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Judgment
Sivaraman Nair, J.—Petitioner was an employee of the Bhaba Atomic Research Centre, for short ''BARC at Bombay. That was a unit of Department of Atomic Energy of Government of India. He commenced service on 24-8-1960. In 1967, the Government of India decided to reorganise a part of the Atomic Energy Department into Public Sector Corporation. Consequently, the Electronics Corporation of India Limited was formed. The vacancies in that industrial unit were filled by transferring some of the workmen of BARC subject to confirmation of willingness of such workmen. Petitioner joined ECIL on 18-5-1967. Petitioner submits that even after transfer to an autonomous Corporation, he continued to be governed by the provisions of the fundamental Rules, the Subsidiary Rules and the Central Service Rules, as applied to employees of the Department of Atomic Energy. According to the petitioner, his assignment to the ECIL was a transfer to Foreign Service on deputation in accordance with Fundamental Rule III. Consequently he has a lien in the parent department and is governed by the service conditions which were applicable in that department. Government of India had issued letter No. F1(13) E.IV-A-61 dt.26-4-1964 of the Ministry of Finance. That letter was annexed to his transfer Memorandum dt.20-4-1967. The above letter assured that consequent on the conversion of Government Department into an autonomous Organisation, employees who were transferred would be allowed to carry forward leave to their credit on the date of transfer. Petitioner submits that transferred employees are continued to be governed by the previous service rules. The age of retirement according to Fundamental Rule 56(b), which according to the petitioner, applies to him as an employee of Department of Atomic Energy/BARC is 60 years. Petitioner claims that he is a ''workman'' as per the above rule. He submits that he is a ''''skilled workman'' who is liable to be retired from service only on attainment of 60 years. He also relies on Fundamental Rule 14(A) which provides that a Government servant''s lien on a post, may in no circumstances, be terminated even with his consent, that orders of permanent absorption of such Government servant can be issued only after the registration of the Government servant has been accepted by the Government and that his lien shall stand terminated only on his acquiring a Hen on a permanent post outside the cadre on which he is borne.
Petitioner submits that in his case, his lien in Department of Atomic Energy/BARC was never terminated in any valid proceeding, nor was he informed of any such termination of lien, nor has he resigned from Government service. He therefore submits that he continues to be governed by the service conditions applicable to employees of the BARC. Yet another submission of the petitioner is that other Autonomous Corporation like BARC-Bombay, Uranium Corporation, Indian Rate Earths, Atomic Mineral Division, Nuclear Fuel Corporation and Nuclear Power Corporation, which had their genesis in the Atomic Energy Department are following the earlier rule of retirement of workmen/employees only at the age of 60 years. In these circumstances, petitioner assails the order of the 1st respondent No. ECIL/PG/(E)/00681 dt. 25-10-1991, requiring him to retire from service with effect from 31-3-1992. He therefore seeks a direction that he shall be permitted to continue in service till he attains the age of 60 years.
Respondents 1 and 5 have filed a counter affidavit in which it is stated that petitioner was transferred after ascertaining willingness the ECIL, and on such transfer, he ceased to hold any lien in any pose in BARC Clause 2(14) of the Government Memorandum dt.26-4-1967, whereunder the petitions was transferred stated:
"On employment by the Corporation they finally ceased to be in Government Service and thereafter were governed by the rules and regulations framed by the Corporation from time to time."
It is asserted that petitioner accepted his employment in the Corporation, subject to these terms, and cannot therefore now claim that he continues to be the servant of the Department of Atomic Energy/BARC. Reference is also made of Memorandum No. ECIL/PAD/E/IV/122/73/13697, dt.10-12-1973 whereby the ECIL promulgated rules relating to the age of superannuation, retirement benefit etc., of its employees. Rule 2(14) provided that normally the age of superannuation shall be 58 years for all categories of employees and in respect of scientific and technical personnel extension may be granted in individual cases beyond the age of 58 years but upto 60 years only subject to fitness and suitability of the individual based on year to year basis with the approval of the Board of Directors. Respondent submits that petitioner is governed by the above rules and is not entitled at this distance of time to claim that he shall be continued in service till the age of 60 years, because he continues to hold a lien in his parent department viz., BARC. The impugned memorandum was issued in terms of the above rules against which the petitioner had not remonstrated so far.
Counsel for the Petitioner submits that Government of India Memorandum dt. 29th September, 1965 was issued in exercise of the power of the President under Article 309 of the Constitution of India and therefore the petitioner is entitled to retain his service conditions including the age of retirement of 60 years. He submits that the Corporation is not entitled by promulgating Rules, to change the pre-existing service conditions. He also submits that Clause 2(14) of the Govt. of India Memorandum dt.26-4-1967 is contrary to the Fundamental Rules and cannot therefore justify termination of his service at 58 years. His further submission is that the rules relating to age of superannuation framed by the Corporation in 1975 cannot be deemed to be conditions of service of petitioner on his transfer on 20-4-67 to the Corporation.
It is true that the petitioner was an employee of the BARC. It is also true that at that time he was a technical workman. He was entitled to hold a lien in the department (BARC) till such time such lien was terminated in some manner known to law. It appears to me to be clear that his willingness was ascertained before transferring him to ECIL annexing the terms and conditions of the Memorandum dt.26-4-1967. Clause 2(14) thereof, which I have extracted above definitely provided that the petitioner, on his employment in the Corporation, shall finally cease to be in Government service and be governed by the rules and regulations framed by the Corporation from time to time. Petitioner had acknowledged receipt of the original, by his dated signature on 28-4-1967. Fundamental Rule 14(A) on which petitioner places considerable reliance only provides that Government servant''s lien on a post will not be terminated even with his consent, if the result will be to leave him without a lien or suspended lien upon a permanent post. On his acceptance of transfer subject to the conditions of Memorandum dt.26-4-67, he acquired lien of a permanent post in the Corporation, and consequently, his lien in Government service stated terminated in terms of clause F.R.14-A(b). Admittedly, to the Government had mooted the proposal to reorganise a part of the Department of Atomic Energy into an autonomous Corporation and had agreed to the proposal to transfer employees to the Corporation subject to confirmation of willingness. Petitioner had agreed to the terms which the Government and the Corporation offered. Petitioner has no case that his employment in the ECIL was not against a permanent post. On his appointment to the Corporation, he did acquire a lien on a permanent post outside the cadre of BARC / Department of Atomic Energy resulting in termination of his lien in terms of Fundamental Rule 14-A(b). Petitioner thereafter ceased to be a Government Servant and could not claim the benefit of the Fundamental Rules or Subsidiary Rules or Central Service Rules, which were not made applicable to the services of the ECIL.
Having accepted employment in the ECIL subject to the condition that he will be governed by the Rules and Regulations to be framed by the ECIL, it is hardly possible for the petitioner to escape the application of the rules relating to age of superannuation and retirement benefits which the Corporation framed in its proceedings dt.10-12-1973.
Nor can the petitioner successfully maintain at this distance of time that Clause 2(14) of the Memorandum dt.26-4-1967 and Clause (2) of the rules promulgated by the ECIL, which prescribed the age of retirement as 58 years are unsustainable. There is no explanation why the petitioner did not remonstrate against the transfer Memo dt.26-4-1967 or at least when the rules relating to retirement were published on 10-12-1973. In the absence of any satisfactory explanation for this acquiescence and inordinate delay, petitioner is not entitled to any relief against the conditions of those two Memoranda.
Counsel for the petitioner submits that this retirement at 58 years is discriminatory because employees of other autonomous Corporations formed out of erstwhile Department of Atomic Energy BARC have to retire only at the age of 60 years. Here again petitioner is not entitled to raise this point because atleast in December 1973 he was aware of the terms and conditions of service relating to retirement, when the ECIL framed rules relating to the age of retirement. Having acquiesced in the order fixing the age of retirement at 58 years, petitioner is not now entitled to challenge the same on the eve of his retirement.
Counsel submitted that reduction of retirement age from 60 to 58 years by proceedings of the Corporation in Memorandum dt. 10-12-1973, was not preceded by any notice u/s 9-A of Industrial Disputes Act and therefore the same is ineffective. I am not impressed by this submission, because according to Clause 2(14) of the Memorandum dt.26-4-1967 of the Government of India, he is bound by the rules and regulations framed by the Corporation from time to time. The Rules framed thus by the Corporation were contained in its proceedings dt.10-12-1973. Petitioner had undertaken to be governed by those rules. He having acquiesced in that state of affairs it is hardly possible to countenance his submission that the fixation of the age of retirement at 58 years was contrary to the Industrial Disputes Act. It is true that in official Memorandum dt.29th September, 1965 Government had stated unequivocally that employees who were transferred to autonomous Corporations would be treated as if they had continued to be government servants and be allowed to carry forward leave at their credit on the date of permanent transfer. Petitioner was governed by the terms of that Memorandum as also the transfer Memorandum dt.26-4-1967. The moment the Corporation employed the petitioner in its service, petitioner ceased to be Government servant in terms of F.R.14(A)(b) read with Rule 2(14) of the transfer memorandum. He thereby deprived himself of the benefit of Memorandum dt.29-9-1965. Even assuming that he had continued to be government servant governed by the pre-existing service conditions, rules relating to retirement framed in the proceedings of the Corporation dt. 10-12-1973 marked a water-shed in his service career since thereafter the conditions which were framed by the Corporation, which the petitioner must be deemed to have accepted, governed his service. The terms of the Government Memorandum dt.29-9-1965 thereby ceased to apply to him. Service conditions which applied to him thereafter were whose which were framed by the Corporation. For all the above reasons, I am of the opinion that petitioner is not entitled to any relief against the notice terminating his services on superannuation on attainment of the age of 58 years with effect from 31-3-1992.
The Writ Petition therefore fails and the same is hereby dismissed. There will be no order as to costs.