In the High Court of Punjab and Haryana at Chandigarh ...... R.S.A. No.554 of 1990 ..... Date of decision:1.12.2011 The State of Punjab and another .....Appellants v. Puran Chand Jindal .....Respondent .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ...... Present: Mr. Ranvir S. Chauhan, Advocate for the appellants. None for the respondent. ..... Mohinder Pal, J. This regular second appeal is directed by the defendants (appellants herein) against the judgment and decree dated 13.10.1989 passed by the learned Additional District Judge, Sangrur, whereby the appeal of the defendants against the judgment and decree dated 22.11.1986 passed by the learned Sub Judge Ist Class, Sangrur has been dismissed. Brief facts of the case are that the plaintiff (respondent herein) was appointed as Clerk in the erstwhile State of Jind on 19.10.1943. In the R.S.A. No.554 of 1990 [2] Jind State the age of superannuation, as prescribed by Regulation 27 of the Jind State Civil Service Regulations, 1945 (hereinafter referred to as `the Regulations') was 62 years. On 5.5.1948, the Ruler of Jind State and the Rulers of the States of Patiala, Kapurthala, Nabha, Faridkot, Malerkotla, Nalagarh and Kalsia entered into a Covenant whereby they agreed to unite and integrate their territories into one State to be known as Patiala and East Punjab States Union (hereinafter referred to as `PEPSU'). As a result of the integration of the services of the union States, the respondent was posted as Clerk in the office District and Sessions Judge at Sangrur as PEPSU. On the coming into force of the Constitution, PEPSU became a Part B State and continued as such till the reorganization of the States under the States Reorganization Act, 1956 and the respondent was absorbed in the service of the State of Punjab. Due to the reorganization of the State of Punjab and the formation of the State of Haryana by the Punjab Reorganization Act, 1966 w.e.f. 1.11.1966, the respondent was allocated to the State of Punjab. He was retired from service on attaining the age of 58 years w.e.f. 31.3.1984 while he was working as Assistant in the office of District and Sessions Judge, Sangrur. On 5.6.1985, he filed Civil Suit No.215 of 1985 in the Court of Sub Judge Ist Class, Sangrur for declaration that his retirement at the age of 58 years was illegal, unconstitutional, ultra vires, mala fide, null and void, against the principles of natural justice and against service rules and regulations governing him and that he was entitled to remain in service upto the age of 62 years. The suit of the plaintiff was decreed by the trial Court on the ground that the plaintiff never opted for Rule 3.26 of the Punjab Civil Service Rules, Volume I, Part I and the Government Pleader R.S.A. No.554 of 1990 [3] could not show that such concurrence was obtained from the Central Government. The judgment of the trial Court was affirmed by the Additional District Judge, Sangrur, who held that the age of superannuation constitutes a condition of service and by virtue of Ordinance No.XVI of 2005 BK as amended by Ordinance No.XVIII of 2006 BK had lapsed after the expiry of six months and supplementary covenant was also held to be without authority. It was held that according to Gooderham and Worts Ltd. v. Canadian Broadcasting Corpn., AIR 1949 PC 90, the old rules and regulations of Erstwhile Jind State were revived. According of Ordinance 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 Reorganization Act, 1956 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 Punjab Civil Service Rules, Volume I, Part I to the respondent. Aggrieved against this judgment and decree, the State of Punjab has come in second appeal. I have heard learned Deputy Advocate General, Punjab appearing for the appellants-State. However, as no one has appeared on behalf of the respondent, the records of the Courts below have been perused carefully. Learned Deputy Advocate General, Punjab argued that the plaintiff was estopped from filing the suit by his act and conduct as he had been agitating from time to time to get the benefit of pay scale and other conditions of service approved by the State of Punjab and the trial Court has failed to frame a separate issue on this ground and the learned first appellate R.S.A. No.554 of 1990 [4] Court has miserably failed to appreciate this legal aspect. The plaintiff- respondent had himself applied to District Judge, Sangrur to take step for determining his pension and gratuity etc. admissible to him as his date of birth was 12.3.1926 and was due to retire w.e.f. 31.3.1984 and in this manner, he had admitted that he was retiring on superannuation after attaining the age of 58 years. He has placed reliance on the judgment of Supreme Court in State of Haryana and others v. Amar Nath Bansal, (1997) 10 SCC 700 to contend that the retirement age of 58 years as prescribed in Rule 3.26 of Punjab Civil Service rules, Volume I, Part I has been held applicable to the respondent. The respondent filed Civil Miscellaneous No.805-C of 1994 for early hearing and placed reliance on the judgment of this Court in the case of State of Haryana and others v. Amar Nath Bansal, (R.S.A. No.1491 of 1990, decided on 6.7.1993) and other cases to contend that similarly situated employees have been given the benefits of the retirement at the age of 60/62 years as was applicable in different States and contended that his case is securely covered by the pronouncement of this Hon'ble Court. From the perusal of the judgment of the Supreme Court in State of Haryana and others v. Amar Nath Bansal (supra), the claim of the respondent does not survive as the judgment of this Court in Amar Nath Bansal's case (supra) has been reversed by the Supreme Court. The Hon'ble Supreme Court has dealt the issue regarding the non-applicability of laws of merging States after merger and Rule 3.26 of the Punjab Civil Service Rules, Volume I, Part I. The relevant para 10 of the judgment is reproduced below:- “The Covenant entered into by the Rulers of the States which R.S.A. No.554 of 1990 [5] 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 recognized by him. The process of acquisition of new territories is one continuous act of the 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 be 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 incapable of enforcement in the courts of the new sovereign.” R.S.A. No.554 of 1990 [6] The Supreme Court has further observed as under:- “The underlying object of the Ordinance 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 the Patiala State in the entire territory of PEPSU. The repeal of laws of other covenanting States was intended to be for all times. The effect of the Ordinance was therefore not nullified on its expiry. In view of the express terms used in the said Ordinance, it must be held that the Jind State Civil Service Regulations, 1945 stood repealed absolutely and ceased to have any application after the Rajpramukh of PEPSU took over the administration of Jind State.” In para 21 of the judgment, it has been held as under:- “Moreover, there is nothing to show that the Rajpramukh 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 a 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 R.S.A. No.554 of 1990 [7] 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. Article 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 the 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 merged into the reorganized State of Punjab under the States Reorganization Act, 1956 and thereafter the Punjab Civil Service Rules were made applicable to the erstwhile 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 Rules 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 of the Punjab Service Rules was 58, the respondent was rightly retired on his attaining the said age.” The proposition of law enunciated in the above mentioned case is R.S.A. No.554 of 1990 [8] fully applicable to the facts of the present case. In view of the above discussion, this appeal is allowed and the judgments and decrees of the Courts below are set aside. December 1, 2011. (Mohinder Pal) Judge *hsp*