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Judgment
V. Kanagaraj, J.—Petitioner, praying to issue a writ of Certiorarified Mandamus to call for the records of the third respondent in Na.Ka.No.C/3548/97, dated 30.9.1997 and in Na.Ka.No.C/3548/97 dated 13.3.1998 and that of the second respondent in Na.Ka.Pa.1/21128/97, dated 6.1.1998, quash the said orders and issue consequential directions to the respondents to permit the petitioner to continue in service till he attains the age of 60 years i.e. till 31.3.1999 and to reside in the quarters provided by the Corporation till then.
In the affidavit filed in support of the writ petition, the petitioner would submit that on being sponsored by the District Employment Exchange, Nagercoil, he was appointed as Night Watcher on 21.1.1985 on temporary basis in the scale of pay of Rs.200-5-300 in the Arasu Rubber Corporation Limited, Keeriparai Division, Keeriparai by its Divisional Manager in his S.O.No.2/85 (C.No.9069/84), dated 7.1.1985 and his services were regularised from the date of his joining; that large number of Government employees in the Forest Department were deputed to the services of the Corporation and all the employees including the deputationists are being paid pay and allowances in the same scales of pay and rates as admissible to Government employees; that as per proviso to F.R.56(a), a member of the Tamil Nadu Basic Service is entitled to be in service till he attains the age of 60 years while for all other employees it is 58 years; that since he was in the basic service, he was under the bona fide impression that he is entitled to be service till he attains the age of 60 years i.e. till 31.3.1999 and this view was strengthened by the fact that when he completed the age of 58 years on 31.3.1997, the third respondent, under whom he was working, did not pass any order permitting him to retire on 31.3.1997.
The further case of the petitioner is that suddenly, by order dated 30.9.1997 in Na.Ka.C/3548/97, the third respondent informed him that as per Rule 28 of the Arasu Rubber Corporation Limited Service Rules, the age of retirement of a Corporation Employee is 58 years and as such even though his date of retirement is 31.3.1997, the petitioner did not inform the same to the Corporation and directed the petitioner to show cause as to why the pay and allowances paid to him for the six months after the date of his retirement should not be recovered from his gratuity; that on 30.9.1997 itself, by a subsequent order, the petitioner was permitted to retire from service on 30.9.1997 A.N. and also relieved him; that thereafter the petitioner replied to the show-cause notice stating that he was in no way responsible for continuing in service till 30.9.1997 and it was the Management which had failed to implement the Rule 28 of the Service Rules of the Corporation and also requested to permit him to continue in service till 31.3.1999 being the age of retirement of Office Assistants/Watchers in the Tamil Nadu Basic Service and given a representation dated 29.12.1997 to the second respondent, which was rejected by the second respondent and also by the third respondent and further informing that since the matter relating to the regularisation of the period of service rendered by him from 1.4.1997 to 30.9.1997 is under consideration, action would be taken regarding the disbursement of gratuity amount; that subsequently, the third respondent by his proceeding in Pro.Na.Ka.No.C/3548/97 dated 13.3.1998 directed the petitioner to vacate the quarters belonging to the Corporation occupied by the petitioner and hence the W.P.
The third respondent would file a counter besides generally denying the allegations of the petition, this respondent would submit that the petitioner was appointed in the Corporation on 21.1.1985 and his date of birth was 25.3.1939; that as per Service Rule 28 of the Corporation, an employee shall retire from service on his completion of 58 years, but in the case in hand, because the clerical staff of the Corporation did not point out the date of retirement of the petitioner, he was allowed to work for about six months more by mistake and disciplinary action was also taken against such clerical staff; that since the petitioner did not vacate the quarters after retirement, he was asked to vacate the quarters within seven days from the date of receipt of the order, failing which he was informed that rent would be collected at the market rate; that the petitioner is strictly bound by the rules and regulations of the Corporation; that the petitioner is well aware that he should retire at the age of 58 years, as per the Corporation rules though for the Tamil Nadu Basic Servant, the age of retirement is 60 years and the petitioner worked in the Corporation by accepting the rules and regulations of the Corporation and therefore he cannot now be permitted to claim certain benefits by comparing himself with the Government servant and his contention that the Fundamental Rule 56 alone will apply to the case in hand is untenable since as on the date of his retirement, the Service Rules are in force; that the petitioner failed in his duty in bringing to the notice of the officials his retirement age; that the pay and allowances are being given to the employees after getting approval of the Board of Directors of Arasu Rubber corporation and the Tamil Nadu Basic Servants Rules will not apply to the Corporation; that the petitioner has been paid for the duty performed by him and so far no amount has been recovered from the gratuity amount payable to the petitioner; that there is no rule to allow the petitioner to continue his service up to the age of 60 years; that the petitioner already retired from his service and he was relieved on 30.9.1997 AN itself and the impugned letter is only a show-cause notice, for which he had already given a reply dated 17.10.1997 and the same was considered and rejected in the light of Rule 28. On such grounds, the third respondent would pray to dismiss the above writ petition.
The first respondent has adopted the counter filed by the third respondent.
During arguments, the learned counsel appearing on behalf of the petitioner, besides having traced the facts of the case as put forth in the petition, would further submit that the petitioner is an `employee'' of the Corporation u/s 2(x) of the Arasu Rubber Corporation Limited Service Rules, which came into force only on 11.8.1988 (but, as could be seen from the Service Rules, they came into force on and from 1.10.1984 i.e. the date of inauguration of the Corporation) and no retrospective effect is given for the Rules and they are not to affect those who joined between 1.10.1984 and the date of approval that is 11.8.1988; that Rule 28 is not applicable to the petitioner since the petitioner is not categorised under Clerical or Managerial cadre; that the term `employee'' under the leave regulations, means a person employed by the Corporation whether permanent/temporary, but does not include a person who is employed on daily wages or on casual basis or on part-time basis; that the Rule 28 prescribing age of superannuation at 58 is not applicable to Watchers to which the petitioner belongs. At this juncture, the learned counsel would cite a judgment of the Apex Court delivered in DR.ASHOK KUMAR MAHESWARI vs. STATE OF U.P. AND ANOTHER reported in Dr. Ashok Kumar Maheshwari Vs. State of U.P. and Another, wherein it has been held:
"Even though the case would not fall within the terms of Section 115 of the Evidence Act, which enacts the rule of estoppel, it would still be open to a party who had acted on a representation made by the Government to claim that the Government should be bound to carry out the promise made by it even though the promise was not recorded in the form of a formal contract.
In order to invoke the doctrine of promissory estoppel it is not necessary for the promisee to show that he suffered detriment as a result of acting in reliance on the promise. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise."
The learned counsel for the petitioner would also submit that the principles of estoppel will apply to the case of the petitioner and would cite yet another judgment of the Apex Court delivered in Delhi Cloth and General Mills Ltd. Vs. Union of India (UOI), wherein it has been held:
"In the formative period, it was generally said that the doctrine of promissory estoppel cannot be invoked by the promisee unless he has suffered `detriment'' or `prejudice''. It was often said simply that the party asserting the estoppel must have been induced to act to his detriment. All that is now required is that the party asserting the estoppel must have acted upon the assurance given to him. Must have relied upon the representation made to him. It means the party has changed or altered the position by relying on the assurance or the representation. The alteration of position by the party is the only indispensable requirement of the doctrine. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel. The Court, however, would compel the opposite party to adhere to the representation acted upon or abstained from acting. The entire doctrine proceeds on the premise that it is reliance based and nothing more."
The learned counsel for the petitioner would further submit that even assuming that the Rule would operate, as per F.R.56, all the persons belonging to the basic service employees should retire only on completion of the age of 60 years and for all the others belonging to the cadre of Watchers in the sister departments, the age of retirement is only 60 years and therefore, for the respondent alone, it cannot be 58 years. On such arguments, the learned counsel for the petitioner would pray to allow the writ petition.
On the other hand, the learned Special Government Pleader appearing on behalf of the respondents would maintain that it is the Rule which is directly applicable not only to the petitioner but all who are employed under the respondents 2 and 3 and therefore for the petitioner alone a separate Rule cannot be adopted, however, the petitioner had retired and hence there is no question of continuity in service till the age of 60 years as it is prayed for in the writ petition and so far as the prayer of the writ petition is concerned, it has become infructuous and would pray to dismiss the above writ petition.
In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both, what could be assessed is that the petitioner having retired before completion of the age of 60 years on ground that Rule 28 of the service Rules of the Corporation limits the service of its employees at 58 years and that the petitioner''s case cannot be treated as an exception for the purpose of retirement and therefore arguing that the respondents have made him retire before completion of the age of 60, the petitioner has come forward to file this writ petition not only challenging the orders passed by the respondents but also seeking a direction to the respondents to permit him to continue in service till he attained the age of 60 years i.e. till 31.3.1999 and to reside in the quarters provided by the Corporation till then.
As on today, the prayer of the petitioner seeking direction to the respondents to permit him to continue in service till he attained the age of 60 years i.e. till 31.3.1999 and to reside in the quarters provided by the Corporation till then, by efflux of time during the pendency of this writ petition, has become infructuous and the same could not be implemented. Therefore, at least, for the retiral benefits, whether there is a strong case put up on the part of the petitioner for this Court to consider to the effect that he should be deemed to have retired on completion of the age of 60 years, is to be analysed and the conclusions arrived at.
The petitioner''s case is that as per F.R.56, for basic servants of his stature as Watcher in the Rubber Corporation and in many other Corporations of such nature, the retiring age is 60 and not 58 and therefore he should have been permitted to continue in service till completion of the age of 60 years by the respondents and in spite of having made proper representations to the said effect, no proper orders were passed allowing him to continue in service till he completed the age of 60 years and therefore he would not only seek for the quashing of the orders passed by the third respondent on 30.9.1997 and 13.3.1998 and the order passed by the second respondent on 6.1.1998, but also would seek the directions to the respondents permitting him to continue in service till he attained the age of 60 years. His further argument is that the Arasu Rubber Corporation service Rules are not applicable to him particularly Rule 28 which prescribes the retirement age as 58 and would cite F.R.56 whereunder the retirement age of an employee of his stature is fixed as 60 years.
These arguments would be very stoutly denied on the part of the respondents and they would lay emphasis on Rule 28 of the Arasu Rubber Corporation Limited Service Rules submitting that the same is only applicable to the Corporation employees and not any other Rule much less F.R.56 which is concerned only with the Government Servants and not for the Corporation wherein the petitioner was served.
On the part of the petitioner, their counsel would also cite a judgment of the Apex Court delivered in Delhi Cloth and General Mills Ltd. Vs. Union of India (UOI), : which is concerned with the doctrine of promissory estoppel wherein it is held that `it is not necessary to prove the damage, detriment or prejudice to the party asserting the estoppel''. However, the Apex Court held further that the `Court could compel the opposite party to adhere to the representation acted upon or abstained from acting since the entire doctrine proceeds on the premise that it is reliance based and nothing more''.
The above doctrine is put up in support of the case of the petitioner since the petitioner had been allowed to continue for six months over and above the age of 58, which came to a close on 31.3.1997, but, nevertheless the Corporation did not pass any order permitting him to retire, but allowed him still further and only later on 30.9.1997, informing that as per Rule 28 of the Arasu Rubber Corporation Limited Service Rules, the age of retirement of the Corporation employee is 58 years, the respondents issued a show-cause to the petitioner to show cause as to why the pay and allowances paid to him for six months after the date of his retirement should not be recovered from his gratuity and by another order, the petitioner was permitted to retire from service on that day itself and the petitioner was directed to vacate the quarters belonging to the Corporation occupied by him.
The respondents would submit that it was purely a mistake committed on the part of the Corporation clerical staff having not informed the respondents of the completion of the age of 58 years and action was taken against such employees. In these circumstances, the point for determination is `whether the petitioner should have been permitted to continue in office till he completed the age of 60 as claimed by him?''
It is relevant to note that though Rule 56 of the F.R. is relied on by the petitioner, no material has been placed before the Court for the Tamil Nadu Rubber Corporation having adopted the said Rule so as to be applied to its employees by Board''s resolution etc. Just for the simple reason that the petitioner had been falsely allowed to continue over and above the age of 58 years, which could be attributed for the carelessness of the clerical staff, whose duty it is to bring to the notice of the respondents, it cannot, in any manner, be said that the petitioner has been given the impression that he would be allowed to continue till he complete the age of 60 years so as to validly put up the doctrine of promissory estoppel as it had been propounded in the judgments cited above. Therefore, it could only be concluded that this doctrine cannot be applied to the case of the petitioner. On the contrary, it is only the Rule 28 of the Rules of the Corporation which is binding on its employees according to which like every employee, even the basic servants such as Watchers like the petitioner should retire on completition of the age of 58 years. So long as this Rule is in force, no doubt, it is only applicable to the Corporation Employees and it is relevant to note that the petitioner has not at all challenged this Rule so as to testify the validity of the same. Therefore, as against such existing Rule which still applies to all the employees irrespective of the cadre in all fours, no better order could be passed than those passed by the respondents 2 and 3 nor could the directions be given as sought for in the writ petition and hence it has to be concluded that the petitioner is not entitled to the reliefs sought for in the writ petition.
In result, the above writ petition fails and the same is dismissed.
However, in the circumstances of the case, there shall be no order as to costs.
Consequently, W.M.P.Nos.12181 and 12182 of 1998 are closed.