IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5337 of 2004 PHILOMENA D.CRUZ, W/o Shri Pankaj Kumar, 3/6 M.N., H. I.G.I.M.S. Campus, P.S. Shastrinagar, District-Patna. -Versus- 1.THE STATE OF BIHAR 2. The Hon’ble Minister of Health, Medical Education & Family Welfare, Government of Bihar-cum-Chairman, Bard of governors of Indira Gandhi Institute of Medical Sciences, Patna. 3. The Secretary of Health, Medical Education & Family Welfare, Bihar-cum-Member Board of Governors, Indira Gandhi Institute of Medical Sciences, Patna. 4. The Director, Indira Gandhi Institute of Medical Sciences, Patna. 5. The Chief Adminstrative Officer, Indira Gandhi Institute of Medical Sciences, Patna. ************************** For the petitioner: 1. Mr. Chittaranjan Sinha, Senior Advocate 2. Sanjeet Kumar, Advocate For the respondent Nos. 4 & 5 : Mr. S. Prasad For the State: Mr. Giridhar Gopal Tiwary, J.C. to AAG-II 4. 20.01.2009 Heard learned counsel appearing for the Indira Gandhi Institute of Medical Sciences, Patna as well as the state. Indira Gandhi Institute of Medical Sciences, Patna, is an autonomous body. There is no dispute that consequent upon the approval of the 33rd meeting of the Board of 2 Governors under resolution No.32/505 and 33/521, all faculty, staff-nurse, technical and non-technical staff (all categories of Indira Gandhi Institute of Medical Sciences) employees were decided to get full package of All India Institute of Medical Sciences, New Delhi in respect of pay, allowance and other service conditions except which specially mentioned in Indira Gandhi Institute of Medical Sciences, Act. Rule 30 of All India Institute of Medical Sciences, New Delhi Regulation 1999 provides that the age of superannuation of an employee of the institute other than teaching faculty, shall be 58 years. The petitioner was working as nurse in Indira Gandhi Institute of Medical Sciences, Patna. As per rule 30 of All India Institute of Medical Sciences, New Delhi regulation adopted by Indira Gandhi Institute of Medical Sciences, Patna, she should have superannuated on completion of 60 years of her age. However, by letter No. 1364/Admn., Dated 12.02.2004 issued by Chief Administrative Officer, Indira Gandhi Institute of Medical Sciences, Patna, she was informed that she will retire on completion of 58 years in the light of decision of Board of Governors instead of completion of age of 60 years as per regulation 30 of All India Institute of Medical Sciences, Rule 1998. Petitioner’s case is that she should have retired on 30th day of September, 2006 on completion of 60 years, instead of that on account of the impugned letter; she was compelled to retire on 30.9.2004 at the age of 58 years. 3 Counter affidavit has been filed on behalf of the respondent (Indira Gandhi Institute of Medical Sciences, Patna) stating that the matter of superannuation was placed in 72nd meeting of the Board of Governors and the board opined that considering the financial position, the non- teaching employees would retire completing 58 years of age. The petitioner has already retired during pendency of the writ application on 30.9.2004. In a very similar matter age of superannuation of non-technical and technical staffs of Indira Gandhi Institute of Medical Sciences, Patna, has been considered by this court in a decision reported in 2005(4) PLJR 691 (Smt. Clara Ainda Vs The State of Bihar & Ors.) Considering several decisions and the statutory provision, it has been held that the decision of the Board of Governors as contained in Annexure-6 dated 10.02.1994 would necessarily cover the issue of the age of superannuation within the ambit of other service conditions, in the absence of any regulations framed by the Institute under Section 27(e) of the IGIMS Act. In view of the law laid down by the Supreme Court in the case of State of S.K. Mohinuddin (supra) and Osmania University (supra) this court would have no hesitation in holding that the issue of the age of superannuation stands adequately included and decided both in the Government Order dated 10.10.1991 and the Institute’s order dated 10.2.1994. Further it has been held in this decision that 4 it would be settled law that administrative or executive instructions or orders could not supplant or replace statutory provisions of rules or run counter to the same. But they can supplement them on issues that statutory provisions be silent. In this very decision, finally it was decided that age of retirement in the institute on non-teaching posts be 60 years. The issue since already decided, there is no other option than to decide that the age of the petitioner will be 60 years and she will be deemed to have retired on completion of 60 years i.e. 30.9.2006. She will be entitled for consequential benefits relating to this period subject to adjustment of amount which she has already received as pension. This application is, Accordingly, allowed. AKV/ ( Mridula Mishra, J )