Ram Vs. State of U.P. & Ors  Insc 568 (7 September 2006)
Ar. Lakshmanan & Tarun Chatterjee
FROM SLP(C)No.18692/2005) Dr. AR. Lakshmanan, J.
Dr. R.G. Padia, learned Senior Counsel for the appellant and Mr. Subhrajyoti Borthakur,
learned counsel for the respondents.
appeal is directed against the final judgment and order dated 26.7.2005 of the
High Court of Judicature at Allahabad
passed in Civil Misc. Writ Petition No.51499 of 2005. The appellant filed the
writ petition before the High Court with the following prayer:
a writ, order or
direction in the nature of Certiorari quashing the impugned order dated
13.8.2004 passed by respondent no.3 (Annexure 4) so far it relates to the
a writ, order or
direction in the nature of Mandamus commanding the respondents to allow the
petitioner to continue in service till 31.7.2007 the due date of superannuation
Any other writ,
order or direction which this Hon'ble Court
deems fit and proper in the facts and circumstances of the case.
High Court dismissed the writ petition filed by the appellant on the ground
that there is no discretion to the Management for extending the age of
retirement of individual employee, and therefore, the decision of the Supreme
Court has no application.
attention was also drawn to the judgment of the Supreme Court in Hindustan
Antibiotics Ltd. vs. The Workmen, reported in AIR 1967 SC 948. In our opinion,
the High Court has rightly dismissed the writ petition since there is no
discretion to the Management for extending the age of retirement of individual
attention was also drawn to Rule 2 of U.P. State Electricity Board (Employees'
Retirement) Regulations, 1975, which deals with date of compulsory retirement
and reads thus:
of compulsory retirement:
any rule or oder or practice hitherto followed and except as provided otherwise
in other clauses of this Regulation, the date of compulsory retirement of a
Board's employee other than a Board's employee in inferior service, is the date
on which he attains age of 58 years. He may be retained in service after the
age of compulsory retirement with the previous sanction of the Board in
writing, but he must not be retained after the age of 60 years except in very
Dr. Padia submitted that the High Court has erred in not appreciating that the
guidelines provided under the Regulations of 1975 particularly Regulation 2(a)
for the Board did not provide that as to when an employee should retire at the
age of 60 years and when he can continue beyond 60 years and for all practical
purposes, there being no difference in the powers of the Board to continue an
employee up to 60 years or up to any age whatsoever without fixing even the
maximum age and such a provision is totally hit by Articles 14 and 16 of the
Constitution of India.
said Rule gives discretion to the Management to retain the employee in service
after the age of compulsory retirement with the previous sanction of the Board
in writing, but he must not be retained after the age of 60 years except in
very special circumstances. There is no discretion to the management for extending
the age of retirement of individual employee.
R.G. Padia, learned Senior Counsel for the appellant, also raised another
contention that the High Court has failed to consider that in accordance with
Section 23(1) of the Uttar Pradesh Electricity Reforms Act, 1999, passed by the
U.P. Legislature, when all the interests, rights and liabilities of the Board
vested in the State Government and nothing was left with State Electricity
Board, then all its officers and employees also became the officers and
employees of the State Government because on any other interpretation the
situation will be totally incongruous as Board will only have employer without
any funds and properties and without any function. To a query put by us as to
whether this point was raised before the High Court, Dr. Padia drew our
attention to the ground no.1 in the writ petition, which reads thus:
view of Section 23 of the U.P. Electricity Reforms Act, 1999, the petitioner
became employee of the State and, therefore, he is entitled to get benefit of
Rules framed by the State for this employees hence entitled to be continue in
service till the age of 60 years."
the ground in regard to Section 23 of the U.P. Electricity Reforms Act, 1999
had been raised, there is no indication from the order impugned that the said
contention was argued before the High Court. The High Court was not called upon
to decide the issue which was not argued before it. We have already extracted
the prayer made in the writ petition. The prayer is to quash order dated
13.8.2004 passed by respondent no.3 insofar as it relates to the appellant and
for a consequential mandamus commanding the respondents to allow the appellant
to continue in service till 31.7.2007 the due date of superannuation age. The
appellant has not questioned the validity of provisions of U.P. State
Electricity Board (Employees' Retirement) Regulations, 1975.
has cited AIR 1967 SC 948 (Hindustan Antibiotics Ltd. vs. The Workmen of Kerala
State Electricity Board) and drew our attention to paragraph 39, which reads
next question is the fixation of the age of retirement for the employees. The
existing age of retirement is 55 extendable to 60 years at the discretion of
the management if the workmen are considered suitable and if they are medically
fit and mentally alert. The Tribunal raised the age of retirement from 55 years
to 58 years but gave a discretion to the Company to continue an employee after
that age. The learned counsel for the Workmen contended that the superannuation
age fixed by the Tribunal does not reflect the social changes that have taken
place in the country and has also ignored the judicial trend in that regard.
is placed upon the decision of this Court in G.M. Talang v. Shaw Wallace and
Co. Ltd., (1964) 7 SCR 424. Therein this Court held that the opinion furnished
by the several documents on record clearly showed a consistent trend in the Bombay region to fix the retirement age of
clerical and subordinate staff at 60 years. In the course of the judgment, this
Court noticed the Report of the Norms Committee in which the following opinion
taking into consideration the views of the earlier Committees and Commissions
including those of the Second Pay Commission the report of which has been
released recently, we feel that the retirement age for workmen in all
industries should be fixed at 60. Accordingly, the norm for retirement age is
fixed at 60." But it is said that the scope of the judgment was confined
only to the Bombay region and it should not be
extended to the Poona region. A perusal of the Tribunal's
Award shows that it followed the decision given by it in the dispute of Shaw
Wallace and Co. Ltd., which was reversed by this Court.
part, the Tribunal also recognised that the retirement age should be raised
from 55 years to 58 years and that even thereafter discretion should be given
to the employers to continue the employees or not to do so. This indicates that
in the view of the Tribunal, the retirement age in the case of the employees of
the industry in question could reasonably be raised beyond 58 years. We do not
think it is proper to give a discretion to the company to raise the age of
retirement or not to do so, for, the vesting of such uncontrolled discretion on
the employer might lead to manipulation and victimisation. We would, therefore,
following the trend of judicial opinion, hold that the retirement age of the
employees of the Company should be raised to 60 years."
decision was given in a case where under the Rule the age of retirement was
prescribed as 55 years extendable to 60 years at the discretion of the
management, if the workmen were considered suitable and if they were medically
fit and mentally sound. The Supreme Court said this kind of discretion should
not have been left to the Management as it could result in manipulation and
victimization and, therefore, the retirement age of the employee should be the
upper age of 60 years. As already noticed, in the case in hand, the Regulation
fixes the retirement age of 58 years.
employee may be retained in service after the age of 58 years with the previous
sanction of the Board in writing, but he must not be retained after the age of
60 years except in very special circumstances. In our opinion, the decision of
the Supreme Court is distinguishable on facts and has no application.
learned counsel for the respondents submitted that the High Court is fully
justified in passing the judgment challenged herein and there is no perversity
or illegality in the impugned judgment.
also submitted that the decision of this Court in Hindustan Antibiotics Ltd.
(supra) has no applicability to the present case and the High Court has rightly
distinguished the same. He would further submit that the issue of augmenting
the age of superannuation of the employees of the Corporation from 58 years to
60 years was considered both by the State Government as well as by the
Corporation, and the age of superannuation after due consideration was retained
at 58 years. He would further submit that the services of the appellant were
never acquired by or vested into the State Government and hence the appellant
is not and cannot be the employee of the State Government and as such the Rules
of the State Government relating to age of superannuation of their employees do
not ipso facto apply to the appellant.
have carefully considered the rival submissions made by the learned counsel
appearing on either side. We do not find any merit and substance in the arguments
advanced by the learned Senior Counsel for the appellant. We are, therefore, of
the opinion that there is no warrant for interference with the order passed by
the Division Bench of the High Court. The Civil Appeal stands dismissed. There
will be no orders as to costs.