contention put forward on behalf of the respondents is supported by the decision of their Lordships of the Supreme Court in Bishun Narain v. State of U.P. : (1966)ILLJ45SC . In that case the appellant was in the service of the State of Uttar Pradesh as Sub-Registrar. He was born on 11-12-1905 and was recruited in service in July, 1933. At the time of his recruitment the age of retirement for Government servants of his class was 55 years. Normally he should have retired on 11-12-60. But by a notification dated 27-11-57 the Government raised the age of retirement to 58 years. Thus he would have retired on 11-12-63. On 25-5-61 the Government again reduced the age of retirement to 55 years by a notification. It was urged that the rule in question being retrospective was bad as no notification could be made retrospectively. This contention was repelled by their Lordships with the following observations:--
As we read the rule we do not find any retrospectivity in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would, therefore, apply from that date to all Government servants, even though they may have been recruited before May 25, 1961 in the same way as the Rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957.
We accordingly hold that neither the order dated 20th May 1963 fixing the age of retirement at 55 years nor the notification dated 22-6-67 reducing the age of superannuation from 58 years to 55 years, issued in exercise of the rule making power under Section 297 by the State Government can be considered to be retrospective. They are, therefore, valid and binding on the petitioner.
10. The petitioner has referred to a representation made by one Bisheshwar Prasad, a Revenue Inspector of the Municipal Council, Jaipur, on which the State Government took the decision on 14-12-66 that he and other municipal employees could continue in service till the age of 60 years. This decision was obviously taken by the Government as it was not properly advised. It cannot estop it from ordering the retirement of the petitioner or any other employee on attaining the age of superannuation of 55 years. It may be mentioned here that even though Bisheshwar Prasad did not attain the age of 60 years on 1-7-67, he was retired with effect from that date under the notification dated 22-6-67.
11. It was also contended on behalf of the respondents that the petitioner had accepted the decision of the Government, vide his letter dated 28-6-67, under which he requested that leave due to him may be sanctioned and having taken advantage of leave for one month which was sanctioned to him he should not be allowed to invoke the extraordinary jurisdiction of this Court. It is unnecessary to go into this matter since we have held above that the petitioner is bound by the order dated 20-5-63 as well as by the notification dated 22-6-67.
12. Having regard to our findings, we dismiss the writ petition. We leave the parties to bear their own costs of it.