BHAGWAT PRASAD SUKHAINRAM CHOUBE Vs. STATE OF MADHYA PRADESH
LAWS(MPH)-1967-12-3
HIGH COURT OF MADHYA PRADESH
Decided on December 12,1967

BHAGWAT PRASAD SUKHAINRAM CHOUBE Appellant
VERSUS
STATE OF MADHYA PRADESH Respondents

JUDGEMENT

DIXIT C. J - (1.) THE petitioner in this case, who is employed as Head- Master in Primary School, Sunarhai, Jabalpur, challenges the validity of an order passed by the District Education Officer, Jabalpur, with regard to his retirement from service as a result of the amendment of Rule 55 of the Fundamental Rules reducing the age of retirement from 58 to 55.
(2.) THE applicant was before 1st October 1963 in the employment of the Municipal Corporation, Jabalpur, as a primary-school teacher. In 1963 the State Government raised the age of superannuation of Government servants from 55 to 58, Following this action of the State Government, the Municipal Corporation also decided to raise the age of retirement of its employees from 55 to 58. On 24th April 1963 the Standing Committee of the Corporation passed a resolution deciding to raise the age of retirement in conformity with the Government's decision. On 1st October 1963 the petitioner was absorbed in Government service under the Madhya Pradesh Local Authorities' School Teachers (Absorption in Government Service) Act, 1963. On 10th October 1967 the State Government promulgated an Ordinance entitled the Madhya Pradesh Shasakiya Sevak (Adhivarshiki Ayu) Adhyadesh, 1967, fixing the age of superannuation of Government servants at 55. That Ordinance has now been replaced by an Act in terms similar to those of the Ordinance. The Ordinance provided, inter alia, that Government servants who have already attained the age of 55 on 15th December 1967 would stand retired with effect from 15th December 1967, or, in the event of their taking leave due to them, from 15th December 1967 upto a maximum of four months, on the expiry of the leave period. On 25th October 1967 the District Education Officer, Jabalpur, addressed a communication to the petitioner informing him that as a result of reduction of age of retirement effected by the Ordinance if he proceeds on leave from 15th December 1967 he would stand retired on the expiry of the leave period, or, if he did not choose to avail himself of the leave due to him, he would stand retired from 15th December 1967. It was argued by Shri Dharmadhikari, learned counsel for the petitioner, that the reduction of the age of superannuation effected by the Ordinance or the Act replacing it could not be applied to the applicant as the conditions of service which were applicable to him immediately before his absorption in Government service on 1st October 1963 under the M. P. Local Authorities' School Teachers (Absorption in Government Service) Act, 1963, could not be varied to his disadvantage as laid down by the proviso to section 10 (2) of the School Teachers (Absorption in Government Service) Act, 1963. It was said that the age of retirement was one of the "conditions of ser- vice";that the Standing Committee of the Jabalpur Municipal Corporation by its resolution dated 24th April 1963 had raised the age of superannuation of its employees to 58; and that, therefore, this was the age of retirement when the applicant was absorbed in Government service and this age could not be altered to the disadvantage of the applicant.
(3.) IN our judgment, this petition must be dismissed. The applicant founds himself solely on the proviso to section 10 (2) of the School Teachers (Absorption in Government Service) Act, 1963, and the resolution passed by the Standing Committee of the Corporation on 24th April 1963. Section 10 of the aforesaid Act is as follows:- "10. Terms and conditions of Absorbed employees.-(1) The absorbed employees shall be governed by the Madhya Pradesh New Pension Rules, 1951: Provided that an absorbed employee may, within such period as may be prescribed, opt from the provident fund or, as the case may be, pension scheme applicable to him immediately before the appointed date. (2) Except as provided in sub-section (1), the conditions of service including the salary, scales of pay, leave rules etc., applicable to the absorbed employees shall be such as may be prescribed by the State Government: Provided that the conditions of service applicable immediately before the appointed date to any such employee shall not be varied to his disadvantage." It is no doubt true that the proviso to sub-section (2) of section 10 saves the conditions of service applicable to absorbed teachers immediately before 1st October 1963. It is not necessary to consider in this petition whether the age of retirement of a Government servant is a condition of service. Even if it is assumed that the age of retirement is a condition of service of a Government servant, still the petitioner cannot succeed for the reason that before 1st October 1963 the age of retirement prescribed by the Jabalpur Municipal Corporation for its employees was 55 and not 58. The Standing Committee of the Corporation no doubt passed a resolution on 24th April 1963 deciding to raise the age of retirement in conformity with the Government's decision taken in 1963 to raise the age of superannuation of Government servants from 55 to 58. But this resolution of the Standing Committee was not by itself legally effective for raising the age. Under the Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter referred to as the Act) it is the Corporation which has the power to fix the age of retirement of its officers and servants by making a bye-law in that behalf. The Standing Committee has no such power. The Standing Committee is one of the municipal authorities as is clear from section 6 of the Act which says that the municipal authorities charged with carrying out the provisions of the Act shall be- (a) the Corporation, (b) the Standing Committee, and (c) the Commissioner. Section 69 of the Act provides that the functions of the several municipal authorities shall be such as are prescribed in the Act. There is no provision in the Act giving to the Standing Committee the power to fix the age of retirement of the employees of the Corporation. In this connection, it would be pertinent to refer to section 58 (1) and section 427 of the Act. Section 58 (1) of the Act in so far as it is material here is as follows:- "58. Appointment and salary of City Engineers, etc.-(1) Subject to the provisions of this Act the Corporation shall appoint a City Engineer, a Health Officer, a Revenue Officer, a Municipal Secretary and a Municipal Accountant and may appoint a Deputy Municipal Commissioner and such other officers and servants as are necessary for the efficient carrying out of the purposes of this Act and may assign to them such duties and pay them such salaries and allowances, pensions and gratuities and make on their behalf such payments to the provident or annuity funds as the Corporation may determine by bye-laws made in this behalf under section 427: Provided that- (1) the power of appointing any person on a municipal post which carries a maximum monthly salary exceeding 150 rupees shall vest in the Standing Committee; ***** ***** *****;


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