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

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 1734 of 1976
Judge
Reported in1977WLN207
AppellantDule Singh
RespondentMunicipal Council and ors.
Cases ReferredIn Roshan Lal v. Union of India
Excerpt:
rajasthan municipalities (class iv) service rules, 1964 - rule 15--state government is empowered to withdraw administrative instructions--petitioner's retirement on attaining age of 58 years is justified.;the instrument of change should be of the same type as the original instrument governing the conditions of service. i am, therefore, of the view that the state government was perfectly justified in withdrawing the administrative instructions which it had earlier issued on march 25, 1970 by issuing other administrative instructions as contained in the notification dated august 20, 1976. in that event the case of the petitioner would fall to be governed by the provisions of rule 15 of the 1964 rules read with rule 56 of the service rules. in accordance with the provisions of the aforesaid..........act was 60 years and that after the coming into force of the rajasthan municipalities (class iv) service rules, 1964 (hereinafter to be referred to as 'the 1964-rules'), the petitioner would still be governed by the same provisions regarding retirement, as there is no provision in the 1964 rules reducing the age of retirement of class iv employees of the municipal boards and councils from 60 years to 58 years. according to the learned counsel, rule 15 of the 1964 rules made the provisions of the rajasthan service rules, 1951 (hereinafter referred to 'the service rules') applicable to the petitioner in respect of conditions of service, subject to the provisions of section 310 of the rajasthan municipalities act and accept as provided in the 1964 rules, because no rules have been framed.....
Judgment:

D.P. Gupta, J.

1.The petitioner Dule Singh was employed as a Class IV employee in the Municipal Council, Udaipur in the year 1947. The date of birth of the petitioner was recorded in his service record as July 30, 1917. The petitioner continued to work on the post of Mistry, as a Class IV employee, with the Municipal Council, Udaipur. On completion of 55 years of age, he sought to be retired from the service of the Municipal Council by giving him a notice. But later on that notice was withdrawn, because the Municipal Council referred the matter to the State Government and the State Government by its letter dated October 16, 1972 expressed the view that the date of superannuation in the case of Class IV employees of Municipal Boards and Councils was 60 years. The petitioner, therefore, continued to remain in the service of the Municipal Council, Udaipur. However, the State Government by a notification dated August 20, 1976 published in the Rajasthan Gazette decided that the age of retirement of Class IV employees of Municipal Boards & Councils be reduced from 60 years to 58 years. Thereafter the Commissioner, Municipal Council, Udaipur informed the petitioner by his letter dated August 31, 1976 that the petitioner having already attained the age of 58 years he was superannuated for the service of the Municipal Council from the afternoon of August 31, 1976. It is against this order of the Municipal Council, Udaipur that the present writ petition has been filed in this Court.

2. The submission of the learned Counsel for the petitioner is that the age of superannuation of the petitioner was 60 years and as such the petitioner could not have been retired from the service of the Municipal Council before attaining the age of 60 years and, therefore, the order passed by the Commissioner Municipal Council dated August 31, 1976 deserves to be quashed According to the learned Counsel for the petitioner, the age of retirement of a class IV employee under the Udaipur City Municipal Council Act was 60 years and that after the coming into force of the Rajasthan Municipalities (Class IV) Service Rules, 1964 (hereinafter to be referred to as 'the 1964-Rules'), the petitioner would still be governed by the same provisions regarding retirement, as there is no provision in the 1964 Rules reducing the age of retirement of Class IV employees of the Municipal Boards and Councils from 60 years to 58 years. According to the learned Counsel, Rule 15 of the 1964 Rules made the provisions of the Rajasthan Service Rules, 1951 (hereinafter referred to 'the Service Rules') applicable to the petitioner in respect of conditions of service, subject to the provisions of Section 310 of the Rajasthan Municipalities Act and accept as provided in the 1964 Rules, because no rules have been framed so far under Section 297 of the Rajasthan Municipalities Act regulating the age of retirement of the employees of the Municipal Board and Councils. The submission of the learned Counsel is that the provisions of the age of superannuation, as specified by Rule 56 of the service Rules, as they stood in the, year 1964, when they were made applicable to the employees of the Municipal Boards and Councils by the provisions of Rule 15 of the 1964 Rules, was 60 years in the case of Class IV employees and the petitioner still continued to be governed by the same provision, as no different provision has so far been made in respect of the age of superannuation of Class IV employees of Municipal Councils under Section 297 of the Act. I must observe that this submission of the learned Counsel is untenable because Rule 15 of the 1964 Rules provides that until rules are framed under Section 297 of the Act, the conditions of service of the employees of the Municipal Boards and Councils would be regulated by 'the Rajasthan Service Rules, 1951 (except provisions relating to pension) as amended from time to time.' It is, therefore, apparent that the Rajasthan Service Rules have been adopted for purposes of application to the employees of the Municipal Boards and Councils by Rule 15 of the 1964 Rules, which were themselves 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.' The intention of the rule making authority is perfectly clear by the use of the words 'as amended from time to time' that it was desired to give the benefit of all such amendments, made in the Rajasthan Service Rules, to the employees of the Municipal Boards and Councils, as may be effected subsequently to the promulgation of the 1964 Rules. The argument of the learned Counsel for the petitioner that the words 'as amended from time to time' had merely a reference to the amendments introduced in the Rajasthan Service Rules prior to the promulgation of 1964 Rules does not merit any consideration for the simple reason that the words are not 'as amended', but the legislative authority has significantly used the words 'as amended from time to time' in Rule 15, which clearly referred to all amendments which have also been introduced in the Rajasthan Service Rules from time to time, after the 1964 Rules were promulgated.

3. learned Counsel then argued that the amendment in the service conditions altering the age of superannuation affected an existing right of the petitioner and such an amendment could not be made so as to affect the said right of the petitioner retrospectively. It is argued on this basis that the amendment introduced in Rule 56 of the Service Rules vide notification dated November 19, 1969 and which was made effective from December 1, 1969, substituting the words '58 years' for the words '60 years', could not affect the petitioner who was already in employment. This submission also cannot be accepted. In Roshan Lal v. Union of India : (1968)ILLJ576SC their Lordships of the Supreme Court made the following observations when a similar submission was made before them:

It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But 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. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights & duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government tenant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee.'' (Emphasis added)

4. The aforesaid observations of their Lordships clearly laid down that the conditions of service of a Government employee are governed by statutory rules, which can be unilaterally altered by the Government to the disadvantage of the employee during the course of such employment I fail to see as to how the question of any retrospectivity arises in the present case. The superannuation of the petitioner has not been brought about from any earlier point of time by an amendment made in the Rules subsequent to the date of such superannuation. Rule 56 of the Service Rules was amended in the year 1969 and the age of superannuation of a Class IV employee was reduced from 60 years to 58 years and it was brought into force as from December 1, 1969. By virtue of the provisions of Rule 15 of the 1964 Rules the amended Rule 56 of the Service Rules was made applicable to Class IV employees of all Municipal Boards and Councils in the State.

5. It appears that thereafter the State Government by an administrative order dated March 25. 1970 directed the Municipal Boards and Councils not to retire its Class IV employees on at raining the age of 58 years as the matter was being considered by the State Government. It was with reference to these administrative instructions given by the State Government on March 25, l970 that the State Government by its subsequent notification dated August 20, 1976 directed the Municipal Boards and Councils to retire their Class IV employees on attaining the age of 58 years. It is significant that in the notification dated August 20, 1976 the State Government has directed that its earlier notifications and directions were superseded with immediate effect Thus, if the petitioner was allowed to continue in service beyond the age of 58 years because of administrative directions issued by the State Government it cannot be said that he has an existing right to continue in service upto the age of 60 years, on the basis of such administrative directions which were in contravention of the rules applicable to the matter. The administrative direction given by the State Govt earlier was withdrawn by it by another administrative direction issued subsequently. If the service conditions of a particular set of employees are governed by a statute then they could only be altered or amended by another statute and in case they are governed by statutory rules, then the service conditions of such employees can be altered only by a statute or statutory rules. But administrative instructions cannot alter or modify the conditions of service of those employees, who are governed by a statute or statutory rules. However, if the original conditions of service are based on administrative instructions, the Government is competent 10 alter or modify or amend such conditions of service by administrative instructions. It is absolutely clear that the instrument of change should be of the same type as the original instrument governing the conditions of service. I am, therefore, of the view that the State Government was perfectly justified in withdrawing the administrative instructions which it had earlier issued on March 25, 1970 by issuing other administrative instructions as contained in the notification dated August 20, 1976. In, that event, the case of the petitioner would fall to be governed by the provisions of Rule 15 of the 1964 Rules read with Rule 56 of the Service Rules. In accordance with the provisions of the aforesaid rules, the petitioner was liable to be retired from service of the Municipal Council on attaining the age of 58 years. The petitioner admittedly attained the age of 58 years on July 29, 1975. In this view of the matter, the Municipal Council was perfectly justified in ordering the retirement of the petitioner with effect from the afternoon of August 31, 1976 i.e. much after he had attained the age of 58 years.

6. As a result of the aforesaid discussions, I find no reason to interfere with the order passed by the Commissioner, Municipal Council. Udaipur regarding the retirement of the petitioner from the service of the said Municipal Council. Consequently the writ petition has no merit and is dismissed. The parties are left to bear their own costs.


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