Jagan Nath vs State of Punjab and Others

Jawahar Lal Gupta, J.—Is the action of the Municipal Committee, Bhatinda, in retiring the petitioner who was working as an Octrio Clerk at the age of 58 years illegal. This is the short question that arises for consideration.

The petitioner alleges that he had been appointed as a Peon on August 11, 1948. On September 1, 1948, the princely States were merged to form the erstwhile State of PEPSU. According to the petitioner, he was integrated as an Octroi Moherrir on November 30, 1950. On September 30, 1988, the second respondent passed an order retiring the petitioner from service. He filed a representation claiming that he could not be retired at the age of 58 years as the age of retirement in the erstwhile State of PEPSU was 60 years. Even in the Rules framed u/s 240 of the Punjab Municipal Act, 1911, "at the time of appointment" of the petitioner, an employee was entitled to continue in service till he attained the age of 60 years. The original rules were substituted by the rules framed in the year 1979, but the rights and obligations existing on the date of the promulgation of these rules were fully protected. Accordingly, the petitioner claims that he had a right to continue in service up to the age of 60 years. He consequently prays that the order dated September 30, 1988 passed by the second respondent be quashed.

A written statement has been filed on behalf of the respondent-Committee. It has been averred that the petitioner was working as an Octroi Clerk. He was not a Class IV employee. He has been retired from service in accordance with law. It has also been stated that the writ petition having been filed more than 18 months after the date of retirement, is belated and deserves to be dismissed on this ground. On merits, it has been pointed out that he was appointed as an employee of the Municipal Committee. At the time of his initial appointment, there were no rules. The provisions of the Punjab Municipal Act, 1911 were extended to the territory of the erstwhile State of PEPSU by Punjab Act No. V of 1959. It was only thereafter that the Act and the Rules became applicable to the petitioner. It has been further pointed out that out that the old rules were repealed by the Punjab Municipal General Rules, 1979. Under Rule 22, the age of the retirement has been fixed. Only Class IV employees are entitled to continue up to the age of 60 years. The other employees retire on attaining the age of 58 years. Since the petitioner was not holding a Class IV post, he was not entitled to continue in service till the age of 60 years. The claim of the petitioner that his services had been integrated in the State''s services has been controverted. According to the respondent, the petitioner was never appointed to serve in connection with the affairs of the State. He was an employee of the Municipal Committee and retired as such.

These are the pleadings.

The short question that arises for consideration is - Did the petitioner have a right to continue in service till the age of 60 years. 5. Admittedly, the petitioner had joined service of the respondent-Committee, Bhatinda. The town of Bhatinda was initially a part of the princely State of Faridkot. On September 1, 1948, it was integrated with the other princely States to form PEPSU. The provisions of the Punjab Municipal Act, 1911 were not applicable in the State of PEPSU. These were extended in the year 1959. Consequently, on the date of the petitioner''s entry in service, there were no statutory rules governing the conditions of his service. So far as rule 13 of the Punjab Municipal Committee (General) Rules as referred to by the petitioner is concerned, it only provided that superior servants would retire at the age of 58 years and the ''inferior servants'' would continue till the age of 60 years. This rule was, however, repealed in the year 1979 when the new rules were framed. Under rule 22, the age of retirement in case of all employees other than those belonging to Class IV servants was fixed as 58 years.

The petitioner was working as an Octroi Clerk on the date of his retirement. He did not belong to Class IV service. Accordingly, he was liable to be retired at the age of 58 years. This is precisely what has been done.

Mr. Ashok Sharma, learned counsel for the petitioner has submitted that the petitioner was in fact working as an Octroi Moharris and not as an Octroi Clerk. According to the learned counsel, an Octroi Moharrir belongs to an ''inferior class'' of service and was thus entitled to continue the service till the age of 60 years in view of the provision of rule 13. it has been further submitted that the provisions of the 1979 Rules whereby only Class IV employees were entitled to continue till the age of 60 years cannot be made applicable to the persons who had been recruited prior to the promulgation of these Rules.

The claim made on behalf of the petitioner has been controverted by the learned counsel for the second-respondent.

The impugned order of retirement produced by the petitioner clearly describes him as an Octroi Clerk. Even in the operative portion, the petitioner was informed that he is retired "from the post of Octroi Clerk, Municipal Committee, Bhatinda" In the writ petition, there is no averment that the petitioner was not holding the post of a Clerk at the time of his retirement. Further more, in the writ ten statement filed on behalf of the respondent-Committee, it has been averred that at the time of his retirement the petitioner was "holding the designation of Octroi Clerk. This is apparent from the fact that when he opted for the revised scales, he described himself as a Clerk." The averments made in the written statement have not been controverted by filing any replication. Irrespective of the above, even if it is assumed that the petitioner was actually working on the post of a Clerk, there is nothing on the record to suggest that the said post fell in the category of "inferior" servants or that it was a part of the Class IV service in the Municipal Committee. The petitioner''s age of retirement has to be determined on the basis of the post actually held by him in the year 1988 and not on the basis of the post to which he was initially recruited. Consequently, neither under rule 13 which was ultimately repealed nor under the provisions of 1979 Rules, the petitioner was entitled to continue in service beyond the age of 58 years. In view of the above, the first contention raised by the learned counsel cannot be sustained.

It was then contended by Mr. Sharma that the conditions of service of the petitioner would be governed by the rules which were in force at the time of his entry into service and that such conditions could not be varied to his disadvantage at any stage. On this basis, learned counsel, submitted that the provisions of rule 24 of the 1979 Rules cannot be applied. According to the learned counsel, the retirement of the petitioner under these rules would amount to retrospective enforcement of the rules. There is no merit in this submission. Admittedly, the petitioner was retired in the year 1988. On that date, the 1979 Rules were in force. His recruitment was in strict conformity with 1979 Rules. There is no retrospective operation of the rules in the case. Even otherwise, as already observed, under the provisions of rule 13 which were made applicable to the areas which were originally comprised in the State of PEPSU in the year 1959, the petitioner was liable to be retired at the age of 58 years because he was one of the "superior" servants and did not belong to the category of "inferior" servants. Accordingly, even this contention is rejected.

No other point has been urged.

In view of the above, there is no merit in this petition. It. is, consequently, dismissed. It was a fit case for the award of costs. However, since the petitioner has already been retired from service, I make no order as to costs.