M.H.Beg, J. - (1.) THESE are two appeals by Special leave before us, one by the Municipal Corporation, Bhopal, and another by the State of Madhya Pradesh against the judgment and order of a Division Bench of the Madhya Pradesh High Court allowing a writ petition filed by the Respondent employee of the Bhopal Municipal Corporation, (hereinafter called the Corporation).
(2.) THE employee's case was : He was born on 1st July, 1912, appointed a Lower Division Clerk in April, 1962, promoted as an Upper Division Clerk in February, 1964. A general order dated 21st December, 1967 (Annexure 'A') had been passed by the Administrator, Municipal Corporation, purporting to carry out the orders of the Government of Madhya Pradesh which had decided that the age of compulsory retirement of all servants of the Corporation, other than Class IV servants, should be 55 years. The employee was informed of it by a communication dated 22nd December, 1967 (Annexure B). The Municipal Corporation of Bhopal, which was formerly only a Municipal Council, became a Corporation when provisions of the Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter referred to as 'the Act') were applied to it from 25th August, 1967, by an Ordinance the provisions of which were then embodied in an Act, Although the Petitioner had entered service of the Municipal Board of Bhopal, as a result of the continuance of the service conditions of the employees of the former Municipal Board, which has thus become a Corporation, the petitioning employee was to retire at the age of 60 as laid down in Notification No. 30 of 11th November 1947 (Annexure C). But, in 1955, when Bhopal was a Part 'C' State, the Government of Bhopal had issued a notification dated 4th February 1955 applying the service regulations of Central Government employees in Part 'C' States. In this way, the petition -sag employee's correct age of retirement was 58. Under the Act of 1956, questions relating to service conditions of the employees of the Corporation were to be regulated by bye -laws under section 427(1 -C)(b) of the Act and not by rules to be made by the Government. The Government of Madhya Pradesh had, however, issued a Notification in the Gazette of 22nd December, 1967, purporting to reduce the age of retirement of first and second and third grade employees from 60 years to 55 years by amending the Government Notification No. 30 dated 11th November 1947. It was not clear to the petitioning employee whether the orders of 21st December, 1967, were in pursuance of any Gazette Notification or whether they have been passed after a proper amendment of their bye -laws in accordance with the procedure laid down in section 432 of the Act. In any case, the validity of the order of 21st December 1967, was challenged. The judgment under appeal shows that it was argued on behalf of the petitioning employee that the procedure laid down by the Act for amending a bye -law was not followed. The Madhya Pradesh High Court had accepted this contention and rejected the argument, put forward on behalf of the Corporation and its Administrator, that the amendment in question was governed by the provisions of section 433 of the Act. It had therefore, quashed the Notification dated 22nd December, 1967, which purported to have been made in exercise of powers vested in the Government under section 432 of the Act, as well as an order dated 30th December, 1967, (Annexure R -1), the relevant part of which reads as follows : - - In pursuance of the Notification No. 10678/4251/XVIII -U -II, dated the 22 -12 -1967 Shri Misbahul Hassan, UDC Account Section, who has attained the age of compulsory retirement, is hereby sanctioned 120 days Earned Leave w.e.f. 1 -1 -1968 as leave Preparatory to retirement. He will stand retired w.e.f. 1 -5 -1968 on expiry of the leave sanctioned to him, stated above.
(3.) MR . Daphtary, appearing on behalf of the Corporation Appellant, has contended that the procedure laid down in section 432 of the Act was merely meant to give the Corporation concerned an opportunity of putting forward its views by means of any representation it may like with regard to any proposal of the Government to modify or repeal any bye -law, The Learned Counsel submitted that, as the Corporation had no objection whatsoever to the amendment of the age of retirement of Class I and II and III employees, it was not open to the petitioning employee to raise any objection on the ground that the prescribed procedure had not been followed. This argument proceeds on the assumption that there was already a bye -law regulating the age of the retirement of employees of Classes I, II and III of the Corporation, and that the Government was purporting to follow the procedure laid down by section 432 of the Act in amending that bye -law.;