1 IN THE HIGH COURT OF BOMBAY T GOA WRIT PETITION NO.469 OF 2008 Shri Mariano J.B. Fernandes, r/o. H.No.187, Temba, Vaddy, Merces, Ilhas, Goa. …. Appellant V/s 1. State of Goa through its Chief Secretary, having office at Secretariat, Porvorim, Goa. 2. Industrial Training Institute, Government of Goa, Farmagudi, Ponda, Goa, through its Principal, having office at I.T.I., Farmagudi, Ponda, Goa. 3. Directorate of Craftsmen Training, Government of Goa, through its Director, having office at 3rd floor, Shramashakti Bhawan, Patto Plaza, Panaji, Goa. …. Respondents Shri J. Supekar, Advocate for the Petitioner. Shri S. Bandodkar, Additional Government Advocate for the Respondents. CORAM : A.P. LAVANDE & F.M. REIS, JJ. Reserved on : 9th MARCH, 2011 Pronounced on : 23rd MARCH, 2011 JUDGMENT (Per : F.M. REIS, J.) The above petition has been filed praying, inter alia, to grant 2 an appropriate writ or direction commanding the respondents to grant to the petitioner the benefit of enhanced age of retirement in terms of order dated 11/10/2000 published in the Official Gazette dated 19/10/2000 or in terms of the third amendment to the said Retirement Rules of 2000 and all the consequential benefits including back wages, etc. The petitioner has further prayed in the alternative to grant appropriate writ or direction to strike down the Goa State Civil Services (Retirement) Rules, 2000 to the extent that they reduce the age of superannuation of pre-statehood employees from 60 years to 58 years. The petitioner has also prayed in the alternative for a declaration that the Goa State Civil Services (Retirement) Rules, 2000 are inapplicable to the petitioner. 2. It is the contention of the petitioner that the petitioner came to be appointed as an Instructor in Fitting in the Government Technical High School, Panaji, Goa, vide an order dated 26/12/1975 issued by the Directorate of Education, Government of Goa, Daman and Diu, Panaji, Goa. Thereafter, vide an order dated 17/11/1980, issued by the Commissioner of Labour and Employment, Government of Goa, the petitioner came to be appointed on temporary and ad-hoc basis as Craft Instructor (Fitter) 3 and he was thereafter transferred as Craft Instructor at Government Industrial Training Institute at Mapusa. It is further his case that he was appointed in the services of Union Territory of Goa in the year 1975 and that Goa attained statehood in the year 1987. It is further the case of the petitioner that he completed 58 years of age on 15/05/2006 and vide relieving order dated 31/05/2006 issued by the respondent no.2, he was illegally retired from the services upon attaining the age of 58 years w.e.f. 31/05/2006. It is further his case that in terms of the Goa, Daman & Diu Re-organization Act, 1987, Goa attained statehood on 30/05/1987. It is further his contention that prior to 30/05/1987, the retirement age of the petitioner was 60 years and in terms of the provisions of Section 60 (6) of the said Re-organization Act, 1987, the Government had no right or authority to vary the service conditions applicable to the petitioner to his disadvantage without obtaining the prior sanction/approval from the Central Government. It is further his contention that the respondent no.1 in exercise of his powers conferred by proviso to Article 309 of the Constitution of India framed the Goa State Civil Services (Retirement) Rules, 2000 which were enforced w.e.f. August 2000. It is further his case that Rule 3(1) of the said Retirement Rules, 2000 provides, inter alia, that the retirement age was reduced to 58 years of all Government 4 servants including the petitioner. It is further his contention that no previous approval from the Central Government was obtained prior to reduction of the age of superannuation from 60 years to 58 years and that the respondents obtained a post facto approval dated 30/06/2001 from the Central Government. It is further his contention that the law requires, previous approval and not post facto approval in terms of Section 60(6) of the said Re-organization Act, 1987 and, consequently, it was not open to the respondents to reduce the age of the petitioner for superannuation from 60 years to 58 years. It is further his case that in the alternative the said Retirement Rules of 2000 are not applicable to petitioner’s case and that the retirement age of the petitioner continues to be 60 years, notwithstanding the said Retirement Rules of 2000. It is further his contention that the retirement of the petitioner w.e.f. 31/05/2006 is patently illegal, arbitrary and unconstitutional. The petitioner further stated that the prejudice is caused to him as the Government considered the post of instructor as a teaching post and enhanced the age of superannuation from 58 years to 60 years with immediate effect and, as such, the petitioner is entitled to such benefit. It is further his case that the said Retirement Rules of 2000 came to be amended vide notification dated 29/05/2006. The amendment to Rule 3, inter alia, stipulates that the Government 5 servants in Group D service or post or who is a teacher and all other teaching staff shall retire from the service on the afternoon on the last day of the month in which he attains the age of 60 years. He further stated that the benefit of such amendment was extended to the teachers or other teaching staff who had completed 58 years of age on or after 18/04/2006, but before the commencement of the Goa State Civil Services (Retirement) (Third Amendment) Rules, 2006. He, as such, submitted that the petitioner who had retired on 31/05/2006 was entitled for such benefit and he could not be allowed to be retired at the age of 58 years. He, accordingly, filed the above petition and sought the aforesaid reliefs. The respondents though served failed to file any reply. 3. Dealing with the first contention of the learned Counsel appearing for the petitioner to the effect that the petitioner being an Instructor would have to be considered as a member of the teaching staff, this Court in the judgment passed in Writ Petition No.468/2007 dated 25/03/2008 has held at para 4 thus: “4. Perusal of Goa State Civil Services Retirement Rules, 2000 along with Goa State Civil Services (Retirement) (Third Amendment) Rules, 2006, notification dated 11th October, 2000 and considering the fact that the petitioner would undisputedly complete the age of 60 years on 11/02/2009, the petitioner is justified in contending that he could not have been made to retire 6 in the month of February, 2007. The proviso to Rule 3 of the said Rules clearly provides that in case of a teacher and all other teaching staff they would retire from the service on the last day of the month in which they attain the age of 60 years. The notification dated 11th October, 2000 clearly classifies the post of instructor as the teaching post. Undisputedly, the petitioner is an instructor in Industrial Training Institute, Farmagudi, Ponda. Obviously, therefore, the petitioner is entitled to be in active service till he completes the age of 60 years as he would complete the same on 11/02/2009. Being so, there was no justification for the respondents to declare the petitioner to have retired in February, 2007. On this count, itself, without addressing to other issues which are sought to be raised in the matter, the petition succeeds.” 4. In view of the said judgment of Division Bench of this Court, the petitioner who is undisputedly an instructor is classified as a teaching post. There is no dispute that the petitioner was made to retire on superannuation on 31/05/2006. The amendment to the Goa State Civil Services (Retirement) (Third Amendment) Rules, 2006 were published in Official Gazette on 30/05/2006. The amendment to Rule 3 provides as under: “Provided that a Government servant, in Group D service or post or who is a teacher, and all other teaching staff, shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: Provided further that a teacher or other teaching staff who has completed the age of fifty eight years on or after 18th day of April, 2006 but before the commencement of the Goa State Civil Services (Retirement) (Third Amendment) Rules, 2006, shall 7 also retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.” 5. Considering the said provisions of Rule 3, as the petitioner retired on superannuation after 18/04/2006, the petitioner would be entitled to take the benefit of the amendment to Rule 3 whereby the age of superannuation was enhanced to 60 years. The petitioner was made to retire at the age of 58 years on 31/05/2006 when the Goa State Civil Services (Retirement) (Third Amendment) Rules, 2006 were already in force. As such the said action on the part of respondent cannot be sustained. The petitioner was justified to contend that he was in active service up to 31/05/2008. To that extent, the contention of the learned Counsel appearing for the petitioner deserves to be accepted. 6. Shri Bandodkar, the learned Additional Government Advocate submitted that no writ can be granted directing the respondents to grant the petitioner the benefits of enhanced age of retirement and the back wages, as the petitioner had not approached the respondents before filing the present petition. On perusal of the reliefs sought for by the petitioner, we find that apart from seeking a direction, the petitioner has also claimed, inter alia, 8 a relief in the nature of declaration to the effect that the petitioner is entitled to the benefits of enhanced age of retirement in terms of third amendment to the said Retirement Rules of 2000 and all the consequential benefits. In any event, the respondents have not filed any reply to the petitioner disclosing that in case the petitioner had approached them, any remedial measures about his age of retirement would have been effected by the respondents. 7. The next aspect to be considered is as to whether the petitioner is entitled for any back wages. Shri Bandodkar, the learned Additional Government Advocate submitted that in the original writ petition there was no averment to the effect that the petitioner was not gainfully employed after his said superannuation on 31/05/2006. The learned Counsel appearing for the petitioner filed an additional affidavit of the petitioner dated 9/03/2011 and stated that he remained unemployed till 31/05/2008. The above petition was filed only on 18/06/2008 which was after the petitioner had completed 60 years. The said conduct of the petitioner would be relevant for the purpose of determining the payment of back wages. In the original petition, admittedly, there was no averment to the effect that the petitioner was not gainfully employed. The respondents chose not to file any reply to the 9 original petition nor made any averment that the petitioner was gainfully employed during the said period. The Apex Court in the judgment reported in 2009 (1) SCC 80 in the case of Mohd. Yunus Khan V/s. U.P. Power Corporation Ltd. & Ors. held at para 20 thus: 20. For the reasons aforementioned, the impugned judgments cannot be sustained and they are set aside accordingly. The appellant is held to have retired in the year 2006 treating his date of birth as 1-7-1948. The appellant would not, however, be entitled to the entire back wages as he did not work for a long time. Even he had approached this Court after a long time. There was a delay of 549 days (in respect of the SLP against the main order) and 128 days (in respect of the SLP against the order passed in review). For a substantial period he had been paid salary, although he did not work. We direct that 50% of back wages may be paid, save and except for the period during which salary has been paid to him. However, for the purpose of calculation of pensionary and other retiral dues, he shall be treated to have continued in service till the date of his superannuation and for the said purpose increments, if any earned by him, as also the revision in pay shall be taken into consideration. The appeal is allowed to the aforementioned extent with costs. Counsel’s fee assessed at Rs.25,000. 8. Considering the overall facts of the case and as the petitioner approached this Court only after completion of 60 years, we find that the petitioner would be entitled to 25% of back wages in addition to the pension, etc. already received by the petitioner during the said period. 9. In view of the above, we hold that the order relieving the 10 petitioner on 31/05/2006 is illegal and that the petitioner was entitled to be considered in service up to the age of 60 years. The respondents are accordingly directed to grant all pensionary benefits to the petitioner as if he has retired on 31/05/2008. The respondents are also directed to pay 25% as back wages for the said period of two years from 1/06/2006 till 31/05/2008 in addition to the pension received by him during the said period. Rule is made absolute in above terms with costs. A.P. LAVANDE, J. F.M. REIS, J. NH/-