CWP No. 6301 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 6301 of 2009 Date of Decision: 10.12.2009 Mrs.Sheela ...Petitioner Vs. Indian Council for Child Welfare & Ors. ...Respondent CORAM: Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.Dinesh Kumar, Advocate, for the petitioner. Mr.K.K.Gupta, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J . (Oral) This order shall dispose of CWP Nos. 6301, 29, 2979 and 4868 CWP No. 6301 of 2009 2 of 2009 titled Mrs.Sheela Vs. Indian Council for Child Welfare & Ors.; Ram Pyari Vs. Indian Council for Child Welfare & Ors.; Ishro Devi Vs. Indian Council for Child Welfare & Ors. and Rajesh Kumar Vs. Indian Council for Child Welfare & Ors., respectively, as common questions of law and facts are involved in all these four writ petitions. For the sake of brevity the facts are being taken from CWP No.6301 of 2009. The petitioner was appointed on 1.1.1980 at a consolidated salary of Rs.100/- being the minimum wages fixed at that time. Service conditions of the petitioner were governed by the Standing Order-21, though not got registered by the respondents. According to Standing Order 21, age of superannution of the employees was 60 years. In the year 2006 the Council framed Service Rules called the Conditions of Service Rules of Employees of Indian Council of Child Welfare, U.T. Branch, Chandigarh, 2006. Under the Rules the age of superannuation was fixed at 58 years. Rule with regard to the retirement reads as under:- “` RETIREMENT: The normal age of superannuation of paid employees of the Council shall be 58 (fifty eight) years with powers of the competent authority to extend it for a year at a time, but not more than two years. An employee shall be compulsorily retired at the age of 55 years in case he or her service record is found unsatisfactory. Otherwise, an employee will superannuate at the CWP No. 6301 of 2009 3 age of 58 years with a yearly extension wherever the President or the Executive Committee so decides.” The petitioners were allowed to continue in service even beyond the age of 58 years. The case of the petitioners is that they have no notice of the Rules, 2006, whereas the stand of the respondents is that representation was made by the employees on account of which Rules were kept in abeyance. It was only after the representation was rejected by the highest authority of the Child Welfare Council that the Rules were implemented and impugned order of retirement was passed as they had already crossed the age of 58 years as fixed in the Rules. Learned counsel for the petitioners seeks direction from this court to continue in service up to the age of 60 years on the plea that the Rule of retirement as referred to above is ultra wires the Constitution as it gives uncontrolled and unprivileged powers to the competent authority to grant extension at their whims and fancy without laying down any guide- lines. The contention of the learned counsel for the petitioners is that the impugned part of the Rule of retirement which gives arbitrary power to the competent authority to grant extension at their whims and fancy is liable to be struck down and the petitioners be allowed to continue in service up to the age of 60 years under the deemed extension. In support of this contention learned counsel for the petitioners placed reliance on the judgment of Hon'ble Supreme Court in the case of CWP No. 6301 of 2009 4 Air India Vs. Nergesh Meerza and Ors. 1982 (1) SLR 117, wherein Hon'ble Supreme Court considered similar rule which is reproduced below for ready reference:- “ We now proceed to determine the constitutional validity of the impugned Regulations. Taking the case of A.I. AHs. It would appear that their conditions of service are governed by Regulations 46 and 47, the relevant portions of which are extracted below: "46. Retiring Age: (i) Subject to the provision of sub-regulation (ii) hereof, an employee shall retire from the service of the Corporation upon attaining the age of 58 years, except in the following cases when/he/she shall retire earlier: ... ... ... ... (c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place within four years of service or on first pregnancy, whichever occurs earlier; ... ... ... ... (47) Extension of Service: Notwithstanding anything contained in Regulation 46, the services of any employee, may, at the option of the Managing Director but on the employee being found medically fit, be extended by one year at a time beyond the age of retirement for an aggregate period not exceeding CWP No. 6301 of 2009 5 two years except in the case of Air Hostesses and Receptionists where the period will be ten years and five years respectively." Hon'ble Supreme Court quashed the above mentioned Rule by recording as under:- “ Regulation 46 (i) (c) provides that an AH would retire on attaining the age of 35 years or on marriage if it takes place within four years of service. The last limb of this provision relating to first pregnancy in the case of AHs has already been struck down by us and the remaining sub-clause (c) has to be read with Regulation 47 which provides that the services of any employee may, at the option of the Managing Director, on the employee being found medically fit, be extended by one year beyond the age of retirement, the aggregate period not exceeding two years. This provision applies to employees who retire at the age of 58. So far as the AHs are concerned, under the Regulation the discretion is to be exercised by the Managing Director to extend the period upto ten years. In other words, the spirit of the Regulation is that an AH, if medically fit, is likely to continue upto the age of 45 by yearly extensions given by the Managing Director. Unfortunately, however, the real intention of the makers of the Regulations has not been carried out because the Managing Directors has been given an CWP No. 6301 of 2009 6 uncontrolled, unguided and absolute discretion to extend or not to extend the period of retirement in the case of Ahs after 35 years. The words 'at the option' are wide enough to allow the Managing Director to exercise his discretion in favour of one AH and not in favour of the other which may result in discrimination. The Regulation does not provide any guidelines, rules, or principles which may govern the exercise of the discretion by the Managing Director. Similarly, there is also no provision in the Regulation requiring the authorities to give reason for refusing to extend the period of retirement of AHs. The provision does not even give any right of appeal to higher authorities against the order passed by the Managing Director. Under the provision, as it stands, the extension of the retirement of an AH is entirely at the mercy and sweet will of the Managing Director. The conferment of such a wide and uncontrolled power on the Managing Director is clearly violative of Art. 14, as the provision suffers from the vice of excessive delegation of powers. For these reasons, therefore, we have no alternative but to strike down as invalid that part of Regulation 47 which gives option to the Managing Director to extend the service of an AH. The effect of striking down this provision would be that an AH, unless the provision is CWP No. 6301 of 2009 7 suitably amended to bring it in conformity with the provisions of Art. 14 would continue to retire at the age of 45 years and the Managing Director would be bound to grant yearly extensions as a matter of course, for a period of ten years if the AH is found to be medically fit. This will prevent the Managing Director from discriminating between one AH and another.” The contention of the learned counsel for the petitioners, therefore, is that the petitioners are entitled to continue up to the age of 60 till the Rules are suitably amended as held by Hon'ble Supreme Court. Mr.K.K.Gupta, learned counsel appearing on behalf of the respondents, supports the action of the respondents, on the plea that the Standing Order 21 was not got certified from the Certifying Officer appointed under the Industrial Disputes Employment Standing Order Act, 1946, therefore, could give no right to the petitioners to claim to continue in service up to the age of 60 years. It is further the contention of the learned counsel for the respondents that the petitioners and other employees were allowed to continue in service merely for the reason that the Rules framed in 2006 were kept in abeyance, in view of the representation made by the employees. The moment representation was rejected order of their retirement as per Rule of 2006 was passed which cannot be faulted with. Learned counsel for the respondents placed reliance on the judgment of Hon'ble Supreme Court in the case of P.Venugopal Vs. Union CWP No. 6301 of 2009 8 of India (2008) 5 SCC 1 to contend that the petitioners have no locus standi to challenge the Rules of 2006 as it has been authoritatively laid down by the Hon'ble Supreme Court that age of retirement/superannuation can be reduced even of existing employees by changing the recruitment service rules. Hon'ble Supreme Court was further pleased to lay down therein that power of extension of service is within the employer's discretion and is not a right of employee, therefore, the contention for the learned counsel for the respondents is that the petitioners cannot claim to continue in service by seeking extension up to 60 years unless it is so granted by the employer. Learned counsel for the respondents also contends that as the Rule 2006 are not under challenge, therefore, it is not permissible for the petitioners to challenge the same before this court especially when the constitutional validity of the Rules framed is to be decided by the Division Bench not by the Single Bench. However, on consideration of matter, I find force in the contentions raised by the learned counsel for the petitioners. Though it is not open to the petitioners now to challenge the Rule, on the plea that his age of retirement could not be reduced in view of the judgment of Hon'ble Supreme Court in the case of P.Venugopal Vs. Union of India (supra). However, reading of Rule as framed by the respondents read with judgment of Hon'ble Supreme Court in the case of Air India Vs. Nergesh Meerza and Ors. (supra) leaves no manner of doubt that even as per existing rules the petitioners are to continue in service till the age of 60 CWP No. 6301 of 2009 9 years, unless the part of rule vide which power has been given to the competent authority to grant extension is modified to regulate it in accordance with law so that employees are not discriminated. Judgment of Hon'ble Supreme Court in the case of Air India Vs. Nergesh Meerza and Ors. (supra) and one given in P.Venugopal Vs. Union of India (supra) deal with a different aspect of the matter. In case there is any overlapping in that event the judgment of Hon'ble Supreme Court in Air India Vs. Nergesh Meerza and Ors. (supra) will prevail as it is of larger Bench. It is only in case of Co-ordinate Benches that the judgment later in time is to be followed and not the earlier in time. Learned counsel for the respondents contended that no extension has been granted under 2006 Rules. The contention of the learned counsel for the respondents cannot be accepted in view of the judgment of Hon'ble Supreme Court in the case of Air India Vs. Nergesh Meerza and Ors. (supra) authoritatively laid down a rule wherein uncontrolled powers are given to the competent authority to grant extension, then employee can continue till maximum period without extension if he is fit to perform his duties. The learned counsel for the respondents contends that this court has no jurisdiction to entertain and try this matter as the matter is to be tried by the Division Bench. This contention of the learned counsel for the respondents deserves to be noticed to be rejected. It is only for the purpose of motion hearing that writ challenging vires of Act or Rule is to be listed CWP No. 6301 of 2009 10 before Division Bench and not admitted case. In the written statement objection was also raised with regard to the maintainability of the writ petition on the ground that the respondent is not a State within the meaning of Article 12 of the Constitution of India. However, keeping in view the Division Bench judgment of this court in the case of Mewa Singh Vs. Union of India & Ors. 1996 (4) All Instant Judgments 603 and the judgment of Hon'ble Supreme Court in the case of Arunima Baruah Vs. Union of India and others (2007) 6 SCC 120, learned counsel for the respondents has not pressed this objection. For the reasons stated above, all these writ petitions are allowed. The petitioners shall be allowed to continue in service up to the age of 60 years. However, the respondents will be at liberty to amend the Rules, if so advised. No costs. (Vinod K.Sharma) 10.12.2009 Judge rp