Debidas Basu vs Union of India and Others

P.K. Banerjee, J.—In this rule, the petitioner was a Director of the Indian Association for the Cultivation of Science for more than 11 years. He challenged the. order by a writ as the period of service was not extended beyond the age of 63 years. By a resolution dated 15th April, 1979, the Council of I ASS extended the term of service of the petitioner of Director for another year till 31st August, 1980 i.e. for one year even after superannuation. the said resolution specifically provided that no further extension would be granted to the petitioner. In the meeting dated 26th June, 1979 in which the petitioner was present, this resolution was confirmed. The petitioner know from the very beginning that his service would not be extended after 31st August, 1980 and he moved this Court and obtained the present rule on 29th August, 1980. On 15th April, 1979 it was further resolved that the council further authorised the President to take necessary steps to utilise the service of Dr. D. Basu as a Professor after he relinquished the position of Director of the Association. Initially the Petitioner got an interim order but the said order was ultimately vacated. The petitioner did not accept the offer of the Council to utilise his service as Professor In the affidavit In opposition filed by the respondent to the main petition, it is stated that the petitioner has enjoyed the highest term as a Director, that is, 11 years and 8 months and attained the age of superannuation and he was still given one extension under bye-law 34(c) of the bye-law after the age of superannuation being 62 years. The order is a valid order passed In accordance with law. This is a main point of the affidavit filed by the respondent. The reply was filed by which the petitioner reiterated the statement made in the petition

Mr. A.P. Chatterjee, Standing Counsel on behalf of the petitioner argued four grounds in support of his contention. Firstly that bye law 34(c) Is ultra vires of Art. 14 of the Constitution Secondly, it is argued that non-extension of the period upto the age of 65 years was made without giving an opportunity of being heard to the petitioner and therefore it is bad In law Thirdly, it is argued that ali the Directors and Professors would have to retire at the age of 65 years. The petitioner has legitimate expectation Therefore he was deprived of the extension The petitioner was given extension upto 65 years as professor. Therefore it amounts to a reduction of rank and therefore it is bad.

Mr. S.D. Banerjee supported by Mr. D N. Das, however, contended that under bye-law 34(c) of the bye law made by the Indian Association for the Cultivation of Science it is provided that the order is Within the four corners of the power of the Association, it Is further argued that the age of superannuation for all the Directors, Professors and Officers is 62 years and net 65 years as sought to be argued by Mr. Chatterjee. There was no question of any legitimate expectation. Everybody would retire at the age of 62 years unless the Council is satisfied that the period should be extended but in any case the period cannot be extended beyond 65 years.

Mr. Chatterjee contended that bye-law 34(c) is ultra vires Art. 14 of the Constitution of India and relied upon the case reported in AIR India Vs. Nergesh Meerza and Others, In fact, he referred to paragraph 117 at page 1859 where their Lordship of the Supreme Court held that Regulation 47 which provides that the service of any employee may, at the option of the Managing Director, on the employee being found medically fit, be extended by one year beyond the age of retirement, the aggregate period not exceeding two years as ultra vires. So far as the AHS are concerned under the Regulation the discretion is to be exercised by the Managing Director to extend the period up to 10 years if medically fit and therefore the AHS if medically fit is likely to continue upto the age of 45 years by yearly extensions given by the Managing Director. The Supreme Court held as follows :

The words at the option are wide enough to allow the Managing Director to exercise his discretion in favour of one AH and not in favour of the other which may result is discriminetion The Regulation does not provide any guidelines, rules, or principles which may govern the exercise of the discretion by the Managing Director,. Similarly, there Is also no provision in the Regulation requiring the authorities to give reason for, refusing to extend the period of retirement of AHS. The provision doss not even give any right of appeal to higher authorities against the order passed by the Managing Director, Under the prevision, as it stands, the extension of the retirement of an AH is entirely at the mercy and sweet will of the Managing Director. The conferment of such a wide and uncontrolled power on the Managing Director is clearly violative of Article 14, as the provision suffers from the vice of excessive delegation of powers".

It will appear that the said section, according to me, was held to be ultra vires as the provision suffers from the vice of excessive delegation of powers.

Mr. Chatterjee, however, contended that the Supreme Court held that if the provision is ultra vires the age of retirement of the AH becomes automatically 65 years. Similarly as the bye-law 34(c) is ultra vires, the period of supperannuation in so far as the Director and Professor are concerned, is 65 years. In my opinion, this interpretation cannot be accepted. In the said case it was held to be ultra vires because there was no guideline given to the Managing Director for either in favour of the person and not in favour of another person Therefore, it was held by the Supreme Court that as no guideline is stated or provided, This power is exessive delegation of power and therefore violative of Art. 14 of the Constitution of India. in the present case, in my opinion, from the bye law 34(c) It is quite clear that everybody should be retired upon his completion of 12 years of age unless the Council is satisfied that their service should, in the interest of the Association, be still retained and sanction their retention for such period as may be determined. The power is given to the Council, consisting of the Office bearers of the council being the authority of the Association and campuses of about large number of persons as contained in paragraph 10 of the bye law. in any case it is clear from the wording of bye-law 34(c) that the principle laid dawn in the case repotted In AIR India Vs. Nergesh Meerza and Others, cannot be applied In the present case There is no unguided power given to any particular Individaual to exercise the power of extension of service of director after his atraining the age of 62 years.

Lastly Mr. Chatterjee contended that in view of the fact that all the Directors and professors are to be retired at the age of 65 years and the petitioner not having been given extension. his legitimate expectation is denied and therefore he ought to have been heard before superannuation. In the the present case it appears that the order of extension of service for 1 year was passed on 15th April. 1979 and was confirmed In the meeting in which the petitioner himself was a party and he himself get one extension. Even If he has a legitimate grievance, he cannot now be allowed to say that the resolution is without jurisdiction. Moreover there cannot be any legitimate exepectation of serving the Indian Association for the Cultivation of Science till the age of 65 years In view of bye law 34(c) of the bye-laws which makes it clear that all Directors and professors must be retired at the age of 62 years unless the Council extends the service of the Directors and professors.

Mr. Chatterjee relied upon the case reported in 1969 (i) All England Reporter, 904 and Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, at paragraph 218, ID support of his contention, As I am of the opinion, reading bye-law 34(c) of the bye-law, it is futile to argue that the petitioner has a legitimate expectation to serve up to the age of 65 years. According time, the age of superannuation of the Director and Professors is 62 years and not 65 years. It appears to me, however, that the Association extended the period of service of Dr. Basu as Director for one year and even offered the post of Professor after super-annuation but Dr Basu did not take it. The Association wanted his service as a Professor for 1 year. In view of the affidavit filed and in view of the fact it appears that Dr. BASU has already acted as Director for 11 years and 8 month, it cannot now be said that the Council acted collaterally, arbitrarily or mala fide manner net extending the service of Dr. Basu as Director In that view of the matter, in my opinion, there is no merit In this rule. The rule is discharged.

There will be no order as to coats.

Stay of operation of the judgment asked for is refused