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PETITIONER: PAIARA LAL

       Vs.

RESPONDENT: STATE OF PUNJAB & ANR.

DATE OF JUDGMENT:       08/08/1997

BENCH: SUJATA V. MANOHAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T M. JAGANNADHA RAO, J. 1.   Special leave  granted.   We have heard  the counsel on both sides on the merits of the appeal. 2.   The appellant  was appointed  as  a  Constable  in  the Police Department  of the  erstwhile State of PEPSU (Patiala and  East   Punjab  States  union)  which  merged  later  on 1.11.1956 with  the new State of Punjab.  The Raj Pramukh of the State  of PEPSU framed, under the proviso to Article 309 of  the   Constitution  of   India,   the   PEPSU   Services Regulations.   Volume 1  para 2.28 thereof defines ’inferior servant’ as ’inferior Government servant’ as included in the list in  Appendix 1.   The  said  Appendix  includes,  among others,  Police  Constables.  Notification  dated  20.7.1954 (F.D. 1(2)  Reg. 54) issued under the proviso to Article 309 by the  Raj pramukh  says that  the following  Note shall be added under Article 9.1 of PEPSU Services Regulations Volume I and the existing Note shall be numbered as Note (1):      "Note 2:  The age for retirement of      Class IV  Government servants  will      be 60 years".      As per  documents Ex.P3 (at points Ex.P3\1 and Ex.P3\2) filed  in   the  trial  court,  the  Police  Constables  and ’Sipahis’ were  included in  the list  of inferior  class IV employees.    While  so,  the  appellant  who  was  born  on 1.12.1930 and who was appointed on 4.11.1949 as Constable in PEPSU and  who after  1.11.1956 was allotted to the State of Punjab was sought to be retired at the age of 58 years which was the  age of  retirement applicable  to Constables in the State of  Punjab.   The appellant contended that having been allotted from  the State  of PEPSU to the State of Punjab on 1.11.1956, his  service conditions  in the  former State  of PESU including  his age  of  superannuation  were  protected under sub-clause (7) of the States Re-Organisation Act. 1956 and he  should be  allowed to  continue till he completed 60 years even  though,  at  the  time  of  retirement,  he  was employed by  the State  of Punjab.  This contention  was not accepted and  the Superintendent  of Police.  Punjab  passed orders  on   29.11.1988  regarding   his  superannuation  on completion of  58 years  w.e.f. 30.11.1988  (AN), as per the

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Punjab Rules. 3.   The appellant challenged the validity of the said order on Civil  Suit No. 596 filed on 16.11.1991.  The trial court decreed the  suit on  20.9.1994 holding  that in view of the proviso to  s. 115(7) of the States Re-organisation Act, the appellant was  entitled to continue in service upto 60 years as per PEPSU Regulations.  The appeal by the State of Punjab was dismissed  by the  Additional District  Judge.   Patiala (Punjab) on  16.10.1995.   However, the  Second Appeal,  RSA 611\1996 preferred  by the  State was  allowed by  the  High Court on  25.7.1996 following the Division Bench judgment in Tripat Singh  vs. State  of Punjab  etc. (CWP  8186 of 1994) dated 8.9.1994.   In  that case, it was held by the Division Bench that  the age  of  superannuation  applicable  to  the employees is  the one  applicable to  them at  the  time  of retirement in the State of Punjab.  That was a case in which the employees  were working  in a  higher post,  a Class-III post on  promotion from  Class-IV.   The Division Bench held that it  was the  age of  retirement applicable  to the post which a  person was  holding at  the time of retirement that was relevant.   Following  the said  judgment,  the  learned Single  Judge   allowed  the   Second  Appeal  holding  that notwithstanding the fact that the plaintiff was not promoted to class  III after allotment to Punjab, still the principle stated in  the Division  Bench  judgment  applied  and  that inamuch as in Punjab, a Constable was to retire at 58 years, the appellant  could not  claim any  higher right based upon the regulations  obtaining  in  the  State  of  PEPSU.    No reference was  made by  the  learned  Single  Judge  to  the proviso to section 115(7) of the States Re-Organisation Act, 1956 while taking this view, even though the trial court and the first  appellate court  had made  reference to  the said provision.  Some other Judgments of learned Single Judges of the Punjab  and Haryana High Court decided with reference to Section 115(7)  were not followed in view of the judgment of the Division  Bench even  though on the facts of the present case, the  appellant had never been promoted to class III in the State  of Punjab,  after  allotment  to  that  State  of Punjab. 4.   In this  appeal, learned  counsel for the appellant has relied  upon   an  unreported  judgment  of  this  Court  in Secretary to  Government, Punjab vs. Niranjan Singh (SLP No. 8047\1990) dated  13.9.1990.   That was  an appeal  from the judgment of  the Punjab  & Haryana High Court in LPA No. 354 of 1990, wherein in respect of a Cobler (Mochi, recruited in PEPSU who  was in class IV and who was allotted to the State of Punjab,  a Division  Bench of the High Court held that in view of  the proviso  to section  115(7) of  the States  Re- Organisation  Act,   1956,  the  employee  was  entitled  to continue upto  60 years.    This  Court  dismissed  the  SLP preferred by  the State  of  Punjab  by  a  reasoned  order. Learned counsel for the appellant contended that the learned Single Judge  erred in  not giving  effect to the proviso to section 115(7)  and in  not noticing the distinction between persons who were before 1.11.1956 and after in class IV till retirement and  who, after  1.11.1956 were promoted to class III in  the State  of Punjab.  The appellant belonged to the former category. 5.   On the  other hand, learned counsel for the respondent- State  contended  that  the  learned  Single  Judge  rightly applied to the appellant the age of retirement applicable to him at  the time  of his  retirement in the State of Punjab. He  also   contended  that  even  assuming  that  the  PEPSU Regulations were  applicable, a  class IV  employee who  was drawing more  than  Rs.  200\-  p.m.  at  the  time  of  his

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retirement was  not entitled  to continued  upto 60 years in PEPSU. 6.   At the  outset, we  may say  that the contention for he respondent that  even if  the PEPSU Regulations applied, the respondent could  not continue  upto  60  years  as  he  was drawing more than Rs.200\- p.m. at the time of retirement is a point  not raised  either in  the written statement in the suit or  before  any  of  the  three  Courts,  nor  was  any regulation of  PEPSU State  placed before us to substantiate the said  contention. We,  therefore, reject  this  addition contention raised  by the  respondent  for  the  first  time before us. 7.   Coming to  the main  point, Section 115(7) in so far as it is relevant, reads as follows:-      "115. Provisions  relating to other      services.  (1)   Every  person  who      immediately  before  the  appointed      day is  serving in  connection with      the affairs  of the Union under the      administrative   control   of   the      Lieutenant-Governor    of     Chief      Commissioner in any of the existing      States  of  Ajmer,  Bhopal,  Coorg,      Kutch and  Vindhys Pradesh,  or  is      serving  in   connection  with  the      affairs  of  any  of  the  existing      States of  Mysore, Punjab,  Patiala      and East  Punjab States  Union  and      Saurashtra shall, as from that day,      be deemed  to have been allotted to      serve  in   connection   with   the      affairs of  the successor  State to      that existing State.      (2) Every  person  who  immediately      before the appointed day is serving      in connection  with the  affairs of      an existing  State  Part  of  whose      territories   is   transferred   to      another State  by the provisions of      Part II  shall, as  from that  day,      provisionally continue  to serve in      connection with  the affairs of the      principal successor  State to  that      existing  State.   Unless   he   is      required  by   general  or  special      order of  the Central Government to      serve provisionally  in  connection      with  the   affairs  of  any  other      successor State.      (3)  **   **   **   **   **      (4)  **   **   **   **   **      (5)  **   **   **   **   **      (6)  **   **   **   **   **      (7) Nothing  in this  section shall      be  deemed   to  affect  after  the      appointed day  the operation of the      provisions of Chapter I of Part XIV      of the  Constitution in relation to      the determination of the conditions      of service  of persons  serving  in      connection with  the affairs of the      Union or any State.      Provided  that  the  conditions  of      service   applicable    immediately      before the  appointed  day  to  the

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    case of  any person  referred to in      sub-section (1) or sub-section  (2)      shall  not   be   varied   to   his      disadvantage   except    with   the      previous approval  of  the  Central      Government". 8.   In our  view, the  proviso to  section 115(7)  makes it clear that  the service conditions of the allotted employees cannot be varied to their disadvantage by the State to which they are  allotted, upon  re-organisation, after  1.11.1956, except with the previous approval of the Central Government. Question is whether the State of Punjab is entitled to apply the age  of retirement  for class  IV employees  in  Punjab, namely 58  years, ignoring the age or retirement of class IV employees, namely 60 years as obtaining in PEPSU? 9.   The  point  arising  before  us  has  been  dealt  with previously by  three Constitution  Benches  of  this  Court, which, unfortunately, were not placed before the High Court. The first of these decisions is the one in N. Raghvendra Rao Vs. Deputy  Commissioner, South  Kanara, Mangalore [1964 (7) SCR 549].  In that case, the State to which the employee was allotted relied  upon a letter of general approval issued by the Central  Government dated  11.5.1957 (memorandum No.S.O. SR DI-J.APM-57)  which was communicated to all States on re- organisation.   IT was  said in  that  letter  that  certain conditions of  service  enumerated  therein  in  respect  of allotted employees  are not protected.  This Court held that the word  ’previous approval’  in  the  proviso  to  section 115(7), would  include the  general approval  granted by the Central  Government  in  regard  to  the  variation  of  the conditions of  service of  the allotted personnel.  The said Memorandum of  the Central  Government says that the Central Government is  permitting the  States to  whom the employees are allotted. to vary their conditions of service in respect of    ’travelling     allowance’    discipline,     control, classification appeal,  conduct, probation  and departmental promotion’.   The other  conditions of service as applicable to the  employee in  his parent State remained protected. It was held in the facts of the case that certain Rules of 1959 made after  1.11.1956 by the State to which the employee was allotted,  modifying   certain  benefits   of  service   and increments,  were  valid.    The  contention  that  previous approval’ meant specific previous approval and not a general approval was  rejected.   The above decision was followed by another Constitution  Bench of this Court in N.Subba Rao Vs. Union of  India [1975  (3) SCC  8620 (see para 38 at p. 872- 83).   The matter  came up again before another Constitution Bench of  this Court  in Mohd. Shujat Ali Vs. Union of India [1975 (3)  SCC 76].   It was held (see Para 16 to 18, pp.96- 100) that  the view  taken in N. Raghvendra’s case was to be followed. 10.  It will  be noticed  that the Memorandum of the Central Government dated 11.5.1957 which was communicated to all the States gave  ’general approval’  for  variation  of  certain specific conditions  of service  to which  we have  referred above. The  said Memorandum  does not  refer to  the age  of superannuation as  one of  the conditions of service for the variation of  which general approval is given by the Central Government. Neither  in the Courts below, nor before us, was any order  of the  Central Government  issued in exercise of powers under the proviso to section 115(7) of the States Re- Organisation Act,  1956 relied upon by the respondent to say that the  State of  Punjab while prescribing 58 years as the age of  superannuation for  Constables had obtained approval of the  Central Government either generally or specifically.

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There is  no dispute before us that the age of retirement is a condition  of service  and that  the age  of retirement in PEPSU for  class IV  employees including  Constables was  60 years.   In as  much as  there is  no  previous  or  general approval after  1.11.1956 to  vary the age of suberannuation from  60  years  to  58  years,  it  was  not  open  to  the Superintendent of  police, Punjab to retire the appellant on completion of  58 years.  The High Court erred in law in not noticing the  above authorities and statutory provisions and in  applying   the  age   of  superannuation  applicable  to Constables recruited in the State of Punjab.  The unreported judgment of  this Court  in Secretary  to Govt.  Punjab  Vs. Niranjan Singh  above referred  to is  also in favour of the appellant and  is consistent  with view  taken in  the above rulings of the Constitution Bench. 11.  Learned counsel for the respondent relied upon a recent decision of  this Court  in State  of Haryana  Vs. Amar Nath Bansal  [AIR   1977  SC   718].   That   case   is   clearly distinguishable.  In that case, the respondent was recruited in the  State of  Jind on  12.7.1943 as a civilion clerk and the age  of superannuation in Jind was 62 years.  Jind State merged with  PEPSU before 1.11.1956 by virtue of a covenant. The respondent  was thereafter  allotted  to  the  State  of Punjab after  1.11.1956 and  still later  to  the  State  of Haryana.   He was  employed as an Asstt. Treasury Officer in the State  of Haryana  when he  was retired  from service on 30.9.1987 as  per the age of retirement in Haryana which was 58 years.   In  the appeal by the State, it was held by this Court that  there  was  no  declaration  by  PEPSU  in  1948 recognising the duties and coligations of the Jind State and hence the  Jind regulations  were not  applicable,  even  in PEPSU.   In fact, the Ordinance issued by the Raj Pramukh of PEPSU or  20..1948 had  the effect of repealing all previous rules applicable in Jind State.  In our view, the above case has no relevance because there was no statute protecting the service conditions of employees of Jind State when it merged with PEPSU.   Under  the convenant. PEPSU had not undertaken to recognise  the obiligations of Jind and, therefore, PEPSU could issue  the Ordinance varying the service conditions of the Jind employees without the need to get any approval from the Central  Government.   The events relate to 1943 and not to 1.11.1956. 12.  For the  aforesaid reasons, this appeal is allowed. The judgment of  the High Court is set aside and the judgment of the trial  court as affirmed by the first appellate Court is restored.  The appeal is allowed with costs.