Anil Kumar Sen, J. - (1.) These two Rules raise a common question of law and as such have been heard together. The question is as to whether rules lately made under Section 75 of the Bengal Municipal Act, 1932 (hereinafter referred to as the said Act) and approved and confirmed by the State Government be applicable to Municipal employees like the petitioners, who were in employment since before the making of such rules.
(2.) It would be convenient to refer to the facts of Civil Rule No. 3629 (w) of 1970 in the first place. On February 1, 1951 the petitioner, Benode Behari Dey was appointed a Sanitary Inspector by the respondent Municipality. He was confirmed in such post in May, 1951. At the time of his appointment the date of his birth was recorded as July 1, 1910. Subsequently on an affidavit filed by the petitioner, the Commissioners by a resolution dated March 14, 1967 corrected the entry as to date of birth by altering it to December 31, 1915. Such alteration was however objected to by the auditor in his report who refused to accept and act upon such alteration. The objection raised, by the auditor was to the effect that no such alteration could have been made except with reference to the matriculation certificate as admittedly the petitioner was a matriculate. The Chairman by a memo dated December 11, 1968 forwarded a copy of the audit objection to the petitioner and called for the matriculation certificate from the petitioner. The petitioner in reply dated December 16, 1968 insisted that the Municipality should act on the affidavit which was earlier accepted by the Commissioners and pleaded loss of the matriculation certificate. The matter was taken up for consideration by the Commissioners at a meeting held on May 29, 1969 when they adopted a resolution that the petitioner must produce the matriculation certificate either in original or in duplicate for verifying the actual date of his birth. The petitioner, however, failed and refused to produce any such certificate and as such on January 22, 1970 the Chairman passed an order directing that the petitioner should have retired from service with effect from 1-7-1968 on which date he attained the age of 58 years but for the delay in settling the date of birth petitioner's service should be treated to have been extended till he finally retires with effect from 1-7-1970. Such direction was made on calculation of petitioner's age with reference to 1-7-1910 as his date of birth and on the basis of the Rules which came into effect on April 26, 1962. There was a further direction for adjustment of pension benefits accordingly. This order was communicated to the petitioner by a memo dated January 22, 1970 made annexure 'D to the writ petition. This is the order which is being challenged in this Rule and the petitioner is seeking for a mandate directing the respondents not to give effect to the aforesaid order.
(3.) The only ground pleaded in the writ petition is to the effect that the petitioner having been employed by the Municipality at a time when there was no rule of superannuation in force, the subsequently made rules can have no application and the petitioner must be deemed to have a legal right to continue in service so long as he is physically and mentally fit and efficient to continue in service. The Learned Counsel for the petitioner also pressed this point at the hearing and raised a further point not taken in the Writ petition which I shall deal with hereinafter.;