1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Madhu Singh & Ors. Vs. State of Rajasthan & Ors. (S.B.CIVIL WRIT PETITION NO.2955/95) Dated : 5.3.2008. HON'BLE MR.JUSTICE SANGEET LODHA Mr. Hemant Dutt for Mr. M.S. Singhvi, for the petitioners. Mr. Rajendra Dave, Additional Government Counsel, for the respondents. In this writ petition, the petitioners have assailed order dated 19.3.94 issued by the Assistant Engineer, Public Works Department(in short “PWD), Pokaran directing that the petitioners shall stand retired from service on completion of 58 years of age and the services rendered by them in excess thereof shall be treated to be their re-employment. The petitioners have also sought the declaration that they are entitled to continue in the service upto 60 years of the age with consequential benefits. Further directions are sought for refund of the amount recovered from the petitioners along with interest @ 18% per annum. Briefly stated the facts of the case are that the petitioners No.2 & 3 who were employed as work charge employees in the Public Works Department were ordered to be retired from service on completion of 60 years of age vide order dated 20.1.94 issued by the Assistant Engineer, PWD, Pokaran. 2 However, vide yet another order dated 19.3.94, it was directed that the petitioners shall retire from service on attaining age of superannuation i.e. 58 years and the services rendered by them in excess thereof shall be treated as re-employment. Accordingly, the petitioners were directed to deposit the excess amount of the salary drawn by them on account of their continuance of service beyond the age of superannuation. It is stated that the petitioner were informed that in case they do not deposit the excess amount drawn by them, their pension case shall be delayed, therefore, all the petitioners deposited the amount alleged to have been paid in excess to them. It is submitted that an order dated 9.3.94 was issued by the respondents, whereby it was directed that those work charge employees whose date of birth is 1.4.36 or prior to it, their date of retirement shall be treated to be 58 years and they will be treated to be retired from service on attaining age of 58 years and if they are continuing in service even after attaining the age of superannuation then their services beyond the age of superannuation shall be treated to be re-appointment. It was further mentioned that the persons whose date of birth is 2.4.36 or subsequent thereto their age of superannuation shall be treated to be 60 years by virtue of government order dated 28.2.94. It is contended on behalf of the petitioners that the 3 petitioners had completed more than 10 years of service and thus they were entitled for permanent status by virtue of Rule 3 under the provisions of Rajasthan P.W.D.(B&R) including Garden, Irrigation, Water Works, Ayurvedic Departments, Work Charge Employees Service Rules, 1964( in short “the Rules of 1964” hereinafter), therefore, they were entitled to continue in service upto 60 years of age, even if the provisions of Rajasthan Service Rules, 1951 are made applicable to them. It is contended that the impugned orders passed without giving an opportunity of hearing are violative of principles of natural justice. The respondents have taken the stand that the age of superannuation for all the work charge employees governed by the Rules of 1964, is 58 years. It is submitted that order dated 18.3.94 retiring inter alia the petitioner No.1 to 3 on attaining age of 58 years has been passed on the basis of the circular dated 28.10.93 & 28.2.94, whereby the system of engaging workers under the Rules of 1964 as well as under departmental standing orders was discontinued completely with immediate effect and the work charge employees/those engaged under standing orders were ordered to be absorbed as regular government employees in phased manner, therefore, the persons whose date of birth falls on or before 1.4.36 have rightly been ordered to be retired from service on attaining age of superannuation i.e. 58 years in terms of Rule 8 of the Rules of 4 1964. It is submitted that the decision regarding the retirement of the persons drawing salary in scale no.1 & 2 at the age of 60 years was to apply prospectively and, therefore, the period of service of all the persons, who were kept in service beyond 58 years, was decided to be treated as re-employment. It is submitted that the petitioners have voluntarily deposited the excess amount drawn by them as salary without any protest, therefore, they are not entitled to maintain this petition for recovery of the amount. I have considered the rival submissions and perused the record. It is not in dispute that according to Rule 8 of the Rules of 1964, the age of superannuation for work charge employee is 58 years. It is also not in dispute that vide order dated 28.2.94 the system of engaging workers under the Rules of 1964 as well as under departmental standing orders stands discontinued by the State Government and the existing work charge employees those engaged under standing orders were ordered to be absorbed as regular government employees in phased manner. In the first phase, all work charge employees who had rendered 10 years continuous and satisfactory service as on 31.12.93 were ordered to be converted in to regular employees with effect from 1.4.94 and were brought under the perview of Rajasthan Service Rules. 5 Accordingly, they become entitled for pay and allowances applicable to the regular government servants. Since, the government had taken a decision to raise the age of retirement of the employees drawing salary in pay scale no.1 & 2 from 58 years to 60 years prospectively, therefore, the decision to retire the work charge employees drawing salary in the aforesaid pay scale on attaining age of 60 years was not applicable to those employees who had already attained the age of superannuation as on 1.4.94. Admittedly, the petitioners No.1 to 4, whose date of birth falls during the period prior to 2.4.94 were liable to be retired from service on attaining the age of superannuation i.e. 58 years w.e.f. 30.6.93, 1.7.92, 15.9.92 and 16.12.90 respectively. Therefore, the decision of the government increasing the date of retirement of the employees drawing salary in pay scale no.1 & 2 from 58 years to 60 years, is not applicable to the petitioners, accordingly, they have rightly been ordered to be retired from service on attaining the age of superannuation i.e. 58 years in terms of Rule 8 of the Rules of 1964. Coming to the period the petitioners were continued in the service beyond the age of 58 years and treating the said period as re-employment, it is to be noticed that the petitioners were continued in service beyond the age of 58 years by the respondents, may be under the misconception that their age of 6 retirement is 60 years on their own. It is not the case of the respondents that the petitioners were continued in service beyond the age of superannuation on account of any mis representation on their part. If mistakenly, the respondents have continued the petitioners in service beyond the age of superannuation and paid the salary to them in the pay scale admissible to the post they were holding at the relevant time, then such amount paid to them for the services rendered cannot be recovered, even if the period of service beyond the age of superannuation is treated to be re-employment. Thus, the recovery of the alleged excess amount made by the respondents from the petitioners is not sustainable in the eye of law. In the result, the writ petition is partly allowed. The retirement of the petitioners from service on attaining age of superannuation i.e. 58 years is held to be in accordance with law. However, the respondents are directed to refund the amount recovered from the petitioners alleged to have been drawn by them in excess on account of their continuance in service beyond the age of superannuation i.e. 58 years. The amount shall be refunded to the petitioners within a period of three months from the date of this order, failing which it will carry interest @ 12% per annum. No order as to costs. (SANGEET LODHA),J.