Birendra Nath Bhuyan vs State of Meghalaya and Others

N. Surjamani Singh, J.—In this writ petition, a prayer has been made the writ Petitioner namely, Birendra Nath Bhuyan, for a direction to the Respondents to show cause as to why the office order/letter bearing No. MKB/BK-V/(P2)/72/95-96/132 dated 2nd January, 1997(Annexure III) issued by the Chief Executive Officer of Meghalaya Khadi and Village Industries Board, should not be revoked and the Petitioner should not be allowed to remain in service atleast upto the completion of 60 years of his age by contending interalia that, he was an employee of the Meghalaya Khadi and village Industries Board and was working as a Bee Keeping Inspector and posted at Tura and, that initially and originally, he was appointed under the Assam Khadi and Village Industries Board thus serving there at Guwahati as per terms of the Service Rules of Assam Khadi and Village Industries Board which provides for retirement of all employees of the Board ordinarily on completion of the age of 60 years and the said Rules also provides for re-employment of an employee even after completion of 60 years for a period of another one year at a time, subject to medical fitness.

Supporting the case of the writ Petitioner, Mr. S.R. Sen learned Counsel, has drawn my attention to Rule 34(C)(4)(i) of the related Rules which provides that: "All employees of the Board (other than the honorary workers) shall ordinarily retire on the date of completion of the age of 60 years." As per Rule 34(4)(ii), the Board may also re-employ persons aged over 60 years for a period not exceeding one year at a time, subject to medical fitness. The learned Counsel for the petitioner has also drawn my attention to the related office orders bearing Memo No. KBE. 199/76-77/4 dated Gauhati, the 15th March, 1977 as in Annexure II to the writ petition and submitted, that as many as six staff of the Assam Khadi and Village Industries Board were transferred to Meghalaya Khadi and Village Industries Board with immediate effect from the dates shown against their names and in case of the present writ Petitioner, date of transfer had been given effect from 7.2.77(F.N.) and the terms and conditions of service of the transferred staff will remain unaltered.

According to Mr. S.R. Sen, the terms and conditions of service of the writ Petitioner as reflected in the said office order of 15.3.77 was duly accepted by the Meghalya Khadi and Village Industries Board and since 7.2.77, the Petitioner had rendered his services till 31.3.97 though the Petitioner is to serve upto 31.3.99, as per terms and conditions of his services. It is also contended by Mr. Sen that the Govt. of Meghalaya, vide, the Meghalaya Adaptation of Laws Order (No.3) 1973 has adopted m CI. (C) Assam Acts SI. No. 22 and accordingly "The Assam Khadi and Village Industries Regulation 1961" were made and the same also stands adopted by Govt. of Meghalaya and as such, the Regulation relating to the conditions of services as provided in the Assam Khadi and Village Industries Regulation 1961 are applicable to the employees of Meghalaya Khadi and Village Industries Board which is the Rule 34(C)(4)(i).

It is also submitted that the children of the Petitioner are still very young and he has got a large family and in these hard days of gradually increasing cost of living, Petitioner should be allowed to remain in service till the completion of 60 years of age. However, the respondents by losing in sight of the related office orders of 15.3.77 passed the impunged order of 2.1.77 (Annexure III), thus causing the retirement of the writ Petitioner on superannuation on 31.3.97, after completion of 58 years of age without any justification.

Mr. B.K. Deb Roy, the learned Counsel appearing for the Respondent No. 2 contended, that Assam Khadi and Village Industries Board was bifurcated consequent upon reorganisation of the erstwhile State of Assam and, thus the Meghalaya Khadi and Village Industries Board came into existence quite in keeping within the purview of Section 64 of the North Eastern Reorganisation Act, 1971. and the services of the writ Petitioner was duly placed under the Meghalaya Khadi and Village Industries Board vide Notification being No. KBF/99/76-77/4, dated 15.3.77 as Bee Keeping Inspector as in Annexure II and, that the Meghalaya Khadi and Village Industries Board is an autonomous body and it has been following all the Rules, Regulations of the State of Meghalaya regulating and services of the staff employed in the Board and the Board have not framed any Rules for regulation of the staff employed under the Board and the Meghalaya Khadi and Village Industries Board has not adopted Service Rules and Pension Rules, etc. as that of Assam Khadi and Village Industries Board, and as such, the question of superannuation of the employees at the age of 60 years does not arise. Supporting the case of the Respondent No. 2, Mr. B.K. Deb Roy has drawn my attention to FR 57(a) of the Meghalaya Fundamental Rules and submitted that the date of compulsory retirement of a govt. servant is the date on which he attains the age of 58 years.

Now, this Court is to examine as to whether the writ Petitioner has enforceable legal right or legitimate expectation in the instant case.

On bare perusal of the document marked Annexure II. i.e. office order of 15.3.77, it has been revealed that the writ Petitioner was transferred to Meghalaya Khadi and Village Industries Board w.e.f. 7.2.77 and the terms and conditions of his service will remain unalterated. At this stage, I hereby recall once again the Rule 34(c) (4)(i) which provides, that all the employees of the Board(other than honorary workers) shall ordinarily retire on the date of completion of the age of 60 years. These terms and conditions of service of the writ Petitioner was duly accepted by the Meghalaya Khadi and Village Industries Board and with these terms and conditions of services, the writ Petitioner had been rendering services under the Respondent No. 2. It is true, that under the related FR 57(a), the date of retirement of a govt. servant is that on which he attains the age of 58 years and such govt. servant may also be retained in service after his age of 58 years with the sanction of the State Govt. on public grounds which must be recorded in writing, and proposals for the retention of a govt. servant in service after this age should not be made except in very special circumstances. This FR 57(a) governs the service conditions of a govt. servant and not for the employees or staffs under the Meghalaya Khadi and Village Industries Board and the Board has been following the same. In my considered view, the writ Petitioner has a legitimate expectation of being treated in a particular way by the Respondent No. 2 in view of the related office order of 15.3.77 as in Annexure II to the writ petition which protected and governed the service conditions of the writ Petitioner under the Meghalaya Khadi and Village Industries Board with specific terms and conditions of his services as highlighted and decided in it. At this stage, a reference can be made to a decision of the Apex Court rendered in U.P Awas Evam Vikas Parishad Vs. Gyan Devi (Dead) by L.Rs. and another, etc. etc., wherein the Apex Court held thus:

In situations where even though a person has no enforceable right yet he is affected or likely to be affected by the order passed by a public authority the Courts have evolved the principle of legitimate expectation. The expression which is said to have originated from the judgment of Lord Denning in Schmidt v. Secy of State for Home Affairs is now well established in public law. In Attorney General of Hong Kong v. Ng Yuen Shiu Privy Council applied this principle where expectations were ''based upon some statement or undertaking by or on behalf of, the public authority" and observed:

Accordingly ''legitimate expectations'' in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis. A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment.

In another case, namely, Food Corporation of India Vs. M/s. Kamdhenu Cattle Feed Industries, the Apex Court held:-

that the legitimate expectation becomes an enforceable right in case of failure of the state or its instrumentality to give due weight of it.

In the instant case also, the Respondents particularly Respondent No. 2 had failed to give due weight to the aforementioned office order dated 15.3.77 (Annexure II) to the writ petition, to the prejudice of the writ Petitioner thus affecting his service conditions for which, this Court is to issue appropriate writ in the instant case. Accordingly, I direct the Respondents particularly Respondent No. 2 allow the writ Petitioner to serve as Bee Keeping Inspector till he attains the age of superannuation on 31.3.99, thus retaining the services of the writ Petitioner under Meghalaya Khadi and Village Industries Board, Shillong. It is also made clear, that the Respondent No. 2 shall also afford/pay the arrear/Salary to the writ Petitioner for the period from 1.4.97 till date and the Respondent No. 2 shall take back the writ Petitioner forth-with.

For the reasons, observations and directions made above, this writ petition is allowed. No cost.

Despite the deposal of this writ petition, I am constrained to keep on record the words and comments of the Chief Executive officer, Meghalaya Khadi and Village Industries Board, Shillong, the Respondent No. 2. herein pertaining to sincere services of the writ Petitioner made in his office letter bearing No. MKB/BK.V/(p2)/72/95-96/132 dated 31.3.97 (Annexure VI) which is important and relevant in the instant case and the same is termed as hereunder:

Your sincere and innovative technique of Bee Keeping has brought a new era in the Village Industries Sector of the State. On behalf of the officers, and staffs of Meghalaya Khadi and Village Industries Board, we wish you a very happy retired life.