Ajit Prasad & Anr vs State Of Madhya Pradesh & Others

Regard being had to the similitude of the question involved, on the joint request of the parties these matters were analogously heard and decided by

this common order. Facts are taken from WP-4701-2017 [Ajit Prasad vs. State of M.P. & others].

(2) The petitioner is working on the post of Lower Divisional Clerk (LDC) in respondent No.4-School (Danielson Higher Secondary School,

Chhindwara). The stand of petitioner is that respondent No.4-Institution is getting 100% grant-in-aid from the State Government. The institution is

governed by Madhya Pradesh Ashaskiya Shiksharn Sanstha (Adhayapako Tatha Anya Karmchariyon ke Vetano Ka Sanday) Adhiniyam, 1978 (for

short “Adhiniyamâ€). The service conditions of the petitioner are governed by Madhya Pradesh Ashaskiya Shiksharn Sanstha (Adhayapako Tatha

Anya Karmchariyon Ki Bharti) Niyam, 1979 (for short “Niyamâ€​).

(3) The petitioner was duly appointed on the post of LDC. The petitioner’s selection was approved by Divisional Education Superintendent,

Narmada Division by order dated 19.08.1981 (Annexure-P/1). The petitioner joined on the post of LDC on 25.08.1981. Thereafter, the petitioner is

working continuously on the said post.

(4) Mr. Shivam Mishra, learned counsel for the petitioner submits that in the Niyam, no age of superannuation of petitioner is prescribed. The State

Government issued a circular dated 19.12.1974 and prescribed the age of retirement of the employees serving in the aided institutions. As per this

circular the age of retirement of petitioner is 62 years. It is categorically pleaded in para 5.4 of the petition that many ministerial employees of aided

institutions were permitted to continue in employment till attaining 62 years of age. The aforesaid position was clarified by respondent No.2 by issuing

another circular dated 01.09.2010 (Annexure-P/4). In view of this circular, even in the respondent No.4’s Institution, the employees were made to

retire on attaining the age of 62 years. For example, names of Shri Shushil Kumar Sukka (Accountant) and Shri Rajendra Prasad (Lab Attendant) are

cited. Example of another institution is given by stating that Shri Kunjuman (clerk) was retired from Barkui Mission Higher Secondary School on

attaining the age of 62 years. On the strength of this, it is submitted that the action of respondents in issuing the impugned order dated 21.03.2017

(Annexure-P5) may be set aside, whereby the respondents decided to retire the petitioner on attaining the age of 60 years.

(5) Mr. Rajesh Tiwari, learned GA opposed the stand of the petitioner on the strength of return and urged that age of retirement of petitioner is 60

years. Reliance is placed on Madhya Pradesh Shashkiya Sevak (Adhivarshiki-Ayu) Sanshodhan Adhiniyam, 2011 (for short “Adhivarshiki

Adhiniyamâ€). In view of this amendment, it is averred that age of retirement of ministerial staff is 60 years. A communication dated 20.03.2017

(Annexure-R/2) is relied upon to contend that as per Fundamental Rules, the age of retirement of ministerial employees/librarian is 60 years, whereas

Teachers will retire on attaining the age of 62 years. On the strength of Adhivarshiki Adhiniyam and Annexure-R/2 it is submitted that petitioner has

no right to continue upto 62 years.

(6) Mr. Hashmeet Hora, learned counsel for the respondent No.4 has also taken the same stand. Alongwith the return of respondent No.4 also M.P.

Shashiya Sevak (Adhivarshiki-Ayu) Sanshodhan Act, 2011 was filed. It is urged that in view of amendment in Sub-rule (2) of Rule 56 of the

Fundamental Rules, the circular dated 19.12.1974 has become obsolete and otiose. Mr. Hora also borrowed the arguments of Mr. Tiwari, learned GA.

(7) No other point has been pressed by the learned counsel for the parties.

(8) Parties confined their arguments to the extent indicated above.

(9) I have heard the parties at length and perused the record.

(10) Before dealing with rival contentions, it is apposite to reproduce the order dated 19.12.1974 Annexure P/3 and order dated 1.9.2010 Annexure

P/4 on which heavy reliance is placed by the petitioners.

e/;izns'k 'kklu

f'k{kk foHkkx

dzekad ,Q&73&14@74@vkbZ&1th& Hkksiky] fnukad 19 fnl0 74

izfr]

lapkyd yksd f'k{k.k

e/;izns'k HkksikyA

fo""k;&v'kkldh; vuqnku ,oa ekU;rk izkIr 'kkykvksa esa dk;Zjr fefMy izk;ejh ds f'k{kdksa rFkk vU; deZpkfj;ksa dh lsok fuo`fRr vk;q dh lhek fu/kkZfjr

djus ckcrA

lanHkZ vkosnu i= dzekad vuq@2@72@2509@fnukad 3 vDrwcj 1974

lanfHkZr f'k{k.k laLFkkvksa ds f'k{kdksa ,oa deZpkfj;ksa dks isa'ku ugha nh tkrh vr% jkt dkj.k ls vkids izLrkokuqlkj vuqnku ,oa ekU;rk izkIr

deZpkjh@izHkkjh 'kk[kk ,oa ckyeafnjks esa dk;Zjr f'k{kdksa ,oa deZpkfj;ksa dh lsok fu;qfDr vk;q dh lhek HkRrk vkns'k gksus rd fuEukuqlkj fpfdRld

djus dh vuqlkj iznku dh gSA

1& v'kkldh; mPprj ek/;fed f'k{kk ds fefMy izHkkjh Ldwy ,oa cky eafnj ds f'k{kdksa esa rFkk izHkkjh dh lsok fuo`fRr vk;q 62 o""kZ j[kh tkosA

2& ;ksX;rk ,oa LokLF; dks ns[kdj laHkkxh; f'k{kk v/kh{k.k dks vf/kd`r fd;k tkrk gS fd lsokjr fuo`fRr ds 62 ls 65 o""kZ rd cf'k{kdksa ds fy;s gh gksxhA

3& leLr v'kkldh; f'k{k.k laLFkkvksa ds fyfid ,oa vU; deZpkfj;ksa dks lsokfuo`fRr dh vk;q lhek 62 o""kZ rd jgsxhA

4& lsok fuo`fRr vk;q lhek f'k{kd tu ds vUr rd ekU; gksxhA

e/;izns'k ds jkT;iky ds uke ls rFkk

vkns'kkuqlkj

gLrk@lgh

,l0ih0oekZ

milfpo e0iz0 'kklu f'k{kk foHkkx

izfrfyfi laLFkku yksd f'k{k.k izR;ksfir ds i= dzekad vuq@[k@74@75 4999 Hkksiky fnukad 19 fnlEcj 74 }kjk izkIrA

dk;kZy; laHkkxh; f'k{kk v/kh{kd

ueZnk laHkkx

i`""Bkadu dzekad 235@ys[k@vuqnku@74 gks'kaxkckn fn0&3-1-75

izfrfyfi&

1& leLr izkpk;Z] v'kk0m0ek0'kkyk;sA

2& lfefr ftyk f'k{kk vf/kdkjh

ueZnk laHkkx dh vksj lwpukFkZ ekxZn'kZu ,oa vko';d dk;Zokgh gsrq vxzsf""kr ftyk f'k{kk vf/kdkjh ftyk dh izkFkfed 'kkyk ,oa cky eafnj 'kkykvksa esa

izca/kdksa dks 'kklu ds mDr vkns'kks ls voxr djkosA

gLrk@lgh

lhy

yksd f'k{k.k lapkyuky;

e/;izns'k

dzekad@vuqnku@lh@8@2010@576@185 Hkksiky] fnukad 01&09&10

izfr]

ftyk f'k{kk vf/kdkjh

ftyk mTtSuA

fo""k;%&v'kkldh; vuqnku izkIr m0ek0fo0 esa ekU; dk;Zjr deZpkfj;ksa dh vf/kokf""kZdh vk;q ds vof/k ds ekxZn'kZu laca/khA

lanHkZ%&vkidk i= dz0 ekU;rk@vuqnku@2010@110 fnukad 30-07-10

fo""k;kUrxZr izdj.k ds laca/k esa lUnfHkZr i= dk d`i;k voyksdu djsaA ftlesa vkids }kjk vf/kokf""kZdh vk;q ds laca/k esa ekxZn'kZu pkgk x;k gSaA vr%

izdj.k esa ys[k gS fd e/;izns'k 'kkldh; ¼vf/kokf""kZdh vk;q½ la'kks/ku vf/kfu;e 1987 ds vuqlkj leLr v'kkldh; f'k{k.k laLFkkvksa ds fyfid ,oa vU;

deZpkfj;ksa dh lsok fuo`fRr dh vk;q 62 o""kZ jgsxhA

vr% ifji= dh izfr layXu dj Hksth tk jgh gSaA

vij lapkyd

yksdf'k{k.k] e0iz0

Similarly, the order dated 23.2.2017 Annexure R/2 is reproduced for ready

reference:Â

lapkyuky; yksd f'k{k.k e/;izns'k

xkSre uxj Hkksiky 462023

nqjHkk""k dzekad 0755&2583650 QSDl 0755&2583651

E-Mail --- grant-dpi@mp.gov.in

dzekad@vuq@vkabZ@cSrqy@08@2017@185 Hkksiky] fnukad 23&2&2017

izfr]Â

ftyk f'k{kk vf/kdkjhÂ

cSrwyÂ

fo""k;%&v'kkldh; vuqnku izkIr f'k{k.k laLFkkvksa esa ekU; dk;Zjr LVkQ dh lsok fuo`fRr ds laca/k esa ekxZn'kZu ckcr~A

lanHkZ%&vkidk i= dzekad@7253@vuqnku@2017 fnukad 16-02-2017

mijksDr fo""k;kUrxZr vuqnku izkIr f'k{k.k laLFkkvksa esa ekU; f'k{kd@deZpkfj;ksa ij e-iz- 'kklu ds fu;e ykxw gksrs gSA vr% ewyHkwr fu;e 56

vf/kokf""kZdh vk;q&mi fu;e ¼2½ ds vuqlkj vuqnku esa ekU; fyfidoxhZ;@xazFkiky deZpkjh dh vf/kokf""kZdh vk;q 60 o""kZ ,oa f'k{kd laoxZ

deZpkjh dh vf/kokf""kZdh vk;q 62 o""kZ jgsxhA

dzekad@vuq@vkabZ@cSrqy@08@2017@186

lapkyd

yksd f'k{k.k] e/;izns'k

Hkksiky] fnukad 23&2&2017

izfrfyfi%&

1- leLr la;qDr lapkyd] yksd f'k{k.k] e-iz-A

2- leLr la;qDr lapkyd] yksd f'k{k.k ¼fof/k izdks""B½ tcyiqj@bUnkSj@Xokfy;j e-iz-A

3- leLr ftyk f'k{kk vf/kdkjh] e-iz- dh vksj lwpukFkZ ,oa vko';d dk;Zokgh gsrq vxzsf""krA

(11) Article 166 of the Constitution enjoins the State to express its executive action in the name of the Governor. The order dated 19.9.1874 is an

order issued by the State Government by the name of the Governor. The document dated 1.9.2010 is a letter written by Additional Director to District

Education Officer, District Ujjain reiterating that age of superannuation of ministerial staff will be 62 years. The respondents have placed heavy

reliance on the document dated 23.2.2017 Annexure R/2 and contended that as per FR 56 and Adhivarshiki Ayu (Sanshodhan) Adhiniyam, the age of

superannuation of ministerial staff will remain 60 years. The core issue is regarding applicability of executive instructions dated 19.12.1974 and letter

dated 23.2.2017. In the considered opinion of this court, the document dated 19.12.1974 must be treated as an executive decision/action of the

Government of State which was expressed in the name of the Governor whereas document dated 23.2.2017 is a letter written by Director, Public

Instructions to DEO Betul. This letter, by no stretch of imagination, can supersede supplant or prevail over a decision of Government dated 19.12.1974

Annexure P/3. A plain reading of applicability clauses mentioned in Fundamental Rules and Adhivarshiki Ayu Adhiniyam shows that FR and

Adhiniyam are applicable to the Government employees. The Director, Public Instructions by issuing a letter cannot make Adhiniyam or FR applicable

to the employees of aided institution. By issuance document dated 23.2.2017 Annexure R/2, it cannot be presumed that a legislation by incorporation

has taken place whereby Adhiniyam/FR is made applicable to the petitioners. Putting it differently, it cannot be said that Adhiniyam/FR is bodily

transposed for employees of aided institution. If Government intended to extend the applicability of Adhiniyam/FR, it is free to do so as per the

methods known to law. The method adopted by the Director to expand Adhiniyam/FR by issuing a letter is totally unknown to law. The document

Annexure R/2, at best may be an opinion of an officer of a department. In 2010 (12) SCC 471 (Shiba Shankar Mohapatra and others vs. State of

Orissa and others), the Apex Court opined that mere information given by various departments of the Government cannot be termed as executive

instructions. In 2002 (1) SCC 145 (Parmeshwar Prasad vs. Union of India and others), the Supreme Court poignantly held that the executive

instructions can also be issued only by the competent authority which is empowered to issue relevant rule/regulation. Thus, executive instructions

regarding applicability of Adhiniyam/FR could have been issued by the State Government in accordance with law. As long as it is not done, the

petitioners have valuable right to enjoy the age of retirement as prescribed in the circular dated 19.12.1974.

(12). Before parting with the mater, I deem it proper to observe that the categorical pleading regarding applicability of executive instructions dated

19.12.1974 remained unanswered in the return filed by the respondents. The official respondents, for the reasons best known to them, have not chosen

to file para-wise reply. The specific assertion of petitioners in para 5.4 of the petition regarding step motherly treatment being given to them, remained

unanswered. In this para, the petitioners contended that similarly situated employees even working in the same institution were permitted to continue

upto 62 years. There is no justification for putting the petitioners to a comparative disadvantageous position.

(13) In view of aforesaid cumulative reasons, the petitions deserve to be allowed. Resultantly, the impugned orders dated 21.3.2017 Annexure P/5 and

similar orders in connected petitions are set aside. The respondents shall permit the petitioners to continue in employment till attaining the age of 62

years with all consequential benefits.