D.G.R. Patnaik, J. - (1.) CLAIMING parity in the service conditions with the State Government employees, the petitioners who are employees of the Dhanbad Municipality have prayed for an order for quashing the notice dated 04.01.2005 (Annexure -5) issued under the signature of the Special Officer, Dhanbad Municipality (Respondent No. 4) whereby the petitioners were informed that they would superannuate from service on their attaining the age of 58 years respectively. A further prayer has also been made for a declaration that the notification No. 5826 dated 26.10.2004 issued by the Government of Jharkhand enhancing the age of superannuation of Government employees is also applicable to the employees of Dhanbad Municipality.
(2.) IN support of their claim, the petitioners have raised the following grounds: (i) By notification No. S.O. 95 dated 25.06.1977 issued under Section 42(2) of the Bihar & Orissa Municipal Act, 1922, the service conditions under the Bihar Service Code as was applicable to the Government employees, was made applicable for all the officers and servants of the municipality and the Notified Area Committees. (ii) Following the above notification, the Department of Urban Development, Government of Bihar issued a notification dated 2nd February, 1981 implementing all the pay and service conditions as applicable to the State Government employees, to the municipal employees also and had also stopped appointments of employees to the Class -III and Class -IV posts of the municipality and such appointment was subsequently followed by the procedure laid by the State Government for the appointment of Government employees. (iii) The Government of Jharkhand vide its notification dated 26.11.2004 increased the age of superannuation of the Government employees from 58 years to 60 years. (iv) Pursuant to the above notification of the State Government, the Special Officer, Dhanbad Municipality also communicated to the Secretary, Urban Development Department that the age of retirement of the municipal employees was also increased to 60 years. (v) Having increased the age of retirement to 60 years, the same Special Officer, according to the petitioners, could not unilaterally reduce the retirement age from 60 years to 58 years and issue the impugned notice for the retirement of the petitioners. Shri Faizur Rehman, learned Counsel for the petitioners would argue that the respondents cannot deny parity of the municipal employees with the government employees in the matters of service conditions since Rule 73 of the Jharkhand Service Code as amended, applies in equal measure to the employees of the municipalities including the Dhanbad Municipality.
(3.) PER contra the stand taken by the respondents as appearing in the counter affidavit is that the claim of the petitioners is misconceived firstly because Rule 73 of the Bihar Service Code does not appear to have been amended under the notification No. 5826 dated 26.10.2004 issued by the State of Jharkhand. Shri Sumin Garodia, learned Counsel representing the respondents argues that even presuming that Rule 73 of the Bihar Service Code has been amended by the aforesaid notification, that also would not be applicable to the employees of the municipality unless the State Government, in exercise of its powers under Section 42(2) of the Bihar & Orissa Municipal Act, 1922, specifically adopts the said notification and makes it applicable to the employees of the municipality also. Learned Counsel explains that by letter dated 17.01.2005, issued by the Urban Development Department, Government of Jharkhand, it has been clarified that the benefits of the Government Notification dated 26.10.2004 cannot be extended to the employees of the municipalities and corporations as they are not State Government employees. Learned Counsel adds further that it is open to the State Government to extend the benefit of the said notification to the employees of the municipalities also and in such event, the respondent municipality would be legally bound to follow the directions issued by the State Government.;