1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1361/1999 Roop Kishore Dargar, 4/38, Sector 6,Vashi, Navi Mumbai- 400 703 PETITIONER VS. Rashtriya Chemicals & Fertilizer Limited ,Priyadarshini, Eastern Express Highway, Sion,Mumbai 400 022 RESPONDENTS Mr.Mohan Bir Singh , Advocate for the Petitioner Mr.Jamshed Lentin with Mr.Ajay Khire and Mrs.Irechi Mhatre i/b M.S.Bodhanwalla & Co., Advocate for the Respondents CORAM: SMT.RANJANA DESAI & MRS.MRIDULA BHATKAR,JJ. RESERVED ON :9th NOVEMBER,2009. PRONOUNCED ON :18/11/2009 J U D G M E N T (Per Mrs.Mridula Bhatkar,J.) . This Writ Petition is filed against the decision of the respondent no.1 denying the enhancement in the superannuation age of the petitioner from 58 to 60 years and not continuing his service beyond 58 years of his age. The petitioner had joined the service of the respondent in the year 2 1963 and at the time of his retirement he was working as General Manager (HRD) of the respondent. The petitioner attained 58 years in July, 1998 and so he superannuated on 31st July, 1998 .The Government of India in 1998 took policy decision of increasing the date of retirement from 58 to 60 years which was to come into effect from 19th May, 1998. The respondent has adopted the said decision of giving extension in the age of retirement from 58 to 60 years. Despite the adoption of the said decision by the respondent it was not made applicable in the case of the petitioner hence being aggrieved by the denial of extension of age the petitioner has come before this Court. 2] The learned counsel appearing for the petitioner has pointed out that the Division Bench of this Court in Writ Petition no. 1176/1998 , (RCF Officers’ Association Vs. M/s RCF Limited) passed order dated 8th July, 1998 in which the respondent has made a specific statement that the decision to raise the age of the retirement of the employees would be made retrospectively applicable from May, 1998 and the employees who retired between 19th May, 1998 and 30th November,1998 would be reinstated in service with continuity in service up to new age of superannuation of 60 years. In view 3 of this statement the petition was disposed of . The learned counsel appearing for the petitioner has submitted that though this statement was binding on the respondent, the respondent did not extend the age of retirement of the petitioner. The cause for not doing so was further enunciated by the learned counsel that the C.B.I. enquiry was going on against the petitioner in the case relating to Raja Chemicals. Exh.F discloses the minutes in respect of review of performance and physical fitness of the employee whose case is under consideration of the benefit of extension age of superannuation .Exh.G is the letter dated 24th March,1999 by which the respondent has communicated the petitioner the decision of the board on the point of the denial to recommend enhancement of the age of retirement of the petitioner. The learned counsel for the petitioner has submitted albeit that review of the performance of the employee is a condition precedent for the enhancement of the age of the employe . The case of the petitioner stands on the better footing. It was argued that unblemished service record of 35 years is in the credit of the petitioner and no adverse remark was passed against him during the service period . On the contrary his services were commended by the board. The learned counsel has drawn our attention to the minutes of the secret agenda of 4 the meeting of the Board of Directors of the respondent held on 11th December, 1997 at New Delhi in respect of requisite sanction for prosecution of the petitioner. It was resolved that the party i.e. Raja Chemicals was enjoying credit facility even prior to the petitioner took over the charge of sale of Sodium Nitrate and during his tenure as Chief Marketing Manager of the Sale of Sodium Nitrate the outstanding amounts were substantially brought down and therefore it was not correct to hold the petitioner responsible for the outstanding amounts from the parties and the Board decided not to accord prosecution sanction against the two officials i.e.R.K.Dargar (Petitioner) and S.N.Dhingra. The learned counsel for the petitioner has contended that thus, the Board time and again has refused to grant requisite sanction for the prosecution of the petitioner and therefore , the C.B.I. though had filed the F.I.R. in 1994 could not file chargesheet till the petitioner retired from service i.e. 31st July, 1998 and it was filed on 30th September, 1998. The learned counsel has submitted that this fact itself discloses that the case of the petitioner ought to have been considered for enhancement of the age of the superannuation. The learned counsel for the petitioner has further argued that the decision of the extension of the age was reviewed and reversed by the Union of India in the year 2002 5 and the age was brought down from 60 to 58 years in the year 2002 . However, that reversion is not applicable to the present petitioner as he has retired in July,1998 when the policy of extension of age of retirement was in existence.The learned counsel has submitted that it is a case like a compulsory retirement and on this point he has relied on Sukhdeo V. The Commissioner, Amravati Division, Amravati & Ors., 1996 II CLR 202 .He has further submitted that the petitioner has been singled out and it is against the principle of equity and justice violating Article 14 of the Constitution and hence this Court by invoking writ jurisdiction may restore the justice. 3] The learned counsel appearing for the respondent has submitted that there is no merit in the case of the petitioner. The C.B.I. enquiry was in process against him when his case was considered for the enhancement of his age. The learned counsel has pointed out the criteria to be applied for the review of the performance laid down by the respondent. He has submitted that as per the rule , the Board has to consider the disciplinary proceedings whether in progress ,initiated and concluded against individual employee by the C.V.C. ,C.B.I. and Company and in the case of the petitioner the C.GB.I. enquiry was initiated ,therefore, no extension was given. 6 4] At the outset it is made clear that this is not a case of compulsory retirement . The age of retirement for the employees of the respondent was 58 years. By adopting policy of the Union of India it was extended up to 60 years. However, such extension was subject to the review of the performance and such filtering based on certain criteria is illegal. Thus, compulsory retirement and extension of the age of superannuation are two different concepts. If a person cannot fulfill the requisite criteria at the time of review then the extension is denied so ultimately his retirement is after attaining the age of superannuation i.e. 58 years. The legality of the process of review itself is not challenged hence the criteria fixed after reviewing the performance is a right and legal method for giving extension in the age of superannuation . Therefore, the ruling cited supra by the learned counsel for the petitioner is distinguishable and not applicable. 5] The respondent has laid down the rules in respect of review . The relevant rule is as follows. PERFORMANCE REVIEW :- In order to evaluate the performance of an employee following will be taken into consideration. 7 I] Performance Appraisals/Annual Confidential Reports. An Employee who has secured consecutively Adverse/Average reports in his CRs may be deemed as a fit case for non granting of enhanced age of superannuation. ii] Disciplinary proceedings in progress,initiated & concluded against the individual Employee by CVC,CBI and Company. iii] Awards /Appreciation letters/Warning letters etc.received by the employee during last 5 years. 6] The fact of initiation of prosecution by the C.B.I.against the petitioner is not disputed. If it is so, then the denial to the extension of age of superannuation was within the framework of the rules. Refusal by the Board to given sanction to C.B.I.for the prosecution cannot be equated and confused with the circumstances denying the approval for the extension of the age of superannuation. In these two processes same facts are tested upon different yardsticks as the prosecution is a penal process and extension of the age of superannuation is an administrative process/decision. No fault is found in the order of the Board denying the extension of the age to the petitioner. 8 Moreover, the petitioner could not demonstrate and substantiate his grievance of singling him out, giving him unequal treatment, leading to violation of Article -14 of the Constitution of India. We are ,therefore, of the view that there is no merit in the case of the petitioner. 7] Needless to say , our observations will not influence the criminal trial. The petition stands dismissed. (SMT.RANJANA DESAI,J.) (MRS.MRIDULA BHATKAR,J.) 9 s.