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CASE NO.: Appeal (civil)  3976 of 2006

PETITIONER: Tej Bahadur Ram

RESPONDENT: State of U.P. & Ors

DATE OF JUDGMENT: 07/09/2006

BENCH: Dr. AR. LAKSHMANAN & TARUN CHATTERJEE

JUDGMENT: JUDGMENT  (ARISING FROM SLP(C)No.18692/2005)

Dr. AR. Lakshmanan, J.

       Leave granted.         Heard Dr. R.G. Padia, learned Senior Counsel for the appellant  and Mr. Subhrajyoti Borthakur, learned counsel for the  respondents.

       This 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: i       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 petitioner only; ii      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 age; iii     Any other writ, order or direction which this Hon’ble  Court deems fit and proper in the facts and  circumstances of the case.         The 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.   Our 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  employee.   

       Our 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: "2.     Date of compulsory retirement: (a) Notwithstanding 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 special

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circumstances. .................................................................................."         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.

       The 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.

       Dr. 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: "1.     Because in 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."

Though 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.   

       Dr. Padia 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 thus: "The  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

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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.   Reliance 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  was expressed: "After 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.   That 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."

That 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.  The 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.

       The 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.   He also submitted that the decision of this Court in Hindustan  Antibiotics Ltd. (supra) has no applicability to the present case and

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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.

       We 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.