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Clara Ainda v/s State of Bihar

    CWJC 10033 Of 2005

    Decided On, 06 October 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE NAVIN SINHA

    For the Appearing Parties: Chitranjan Sinha, Binod Kumar Mishra, Swaraj Kumar Ghose, S.N. Patnaik, Sheojee Prasad, Advocates.



Judgment Text

NAVIN SINHA, J.

(1.) The issue for determination presently would be whether the age for superannuation of those in service of the Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna, on non-teaching posts, would be 58 years or would the age of retirement applicable be 60 years.

(2.) This Court has heard learned Senior Counsel Sri Chitranjan Sinha appearing on behalf of the petitioner, the learned Additional Advocate General No. 2 Sri Swaraj Kumar Ghosh appearing on behalf of the State and Sri Sheojee Prasad appearing on behalf of the Indira Gandhi Institute of Medical Sciences, Sheikhpura (hereinafter referred to as 'the Institute')

(3.) The petitioner would have been appointed in the year 1984 in the Institute on the post of Assistant Nursing Superintendent. She would be superannuating on 31.8.2005 on the basis of 58 years of age. The claim in the writ application would be that she would be eligible for retirement at the age of 60 years and therefore the respondents be directed to continue with her services till she would attain that age. The petitioner would have preferred this writ application on 12.8.2005 before her scheduled date of superannuation.

(4.) Learned Senior Counsel for the petitioner Shri Chitranjan Sinha submitted that 'the Institute' was created on the pattern of the All India Institute of Medical Sciences. New Delhi (hereinafter referred to as AIIMS). The Indira Gandhi Institute of Medical Sciences Act, (hereinafter referred to as 'the IGIMS Act) would have been promulgated in 1984 after the Ordinance in 1983. The Institute would be an autonomous body. The Board of Governors would consist inter alia of the Minister of Health and Family Welfare, Government of Bihar, as its Ex Officio Chairman, the Secretary, Department of Health, Government of Bihar, Ex Officio, the Director in Chief of Health Services. Government of Bihar, Ex Officio and the Secretary Department of Finance, Government of Bihar Ex Officio. The State Government would have powers under Section 24 of the Act to issue such directions as may be required for the efficient administration of the Act. The Rules framed by the State Government under Section 26 of the Act would not cover the issue of age of superannuation. There would be regulations framed under Section 27 by the Institute regulating the tenure of office and other conditions of service so envisaged under Clause (e) thereof with regard to the age of superannuation. There would be nothing in the IGIMS Act or statutory rules governing 'conditions of service' in a generalised manner. He thus submits that under Section 24 of the IGIMS Act th

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e State Government would have full powers to issue such directions which would not be contrary to the Act or the Rules and Regulations. Such directions to that extent would have statutory force. The Government would have issued necessary instructions/orders under Section 24 of the IGIMS Act on 10.10.1991 as appended at Annexure 3. This would clearly state that the rules of the AIIMS with regard to appointment, promotion, pay scale and 'other service conditions' would be applicable to the employees of the Institute also. This would have been communicated by the Government to the 'Institute' earlier also and would have also so been resolved by the Board of Governors which consisted of senior representatives of the State Government as submitted hereinbefore.

(5.) The Government order dated 10.10.1991 at Annexure 3 would have to be read as it is. There would be no ambiguity in the order. The respondent State Government cannot be permitted to explain the same before this Court by way of any affidavits. Reliance is placed on a judgment of the Supreme Court reported in AIR (1977) 1 SCC 554, (I.N. Subba Reddy v. Andhra University and Ors.) to submit that the words 'conditions of service' would include the age of superannuation. He next submits that once the Government took the aforesaid decision dated 10.10.1991 any subsequent changes in the All India Institute of Medical Sciences Act would automatically stand incorporated without the need for fresh decision or notification in this regard either by the State Government or the Board of Governors. In this context learned counsel also refers to the decision dated 10.2.1994 at Annexure 6 issued by the Deputy Director of the Institute that the Board of Governors had resolved at its 33rd meeting that all the faculty, staff Nurse, Technical and Non technical staff would get the full package of All India Institute of Medical Sciences, New Delhi in respect of pay, allowances and 'other service conditions'. He submits that the Board of Governors having also taken such decision with regard to the 'conditions of service' nothing further survives in the matter and the petitioner is entitled to continue in service and superannuate at the age of 60 years in tune with Section 30 of the All India Institute of Medical Sciences Act as amended by notification dated 25.2.1999. For this purpose, he places reliance upon the judgment of the Supreme Court(Daman Singh v. State of Punjab and Ors.). It was lastly submitted that a Division Bench of this Court in a judgment reported in 2001 (1) BLJ 696 (Priyambada Singh v. State of Bihar and Ors.), would have upheld the Government Order dated 10.10.1991 in so far as it did not interfere or clash with the provisions of the Act or the rules and regulations framed thereunder with regard to the Institute. The submission was with emphasis to paragraph 15 and 17 of the judgment. The Government would not have challenged or assailed this judgment which would thus attain finality with regard to the instructions dated 10.10.1991.

(6.) Learned Additional Advocate General appearing for the State would submit that the Order dated 10.10.1991 at Annexure 3 would not be a government decision. It would merely be a communication by the Health Department to the Director of the Institute at a time when the age of retirement in the All India Institute of Medical Sciences would also have been only 58 years. It was next submitted that in any event the communication dated 10.10.1991 was confined to the similarity of service conditions on par with the All India Institute of Medical Sciences only with regard to appointment, promotions and pay scales. The words 'other conditions of service' cannot expand the meaning and scope to take in other service conditions apart from those mentioned or clarified in the preceding lines. The resolution of the Board of Directors at the 33rd meeting on 5.3.1991 and 6.3.1991 which would find echo in the communication dated 10.10.1991 would also 'have to be construed in the background of the resolutions of the Board which would cover only issues of promotion policy. It was thus submitted that neither does the order dated 10.10.1991 provide for inclusion of the age of retirement within the term 'other service conditions' and neither has the same been approved by the Board of Governors of the Institute. He further sought to rely upon the aforesaid judgment of Priyambada Singh, (supra) to submit that the instruction dated 10.10.1991 would be applicable only to non-technical posts and therefore the petitioner could not derive any advantage from the same since she held a technical post. The tenure of service and other conditions of service was an issue to be decided by the Institute by framing appropriate regulations under Section 27(e) of the IGIMS Act. If there be no such decision by the Governing Body with regard to the age of superannuation in the Institute, the Government would be competent to take such a decision and issue appropriate instructions under Section 24 of the IGIMS Act. But, the Government would have taken no such decision. The petitioner would therefore clearly be subject to superannuation at the age of 58 years.

(7.) Learned Counsel for the Institute would submit that the Board has not taken any decision with regard to the issue of enhancement of age for superannuation. Learned Counsel however does not dispute the correctness of Annexure 6 issued by the Director of the Institute that the Board of Governors would have taken a decision with regard to "other service conditions" in the background of the All India Institute of Medical Sciences Act. He further submitted that the Board of Governors of the Institute would consist of senior government functionaries (as noticed above). The Institute would not have framed any regulation under Section 27 with regard to the tenure of office or other conditions of service.

(8.) This Court would have considered the respective submissions made on behalf of the parties and materials/documents placed on record by them. The Court would find that the order dated 10.10.1991 at Annexure 3 would have been the subject of consideration by a Division Bench of this Court in the case of Priyambada Singh, (supra). The Government would not have questioned the legality, validity and authenticity of the same before the Division Bench. The Division Bench would have based its conclusions on the said order. The respondents would not have questioned the Division Bench judgment in the superior Court. The order dated 10.10.1991 has therefore attained finality with regard to its legality, authenticity and validity in so far as the respondents be concerned. It would not be open for the respondents to question the same now by submitting that it would not be an order of the Government. The Division Bench would have upheld the validity of the order dated 10.10.1991 as supplementing the statutory rules. The power to do the same is to be found in Section 24 of the IGIMS, Act creating the Institute.

(9.) This Court for the purpose would place reliance upon the case of State of Kerala v. M.K. Kunhikannan Nambiar. Their Lordships would hold that the Taluk Board having rejected the plea of impleadment in the proceedings preferred by respondents 3 and 4, any subsequent remand of the proceedings to the Taluk Board by the High Court would not provide respondents 3 and 4 a fresh opportunity to seek impleadment. The matter would have attained finality in the earlier proceedings when their application for impleadment stood rejected and was not assailed, accepting the same. This Court would for the reason reject the contention of the respondents that Annexure 3, dated 10.10.1991, would not be a government order. Additionally, the Division Bench in the case of Priyambada Singh (supra) sought to be relied upon both by the petitioners and the State would at para 11 of the judgment record as follows: Thus, the question which fall for consideration is as to whether the appointment to the post of Administrative Officer is to be made in accordance with the 1984 Rules, or in accordance with the Rules application in the case of employees of AIIMS as adopted by the administrative instruction dated 10.1.1991. In addition to the aforesaid, this Court would have serious reservations if it would be open to the official respondents to question their own document/decision. Reliance for the purpose may conveniently be placed upon the decision of the Apex Court in Assistant Commissioner of Commercial Taxes (Tsst) Dharwar and Ors. v. Dharmendra Trading Co. and Ors. , more particularly paragraph 5 thereof: The next submission of learned counsel for the appellants was that the concessions granted by the said order dated June 30, 1969 were of no legal effect as there is no statutory provision under which such concessions could be granted and the order of June 30, 1969 was ultra vires and bad in law. We totally fail to see how an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries of a State can say that a concession granted by the State itself was beyond the powers of the State or how the State can say so either. Moreover, if the said argument of learned counsel is correct, the result would be that even the second order of January 12, 1977 would be equally invalid as it also grants concessions by way of refunds, although in a more limited manner and that is not even the case of the appellants. The order dated 10.10.1991 at Annexure 3 is therefore clearly a government order drawing source from Section 24 of the IGIMS Act.

(10.) The next issue that would arise for consideration is as to whether the respondents can be permitted to explain or plead with regard to the meaning and scope of the government order dated 10.10.1991 when the order itself be clear in its language and would admit of no ambiguity requiring explanation. The law in this regard would be very clearly laid down by the Supreme Court in AIR (1978) 1 SCC 405 (Mohinder Singh GUN. Chief Election Commissioner, New Delhi)(.Para 8 SCC 417): When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. This view would have been (Pavendra Narayan Verma v. S.P.G.I of Medical Sciences) and again in (Chandra Singh v. State of Rajasthan). This Court would therefore consider the order dated 10.10.1991 on the basis of the recitals contained therein only and which admit of no ambiguity.

(11.) This Court is satisfied that the government order dated 10.10.1991 explicity talks of 'other service conditions' apart from appointment, promotion, pay scale. The question that would arise is whether the issue of age of superannuation would fall within the definition of the words 'other conditions of service.' Learned Counsel for the petitioner would rightly place reliance upon the case of I.N. Suba Reddy (supra) to submit that the words 'conditions of service' as explained in paragraph 13 of the judgment would mean all those conditions which regulate the holding of a post by a person right from the time of this appointment till his retirement and even beyond it in matters like pension etc.

(12.) The Supreme Court in a judgment (State of Andhra Pradesh v. S.K. Mohinuddin) would have considered Section 35A of the Andhra University Act, 1926, as inserted by the amending Act, 1976. 35A. The State Government shall have power to make regulations regarding the classification, methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the members of the teaching and non teaching staff of the affiliated Colleges and oriental Colleges. (emphasis mine). The issue would have revolved around the reduction of the age of superannuation from 60 years to 55 years of teaching staff of private affiliated Colleges. The State Government issued G/OM No. 591 dated 28.5.1977 reducing the age of superannuation as above. The High Court would have upheld the notification prospectively as applicable only to those joining service after the date of the notification. On challenge by the State, the words "conditions of service" would have fallen for consideration by the Supreme Court. Their Lordships at paragraph 8, in the relevant extract held : 8...The power to reduce the age of superannuation has, therefore, been specifically conferred by Section 35A as it falls within the compass of the expression "conditions of service" used in that provision.... In the instant case, specific power was conferred under Section 35A of the State Government to make regulations regarding the conditions of service and it was in the exercise of that power that the age of superannuation was reduced by G/OM No. 591 dated 28.5.1977 from 60 to 55 years....

(13.) Likewise in (Osmania University v. V.S. Muthurangam and Ors.) the Supreme Court would have been considering Section 38(1) of the Osmania University Act, 1959, in the backdrop of the question if the enhanced age of superannuation fixed at 60 years for the teaching staff would be applicable to the non-teaching staff also. Their Lordships at para 2 would record that: The learned Solicitor General, appearing for the Osmania University, has submitted that Sub-section (1) of the Act has two distinct parts. The first part provides that unless otherwise provided, every salaried officer of the University shall be appointed under a written contract and the second part of Sub-section (1) of Section 38 provides that conditions of service relating to such salaried officer of the University shall as far as possible, be uniform except in respect of salaries payable to them. The judgment at paragraph 4 would open with the submission of the Solicitor General appearing on behalf of the Osmania University "that age of superannuation is undoubtedly an important condition of service of an employee." Concluding the discussion at paragraph 8 of the judgment the Apex Court would have held, to quote the relevant extract. 8...But if uniform conditions of service for teaching and non teaching staff of the University is not otherwise impracticable, the University is under an obligation to maintain such uniformity because of the mandate of Section 38(1)... hence, the decision of the High Court that when the age of the teaching staff of the University has been increased to 60 years, the age of Superannuation of non teaching staff should also be changed in the similar manner in order to bring parity in the service conditions of the salaried staff of the University in obedience of the mandate of Section 38(1) of the Act is justified....

(14.) Based on the aforesaid discussion this Court is satisfied that the words "other conditions of service" as contained in the government order dated 10.10.1991 would cover in its effect the issue of the age of superannuation also. This Court would there hold that the same interpretation would also have to be given to the words "other service conditions" as referred to in Annexure 6 with reference to the resolution of the Board of Governors of the Institute dated 10.2.1994.

(15.) The next question for consideration would be whether it would be within the powers of the Government to issue such instructions under the IGIMS Act by which the Institute be created and whether the Board of Governors could take such a decision without framing any regulations under Section 27 of the IGIMS Act more particularly Clause (e) thereof.

"11. Section 24 of the Act creating the Institute would read as follows : Control by the State Government: The Institute shall carry out such direction as may be issued to it from time to time by the State Government for the efficient administration of this Act. Section 26 would vest the powers in the State Government to make Rules for the purposes of the Act. Section 27 would confer powers on the Institute to frame regulations. 27. Powers to make Regulation : the Institute may with the previous approval of the Government make regulations consistent with the provisions of this Act to carry out the purposes of this Act. Such regulations may provide for: (e) the tenure of office, salaries and allowances and other conditions of service of the Director and other officers and employees of the Institute including teachers appointed by the Institute."

(16.) Thus the State Government would have powers to issue necessary directions under Section 24 of the IGIMS Act so long as such directions do not contravene any provisions of the IGIMS Act, the Rules or the Regulations thereunder. If the IGIMS Act and the Rules and Regulations be silent or any aspect of the matter, which in the present case would mean the issue of the age of superannuation, the State Government would have the power to issue directions in this regard. Since the power would flow from a statutory provision, it necessarily would follow that any such instruction issued under Section 24 would have statutory force. This Court for the purpose place reliance upon a Division Bench judgment of this Court in 1996 (1) PLJR 856 Indian Iron and Steel Company Ltd. v. State of Bihar). This would remain the position till such time that the issue be not specifically incorporated in the IGIMS Act or the Rules or regulation framed thereunder, it needs no emphasis that the powers under Section 24 could not run counter to the same.

(17.) In the facts of the present case, this Court would therefore hold that the decision of the Board of Governors as contained in Annexure 6 dated 10.2.1994 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.

(18.) It would be settled law that administrative or executive instructions or orders could not supplant or replace statutory provisions or rules or run counter to the same. But they can supplement them on issues that statutory provisions be silent. The Supreme Court in (State of Orissa and Ors. v. Mamtarani Sahoo and Anr.) would hold in paragraph 11 that:

"... It is true that the Government cannot amend or supersede statutory, rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.... Since the Rules are silent in this regard, administrative instructions have been issued confined to these aspects on which the Rules are silent.... "

(19.) This conclusion of the Court would find support from the fact that the IGIMS, Act creating the Institute was passed in 1984. There would be no age of superannuation provided in the IGIMS Act or the Rules framed thereunder and there would be no regulations to that effect also. The Government and the Board of Governors would therefore would have adopted the conditions of service including the age of superannuation from the AIIMS Act which provided for superannuation at the age of 58 years. This would be the only conclusion in law as otherwise there would be no age of superannuation prescribed in the Institute.

(20.) The next issue that would arise for consideration is as to what would be the effect of the changes in the AIIMS Act effected in February 1999 which would provide in Section 30 : Superannuation : (i) The age of superannuation of an employee of the Institute other than teaching faculty shall be 60 years, (emphasis mine)

(21.) Would the Government or the Board of Governors be required to thereafter reiterate their earlier decision dated 10.10.1991 and 10.2.1994 by reaffirmance thereafter, or, would the changes in the AIIMS Act be automatically applicable, unless there be a specific order or Resolution to the contrary. It cannot be lost sight of that the Government communication is dated 10.10.1991, the order of the Institute is dated 10.2.1994, changes would have been made in AIIMS Act in February 1999. Today in the year 2005 there would be no Government Order or Resolution to the contrary. It would therefore be apparent that in terms of the order dated 10.10.1991 and Resolution dated 10.2.1994 the changes made in the AIIMS Act in 1999 automatically stood included in the IGIMS Act by incorporation. Learned counsel for the petitioner in this regard has rightly placed reliance upon a judgment of the Supreme Court (Daman Singh and Ors. v. State of Punjab and Ors.). This Court could do no better than quote paragraph 12 of the judgment:

"Another submission of the learned counsel was that the notification authorising the Assistant Registrar of Co-operative Societies to exercise all the powers of Registrar under the Act could enable the Assistant Registrar to perform only such functions as the Registrar was authorised to perform under the Act as on the date of the notification. The Assistant Registrar would not be entitled to exercise the powers entrusted to the Registrar by amendment of the Act subsequent to the date of the notification, unless a fresh notification was issued. We do not think that a fresh notification would be necessary where the Assistant Registrar even initially was authorised generally to perform all the functions of a Registrar. A fresh notification would probably be necessary where the Assistant Registrar was authorised to perform certain specified functions only of the Registrar. That is not claimed to be the situation here."

(22.) The contention on behalf of the respondents in the backdrop of Priyambada Singh, (supra) that the government order dated 10.10.1991 would be limited in application to non technical posts, would be misconceived. A bare perusal of paragraph 15 of the judgment would make it apparent that the issue therein would have been in the background of Rule 7(c) with regard to appointments to be made on technical posts through open advertisement. It is trite law that a judgment would be an authority for what it would decide and that there could be no generalised application thereof out of context.

(23.) This Court based on the aforesaid discussions would therefore arrive at the conclusion that the Government Order dated 10.10.1991 would be a valid Government Order. The same would have statutory effect under Section 24 of the IGIMS unless it be contrary to any provision of the IGIMS Act, Rules or Regulation. The words "other conditions of service" would include the age of superannuation. The order of the Institute dated 10.2.1994 in absence of any regulation framed under Section 27(e) of the IGIMS Act would also have binding force and be in concurrence with the aforesaid Government order and the words other conditions of service mentioned therein would include the age of superannuation. The amendment in the AIIMS Act having been made in the year 1999 the State Government or the Board of Governors not having taken any decision to the contrary with regard to the issue of age of superannuation in the Institute, the effect of the order dated 10.10.1991 would be the automatic incorporation of the same in the IGIMS Act which would also find echo in the resolution of the Board of the Institute dated 10.2.1994.

(24.) In the result this writ application has to be allowed. This Court, on basis of the aforesaid discussion would arrive at the conclusion and hold that the age of retirement in the Institute on non-teaching posts stands presently determined by the respondents at 60 years. The petitioner would accordingly be entitled to continue in service till such time that she attains the age of sixty years. No order as to costs
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