Vijay Prasad Sharma and Others vs The State of Rajasthan and Others

Jaishree Thakur, J.—1. In both these writ petitions, similar question is involved and, therefore, they are being disposed of by this common order. For the sake of convenience facts of S.B. Civil Writ Petition No. 7641/2011 are taken.

The petitioners herein claim that they worked till the age of 60 years and therefore are entitled to grant of privilege leave, leave encashment, increase in payment of gratuity, increments etc. due to them by taking into account the entire length of service including the period of having served beyond the date of superannuation by force of an interim order passed in writ proceedings.

Brief facts are that the Registrar, Co-operative Societies issued an order dated 17.9.2008 by which it was specified that such Cooperative Societies in which there were no capital share of the State Government, would be free to take a decision of raising age of retirement from 58 years to 60 years. The Managing Director of the Cooperative Societies, where the petitioners worked, issued an order dated 19.9.2008 increasing age of retirement from 58 years to 60 years. By an order dated 22.9.2008, Uttari Rajasthan Sahakari Dugdh Utpadak Sang (for short "URMUL"), Bikaner decided to increase the age of retirement of its employees from 58 years to 60 years to be effected from August, 2008. Eventually, the instructions dated 9.9.2008 came to be withdrawn by an order dated 31.3.2009. The URMUL, in turn, issued an order dated 1.9.2009 retiring 14 persons including the petitioners. Aggrieved against the order of retirement, writ petitions came to be filed and by virtue of an interim stay order they were allowed to continue in service. These writ petitions were allowed on 25.2.2010 but the same came to be challenged in D.B. Civil Special Appeal No. 165/2010 - Pashimi Raj. Dugadh Utpatan Sahakari Samiti Limited v. Kanti Lal Ojha and Ors. & 93 other matters and the same were allowed vide judgment dated 8.3.2011 wherein the order of the Managing Director enhancing the age of superannuation to 60 years was quashed. The petitioners, who had continued to work after attaining the age of 58 years on the basis of an order passed, have filed the present writ petition with the prayer that they should be paid salary, gratuity and other benefits while taking into account the actual period of service rendered i.e. uptill 60 years instead of computing the retirement age to be at 58 years.

Mr. R.S. Saluja, learned counsel appearing on behalf of the petitioner contends that the petitioners were allowed to continue in service on the basis of an order passed by the Managing Director, who had ordered that age of retirement of employees of URMUL would be enhanced to 60 years. It is only on 1.9.2009 that the petitioners were sought to be retired when an order dated 31.8.2009 came be passed rescinding the order enhancing age of retirement. As this order was challenged in a writ petition which came to be allowed, the petitioners would, as a natural consequence, be entitled to all the benefits that would accrue for the period for which they had rendered service along with increase in gratuity from Rs. 3,50,000/- to Rs. 10,00,000/- as an amendment that had come to be made in the Payment of Gratuity Act, 1972, and the petitioners would also be entitled to benefits of Sixth Pay Commission as well. It is further contended that in "D.B. Civil Contempt Petition No. 156 of 2011 Dairy Karamchari Union Jodhpur vs. R.K. Trashal and others and other connected matters decided on 23.11.2011", a direction had been given by the Division Bench of this Court to the effect that:-

"It was also submitted that certain incumbents, who were allowed to continue in service under the orders of this Court and Federation, have not been paid salary and they have been removed retrospectively we direct that they cannot be deprived of their salary for the period for which they have rendered services. The respondents are bound to make payment of salary for the period for which they have rendered services.

With the aforesaid observations and directions, the contempt petitions, special appeals and writ petitions are disposed of."

It is also argued that the term salary would include dearness or any other allowances as well. Reliance has been placed on several judgments, namely, State of Rajasthan vs. Senior Higher Secondary School, Lachhmangarh, (2005) 10 SCC 346 and Gestetner Duplicator Private Ltd. vs. Commissioner of Income Tax, W.B., , (1979) 2 SCC 354 to reinforce the arguments addressed.

Per contra, learned counsels for the respondents have vehemently argued that the petitioners herein had worked on the basis of an order which had been held to be illegal and being void ab initio, any service rendered under such illegal order or on the basis of any interim orders, could not be taken into account for grant of enhanced benefits of gratuity, Sixth Pay Commission etc as sought. It is argued that the petitioners though worked till the age of 60 years, would not be entitled to relief claimed as the order by virtue of which they worked beyond the age of 58 was quashed by the Division Bench on 8.3.2011. Reliance has been placed on several judgments rendered by the Hon''ble Supreme Court to contend that petitioner''s would not be entitled to benefits as claimed.

I have heard learned counsel for the parties and have perused the record of the case.

Admittedly, the petitioners were employed with URMUL and in normal circumstances, would have retired from service on attaining the age of 58 years. The Registrar, Cooperative Societies issued a circular providing discretion to Cooperative Societies to increase the age of superannuation and based on this order, the Managing Director, URMUL increased the age of superannuation to 60 years. This order was eventually recalled leading to the filing of the writ petitions and by way of interim order, the petitioners were allowed to continue in service. The writ petitions came to be allowed in their favour by an order dated 25.3.2010 and (other than in the case of Vinit Kumar where no Division bench appeal came to be filed), the same were challenged. During the pendency of the Special Appeal before the Division Bench, the petitioners were superannuated on attaining the age of 60 years. While allowing the intra-court appeal, the Division Bench in its common judgment dated 8.3.2011 gave a direction that the matter regarding enhancement of age should be reconsidered by Rajasthan Cooperative Dairy Federation Limited and the Society. The Rajasthan Cooperative Dairy Federation Limited took a decision on 31.3.2011 not to enhance the age of superannuation. This order 31.3.2011 came to be challenged in several writ petitions as well in contempt petitions filed on the ground that in spite of directions issued by the Division Bench to reconsider the matter regarding enhancement of the age of superannuation, the same has not been considered in its true perspective keeping in mind various resolutions already passed. The contempt petitions and the writ petitions were disposed of by common order dated 23.12.2011 upholding the orders passed not to enhance the age of superannuation but directions came to be issued to release the salary of those persons who had continued to work under the orders of the Court or during the pendency of the litigation and had attained the age of 60 years while rendering service. The orders passed by the Division Bench in this second round of litigation was again challenged before the Apex Court and the Hon''ble Supreme Court declined to interfere in the matter while remanding it back for reconsideration to the societies concerned.

The question that arises for determination is whether the petitioners, who worked on the basis of an order passed by the Managing Director and under orders of the court, would be entitled to salary, payments of salary as under the Sixth Pay Commission, enhancement in payment of gratuity on account of amendment in the Payment of Gratuity Act 1976, etc even though such order enhancing age of retirement had been declared as illegal?

There are a catena of judgments as rendered by the Hon''ble Supreme Court to the effect that no person would be entitled for pay and retiral benefits for continuation in service beyond the superannuation date even by virtue of wrong decision of the court or continuation beyond the date of superannuation on the basis of an interim order.

In Collector of Madras and another vs. K. Rajamanickam, , (1995) 2 SCC 98, wherein the employee continued to work after he had superannuated by virtue of the orders of the Tribunal in contempt petition and the Hon''ble Apex Court held that he would be entitled to retiral benefits as computed as if he had retired on actual date of retirement ignoring the fact that he had continued to work thereafter.

In State of Jammu and Kashmsir vs. Pirzada Ghulam Nabi, , (1998) 9 SCC 102, while relying upon judgment rendered in Collector Madras (supra) came to hold that no direction could be made for payment for any service rendered subsequent to the date of superannuation. In the State of Jammu and Kashmir (supra), the respondent was retired on superannuation with effect from 31.5.1984. He challenged retirement order before the High Court and obtained an interim stay. Against his retirement, in the writ petition an order was passed directing the appellant to hold a departmental enquiry for the purpose of determination of respondent''s date of birth. In the departmental enquiry, finding has been given against the employee by holding that correct date of birth had been entered in the service records. As the salary had not been paid, another writ petition came to be filed in which the High Court passed an order directing payment of salary for the period worked after the date of superannuation. The letters patent appeal filed against the said order passed by the High Court was dismissed and against that, an Special Leave Petition came to be preferred before the Hon''ble Supreme Court, wherein it was held as under:-

"4. When the correct date of birth has been found as 4-5-1929, and the respondent was rightly superannuated w.e.f. 31-5-1984, we fail to see how a direction can be given directing payment of any salary subsequent to the date of superannuation. The respondent has drawn our attention to the decision of this Court in Collector of Madras v. K. Rajamanickam. In that case, the respondent had already been paid for the period of service rendered by him after the date of superannuation. The department sought recovery of the amount so paid. This Court did not permit recovery of the amount which had already been paid for the service rendered by the employee after the date of superannuation. It, however, directed that his retiral benefit should be computed on the basis of his correct date of superannuation. A similar order has been passed by this Court in State of J&K v. R.C. Choudhary, CAs Nos. 3331-32 of 1997 decided on 5-5-1997. In the present case, however, no amount has been paid by the appellant to the respondent for the service rendered by the respondent after the date of superannuation. The department was throughout contesting the claim of the respondent. It agreed to hold a fresh inquiry regarding his date of birth, but did not agree to payment of any salary after the respondent''s superannuation as per their records. We fail to see how we can direct any payment for any service rendered during the period of this inquiry after the date of superannuation. When salary is already paid under any misapprehension, the court may be reluctant to order recovery from a retired employee who may be put to hardship if he has to repay the amount. But these considerations do not operate in the present situation. Hence the appeal is allowed and the impugned order is set aside. The writ petition is dismissed."

Similarly, in Radha Kishun vs. Union of India & others, , (1997) 9 SCC 239, the petitioner was, admittedly, to retire on 31.5.1991 but he continued to work till 31.5.1994 while enjoying all benefits of service. When action was taken to recovery the amounts paid to him for the period beyond the date he was to retire, viz. 31.5.1991, an original application was preferred before the Central Administrative Tribunal and the same came to be dismissed. Before the Hon''ble Apex Court, it was contended that as he had worked for the period beyond the date of retirement, that is, from 1.6.1991 to 26.6.1994, he would be entitled to payment of provisional pension, death cum gratuity retirement, leave encasement, computation of pension amount, PPF money and such other amounts. The Hon''ble Apex Court held that such person would not be entitled to claim salary. It was held as under:-

"The learned counsel for the petitioner contends that since the petitioner has worked during the period, he is entitled to the payment of the pay and allowances from 1.6.1991 to 26.6.1994 and that the is also entitled to the payment of Provisional Pension, Death-cum-retirement gratuity, leave encashment commutation of pension amount, GPF money and the amount deposit under CGHS on the plea that he retired from service on May 31, 1994. We are aghast to notice the boldness with which it is claimed that he entitled to all the benefits with effect from the above said date when admittedly he was to retire on May 31, 1991. It would be an obvious case of absolute irresponsibility on the part of the officer concerned in the Establishment in the concerned section for not taking any action to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances, we do not find any illegality in the action taken by the authorities in refusing to grant the benefits."

In Burn Standard Co. Ltd. and others vs. Dinabandhu Majumdar and another , (1995) 4 SCC 172, wherein it was held that a person who worked beyond the age of superannuation though under the interim orders of the court would not be entitled to any service benefits other than the salary drawn for the period worked beyond.

Taking a cue from the several judgments as cited above it is safe to conclude that the petitioners herein who had worked beyond the age of 58 on the basis of an order passed by the Managing Director and then later when such order was sought to be cancelled on the basis of interim orders, would not be entitled to seek the benefits as claimed in the writ petition. Once the order itself allowing them to be continue in service had been withdrawn and the same order was affirmed up till the Division Bench of this court, it cannot be said that the service rendered was as per law. Once the order allowing the petitioners to continue in service beyond 58 years itself stands negated there is no occasion for this court to hold that the petitioners would be entitled to payments of salary as under the Sixth Pay Commission, enhancement in payment of gratuity on account of amendment in the Payment of Gratuity Act 1976 and other benefits as claimed. At best the petitioner would be entitled to wages and no other service benefits as held in In Burn Standard Co. Ltd. supra.

Mr. R.S. Saluja, learned counsel appearing on behalf of the petitioners has laid great emphasis upon the relief as granted in D.B. Civil Contempt Petition No. 156 of 2011 Dairy Karamchari Union Jodhpur vs. R.K. Trashal and others and in similar connected matters where a direction had been given that salary be released to all those persons who had worked after the age of 58 years till they had attained the age of 60 years. Admittedly, the present petitioners were not a party in those proceedings and petitioners herein had worked on the basis of an order which was set aside by the Division Bench of this Court. At best the judgment rendered in D.B. Civil Contempt Petition No. 156 of 2011 Dairy Karamchari Union Jodhpur vs. R.K. Trashal and others and similar connected matters would be a judgment in personam and not binding upon the Respondent especially in view of the fact that the Hon''ble Supreme Court has held that no person who worked beyond the age of superannuation though under the interim orders of the court would be entitled to any service benefits other than the salary drawn for the period worked beyond. The term salary would not include the benefits of dearness allowance, Sixth Pay Commission, payment of gratuity etc as claimed in the writ petition other than the wages to be paid for service rendered.

The case law as relied upon by the learned counsel for the petitioner defining salary are distinguishable and not applicable to the present case since they are judgments rendered under a statue where salary is defined which is not so in the present case.

In the case of the Vinit Kumar Gupta it is argued that the respondents had accepted the orders as passed by the Single Bench on 25.3.2010 as no appeal was preferred against the order and in such an eventuality he would be entitled to all benefits. This argument is without any merit since the order dated 19.9.2008 passed by the Managing Director increasing the age of superannuation to 60 years stood withdrawn and was subsequently affirmed by the Division Bench in connected cases.

Resultantly, in my opinion, the above noted writ petitions being devoid of merit, are dismissed.