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Shri Gopal Pal & Others v/s Goa Tourism Development Corporation Limited, through its Managing Director & Others

    Writ Petitions No.70 of 2003, 315 of 2008 & 408 of 2002

    Decided On, 18 December 2008

    At, In the High Court of Bombay at Goa

    By, THE HONOURABLE MR. JUSTICE A.P. DESHPANDE & THE HONOURABLE MR. JUSTICE N.A. BRITTO

    For the Petitioners: N. Vaze, R.S. Parshekar, Advocates. For the Respondents: R1, S.D. Lotlikar, Senior Advocate with Ryan Menezes, R2 & R3, S.S. Kantak, Advocate General with A. Kamat, Addl. Govt. Advocate.



Judgment Text

A.P. Deshpande, J.


As a common question of law is involved in these petitions, the same are heard together and are being disposed of by this common Judgment.


2. Issue Rule in Writ petition No.315.2008. Taken up for final hearing by the consent of parties along with the connected writ petitions.


3. A few facts that are relevant for adjudicating the issues involved in these petitions are narrated herein below separately in each of the petitions:


WRIT PETITION NO. 70/2003:


The petitioner was initially a State Government employee who was sent on deputation to the Goa Tourism Development Corporation Ltd., (?Corporation? for short) in the year 1987 and came to be permanently absorbed in services of the Corporation with effect from 1.4.1989. The petitioner is seeking a writ of mandamus against respondent No.1 not to superannuate him till the completion of age of 60 years.


WRIT PETITION NO.315/2008


Petitioner No.1, in this petition, is the Employees Union by name ?Goa Tourism Development Corporation Employees Union? which claim to be voicing the grievance of its members in a representative capacity in the matter of age of retirement. Petitioner No.2 also claims that the age of retirement of employees of respondent No.1-Corporation ought to be 60 years and as petitioner No.2 is to attain age of 60 years on 6.9.2009, it is prayed that he be continued in serv

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ice till then. This petition has been filed seeking parity with the employees working under the State Government, in view of raising of age of retirement of Government servants from 58 to 60 years in view of the amendment to Rule 3 of the Goa State Civil Services (Retirement) Rules, 2000. The amendment has been brought into force with effect from 23.3.07. The petitioner claims that the said amendment ought to be made applicable to the employees of respondent No.1- Corporation despite a contrary resolution having been passed in the meeting of the Board of Directors dated 26.12.2007. The Resolution is also challenged and a prayer for quashing of the same is made.


WRIT PETITION NO.408/2002.


The petitioner was initially appointed as Plumber and was an employee of the State Government. After the formation of respondent No.1-Corporation, he was sent on deputation and came to be permanently absorbed in the services of respondent No.1-Corporation in the year 1987. The petitioner came to be superannuated with effect from 30th April, 2002 as he had attained the age of 58 years and this petition has been filed claiming a right to superannuate on completion of 60 years of age.


4. Thus, in Writ Petitions No.70/03 and 408/02, the petitioners have been made to retire in accordance with the Retirement Rules of 2000 which did provide age of superannuation to be 58 years. Whereas the petitioners in Writ Petition No.315/2008, claim that the decision taken by the State Government vide Notification dated 23.3.07 amending Rule 3 and raising the age of retirement to 60 years ought to be made applicable to the employees of respondent No.1-Corporation as well.


4A. The question that falls for consideration in Writ Petitions No. 70/03 and 408/02 is ?


Whether the action on the part of respondent No.1-Goa Tourism Development Corporation Ltd., superannuating the petitioners on attaining age of 58 years under the Amended Retirement Rules of 2000, is legal or otherwise?


Whereas in Writ Petition No.315/08 the question would be ?


Whether respondent No.1-Corporation is justified in superannuating the petitioner and the other similarly situate employees, on completion of 58 years of age, on the basis of a resolution passed by the Board of Directors of respondent No.1-Corporation, deviating from the age of retirement as provided under the Retirement Rules of 2000 applicable to the Government employees?


5. Prior to the formation of the State of Goa, it was an Union Territory and while being an Union Territory, the service conditions of the employees were governed by the Fundamental Rules and to be precise, Fundamental Rule 56. Even after formation of the State for few years, the service conditions were regulated by the Fundamental Rules as the State Government had not framed Rules under Article 309 of the Constitution of India. The State Government framed Goa State Civil Services (Retirement) Rules, 2000 with a view to regulate the age of retirement. The said Rules, prior to amendment of Rule 3 vide Notification dated 23.3.07, prescribed the age of retirement to be 58 years.


Question raised in Writ Petitions No.70/03 and 408/02.


6. The petitioners in Writ Petitions No.70/03 and 408/02 were made to retire in consonance with the Retirement Rules of 2000. It is relevant to note that respondent No.1 Corporation had passed a Resolution on 9.10.1982 in terms of its policy and decided to adopt the service rules for its staff and officials on the lines of service rules applicable to the Government employees and officers. It is undisputed that in the matter of age of retirement of the employees of the Government and the Corporation, there was no disparity and the Corporation followed service rules applicable to the Government employees. The resolution passed by the Board of Directors of the Corporation being Resolution No.19 in its 5th Board Meeting held on 9.10.1982 reads thus:


?Resolution No.19. Resolved that the proposal to adopt the service rules for the staff and official of the Corporation on the lines of service rules applicable to the Govt. staff and officers initially be and is hereby approved?


Resolution No.19 passed by the Corporation goes to adopt the service rules applicable to the Government staff. Placing reliance on Resolution No.19, the learned Counsel for the petitioners submits that the Rules which existed in the year 1982 i.e. on the date of passing of the resolution, meaning thereby the Fundamental Rules would continue to govern the service conditions of the employees even though the service rules applicable to the Government employees are modified or amended at a later point of time. The submission is that any subsequent amendment to the service rules would have no bearing or effect on the adopted rules as they stood in the year 1982. As a matter of fact, respondent No.1 has applied the rules as amended from time to time by the State Government to all its employees, uniformly. Per contra, the learned Counsel for the respondents has pointed out that the Retirement Rules of 2000 were followed in the matter of retirement which prescribed the age of superannuation to be 58 years. The contention advanced by the learned Counsel for the respondents is that by Resolution No.19, the Corporation had adopted the service rules applicable to the Government employees as would be applicable from time to time and it has implemented the same in this manner. Reading of Resolution No.19, in no way suggests, that the respondent No.1- Corporation decided to adopt the then existing rules which were in force in the year 1982 for all time to come.


6A. The phraseology used in Resolution No.19 would provide an incite to the intention of the Board of Directors in adopting the service rules. What is to be found out is as to whether the Board of Directors' intended to apply the services rules then in force in 1982 for a period indefinite or did they intend to apply the service rules which are applicable to the staff and officers of the Government as would be modified and amended from time to time. The Resolution seeks to adopt the service rules for the employees of the Corporation on the lines of service rules applicable to the Government employees. It is, thus, evident that what was adopted was the service rules for the employees of the Corporation on the lines of service rules applicable to the Government employees. Hence, it is clear that the intention was to apply the same service rules which would be applied to the government employees. If this be so, it could never be the intention of the Board of Directors of Respondent No.1 to adopt the rules in existence in the year 1982 for all time to come. The Board of Directors wanted the same service rules to be applied to the employees of Respondent No.1- Corporation as would be applied by the Government to its employees. Seen from this angle, we are unable to accept the submission made by the learned Counsel for the petitioners that the service rules, in force, in the year 1982 would continue to govern the age of retirement of the employees of the Corporation despite framing of retirement rules by the State Government in the year 2000.


The next limb of submission is that as the petitioners are workmen, as contemplated by FR.56(b), they would be entitled to superannuate on completion of 60 years of age. The Fundamental Rules, ipso facto, have no application to the service conditions of respondent No.1-Corporation. The Fundamental Rules were applicable initially to the employees of respondent No.1-Corporation as those rules were applicable to the Government servants, by virtue of adoption by the Corporation. After framing of the Retirement Rules of 2000, the Fundamental Rules cease to apply to the Government servants and having regard to the view that we have taken that what was adopted by the Corporation was the service rules applicable to the Government employees from time to time, the Fundamental Rules can have no application to the employees of respondent No.1-Corporation. Rule 4 of the Retirement Rules of 2000 categorically stipulates that from the date of coming into force of the Rules, the provisions of F.R. 56 shall cease to apply to all the employees in Groups A, B, C and D Posts under the Government of Goa. In view of the fact that F.R.56(b) has no application after the retirement rules of 2000 are brought into force, the contention advanced by the learned Counsel for the petitioners, on this plank, as well cannot be accepted.


Question raised in W.P. No.315/08:


7. By Notification dated 23.3.07, Rule 3 has been amended by substituting the words ?fifty eight years? by ?sixty years?. Respondent No.1?s Board considered the issue of adopting the amended provisions to retirement rules introduced in the year 2007 and took a conscious decision not to adopt the change in the age of retirement. Thus, after considering item No.6 of the agenda, the Board of Directors of the Corporation in its 107th meeting held on 10.12.2007, passed the following resolution : ?It is decided to follow existing Retirement Rules, 2000 and no changes as amended by the Government vide Notification dated 23.3.07?. It can, thus, be seen that the Board of Directors of respondent No.1 took a conscious decision not to toe in line with the amended Rule 3 of the retirement rules, but chose to go by the unamended Rules of 2000 which prescribes the age of retirement to be 58 years.


8. Once it is accepted that the Corporation can frame its own Rules to regulate the service conditions of its employees and is in no way bound by the decision of the State Government, then no fault can be found with the decision taken by respondent No.1 to continue the age of retirement of its employees to be 58 years. There is hardly any merit in the submission made by the learned Counsel in Writ Petition No.315/08 that the employees of the Corporation should also be continued in service till they complete 60 years of age just because the State Government has amended the retirement rules and, more so, when the Corporation has consciously taken a decision to deviate from the same.


In the year 1982, respondent No.1 Corporation had resolved to adopt the service rules applicable to the State Government employees and the Corporation did continue to regulate the service conditions of its employees in the matter of age of superannuation till the Rule 3 of the Retirement Rules came to be amended vide Notification dated 23.3.2007. By virtue of amendment of Rule 3 when the age of retirement of Government employees was raised from 58 to 60 years, respondent No.1 acting through its Board of Directors decided otherwise and continued the age of superannuation to be 58 years.


9. The learned Counsel for the petitioners has placed reliance on a Judgment of the Supreme Court in the case of Union Territory of Chandigarh and ors. vs. Rajesh Kumar Basandhi and anr., reported in (2003) 11 SCC 549). In the said case, the Supreme Court was called upon to interpret the expression ?for the time being? in the context of applicability of rules to the posts under the Union Territory of Chandigarh, which were to be governed by the same rules and orders as are applicable to the corresponding posts in the Punjab Civil Services. In the present case, the expression ?for the time being applicable? does not fall for consideration. In the first place, the phraseology used in the Resolution No.19 is altogether different. It speaks of adoption of service rules on the lines of service rules applicable to the Government employees. And in the second place, the resolution passed by the Board of Directors cannot be construed by applying the interpretative process applicable to interpretation of statute. Thus, the said Judgment does not advance the case of the petitioners any further. In the case in hand, what is sought to be found out is the intention of the Board of Directors in passing the resolution, resolving to toe in line with the service rules applicable to the Government employees. Reliance is also placed by the learned Counsel for the petitioners on a Judgment of the Supreme Court in the case of Punjab Water Supply & Sewerage Board vs. Ranjodh Singh and ors., which goes to hold that no scheme or policy decision could be contrary to the statutory rules. In the present case, there is no question of any decision taken by the Board to be contrary to the statutory rules for the reason that the retirement rules framed under Article 309 do not apply to the employees of the Corporation and the Corporation in its wisdom can frame different rules. Thus, the reliance placed on the said Judgment is wholly misconceived. As the amendment to the rules has not been adopted, but having been specifically departed from and a contrary decision is taken to adhere to the age of retirement as laid down in the retirement rules of 2000, the petitioners cannot claim the benefit of raising of the age of retirement under the amended rules. In our considered view, there is no merit in the writ petitions and, thus, the same are dismissed. Rules discharged.


No order as to costs
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