Civil Writ Petition No.13493 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.13493 of 1994 Date of Decision: May 08, 2009 Inder Singh and others .......Petitioners Versus State of Haryana .......Respondent CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Atul Lakhanpal, Advocate for the petitioner. Mr.Harish Rathee, Sr. Deputy Advocate General, Haryana. ... JITENDRA CHAUHAN, J. The petitioners, who are fifteen in number, have approached this Court with a prayer for quashing the action of the respondents retiring the petitioners at the age of 58 years instead of 60 years. The petitioners were appointed as primary teachers in the erstwhile Pepsu State in the grade of Rs.40-2-60 and some of them were appointed at fixed salary of Rs.40/- in different years between 7.1.1951 to 13.2.1956. The details of service record of the petitioners i.e. the date of appointment, grade, date of retirement and the pay scale drawn by them at the time of appointment and retirement are mentioned in Annexure P1 attached with the petition. The erstwhile Pepsu State merged with the State Civil Writ Petition No.13493 of 1994 2 of Punjab in the year 1956 and after the re-organisation of the State of Punjab in 1966, the services of the petitioners were allocated to the State of Haryana. The petitioners have further stated that the Govt. of Pepsu Finance Department vide its Office Memorandum No.F.Estt.11(4)/55 Patiala dated 21.11.1956 (Annexure P2) amended the provisions of New Pension Rules, 1953 and clarified that all the State employees whose pay including all elements of nature of pay did not exceed rupees two hundred per month, are considered to be Class IV servants/inferior servants. As per this office memorandum, the posts of Primary Teacher, the petitioners were holding, fall under the category of inferior servants since they were getting total salary of less than rupees two hundred per mensum. As per Regulation 9.1 of the Pepsu Service Regulation, the retirement age of the Class IV/inferior servants in the Pepsu State was 60 years. Further, the petitioners' case is that as per Section 115 of the State Re-organisation Act, 1956 and Section 82 of the Punjab Re-organisation Act, 1966, the conditions of service of the petitioners cannot be altered to their disadvantage on account of re-organisation of the State. Section 115 of the State Re-organisation Act, 1956 and Section 82 of the Punjab Re- organisation Act, 1966 are re-produced hereunder: “Section 115 of the State Re-organisation Act, 1956. Provisions relating to other services - .- (1) Every person who immediately before the appointed day is serving in connection with the affairs of the Union under the administrative control of Lieutenant-Governor or Chief Commissioner in any of the existing States of Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh, or is serving in connection Civil Writ Petition No.13493 of 1994 3 with the affairs of any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra shall, as from that day, be deemed to have been allotted to serve in connection with the affairs of the successor State to that existing State. (2) Every person who immediately before the appointed day is serving in connection with the affairs of an existing State part of whose territories is transferred to another State by the provisions of Part II shall, as from that day, provisionally continue to serve in connection with the affairs of the principal successor State to that existing State, unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State. (3) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (2) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. (4) Every person who is finally allotted under the provisions of sub-section (3) to a successor State shall, if he is not already serving therein be made available for serving in that successor State from such date as may be agreed upon between the Governments concerned, and in default of such agreement, as may be determined by the Central Government. (5) The Central Government may by order establish one or more Advisory Committees for the purpose of assisting it in regard to- (a) the division and integration of the services among the new States and the States of Andhra Pradesh and Madras; and (b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this section and the proper consideration of any representations made by such persons. Civil Writ Petition No.13493 of 1994 4 (6) The foregoing provisions of this section shall not apply in relation to any person to whom the provisions of section 114 apply. (7) Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government. ” “Section 82 of the Punjab Re-organisation Act, 1966: Provisions relating to other services - .- (1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Punjab shall, on and from that day, provisionally continue to serve in connection with the affairs of the State of Punjab unless he is required, by general or special order of the Central Government, to serve provisionally in connection with the affairs of any other successor State. (2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. (3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State shall, if he is not already serving therein, be made available for serving in the successor State from such date as may be agreed upon between the Government s concerned or in default of such agreement, as Civil Writ Petition No.13493 of 1994 5 may be determined by the Central Government. (4) The Central Government may, by order, establish one or more advisory committees for the purpose of assisting it in regard to-- (a) the division and integration of the services among the successor States; and (b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this section and the proper consideration of any representations made by such persons. (5) The foregoing provisions of this section shall not apply in relation to any person to whom the provisions of section 81 apply. (6) Nothing in this section shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.” In line with provision (6) sub-section (1) and sub-section (2), it is submitted that the age of retirement for Class-IV servants in the Pepsu State was 60 years, the petitioners cannot be made to retire at the age of 58 years. The conditions of service of the petitioner are to be governed by the Rules of the erstwhile Pepsu State and the same cannot be varied to the disadvantage by retiring them at the age of 58 years. It is submitted that the petitioners were appointed against Class-III posts in the State of Pepsu. At the time of their appointment in Pepsu, the retirement age of Class-III employees was 55 years. After Civil Writ Petition No.13493 of 1994 6 integration of the Pepsu State with the Punjab State on 21.11.1956, the State of Punjab raised the retirement age of Class-III employees from 55 to 58 years. Learned counsel for the respondent submits that no rule can be amended or made which would adversely affect the conditions of service of the employees of the erstwhile State of Punjab and Pepsu except with the specific approval of the Government of India as contained in Section 115(7) of the State Re-organisation Act, 1956. Keeping the above position in view, fixation of pay and leave as contained in Punjab Civil Services Rules Vol.I, the employees of the erstwhile Pepsu were given the option either to continue to be governed by the corresponding rules in the Pepsu Service Regulations, Volume-I or to adopt the correspondence rules in Punjab Civil Services Rules Volume-I vide Punjab Government letter No.4080-FR-II- 58/9205 dated 10.6.1958 and 126-FR-II-59/1106 dated 6.2.1959. The employees who opted for the pay fixation and rules contained in Pepsu Service Regulations continued to be governed by those rules or governed by the corresponding rules in Punjab Civil Services Rules, Volume-I applicable to all. Therefore, the State has not changed the age of retirement of the petitioner to their disadvantage. It is further argued that even after the formation of State of Haryana w.e.f. 1.11.1966, the State of Haryana has not changed the retirement age of their employees to their disadvantage. Therefore, the provisions in Section 82 of the Punjab Re-organisation Act, 1966 have not been contravened in the case of petitioners. It was also submitted that even after formation of the State of Haryana w.e.f. 1.11.1966, the retirement age of such employees has not been changed to their disadvantage. Regarding the office memorandum Civil Writ Petition No.13493 of 1994 7 dated 21.1.1956, it has been stated that the same pertains to grant of some concession in the matter of pension only. It could not be taken to mean that the petitioners who were drawing total emoluments not exceeding Rs.200/- at the time of their initial appointment, would automatically get the status of Class IV employees, even in the absence of any amendment to Regulation 9.1 of the Pepsu Service Regulations to that effect. The learned counsel for the parties have been heard and record of the case has been perused. Assuming that the memorandum dated 21.11.1956 would govern the petitioners' case and accordingly the posts of Primary Teacher the petitioners were holding would fall under the category of inferior servants, since they were drawing total salary of less than Rs.200/- per month at their initial appointment. It is, however, apparent from the record, as detailed in Annexure P1 that at the time of retirement, the petitioners were drawing far more as total salary than the aforesaid limit of Rs.200/- per month in terms of the office memorandum dated 21.1.1956. Therefore, at the time of retirement the petitioners could not be taken to be inferior servants/Class IV employees and would certainly not fall within Regulation 9.1 of the Pepsu Service Regulations, which laid down the age of retirement of Class IV/inferior servants as 60 years. Since the petitioners did not retire as Class IV/inferior servants, they had no right to continue in service upto the age of 60 years. The issue involved in the petition has already been settled by a Division Bench judgment of this Court in case Krishan Kumar Aggarwal v. State of Punjab, 1995(1) SCT 382, wherein it has been held as under: “Accordingly, we hold that the claim of the petitioners in Civil Writ Petition No.13493 of 1994 8 all these writ petitions that they should be treated as members of Class IV service or that they have a right to continue till the age of 60 years cannot be sustained. It is the post held by them at the time of retirement which is relevant for determining the age of super-annuation. Since, none of the petitioners is holding a Class IV post and all of them are in fact members of Class-III services, they have no right to continue till the age of 60 years.” In view of the aforesaid, there is no merit in the petition, which is accordingly dismissed. There shall be no order as to costs in the circumstances of the case. ( JITENDRA CHAUHAN ) JUDGE ( JASBIR SINGH ) JUDGE May 08, 2009 SRM