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Gule Singh Vs. Municipal Council and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Special Appeal No. 48 of 1978
Judge
Reported in1986(2)WLN124
AppellantGule Singh
RespondentMunicipal Council and ors.
DispositionAppeal dismissed
Cases ReferredJ.M.C.S.A.W. Mills v. State of U.P.
Excerpt:
.....superannuuation age of iv class employees of municipalities is to be governed by rule 56 till state government framed rules under section 297.;the conditions of service inclusive of the age of superannuation, until rules are framed by the state government in exercise of the powers conferred by section 297, will be these which are contained in the rules of 1951 and for that matter, the class iv employees, so far as the age of superannuation is concerned will be governed by rule 56 of the rules of 1951, as amended from time to time.;(b) rajasthan service rules, 1951--rule 56--words 'as amended from time to time'--connotation of--retirement age of iv class employees of municipalities is 58 years in amended rule 56--held, retirement age of petitioner was 58 years.;as the words used are..........the repealed act were deemed to be made under the act. section 297 of the act confers power on the state government to make rules generally for the purpose of carrying into effect the provisions of the act and prescribe forms for any proceeding for which it considers that a form should be provided.3. chapter iv of the act deals with the rules and bye-laws, section 88 of the act provides that the board has power to make rules. in exercise of the powers conferred by clause (b) of sub-section (2) of section 297 read with section 88 of the act and all other powers enabling it in this behalf, the state government made the rajasthan municipalities (class iv service) rules, 1964 ('the rules' here in after). these rules were published in the rajasthan gazette, part iv-c dated april 2, 1964. rule.....
Judgment:

Kishan Mal Lodha, J.

1. Against the order dated March 22, 1977, assessed by a learned Single Judge dismissing the writ petition of the appellant, this appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, has been filed by the unsuccessful petitioner.

2. The material facts leading to this appeal may briefly be re-counted. The petitioner-appellant was employed as a Class IV employee in the Municipal Council, Udaipur (respondent No. 1). He joined duties on April 1, 1947. The date of birth of the petitioner-appellant was is July 30, 1917. At the time when he joined the service, he was governed by the Udaipur City Municipal Act, 1945 and the Rules framed by the former Government of Udaipur. The case of the petitioner-appellant is that the age of retirement under the aforesaid Act and the Rules was 60 years. The Rajasthan Municipalities Act (No. XXXVIII of 1959) (for short 'the Act') came into force an October 17, 1959. By virtue of Section 2 of the Act, the Udaipur City Municipal Act, 1945 was repealed. However, in accordance with proviso (b) to Section 2 of the Act, the rules remained is force as the rules made under the repealed Act were deemed to be made under the Act. Section 297 of the Act confers power on the State Government to make rules generally for the purpose of carrying into effect the provisions of the Act and prescribe forms for any proceeding for which it considers that a form should be provided.

3. Chapter IV of the Act deals with the Rules and bye-laws, Section 88 of the Act provides that the Board has power to make rules. In exercise of the powers conferred by Clause (b) of Sub-section (2) of Section 297 read with Section 88 of the Act and all other powers enabling it in this behalf, the State Government made the Rajasthan Municipalities (Class IV Service) Rules, 1964 ('the Rules' here in after). These Rules were published in the Rajasthan Gazette, Part IV-C dated April 2, 1964. Rule 2 of the Rules provides that the Rules shall come into force after one month from the date of the publication in the Official Gazette. Thus, they came into force from May 2, 1964.

4. It will be relevant to read material portion of Rule 15 of the Rules:

15. Regulation of pay, allowances, leave, pensions, gratuity discipline, conduct etc.--Subject to the provisions of Section 310 of the Act and except as provided in these rules the pay, allowance, leave and other conditions of service shall be regulated by rules made under Section 297 of the Act, and pending the issue, of such rules, by the following rules:

(1) The Rajasthan Service Rules, 1951 (except provisions relating to pension as amended from time to time;

(2) The Rajasthan Travelling Allowance Rules as amended from time to time.... ... ... ...

On completing of 55 years of age, the petitioner-appellant was sought to be retired from the service of the Board (respondent No. 1) by serving a notice. However, that notice was withdrawn as the matter was referred to the State Government. The Chairman, Municipal Council, Udaipur was informed vide Ex. 3 dated October 16, 1972 that the date of superannuation in the case of Class IV employees of the Municipal Board and the Councils, was 60 years. The petitioner-appellant, therefore, continued in service. By Notification Ex. 5, issued by the State Government, it was made clear that the State Government has decided that the age of retirement of Class IV Employees of the Municipal Boards and Councils has been reduced from 60 to 58 years. Thereafter, in pursuance of the Notification Ex. 6, office order Ex. 4 dated August 31, 1976 was issued by the Commissioner, Municipal Council, Udaipur informing the petitioner-appellant that he has reached the superannuation age of 58 years on July 29, 1975, as his date of birth is July 30, 1917 and as much he should consider himself to be relieved from the afternoon of August 31, 1976.

5. The petitioner-appellant filed a writ petition on October 14, 1976 for quashing the Notification Ex. 5 dated August 20, 1976, issued by the State Government and the office order Ex. 4 dated July 31, 1976, by which his services were terminated and was relieved from the afternoon of July 31, 1976. Certain other consequential reliefs were also sought.

6. Before the learned Single Judge, it was contended that the State. Government had no authority to reduce the age of superannuation of Class IV Employees of the Municipal Boards and Councils from 60 years to 58 years by an executive order (Ex. 5). No reply to the writ petition was filed on behalf of the Board (respondent No. 1) and Commissioner, Municipal Council, Udaipur (respondent No. 2). After considering the submissions made before him, the learned Single Judge recorded the following findings:

(1) that the Rajasthan Service Rules, 1951 ('Rules of 1951') here in were adopted for the purpose of application to the employees of the Municipal Boards and Councils vide Rule 15 of the Rules, which were framed under Clause (b) of Sub-section (2) of Section 297 of the Act, not only as they stood at the time of their adoption in the year 1964, but 'as amended from time to time';

(2) that Rule 36 of the Rules of 1961 was amended in the year 1969 and according to that amendment, the age of superannuation of Class IV Employees was reduced from 60 years to 58 years and this was made effective from December 1, 1969 and so by virtue of the provisions of Rule 15 of the Rules, amended Rule 56 of the Rules of 1951 was made applicable to Class IV Employees of Municipal Boards and Councils in the State Government. The question of law as any retrospectivity does not arise.

(3) that the State Government was justified in withdrawing the administrative instructions, which it had issued earlier on March 25, 1970 by issuing other administrative instructions contained in the Notification Ex. 5 dated August 20, 1976.

7. In view of the aforesaid findings, the learned Single Iudge opined that the petitioner-appellant attained the age of 58 years on July 29, 1976 and, therefore, the Municipal Council, Udaipur was competent in ordering the retirement of the petitioner-appellant w.e.f. the afternoon of August 31, 1976, admittedly, much after he had attained the age of 58 years. He, therefore, dismissed the writ petition.

8. Aggrieved, the petitioner-appellant has lodged this special appeal as aforesaid.

9. We have heared Mr. B.L. Purohit, (sic) counsel for the appellant, and Mr. N.N. Mathur for respondent Nos. 1 and 2. No body has appeared on behalf of respondent No. 3 to oppose the appeal.

10. In the first instance, it was contended by the learned Counsel for the appellant that no rules have been framed by the State Government under Section 297 of the Act regulating the conditions of service and, so, Rule 56 of the Rules of 1951 cannot be availed of for the purpose of Rule 15 of the Rules. The argument seems to be plausible at the first sight, but it does not bear any scrutiny what so ever for the, the Rules, as stated above, were framed by the State Government, in exercise of the powers conferred by Clause (b) of Sub-section (2) of Section 297 of the Act and all other powers enabling the State Government in this behalf. Therefore, the Rules inclusive of Rule 15 are for all purposes the Rules framed in exercise of the powers conferred by Section 297 of the Act. It is significant to note that Rule 15 of the Rules itself provides that the provisions of Rule 15 will apply subject to the provisions contained in Section 310 of the Act, which deals with Subordinate Officers, Municipal Establishments and other servants and provides that subject to the provisions of Section 304 to Section 306 of the Act and of any rules under Section 297 or any other provision of the Act, the acts relating to the appellant etc. will be performed by the authorities/ officers mentioned in Section 310 of the Act.

11. A close reading of Rule 15 makes it clear that if any provision has not been made regarding pay, allowance, leave and other conditions of service in the Rules to be framed in exercise of the power conferred on the State Government under Section 297 of the Act, then, until such rules are framed the pay, allowances, leave, pension, gratuity service conditions, etc., will be governed by the Rules mentioned in Rule 15. Clause (I) of Rule 15 makes mention of the Rules of 1951, as mentioned from time to time. The position is, therefore, inevitable that the conditions of service inclusive of the age of superannuation, until rules are framed by the State Government in exercise of the powers conferred by Section 297, will be those which are contained in the Rules of 1951 and for that matter, the Class IV Employees, so far as the age of superannuation is concerned will be governed by Rule 56 of the Rules of 1951, as amended from time to time. There is no substance in the contention raised by the learned Counsel for the appellant that by virtue of Rule 15, until the rules are framed relating to the conditions of service by the State Government in exercise of the powers conferred by Section 297 of the Act, the provisions of the Rules of 1951 would apply.

12. It was, next, contended by the learned Counsel for the appellant that the appellant will be governed by the retirement age, which was in force when the Rules came into force and according to Rule 15, the retirement age is to be governed by Rule 56 of the Rules of 1951, which provided 60 years of age at that time. In other words the submission of the learned Counsel is that the Commissioner, Municipal Council, Udaipur could not by issuing office order Ex. 4 dated August 31, 1976, retire the petitioner when he has not attained the age of 60 years. It is not in dispute that when the Rules came into force, the retirement age provided in Rule 56 of the Rules of 1951 was 60 years. Rule 56 of the Rules of 1951 was amended and by that amendment, the age of superanuation of Class IV Employees was reduced from 60 years to 58 years. This was made effective from December 1, 1969. The position, therefore, is that from December 1, 1969, the superannuation age of Class IV Employees was 58 years. The contention raised on behalf of the appellant is that when the Rules came into force w.e.f. May 2,1964, Rule 56 of the Rules provided the retirement age as 60 years of Class IV Employees and, therefore, according to Rule 15, his retirement age should be 60 years. The learned Single Judge has considered the expression 'as amended from time to time' used in Clause (1) of Rule 15 of the Rules and opined that the amendments, which are made in the Rules of 1951 from time to time, will govern the conditions of service. The words 'from time to time' cannot be considered to be superfluous, for, it is well settled that the Legislature or the rule making authority does not use superfluous word or the words without meaning anything. A statute sought to be construed that no part of it shall be superfluous'. Effect must be given, if possible to the words used in the statutory provision. It iswell known rule that in construing an Act/Rule, words found there in should not be regarded as surplusage and full effect should be given to those if a reasonable interpretation should be found. In the interpretation of statutes, the courts always presume that the Legislature inserted every part thereof for a purpose and the Legislative intention in that every part of the statute should have effect. These presumptions are also available in the case of rule making authority. Reference may be made to J.M.C.S.A.W. Mills v. State of U.P. AIR 1981 SC 1170 Now the expression 'as amended' been used in the Rules of 1951, then, there would have been some jnstification for the contention of the learned Counsel for the appellant that the conditions of service as contained in the Rules of 1951, which were in force on the date when the Rules came into force, would be applicable, but as the words used are 'as amended from time to time', in out considered a opinion, there is no room for any doubts that what ever amendments are made in regard to the condititions of service in the Rules of 1951 from time to time they will govern the conditions of service of Class IV Employees of the Municipal Board and the Councils, as the case may be, at the time when they are to be considered. It was rightly not disputed that the age of retirement is one of the conditions of service and so, it follows that the age of retirement, or for that matter, superannuation age, which is contained in the amended Rule 56 of the Rules of 1951 and which had come into force from December 1, 1969, will govern the case of the petitioner-appellant in respect of his superannuation age. The superannuation age of the petitioner appellant was 58 years as provided in the amended Rule 56 of the Rules of 1951. The learned Single Judge was, thus, right in this respect also.

13. This takes us to consider the argument regarding retrospectively of the rules. We must candidly state that we have not been able to appreciate the submission of the learned Counsel for the appellant in this respect, for, in view of the words used in Clause (1) of Rule 15 of the Rules, the question of giving retrospective operation to Clause (1) of Rule 15, does not arise. Clause (1) of Rule 15 it self says that the Rules of 1951, as amended from time to time will govern the service conditions of Class IV Employees of the Municipal Boards/Councils regarding which the provision has not been made in Section 310 or any Rules framed by the State Government under Section 297 of the Act. At the relevant point of time, the relevant rule of the Rules of 1951, which was in force, will govern the conditions of service of Class IV employees, for, what ever amendments have been made, or will be made in the Rules of 1951 relating to the service conditions regarding which there is no specific provision under the Act or the Rules framed under Section 397, will govern the service conditions of Class IV Employees. We, therefore, reject the argument relating to the retrospectivity of the rule.

14. The last contention raised by the learned Counsel for the appellant is that the State Government, by issuing Notification Ex. 5, could not reduce the retirement age of Class IV Employees from 60 years to 58 years. The submission is that the State Government was not competent to take any decision to this effect.

15. It will be relevant to quote the last para of the Notification Ex. 5 dated August 30, 1978, which is as under:

Jh jkes'oj ds c;ku ls ;g ugh ekuk tk ldrk gS fd mldh vkthfodk lEiw.kZr% ;k eq[;r% d`f'k ij vk/kkfjr gSA

After the amended Rule 56 of the Rules of 1951 had come into force, i.e. from Dec. l,1969,the State Government issued administrative order dated March 25, 1970 directing the Municipal Boards and Councils not to retire their Class IV Employees who had attained the age of 58 years, as the matter was being considered by the State Government. This necessitated the issuance of the Notification Ex. 5, dated August 20, 1976, directing the Municipal Boards and Councils to retire their Class [V Employees on attaining the age of 58 years. This is amply borne out from the extracted portion of Notification Ex. 5, that the earlier notification and directions were superseded with immediate effect. It was permissible for the State Government to supersede its earlier administrative order dated March 25, 1972 by issuing subsequent administrative order contained in the Notification Ex, 5 dated August 28, 1976. The learned Single Judge was, therefore, right in holding that as the Government has earlier issued administrative order dated March 25, 1970, it was necessary for it to issue the subsequent Notification dated August 31, 1976. This contention is also devoid of force.

16. The case of the petitioner-appellant was governed by the provisions of Rule 15 of the Rules read with Rule 56 of the Rules of 1951 as amended from time to time and, therefore, he was liable to be retired from service of the Municipal Council, Udaipur on attaining the age of 58 years. The petitioner-appellant had attained the age of 58 years on July 29, 1975 and, as such no illegality was committed by the Commissioner, Municipal Council, Udaipur when the order Ex. 4 dated August 31, 1976 was issued retiring the petitioner-appellant from the after-noon of August 31, 1976. The conclusion arrived at by the learned Single Judge is right and we are satisfied that it calls for no interference in the special appeal.

17. No other point survives for our consideration in this appeal.

18. The result is that there is no force in this appeal and it is, accordingly, dismissed without any order as to costs.


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