State of
Haryana & Ors Vs. Amar Nath Bansal [1997] INSC 37 (15 January 1997)
S.C.
AGRAWAL, G.T. NANAVATI S. C.
AGRAWAL, J.:
ACT:
HEAD NOTE:
This
appeal, by special leave, arises out of a suit filed by the respondent-Amar Nath
Bansal for a declaration that his retirement on attaining the age of 58 years
was illegal and that he is entitled to continue in service till he attains the
age of 62 years.
The
respondent was appointed as a civilian clerk in the Army in the erstwhile State
of Jind on July 12, 1943. In the Jind State the age of superannuation, as
prescribed by Regulation 27 of the Jind State Civil Service Regulations, 1945,
was 62 years. On May 5, 1948 the Ruler of Jind State and the Rulers of the
States of Patiala, Kapurthala, Nabha, Fariodkot, Malerkotla, Nalagarh and Kalsia
entered into a Covenant whereby they agreed to unite and integrate their
territories in one State to be known as Patiala and East Punjab States Union
(for short "PEPSU"). As a result of the integration of the services
of the union States, the respondent was posted as Auditor in the Treasury in
PEPSU.
On the
coming into force of the Constitution, PEPSU became a Part B State and
continued as such till the re-organisation of the States under the States Re-organisation
Act, 1956.
With effect
from November 1, 1956, the Part B State of PEPSU Became a
part of the reorganised State of Punjab and the respondent was absorbed in the service of the State of Punjab. As a result of the re-organization
of the State of Punjab and the formation of the State of Haryana by the Punjab Re-organisation Act
1966 with effect from November
1, 1966, the
respondent was allocated to the State of Haryana.
While
he was employed as Assistant Treasury Officer in the State of Haryana, he was retired from service on attaining
the age of 58 years with effect from September 30, 1984. On September 25, 1987 he filed a suit (Civil Suit No. 392 of 1987) in the court
of Sub-Judge IInd Class, Rohtak, for a declaration that his retirement at the
age of 58 years was illegal and against the service condition and that he was
entitled to continue in service upto the age of 62 years.
The
said suit was dismissed by the trial court on the view that the Jind State
Service Rules were not applicable and the conditions of service of respondent
were governed by Rule 3.26 of the Punjab Civil Service Rules Vol. I Part I
which prescribes 58 years as the age of superannuation. The said judgment of
the trial court was, however, reversed in appeal by the Additional District
Judge IV, Rohtak, who held that the age of superannuation constitutes a
condition of service and by virtue of clause XVI of the Covenant the said
condition continued in operation in the State of PEPSU and thereafter in the
State of Punjab in view of the States Re- organisation Act, 1956 and in the
State of Haryana in view of the Punjab Re-organisation Act, 1966 and it has not
been shown that the approval of the Central Government had been taken for
applying the provisions of Rule 3.26 of Vol. I Part I of the Punjab Civil
Service Rules to the respondent, Second appeal filed by the appellant-State
against the said judgment and decree of the Additional District judge was
dismissed by the High Court by the impugned judgment dated July 6, 1993. Hence this appeal.
The
question that falls for consideration is whether the provisions of the Jind
State Service Regulations, 1945 which prescribed 62 years as the age for
superannuation of persons employed in the State service continued in operation
after the formation of PEPSU and thereafter the State of Punjab and the State of Haryana. For a proper appreciation of the
submissions of the learned counsel it is necessary to take note of the relevant
provisions of the Covenant.
"Article
X(2). Until a Legislature elected in accordance with the terms of the
Constitution framed by it comes into being, the Constitution framed by it comes
into being, the Constituent Assembly as constituted in the manner indicated in
Schedule II shall function as the interim Legislature of the Union." "Article XVI(1). The Union hereby guarantees either the continuance in service
of the permanent members of the public services of each of he Covenanting State on condition which will be not less advantageous than those
on which they were serving on the 1st of February 1948 or the payment of reasonable compensation or retirement on
proportionate pension.
In
accordance with Article VI of the Covenant the Raj Pramukh took over the
administration of Jind State on August
20, 1948 and on the
same date the Raj Pramukh promulgated the Patiala and East Punjab States Union Administration Ordinance No. 1. of S.
2005. Section 3 of the said Ordinance contained the following provision :-
"As soon as the administration of any covenanting State has been taken
over by the Raj Pramukh as aforesaid all Laws, Ordinances, Acts, Rules,
Regulations, Notifications, Hidayate Firman-i- Shahi, having force of law in Patiala
State on the date of commencement of this Ordinance shall apply mutatis
mutandis to the territories of the said State and with effect from that date
all laws in force in such Covenanting State immediately before that date shall
be repealed:
Provided
that proceedings of any nature whatsoever pending on such date in the courts or
offices of any such Covenanting State shall, notwithstanding anything contained
in this Ordinance or any other Ordinance be disposed of in accordance with the
laws governing such proceedings in force for the time being in any such
Covenanting State." On February 15, 1949
Ordinance No. 1 of S, 2005 was repealed and replaced by Ordinance No. XVI of S.
2005.
Section
3(1) of the said Ordinance was in the same terms as Section 3 of the Ordinance
No. 1 of S. 2005. On April 9, 1949 the Rulers of the States constituting PEPSU
entered into a Supplementary Covenant whereby Article X of the original
Covenant was substituted as under :- "Until the commencement of the
Constitution of India, the legislative authority of the Union shall vest in the
Raj Pramukh, who may promulgate Ordinances for the peace and good Government of
the Union or any part thereof, and any Ordinance so made shall have the like
force of law as an Act passed by the Legislature of the Union." On November 24, 1949 the Raj Pramukh of PEPSU issued a
proclamation accepting the Indian Constitution as that of the PEPSU and, as a
result, PEPSU became a Part B State under the Indian Constitution on January 26, 1950. By virtue of Article 372 of the
Constitution the laws in force in PEPSU immediately before the commencement of
the Constitution were continued in force until altered, repealed or amended by
competent legislature or other competent authority.
By
Notification Dated January
18, 1951 issued by the
finance Department of Government of PEPSU provision was made for payment of
compensation to permanent employees of covenanting States for premature
retirement. In the said Notification it was stated that the PEPSU Government
had adopted the age limit of 55 years for retirement of government servants on
superannuation for pension and that the service rules which were in force in
erstwhile Nabha and Jind States prescribe 60 and 62 years respectively as the
age for compulsory retirement from service. The said Notification made
provision for payment of compensation by way of increase in monthly pension.
Government servants who had retired between 1st September, 1948 and 31st
August, 1949 were given an increase of 10% of monthly pension; those who
retired between 1st September 1949 and 31st August 1950 were given an increase
of 7% of monthly pension and those who retired between 1st September 1950 and
31st August 1950 were given an increase of 4% of the monthly pension. NO
compensation was provided for government servants who retired on or after 1st September 1950 on the ground that they would be
getting the full benefit of the increased pay for pension. Thereafter the PEPSU
Government issued the PEPSU Services Regulations, 1952. In Chapter IX, Article
9.1 of the said Regulations it was prescribed that every Government servant
shall on attaining the age of 55 years retire on such pension as may be
admissible to him under the rules for the time being in force. As a result of
the re- organisation of the States under the States Re-organisation Act. 1956
the Part 8 State of PEPSU became a part of the re- organised State of Punjab. Provisions relating to services
were made in Section 115 of the States Re-organisation Act, 1956. By virtue of
sub-section (1) of Section 115 every person who immediately before the
appointed day was serving in connection with the affairs of the existing State
of PEPSU was to be deemed to have been allotted to service in connection with
the affairs of successor State, namely, the State of Punjab as from that day.
In the proviso to sub- section (7) of Section 115 it was prescribed that the
conditions of service applicable immediately before the appointed day in the
case of any person referred to in sub- section (1) shall not be varied to his
disadvantage except with the previous approval of the Central Government. In
the State of Punjab there were Punjab Civil Service
Rules which prescribed 58 years as the age of retirement for all employees
except Class IV government employees (Rule 3.26).
The
State of Haryana was formed as a result of re- organisation
of the State of Punjab under the Punjab Re- organisation
Act, 1966. The proviso to sub-section (6) of Section 82 of the Punjab Re-organisation
Act, 1966 contains a provision similar to that contained in the proviso to sub-
section (7) of Section 115 of the States Re-organisation Act, 1956.
On
behalf of the appellants it has been urged that after the formation of PEPSU in
1948 the conditions of service of the respondent were governed by the rules
applicable in the State of Patiala and after the framing of the Pepsu Service
Rules in 1952, the Jind State Civil Service Regulations, 1945, ceased to be
applicable and the conditions of service of the respondent were governed by the
Pepsu Service Rules of 1952 till the merger of Part B State of PEPSU into the
State of Punjab in 1956 under the States Re-organisation Act when the Punjab
Service Rules became applicable. It was submitted that under the Patiala State
Rules the age of retirement was 55 years and that under the PEPSU Civil Service
Rules also the age of retirement was 55 years and that as a result of the re-organisation
of the States under the States Re-organisation Act, 1956 the respondent was
governed by the Punjab Civil Service Rules wherein the age of retirement was 58
years and therefore the respondent has been rightly retired on his attaining
the age of 58 years and he cannot claim to continue in service till he had
attained the age of 62 years on the basis of the provisions contained in the Jind
State Civil Service Regulations 1945.
Shri Pradeep
Gupta, the learned counsel appearing for the respondent, has urged that the
respondent was entitled to continue in service till he attained the age of 62
years in view of the provisions contained in the Jind State Civil Service
Regulations, 1945 and reliance has been placed on clause XVI of the Covenant
which guaranteed either the continuance in service of the permanent members of
the public services of each of the Covenanting States on conditions which will
be not less advantageous than those on which they were serving on 1st February,
1948, or the payment of reasonable compensation or retirement on proportionate
pension. Shri Gupta has submitted that the Covenant was in the nature of
constitution for the newly constituted State of PEPSU and the provision
contained in Article XVI of the Covenant was binding on PEPSU as well as the
successor State, namely, the Part B State of PEPSU under the Indian
Constitution as well as the State of Punjab as re-organised under the States
Re-organisation Act, 1956 and the State of Haryana established under the Punjab
Re- organisation Act, 1966. Shri Gupta has placed reliance on the decision of
this court in Bholanath J. Thaker vs. State of Saurashtra, AIR 1954 SC 680.
The
Covenant entered into by the Rulers of the States which had joined together to
form the PEPSU was a treaty entered into by the Rulers of independent States.
Under the Covenant the rulers gave up their sovereignty over their respective
territories and vested it in the ruler of the new State of PEPSU. As a result of the Covenant there
was establishment of a new sovereign over the territories comprising the States
of the Rulers who had signed the said covenant. The Covenant is, therefore, an
Act of State. With regard to an act of State the law is well settled by the
decisions of this Court. The residents of the territories which are acquired do
not carry with them the rights which they possessed as subjects of the
ex-sovereign. As subjects of the new sovereign they possess only such rights as
are granted or recognised by him. The process of acquisition of new territories
is one continuous act of State terminating on the assumption of sovereign
powers de jure over them by the new sovereign and it is only thereafter that
rights accrue to the residents of those territories as subjects of that
sovereign. No act done or declaration made by the new sovereign prior to his
assumption of sovereign powers over acquired territories can quoad the
residents of those territories by regarded as having the character of a law
conferring on them the rights such as could be agitated in courts. The clauses
in a treaty entered into by the independent rulers providing for the
recognition of the rights of the subjects of the ex-sovereign are in capable of
enforcement in the courts of the new sovereign. [See : M/s. Dalmia Dadri Cement
Co. Ltd. vs. Commissioner of Income Tax (1959) SCR 729, at p. 746; Pramod
Chandra Deb v. State of Orissa, 1962 Supp. (1) SCR 405 at pp. 434-436; State of
Gujarat v. Vora Fiddali, 1964 (6) SCR 461; Pema Chibar alias Premabhai Chhibabhai
Tangal v. Union of India & Ors., 1966 (1) SCR 357; and Vinodkumar Shantilal
Gosalia v. Gangadhar Narsingdas Agarwal & Ors., 1982 (1) SCR 392].
In
M/s. Dalmia Dadri Cement Co, Ltd. (supra) it was contended that the Covenant
that the Covenant entered into by the rulers of the States to form the PEPSU
was more than an act of State and was in the nature of a constitution for the
new State in the sense that it is a law under which all the authorities of the
new State including the Raj Pramukh had to act. Reliance was also placed on
Article XVI of the Convenant to show that the rights of the subjects of the
quondam states were intended to be protected. Rejecting the said contention it
was held that the Covenant is in whole and in parts an act of State. As regards
Article XVI of the Covenant, it was a stated that "a clause in a treaty
between high contracting parties does not confer any right on the subjects
which could be made the subject-matter of action in the courts, and that the Patiala
Union is not bound by it, because it was not a party to the Covenant".
[p.
745]. After referring to Ordinance No. 1 of S. 2005, the Court observed :-
"That undoubtedly is a law enacted by the sovereign conferring rights on
his subjects and enforceable in a court of law, but at the same time the
enactment of such a law serves to emphasis that the Articles have not in
themselves the force of law and were not intended to create or recognise
rights." [p. 745] Reference may be made at this stage to the decision in Bholanath
J. Thaker (supra) on which reliance has been placed by Shri Gupta. In that case
the appellant was employed in the service of Wadhawan State. The ruler of the Wadhawan State along with the rulers of other Kathiawar States had entered
into a Covenant to form the United State of Kathiawar (later known as Saurashtra)
on January 24, 1948. The raj Pramukh took oath of his
office on February 15, 1948 and on March 1, 1948 he promulgated an Ordinance,
being Ordinance No. 1 of 1948, continuing in force all laws, ordinances, acts,
rules, regulations etc. having the force of law in the covenanting State until
repealed or amended under the provisions of the ordinance. The ruler of the Wadhawan
State made over the administration of the State to the Saurashtra Government on
March 16, 1948 and on the same date a proclamation was insured by the Saurashtra
Government declaring that whatever rights, jurisdiction and authority were with
the Ruler with respect to the said State were then vested in the Saurashtra
Government and the duties and obligations with regard to the Ruler's own State
passed to the Saurashtra Government and the Saurashtra Government would fulfill
the same. Article XVI(1) of the Covenant of the United States of Kathiawar
contained provisions similar to those contained in Article XVI(1) of the
Covenant of the Rulers forming the States of PEPSU. By Order dated June 29, 1948, the appellant was retired by the Saurashtra
Government on the ground that he had crossed the age of superannuation which
was taken as 55 years. The appellant claimed that he was entitled to continue
in service till the completion of 60 years of age on the basis of the
provisions contained in Section 5 of the Dhara (Act) No. 29 of S. 2004 which
had been promulgated by the Ruler of the Wadhawan State which came into force
with effect from January 1, 1948 whereby the age of superannuation of state
civil servants had been fixed at 60. He filed a civil suit claiming
compensation for his premature compulsory retirement. The said suit was decreed
by the trial court but on appeal the suit was dismissed by the High Court.
Before this Court it was urged on behalf of the State that the Covenant by the
rulers of Kathiawar States was an act of State and the municipal courts were
not competent to entertain any dispute arising out of the Covenant. Reliance
was also placed on Article 363 of the Constitution which bars interference by
courts in any dispute arising out of certain treaties and Covenants. The said
contention was rejected by this Court on the view that when the Wadhawan State
merged with the Saurashtra State and again when it acceded to the Dominion of
India all the existing laws continued until repealed and the appellant's rights
under Dhara No. 29 of S. 2004 were still good and could have been enforced in
the municipal courts until either repealed or repudiated as an act of State. It
was observed that there was in fact no such legislation and therefore his
rights remained and the municipal courts would be entitled to examine the
contract and apply Dhara No. 29 of S. 2004 and enforce whatever rights the
appellant had under that Dhara and his contract of service. It was held that
the Covenant could be looked at to see whether the new sovereign had waived his
right to ignore rights given under the laws of the former sovereign and that
the terms of the covenant showed that the existing laws were to continue and
whatever rights of the appellant were under the existing laws were available
for enforcement to the appellant and there was no bar to municipal courts
entertaining the suit to enforce such rights. As regards that bar under Article
363 of the Constitution it was observed that there was no dispute arising out
of the Covenant and what the appellant was doing was merely to enforce his
rights under the existing laws which continued in force and till they were
repealed by appropriate legislation. The decision in Bholanath J. Thaker
(supra) thus proceeded on the basis that the law of the Wadhawan State (Dhara No. 29 of S. 2004) prescribing 60 as the age of
superannuation, had been continued in force after the establishment of the
State of Saurashtra by Ordinance NO. 1 of 1948 and the
appellant was entitled to enforce his rights under the said law which was in
force at the relevant time. Moreover, in that case the Saurashtra Government
had issued a proclamation on the same date on which the administration of the Wadhawan
State was taken over by the Saurashtra Government, whereby it was declared by
the Saurashtra Government that the duties and obligations with regard to the
Ruler's own State had passed to the Saurashtra Government and that the Saurashtra
Government would fulfill the same. Thus it was a case where apart from
continuing the laws of the old sovereign the new sovererign had made an express
declaration recognising the duties and obligations of the old sovereign.
In the
instant case, there was no such declaration by the PEPSU Government recognising
the duties and obligations of the rulers of Jind
State under the laws of the Jind State. Nor was
there a law similar to Ordinance No. 1 of 1948 of Saurashtra continuing the
laws of the Jind State. On the other hand, there was Ordinance No. 1 of S. 2005
followed by the Ordinance No. 16 of S. 2005 whereby the laws of the covenanting
States were repealed and the laws of Patiala State were made applicable in the
entire territory of PEPSU. Can it be said that in spite of the said ordinances
the Jind Service Regulations of 1945 which prescribed 62 years as the age of
superannuation was a law in force in PEPSU on the date of commencement of the
Constitution and by virtue of Article 372 of the Constitution the said
Regulations continued in the Part B State of PEPSU after the coming into fore
of the Constitution and in the reorganised State of Punjab under the States Re-organisation
Act, 1956 and in the State of Haryana under the Punjab Re-organisation Act,
1966. In our opinion, this question must be answered in the negative. As
noticed earlier the Raj Pramukh of PEPSU look over the administration of Jind
State on August 20, 1948 and on the same date he promulgated Ordinance No. 1 of
S. 2005 and by section 3 of the said ordinance all laws, ordinances, acts,
rules, regulations, notifications, Hidayate, Shahi-farman having force of law
in Patiala State on the date of commencement of the said Ordinance were made
applicable mutatis mutandis to the territories of all the covenanting States
(including Jind State) and with effect from that date all laws of such
covenanting States immediately before that date would stand repealed. Ordinance
No. 1 of S. 2005 was followed by Ordinance No. 16 of S. 2005 which contained a
similar provision. As a result of the said ordinances the Jind State Civil
Service Regulations of 1945 stood repealed on August 20, 1948 and the relevant
law as applicable in the State of Patiala became applicable in the entire area
of PEPSU, including the Jind State, and the terms and conditions of the
respondent were, therefore, governed by the provisions contained in the law
that was applicable in Patiala State and he could not claim any right on the
basis of the Jind State Civil Service Regulations 1945.
Shri Pradeep
Gupta has urged that Ordinance No. 1 of S. 2005 which was followed by Ordinance
No.16 of S. 2005 were both temporary laws having an operation of six months in
view of Article X(2) of the Covenant and that after the expiry of Ordinance No.
16 of S. 2005 in August 1949 the repeal of the Jind State Service Regulations
under the Ordinances Nos. 1 and 16 of S. 2005 became ineffective and the Jind
State Service Regulations stood revived and were law in force on the date of
coming into force of the Constitution of India and by virtue of Article 372 of
the Constitution the said regulations contained in force thereafter. In this
connection, Shri Gupta has also submitted that the amendment that was made in
Article X of the Covenant by the Supplementary Covenant was invalid since the
rulers of the covenanting States, after having entered into the Covenant on May
5, 1948 and having divested themselves of all the sovereignty, were not
competent to enter into the Supplementary Covenant and, therefore, the
Ordinances Nos. 1 and 16 of S. 2005 could only remain in force for a period of
six months. In support of the said submission Shri Gupta has placed reliance on
the decision of this Court in Lachhman Das on behalf of firm Tilak Ram Ram Bux
vs. State of Punjab and Ors., 1963 (2) SCR 353, wherein it has been laid down
that the Supplementary Covenant that was entered into by the rulers of the
States forming PEPSU cannot be held to be effective for modifying the
provisions in the original Covenant. Shri Gupta has also placed reliance on the
decision of the Judicial Committee of the Privy Council in Gooderham and Worts
Ltd. vs. Canadian Broadcasting Corporation, AIR 1949 PC 90, in support of his
submission that a law repealed by a temporary legislation automatically resumes
its full force after the temporary legislation has expired by efflux of the
prescribed time.
In
view of the decision of this Court in Lachhman Das (supra) it must be held that
Ordinance No. 16 of S. 2005 had ceased to operate on August 15, 1949, on the expiry of the period of six
months from the date of its promulgation on February 15, 1949. The question which requires consideration is whether on
the expiry of the said ordinance the Jind State Civil Service Regulations,
1945, which had been repealed by the said ordinance, stood revived. A similar
question came up for consideration before this Court in State of Orissa vs. Bhupendra
Kumar Bose, 1962 Supp, 2 SCR 380. In that case an ordinance had been promulgated
whereby the elections to the Cuttack Municipality which had been set aside by
the Orissa High Court and the electoral rolls prepared in respect of the other
Municipalities in the State of Orissa, which would have otherwise been
irregular and invalid in accordance with the judgment of the Orissa High Court,
were validated. The Bill which contained substantially similar provisions as
those of the ordinance was introduced in the Orissa Legislative Assembly but
was defeated by majority of votes and as a result the Ordinance lapsed after
the expiration of the prescribed period. It was contended that the ordinance
was a temporary statute which was bound to lapse after the expiration of the
prescribed period and that as soon as it lapsed the invalidity in the Cuttack
Municipal elections which had been cured by it revived. Rejecting the said
contention, this Court has laid down :- "In our opinion, what the effect
of expiration of a temporary Act would be must depended upon the nature of the
right or obligation resulting from the provisions of the temporary Act and upon
their character whether the said right a liability are enduring or not."
[p. 398] "Therefore, in considering the effect of the expiration of a
temporary statute it would be unsafe to lay down any inflexible rule. If the
right created by the statute is of an enduring character and has vested in the person,
that right cannot be taken away because the statute by which it was created has
expired. If a penalty had been incurred under the statute and had been imposed
upon a person, the imposition of the penalty would survive the expiration of
the statute. That appears to be the true legal position in the matter."
[p. 400] The following statement of law in Craies on Statutes, 7th Edn, at p.
419, has been approved :- "If an act which repeals an earlier Act is
itself only a temporary Act the earlier Act is revived after the temporary Act
is spent; and inasmuch as ex-hypothesis the temporary Act expires and is not
repealed, the rules of construction laid down by Ss. 11(1) and 38(2) of the Interprotection
Act, 1889, do not apply. But there will be no reviver if it was clearly the
intention of the legislature to repeal the earlier Act absolutely." After
referring to the observations of Lord Ellenborough C.J., in Warren vs. Windle, (1803) 3 East 205:
102
E.R.(K.B) 578, this Court has observed that the said decision shows that
"in some cases the repeal effected by a temporary Act would be permanent
and would endure even after the expiration of the temporary Act". The ordinance
was construed by this Court as providing that the order of the court declaring
the election tot he Cuttack Municipality to be invalid shall be deemed to be
and always to have been of no legal effect whatever and that the said elections
were valid and that effect of the said Ordinance would not come to an end on
the expiry of the Ordinance.
In Gooderham
and Worts Ltd. (supra) Section 9(b) of the Canada Radio Broadcasting Act, 1932
had been repealed and substituted by a temporary Act in 1933 which was to be
operative till April 30, 1934. The period of operation of the temporary Act was
extended from time to time by successive temporary Acts till March 31, 1936.
The last such temporary Act contained an express provision to the effect that
on and after April 1, 1936 the principal Act of 1932 shall be read as if the
temporary acts had never been enacted. In these circumstances the Privy Council
held that the repeal effected by the temporary legislation was only a temporary
repeal and when the temporary repeal expired the original legislation
automatically resumed its full force.
If the
provisions of Section 3 of Ordinance No. 1 of S. 2005 and Section 3(1) of
Ordinance No. 16 of S. 2005 are construed in the light of the principles laid
down by this Court in Bhupendra Kumar Bose (supra), it must be held that the
object underlying said provisions was to exclude the applicability of the laws
of other covenanting States in the territory of PEPSU by repealing them
absolutely and to apply the laws applicable in Patiala State in the entire
territory of PEPSU. Since the repeal of the laws of other Covenanting States by
Ordinances Nos. 1 and 16 of S. 2005 was intended to be for all time, the
expiration of the said Ordinances would not mean that the effect of the said Ordinances
regarding on-applicability of the laws of other convenanting States in the
territory of PEPSU was nullified on the expiration of Ordinance No. 16 of S.
2005. In view of the express terms used in the said Ordinances it must be held
that Jind State Civil Service Regulations 1945 stood repealed absolutely and
ceased to have any application after the Raj Pramukh of PEPSU took over the
administration of Jind State on August 20, 1948.
There
is one more difficulty in the way of the respondent. The provisions of the Jind
State Civil Service Regulations 1945 were not continued after the establishment
of PEPSU on August 20, 1948. The repeal of the provisions of the laws of
covenanting States of PEPSU by section 3 of the ordinance No. 1 of S. 2005 does
not mean that but for such repeal the said laws without anything more would
have continued in force in the covenanting States. In tsthe absence of any law,
similar to that contained in Ordinance No. 1 of 1948 promulgated by the Raj Pramukh
in Bholanath J. Thaker (supra), continuing the laws of Jind State in the
territory of that State it cannot be said that the Jind State Civil Service
Regulations, 1945 continued in force after the administration of Jind State was
taken over by the Raj Pramukh of PEPSU on August 20, 1948. The expiry of
Ordinance No. 16 of S. 2005 could, therefore, not have the effect of reviving Jind
State Civil Service Regulations of 1945 after the expiry of the said Ordinance.
Moreover,
there is nothing to show that the Raj Pramukh of PEPSU had ever given his
recognition to the rights conferred on the employees of the Jind State under
the Jind State Civil Service Regulations of 1945 after the formation of PEPSU.
On the other hand, we find that by Article 9.1 of Chapter IX of the PEPSU
Service Regulations, 1952, 55 years was prescribed as the age for compulsory
retirement for the employees of the State of PEPSU. The said provision in PEPSU
Service Regulations, 1952 was law which modified the earlier laws regarding age
of superannuation applicable in the State of PEPSU including the Jind State
Civil Service Regulations of 1945, even if it be assumed that the said
Regulations were in force at that time by virtue of Article 372 of the
Constitution. There was no legal impediment in the Part B State of PEPSU making
a law modifying a law which was continued in force under Article 372 of the
Constitution.
Clause
XVI of the Covenant, on which reliance was placed by Shri Gupta, cannot be
invoked to impose such a limitation because, as stated earlier, the Covenant is
an act of State and the respondent cannot claim any right on the basis of the
said clause in the Covenant. After the making of the PEPSU Service Regulations,
1952 the age of compulsory retirement of government servants in part B State of
PEPSU was fixed at 55 years which continued till the Part B State of PEPSU
merged into the reorganised State of Punjab under the States Re-organisation
Act, 1956 and thereafter the Punjab Civil Service Rules were made applicable to
the east while employees of PEPSU Government who became the employees of the
Punjab Government and, as a result, their age of superannuation was fixed at 58
years. Once it is held that the PEPSU Service Regulations and the Punjab
Service Rule were applicable to all PEPSU government employees, the respondent,
who was one such employee, has to be governed by the PEPSU Service Regulations
and the Punjab Service Rules and he cannot claim that he continued to be
governed by the provisions of the Jind State Civil Service Regulations, 1945.
Since the age of superannuation prescribed under Article 3.26 o the Punjab
Service Rules was 58, the respondent was rightly retired on his attaining the
said age.
For
the reasons aforementioned, we are unable to uphold the judgment of the High
Court that the respondent was entitled to continue in service till he attained
the age of 62 years on the basis of the provisions contained in the Jind State
Civil Service Regulations, 1945. The appeal is, therefore, allowed, the
impugned judgment of the High Court dated July 6, 1993 passed in R.S.A. No.
1491 of 1990 is set aside and the civil suit filed by the respondent is
dismissed. But in the circumstances there is no order as to costs.
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