1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 609 of 2008 1. Shri Zilo Zo, Age, 59 years, retired Forman Smithy, r/o Near Parab' Hospital, Taligao, Goa 2. Shri Rauji G. Naik Age, 59 years, retired Auto Electrician r/o. Bhom Wada, Tuem, Pednem, Goa 3. Shri Bhiqui A. Sancoalkar, Age, 59 years, retired Mechanic Grade II r/o. Flat No.BFF-43, Block-B Goa Housing Board Colony, Near Shifa Pharmacy, Alto Porvorim, Goa 4. Shri Devendra Vaingankar Age, 59 years, retired Mech. Gr. II, r/o. H.No.118, Madel, Carao, Ilhas, Goa 5. Shri Milagris Fernandes, Age, 59 years, retired Painter, r/o. House No.93/A, Near Mercury chamber, Ribander, Fondvem, Goa .. Petitioners. V e r s u s 1. The State of Goa, Through its Chief Secretary, Secretariat, Panaji Goa 2. The Director of Administration, P.W.D. Altinho, Panaji, Goa. 3. Chief Engineer, P.W.D. Altinho, Panaji, Goa. 2 4. Executive Engineer, Division IV, P.W.D., Tonca, 5. Union of India, Ministry of Home Affairs, Government of India, through its Director, Mr. Taradatt, Mantralaya, New Delhi. .. Respondents Mr. S. M. Walwaikar, Advocate for the petitioners. Mr. S. Bandodkar, Additional Government Advocate for respondent nos.1 to 4. Mr. C. A. Ferreira, Assistant Solicitor General for respondent no.5. CORAM : S. C. DHARMADHIKARI & F. M. REIS,JJ Reserved on : 6 th April, 2011. Pronounced on : 6 th May, 2011. JUDGMENT : (Per S. C. Dharmadhikari) By this Writ Petition under Article 226 of the Constitution of India, the petitioners challenge the order dated 4th July, 2005 of the Government of Goa, office of the Executive Engineer, Division IV (Mech- Elec/ North), Public Works Department, Goa informing the Assistant Engineer of the Division and Subdivision thereof that the Petitioners would retire on the following dates from the services : 3 Sr. No. Name and Designation (Regular) Date of Retirement 1) Shri Rauji G. Naik Auto Elect. 28/2/2006 A.N. 2) Shri Zilo So, Forwman (Smithy) 30/6/2006 A.N. 3) Shri Bhiqui A. Sancoalkar, Mech. Gr. II 31/7/2006 A.N. 4) Shri Devendra Vaingankar –do-- 31/10/2006 A.N. 5) Shri Milagris Fernandes, Painter 31/8/2006 A.N. 2. The Petitioners pray that this Court should be pleased to declare that Rule 3 as it stood prior to fourth amendment to Goa Civil Services (Retirement) Rules, 2000 ('the Goa Rules' for short) to the extent of reducing the retirement age of the workman to 58 years is beyond the legislative competence of respondent no.1 and, therefore, its enforcement as against the Petitioners is unconstitutional and violative of the mandate of Articles 14, 16 and 21 of the Constitution of India and, therefore, this Court should be pleased to declare that the workman / artisan like the Petitioners are entitled to continue in services till they attain the age of superannuation in terms of Rule 56(b) of the Fundamental Rules. As a consequence of the aforementioned prayers, this Court should issue a writ of Certiorari or Mandamus or any other writ order or direction directing the respondents to pay full back wages for two years to the 4 Petitioners with all accrued retirement benefits. 3. Briefly, the Petitioners state that they are employees working as “workmen” and are appointed by respondent no.1. After setting out the details of their birth dates and nature of their work in paragraph nos.3 and 4, it is stated that in terms of the service conditions, the age of superannuation of the petitioners would have been attained by them from February, 2008 to October, 2008. In other words, they would have retired on attaining the age of 60 years on these dates. The Fundamental Rules 56(a) and (b) would be the applicable rules in so far as the age of superannuation is concerned. 4. It is stated that since Respondent no.4 served a letter Annexure A to the petition on the Petitioners, they approached him in person and requested him to reconsider the case. The petitioners state that they have followed up the matter persistently with the Authorities and in this behalf, they rely upon the meeting in the office of the Chief Engineer held in December, 2007 wherein he orally informed them that their superannuation orders have been lawfully issued in terms of Rule 3 of the Goa Rules and if they have got a grievance against the action of the respondents, they have to 5 lodge a written complaint. Accordingly, a written representation dated 10th January, 2008 has been lodged requesting the Authorities to reconsider the decision and restore the services with back wages. The Petitioners were informed by letters dated 4th April, 2008 and 30th April, 2008 that their request is rejected in view of Notification No.2/6/94-PER (VOL-I) dated 29-8-2000 and order No.2-6-94- PER Order No.2-6-04 PER Vol (I) dated 5-8-2001. 5. The Petitioners state that although respondent nos.3 and 4 relied on the notification dated 29th August, 2000 and order dated 5th August, 2001, copies thereof were not forwarded and, therefore, the Petitioners by their letter dated 11th June, 2008 requested them to furnish copies of the notification/ order. 6. These copies were submitted somewhere in the mid of August, 2008 and it is, therefore, contended that the Petitioners' services are not governed by the Goa Rules as they were employed as Union Territory employees. Prior to Goa becoming a State with effect from 30th May, 1987, it was an Union Territory. Therefore, Union Territory Goa, Daman and Diu being governed by the Central Government terms and conditions and more particularly Fundamental Rules, 6 Rule 56 thereof would apply. It is submitted that although the Union Territory of Goa became State by virtue of The Goa State, Daman and Diu Reorganisation Act, 1987, ('the Act of 1987' for short), the terms and conditions of service as to the age of retirement was regulated by the Fundamental Rules. Section 60(6), the proviso thereto of the Act of 1987 have been relied upon by the Petitioners to support their argument that there is an embargo on altering the service conditions of the Petitioners to their disadvantage except with the previous approval of the Central Government. However, there is no previous approval before the Goa Rules were applied to the Petitioners and they were superannuated and retired at the age of 58 years. Therefore, the impugned order is illegal. 7. Raising such pleas that the instant petition under Article 226 of the Constitution of India has been filed. 8. Learned Counsel appearing on behalf of the Petitioners submits that the retirement of the Petitioners is a premature retirement and by relying on alteration/ variation of terms and conditions of their services as per the Goa Rules, to the disadvantage of the Petitioners. It is submitted that there is no prior approval obtained by the Respondents from the Central Government. Without such prior approval, there 7 could not have been any alteration in the terms and conditions of service altering the age of superannuation and, therefore, the retirement at the age of 58 years of the Petitioners, is illegal and unconstitutional. It violates the mandate of Articles 14, 16 and 21 of the Constitution of India. 9. It is submitted by the learned Advocate for the Petitioners that an Affidavit-in-reply is filed on 20th October, 2008. In that affidavit in paragraph 3, it has been stated by the State Government that the Petitioners were aware of the Rules framed by the Government which were published in the Official Gazette on 29th August, 2000 and the consequent approval dated 30th July, 2001 from the Central Government approving the decision of the State Government reducing the age of superannuation from 60 to 58 years and therefore the impugned order is perfectly legal. Hence, the Petitioners cannot be continued in services till 2008 on the basis of their contention that they would retire at the age of 60 years. Thus, it is contended on behalf of the Petitioners' Counsel that the ex-post facto approval allegedly given is no approval in the eyes of law. It is submitted that the petition was amended and the Petitioners have raised several pleas, particularly pointing out that Rules 3 and 4 of the Goa Rules are repugnant to Rule 56(b) of the Fundamental Rules and they are ultra vires under Article 254 of the Constitution of 8 India. It is submitted that Section 60(6) of the Act of 1987 contemplates prior approval and that is a mandatory requirement. There is nothing like ex-post facto sanction. Once there is alleged ex-post facto sanction, then, there is no question of the Goa Rules applying to the Petitioners. He submits that it is admitted that alteration or change in the age of retirement from service amounts to change or alteration of terms and conditions of service. Therefore, prior approval of Central Government was necessary. In these circumstances, the letter dated 30th August, 2001 cannot be said to be due compliance with law. 10. Our attention is invited to paragraph 17(E) and 17(F) of the Petition. It is submitted that the Ministry of Home Affairs issued purported letter without seeking concurrence of Ministry of Finance. Therefore, on this count as well, the purported approval is ultra-vires to the Fundamental Rules and illegal. 11. It is contended on behalf of the Petitioners that the contention raised by the State Government in its affidavit that there is gross delay and laches and, therefore, the Petition should be dismissed, has no substance. However, in paragraph nos.8(A) to 8(G) and paragraph no.9, it is pointed 9 out as to how their case was recommended for extension even after the Goa Rules were purportedly sanctioned. He submits that the Assistant Engineer had specifically recommended on the file that the Petitioners should be continued. His recommendation is available and if the file is called for, it will clear the doubts. On 2nd May, 2007, the recommendations were made. Thus, the Petitioners were following up the matter and it is only in the year 2008 that their representations were rejected. In these circumstances, it is submitted that there is no delay or laches on their part in approaching this Court. 12. On the other hand, the learned Additional Government Advocate appearing on behalf of Respondent nos.1 to 4 submitted that the Petition is barred by delay and laches. The Petitioners are guilty of approaching this Court belatedly. They have been retired from service in the year 2006, whereas the Petition has been filed in the year 2008. No relief can be granted to the Petitioners. On merits, it is submitted that this Court in the judgment reported in 2004(2) Goa Law Reporter 273 (Shri Ramnath Parwatkar Versus State of Goa and another) so also other Writ Petitions decided on 1 st April, 2004 held that assuming this Court was called upon to decide the question whether ex-post facto approval can be 10 granted and even if this Court was to hold in favour of the Petitioners that ex-post facto approval cannot be granted, the Petitioners would be entitled for the monetary relief which according to the Government Affidavit in that matter is the pay and allowances till the date of receiving approval from the Central Government. That could alone be granted. In other words, in that case, the Petitioners were retired in the month of October, 1999. They were granted benefit only till 30st April, 2001 which is the date of ex-post facto sanction / approval. The monetary relief till this date only can be granted and therefore, in the alternative as well, it is submitted that this Court should not grant any relief, but proceed to dismiss the petition. 13. Our attention is invited to Affidavit of Mr. A. Vachasundar, Principal Chief Engineer, Public Works Department, Government of Goa filed in this petition on 20th October, 2008. For all these reasons and relying upon the Hon'ble Supreme Court decision reported in 1992 (supplementary) (3) SCC 43 (Chandigarh Administration Vs. mehar singh and another), it is submitted that the Petitioners have nowhere stated that they were workmen within the meaning of Subrule (b) of Fundamental Rule 56 and that rule is not applicable to them. Reliance is also placed on the 11 decision of the Supreme Court in the case of AIR 1965 SC 136 (N. Raghvendra Rao Vs. Deputy Commissioner and others). Finally, the learned Additional Government Advocate relied on the Division Bench judgment in W.P. No.377/2002 (Keshav K. Parab Vs. Executive Engineer and others) dated 21st February, 2011) to which one of us (F. M. Reis, J.) is a party. It is submitted that the controversy stands concluded by the Division Bench judgment in the case of Ramnath Parwatkar (supra) and Keshav K. Parab (supra). For all these reasons, it is submitted that the Petition be dismissed. 14. With the assistance of the learned Counsel appearing for the parties, we have perused the Petition and all Annexures thereof so also the Affidavits filed on record. We have perused the relevant statutory provisions. We have also perused the decisions which have been brought to our notice by the Counsel appearing for the parties. 15. Fundamental Rule 56(b) which is relied upon by the Counsel reads thus : “Rule 56(b) – A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.” 12 16. Bare perusal thereof, indicates that the employees, who are styled as workmen would attain the age of superannuation at 60 years, when, Fundamental Rules are applicable to employees of the Central Government. It is not disputed before us that they would apply to the Petitioners, who are the employees recruited by the erstwhile Union Territory of Goa, Daman and Diu Administration. There is no substance in the contention of Respondent nos.1 to 4 that the Petitioners have not satisfied the condition of being “workmen” so as to attract the Fundamental Rule 56(b). It must be stated straightway that the Additional Government Advocate raised this plea although such stand is not taken in the Affidavit-in-reply. The Petitioners have stated in the Petition that they are appointed as workmen by Respondent no.1 on different dates in different categories and this is pointed out in paragraph No.4 of the Petition. The Petitioners have, after setting out their dates of birth, stated so and there are no denials of the statements and averments in paragraph nos.3 and 4 of the Petition. Further, the Affidavit-in-reply proceeds on the basis that the Petitioners are the employees/ workmen recruited by the erstwhile Union Territory of Goa, Daman and Diu Administration and consequent upon Goa becoming a State by virtue of the Act of 1987, their terms 13 and conditions of Service will be governed by the Goa Rules. This is the factual basis on which the affidavit proceeds. It is not open for Respondent nos.1 to 4 to now argue that the Petitioners are not workmen and, therefore, Fundamental Rules are inapplicable to them. 17. Equally, untenable and unacceptable is the stand of Respondent nos.1 to 4 that the Petition is barred by delay and laches. True that the petition is filed on 30th September, 2008. True that the Petitioners have been retired from services by the State from February, 2006 to October, 2006 respectively. However, each of the Petitioners had approached the Assistant Engineer despite receipt of the notice/ order of retirement and requested that they be continued in service till they attain the age of 60 years and in terms of their date of birth that would be in the year 2008. Now, the statement made in the Petition namely the recommendation of the Assistant Engineer and the file being put up through proper channel to Superintending Engineer and Chief Engineer by the State Government has not been denied. The averment that the Petitioners were called upon to make representation which they made and, therefore, the order came to be passed thereon rejecting the same on 4th 14 April, 2008 is undisputed. Further, the Petitioners' request seeking copy of the notifications dated 29th August, 2000 and order dated 5th January, 2001 being complied with only in the mid of August, 2008 is also not dealt with, leave alone denied. When, all these statements and averments in the Petition are not denied and if the Petitioners were to continue in service till the year 2008, then, in the peculiar facts of this case, it cannot be said that the Petition is barred by delay and laches. Even otherwise, at the most, this is an aspect which will have some bearing on the relief to be granted to the Petitioners. This aspect will be considered later in this judgment. However, it cannot be said that the Petition is barred by delay and laches in view of the peculiar facts and circumstances of this case. The second contention of the learned Additional Government Advocate must also, therefore, fail. 18. Then, reliance is placed on Annexure E-1 to the Petition, which is a copy of notice, Ministry of Home Affairs. The same reads thus : New Delhi, the 30th July, 2001. To The Chief Secretary, Govt. of Goa, 15 Panaji. Subject : Goa State Civil Service (Retirement) Rules, 2000 -ex-post-facto approval of Central Government to alter the age of retirement from 60 years to 58 years. I am directed to refer to your D.O. Letter no.2/6/94-PER (Vol-I) dated 10-4-2001 on the subject mention above and to convey ex-post- facto approval of the Central Government under the proviso to Section 60(6) of the Goa Daman and Diu Reorganisation Act, 1987, to alter the age of retirement from 60 years to 58 years in respect of all categories of employees including teachers and other teaching staff, except Group D employees. Yours faithfully, sd/- (Taradatt) Director 19. It is, therefore, submitted that the Goa Rules would apply. It is submitted that these Rules have come into force with effect from 31st December, 2000 (a.n.). It is submitted that except as otherwise provided in these Rules, every Government Servant including a Workman/ Artisan shall retire from the service in the afternoon of the last day of the month in which he attains the age of 58 years. Rules 3 and 4 read thus : 16 “3. Retirement of Government Servants – (1) Except as otherwise provided in these Rules, every Government servant including workman/ artisan shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years : Provided that a Government servant whose date of birth is the first of a month, shall retire from service on the afternoon of the last day of the preceding month on attaining the age of fifty eight years. (2) No Government servant shall be granted extension in service beyond the age of retirement of fifty eight years. Provided that a specialist in medical or scientific fields may be granted extension of service upto the age of sixty years if such extension is in public interest and the grounds for such extension are recorded in writing : Provided further that the appropriate authority shall have the right to terminate the extension by giving notice in writing of not less than one month or pay an allowances in lieu of such notice. (3) Notwithstanding anything contained in these rules, the appropriate authority shall, if it is of the opinion that it is in public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and 17 allowances in lieu of such notice, - (i) if he is in Group 'A' or Group 'B' service or post in a substantive, or temporary capacity and had entered Government Service before attaining the age of 35 years, after he has attained the age of 50 years; (ii) in any other case, after he has attained the age of fifty five years. (4) (i)If on a review of the case, either on a representation from the Government servant retired prematurely or otherwise, it is decided to reinstate the Government servant in service, the authority ordering reinstatement may regulate the intervening period between the date of premature retirement and the date of reinstatement by the grant of leave of any kind due and admissible, including extraordinary leave, or by treating it as dies-non depending upon the facts and circumstances of the case : Provided that the intervening period shall be treated as a period spent on duty for all purposes including pay and allowances, if it is specifically held by the authority ordering reinstatement that the premature retirement was itself not justified in the circumstances of the case, or, if the order of premature retirement is set aside by a Court of Law. (ii) Where the order of premature retirement is set aside by a Court of Law with specific directions in regard to regulation of the period between the date of premature retirement and the date of reinstatement and no further 18 appeal is proposed to be filed, the aforesaid period shall be regulated in accordance with the directions of the Court. (5) (i) Any Government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years if he is in Group 'A' or Group 'B' service or post (and had entered Government service before attaining the age of thirty five years) and in all other cases, after he has attained the age of fifty five years: Provided that, it shall be open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this sub-rule. (ii) A Government servant may make a request in writing to the appropriate authority to accept notice of less than three months, giving reasons therefor. (iii) On receipt of a request under clause (ii) of sub-rule (5) above, the appropriate authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appropriate authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months. (iv) A Government servant, who has elected 19 to retire under this rule and has given the necessary intimation to that effect to the appropriate authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority: Provided that the request for withdrawal shall be within the intended date of his retirement. (6) Notwithstanding anything contained in sub- rule (5) above, the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire a Government servant in Group 'C' service or post who is not governed by any pension rules, after he has completed thirty years service by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice. (7) A Government servant in Group 'C' service or post who is not governed by any pension rules, may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has completed thirty years service. 4. Cessation and Saving. - (1) On and from the date of coming into force of these Rules, the provisions of F.R.56 shall cease to apply to all the employees in Group 'A', 'B', 'C' and 'D' posts under Government of Goa. (2) Notwithstanding such cessation, anything done or any action taken including any order made, direction given or notice issued under the provisions of said F.R. 56, shall in so far as it is not 20 inconsistent with these