All Manipur Retiring Govt. Employees Association and Others vs State of Manipur and Others

P.C. Phukan, J.—All Manipur Retiring Government Employees and its eleven members by name filed a writ petition praying for issuance of an appropriate writ directing the Government of Manipur not to retire the State Government Employees before they attain the age of sixty years by treating F.R. 56 as amended by Fundamental (Amendment) Rules, 1998 raising the retirement age of Govt. employees from Fifty-eight to Sixty years to be in force in the State of Manipur.

The aforesaid writ petition was filed in the Principal Seat at Guwahati and was registered as C.R. No. 6574/1998. On transfer to Imphal Bench, it was re-numbered as W.P. (C) No. 103 of 1999. By an order dated 11.2.1999 passed therein, the learned Single Judge opined that the matter involved an important legal issue requiring consideration by a larger Bench. Then, as per order of the Hon''ble Chief Justice it was listed before the Division Bench.

The aforesaid W.P. (C) No. 103 of 1999 and also W.P. (C) Nos. 177,221,443,174 of 1999 and Civil Rule No. 772 of 1998 have arisen out of similar facts and involve common question of law and hence are being disposed of by this common judgment and order.

The writ Petition (C) No. 103 of 1999 was filed on 21.12.1998 when some of the Petitioners were to attain the age of fifty-eight years on 31st December, 1998, some on 31.01.1999 and some Ors. on 28.02.1999. The Petitioner Mr. Ibohal Singh was already served the Order No. 451 dated 2.11.98 requiring him to retire w.e.f. 31.12.1998 on his attaining the age of fifty-eight years on that date. The other Petitioners were apprehending that similar orders would be served on them also. They formed an Association, namely, "All Manipur Retiring Government Employees Association" with the object of pursuing the matter of application of FR-56 as amended by the Fundamental (Amendment) Rules, 1998 raising the retirement age of Government Employees from 58 to 60 years to the employees under the Government of Manipur.

Another set of similarly situated Manipur Government Employees formed Anr. Association called, "The Retiring Government Employees Forum" with similar object and filed Civil Rule No. 772 of 1998.

Similarly situated Petitioners, seventeen in W.P. (C) No. 177 of 1999, three in W.P. (C) No. 221/99 and one each in W.P. (C) No. 443/99 and W.P. (C) 174/99 filed the respective writ Petitioners with similar prayer.

Since in the above writ petitions, this Court refused to pass any interim order directing the State Government not to retire its employees before they attain the age of sixty years, it is submitted at the Bar that the Government orders retiring some of the Petitioners during the pendency of the writ petitions alongwith the Government orders retiring some Ors. before the filing of these writ petitions ought to be set aside and quashed.

We have heard Dr. N.K. Singh, learned Counsel for the Petitioners in W.P. (C) No. 103 of 1999, Mr. A. Jagjit Singh and Mr. Tarunkumar Haobam, learned Counsel for the Petitioners in W.P.(C) No. 443/99, Mr. R.K. Nokulsana, Learned Senior Counsel for the Petitioners in W.P. (C) No. 221/99, and Mr. N. Kotiswor Singh, learned Counsel for the Petitioner in W.P. (C) No. 177/99 and C.R. No. 772/98, and Mr. I. Lalitkumar, learned Counsel for the Petitioners in W.P. (C) No. 174/99. We have also heard Mr. T. Nandakumar Singh, learned Advocate General, Manipur for the State Respondents and the learned Central Govt. Standing Counsel for the Respondent Union of India in the above writ petitions. We have further considered the written argument submitted by Mr. Tarunkumar Haobam, learned Counsel for the Petitioners and also the written argument submitted by Mr. T. Nandakumar Singh, learned Advocate General, Manipur for the State Respondent.

Manipur became a State on 21st January 1972. Til then Manipur was a Union Territory, and all the Central legislations/rules/regulations/orders etc. governing the service conditions of the Government employees including the Fundamental Rules, 1922 with F.R. 56(a) therein were applicable to the employees under the Union Territory of Manipur F.R. 56(a) as it existed on 21.01.1972 reads:

F.R. 56(a): Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years.

On 21.01.1972, i.e. the date of attainment of Statehood, the Government of the State of Manipur issued the following Notification (Annexure-A/1) under Article 309 of the Constitution:

Notification Imphal, the 21st January, 1972.

In exercise of the powers conferred upon him by Article 309 of the Constitution, the Governor of Manipur is pleased to order that all the rules/regulations/orders etc. governing me conditions of service of the persons serving in connection with the affairs of the erstwhile Union Territory of Manipur which were in force immediately before 21st January, 1972 will continue to be in force and will apply to the persons serving in connection with the affairs of the new State, of Manipur subject to such modifications as may be ordered from time to time and until further orders and with the adaptation that wherever the word/words "Chief Commissioner/"Administrator"/"Lieutenant Governor" has/have been referred to in the aforesaid rule/regulations/orders etc./the same will be construed as referring to the Government of Manipur.

By order etc. Sd/-(D.G. Bhave),

Chief Secretary to the Govt. of Manipur.

Subsequently, the Government of Manipur issued Anr. notification dated 6.11.1976 (Annexure-A/2). The relevant portion thereof reads:

Notification Imphal, the 6th Nov/1976.

In exercise of the powers conferred by the proviso to Article 309 of the Constitution the Governor, Manipur hereby makes the following rules, namely:

These rules may be called, the Manipur Service Law (1st Amendment) Rules, 1976.

These shall apply to the employees under the Govt. of Manipur to the extent to which Fundamental rules and Civil Service Regulations are applicable.

These shall come into force from the 1st day of 1976.

In rule 56 to the Fundamental Rules : 2. 1. For the existing Clauses (a), (b), (c) and (e) the follow in clauses shall respectively be substituted, namely:

F.R. 56(a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years.

The Central Government amended. F.R. 56(a) raising the retirement age from 58 to 60 years by the Fundamental (Amendment) Rules, 1998. The relevant portion of the notification dated 13.5.98, (Annexure-A/5) is extracted below:

New Delhi, the 13th May/98. Notification

G.S.R. No. 248(E). In exercise of the powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution and after consultation with the Comptroller & Auditor General of India in relation to persons serving in the India Audit and Accounts Department, the president hereby makes the following rules, namely:

(1) These rules May be called the Fundamental (Amendment) Rules, 1998.

(2) They shall come into force from the date of their publication in the Official Gazette.

(3) In the Fundamental rules, in Rule 56:

(a) For Clause (a) the following clauses shall be substituted namely:

"(a) Except as otherwise provided in this rule every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.

The Government of Manipur, however, has not issued any notification for substituting F.R. 56(a) as amended by Manipur Service Law (1st Amendment) Rules, 1975 to raise the retirement age of its employees from fifty eight to sixty years and the Govt. of Manipur have continued to retire its employees on their attaining the age of fifty eight years.

It has been strenuously argued by the learned Counsel for the Petitioners that the State Government could not have retired its employees before they attained the age of sixty years. For F.R. 56(a) as amended by the Fundamental (Amendment) Rules, 1998 raising the retirement age from fifty eight to sixty years is very much in force in the State of Manipur in view of the State Government notification dated 21.1.1972 (Annexure-A/1) declaring that all the rules/regulations/orders etc. governing the service conditions of the Government employees which were in force immediately before 21.1.1972 (i.e. the date of attainment of statehood) will continue to be in force in the State of Manipur subject to such modification as may be ordered from time to time. It has been contended that Fundamental Rules, 1922 will continue to be in force in the State, and Fundamental Rules, 1922 means Fundamental Rules, 1922 with up-to-date amendments. Hence, F.R. 56(a) thereof in its amended from raising the retirement age to sixty years will be in force in the State of Manipur until and unless the State Government makes a modification in the F.R. 56(a) in its application to the State of Manipur to the affect that the retirement age of its employees would remain at fifty eight years.

Mr. Tarunkumar Haobam, learned Counsel for the Petitioners, submits that no State Government notification adopting F.R. 56(a) in its amended form is necessary, because F.R. 56(a) in its amended form automatically applies to the State Government employees. For, Fundamental Rules, 1922 with upto date amendment is in force in the State by virtue of the State Government notification dated 21.1.1972 (Annexure-A/1).

Referring to a decision in Challa Ramkonda Reddy and Others Vs. State of Andhra Pradesh by District Collector, Kurnool, Mr Tarunkumar Haobam submits that the rule making authority frame rules merely as the delegate of the legislature and the expression ''enactment'' includes rules. The main thrust of his argument is that the State Government notification dated 21.01.1972 (Annexure-A/1) issued in exercise of rule making power under Article 309 of the Constitution is an adopting enactment which adopted by general reference (as distinguished from specific reference to Anr. enactment) all rules/regulations/order etc. governing service conditions of Government employees which were in force immediately before 21.1.72 etc. rules include Fundamental Rules, 1922, and as such F.R. 56(a) therein as amended by the Fundamental Amendment) Rules, 1998 in applicable to the State Government employees. In support of his argument the learned Counsel quotes the following extract from the book,'' ''Statute and Statutory Construction, " (3rd, Edition Vol-II) Page-550 by J.G. Sutherland:

A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference, statute was enacted.

In Bajaya Vs. Gopikabai and Another, , relied upon by the learned Counsel for the Petitioners as well as by the learned Advocate General, Manipur for the State Respondent, it has been held:

Broadly speaking, legislation by referential incorporation falls in two categories; First, where a statute by specific reference incorporates the provisions of Anr. statute as of the the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus:

A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted."(Vide, Sutherland''s Statutory Construction Third Edition, Article 5208, p. 5208).

Corpus, Juris Secundum also enunciates the same principle in these terms:

...Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof...the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least the purpose of the adopting statute.

A mere look at the State Government notification dated 21.1.1972 (Annexure-A/1) issued under Article 309 as an adopting enactment would show that this notification instead of refering to a particular statute or to any specific provision therein, arid for the matter, instead of referring to the Fundamental Rules, 1922 or to F.R. 56(a) therein refers to the law generally which governs the particular subject, viz. the law governing service conditions of Government employees. In such a case, in view of the above decision of the Apex Court, it has to be presumed that the intent of the rule making authority was to include all the subsequent amendments made from time to time in the generic law on the subject, i.e. the law governing the service conditions of Government employees adopted by general reference. Such law includes the Fundamental Rules, 1922. Hence, the amendment made in F.R. 56(a) therein by the Fundamental (Amendment) Rules, 1998 could have been automatically read into the adopting enactment, i.e. the State Government notification dated 21.1.72 (Annexure-A/1). The matter, however, did not and there, Subsequent to issuance of the notification dated 21.1.72, the State Government issued Anr. notification dated 6.11.76 (Annexure-A/2) enacting the Manipur Service Law (1st Amendment) Rules, 1976. Unlike the earlier notification dated 21.1.72, these Rules of 1976 by specific reference incorporates F.R. 56(a) of the Fundamental Rules, 1992 as of the time of adoption fixing the retirement age at 58(fifty eight) years. In such a case, in view of the above decision of the Apex Court, the subsequent amendments made in F.R. 56(a) by the Fundamental(Amendment) Rules, 1998 cannot automatically be read into the adopting enactment, i.e. the Manipur Service Law (1st Amendment) Rules, 1976 communicated vide State Government notification dated 6.11.76 (Annexure-A/2). That being the position, the Manipur Service Law (1st Amendment) Rules, 1976, and not F.R. 56(a) as amended by the Fundamental (Amendment) Rules, 1998, occupies the field. Hence no writ directing the Government of Manipur not to retire its employees before they attain the age of sixty years can be issued.

Besides, Bajaya Vs. Gopikabai and Another, the learned Counsel for the Petitioners referred to the decisions reported in Ram Sarup Vs. Munshi and Others, , Shamlal and Others etc. Vs. Amarnath and Others, , National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), , Vasantrao alias Baburao and Another Vs. Shyamrao and Others, We have considered these decisions and have found that the same are of no assistance to the Petitioners in view of what has been stated above.

In the result, these writ petition, namely, W.P (C) Nos. 103,174,177,221,443 of 1999 and Civil Rule No. 772 of 1998 are dismissed.

In the facts and circumstances of the case, the parties are left to bear their own costs.