Case: Sureshchandra Singh  Vs. Fertilizer Corpn. Of India Ltd.

1. Pursuant to the recommendations of the Fifth Central Pay Commission, Government of India issued an Office Memorandum (OM) No. 25012/2/87 - Col (A) dated 13th May, 1998 enhancing the retirement age of Central Government Employees to sixty years from fifty-eight years. It was also provided that CM would come into force with effect from the date of Notification of amendment to the relevant rules and regulations. To a similar effect Department of Public Enterprises, Ministry of Industry, Government of India issued another OM No. 18(6)/98-GM-GL-002 dated 19th May, 1998 making it clear that such increase in age of retirement would come into force from the date the relevant rules and regulations of the PSEs concerned are amended by the concerned Public Sector Enterprises. As per this OM the Board of Directors of the Fertilizer Corporation of India Ltd. (FCIL) considered the matter and passed a resolution on 6th July, 1998, Relevant portion of whichBoard noted that FCIL was referred to BFIR in April 1992 and declared sick in November, 1992. No revival package has been approved by BFIR so far. Gorakpur Unit is closed since June 1990 carrying surplus of 1322 men as on 1.7.1998 and Korba, which was wound up, is carrying surplus of 54 men. Besides, FCIL is carrying surpluses in the Corporation all over for which a voluntary retirement scheme providing special financial incentive to include employees to seek early retirement is in operation since 1998 and so far 1524 persons have availed the benefit under the scheme as on 30.6.1998. FCIL is totally dependent on Govt. support for critical capital expenditure, working capital and to meet the huge operating losses by its units. Wages of the employees have not been revised; as a result there has been a flight of talent. The only little incentive was promotion which will also be blocked in case age of retirement is enhanced from 58 years to 60. Enhancing the age of retirement involves financial implications, which will further jeopardize the revival proposal of the Corporation before the BIFR.In view of the above the Board unanimously decided not to raise the age of retirement from 58 to 60decision was communicated to the concerned Ministry on 21st August 1998 and the Department of Fertilizers, Ministry of Chemicals and Fertilizers, Government of India granted exemption vide its letter dated 30th December, 1999 from increasing the age of retirement from 58 to 60 years.2. In the meanwhile the appellants herein superannuated on their attaining the age of 58 years as per the terms of the service contract. Appellants herein moved the High Court for a direction to the Respondents herein not to retire them from services before they attained the age of sixty years and till such time not to interfere with the functioning and discharge of their duties. The High Court dismissed the petition and hence this appeal by special leave.

Court's reasoning:
This OM is applicable only to employees in Government Civil Services and not to employees in the Public Sector Enterprises. Hence by reason of this OM, the appellants cannot contend that they are entitled to continue in service till they attain the age of 60 years.6. It is also to be noted that the OM dated 19th May 1998 itself does not raise the retirement age to sixty years. It is only an administrative direction and Court cannot issue a writ to enforce such administrative instructions that is not having the force of law. The Appellants do not have any right to continue in service till the age of sixty years. The decision of the Board of Directors is not arbitrary or unreasonable or unrelated to the question of enhancement in age of retirement. Hence the first contention stands rejected.7. The Appellants assail the decision of the Board on the ground of violation of principles of equality. It is alleged that the Board level employees were allowed to continue in service till the age of sixty and the employees like appellants who were below the Board level were forced to retire at the age of fifty-eight. In reply respondents submitted that board level employees could not be equated and compared with the other employees. Whole time directors, who are two in numbers, are directly appointed by the President of India for a fixed term of five years that could be reviewed even earlier; and that other members of the board are government servants and are nominees or representatives from various ministers and are appointed by the President of India for a term of three years. In these circumstances we find that board of directors themselves form a different class and cannot be compared with other employees in regard to conditions of service applicable to them. Allegation of discrimination is also raised by the Appellants vis-a-vis employees of other corporations. Each Public Sector Undertaking is an independent body/entity and is free to have its own service conditions as per law. However, all employees in the FCIL who are working in its various Units and Divisions retire at the age of fifty-eight as per the relevant rules; and that even the future employees will retire at the age of fifty-eight. We also find that since the employees of different corporations could not be treated alike since every corporation will have to take into account its separate circumstances so as to formulate its policy and consequently the argument that there is discrimination of Appellants vis-a-vis employees of other corporation also cannot be accepted. Thus, appellants have failed on all grounds.