V.K. Judah vs Christian Medical College, Ludhiana Society (Regd.) and Others

Jawahar Lal Gupta, J.—The petitioner joined service as a Senior Clerk with the Christian medical College, Ludhiana Society on April 1, 1967. Vide letter dated June 5, 1997, a copy of which has been produced as Annexure P.3 with the writ petition, the petitioner was informed that he will attain the "superannuation age on the close of work on 8.8.1997". He was informed that he would superannuate on the aforesaid date. The petitioner sent a notice dated June 16, 1997 to the respondents claiming that he was entitled to continue in service upto the age of 65 years and that he could not be retired at the age of 60 years, Vide letter dated July 12, 1997, he was informed that "the retirement age for all staff members both male and female is fixed as 60 years as per the Government Body Minute No. 1545/93....." Accordingly, the petitioner was informed that he had been validly retired. It is in this situation that the petitioner has filed the present writ petition.

The solitary contention raised by Mr. B.N. Sehgal is that the age of retirement which had been prescribed on the date of the petitioner''s appointment in service could not have been subsequently reduced. Consequently, the action of the respondents in retiring the petitioner at the age of 60 years cannot be sustained. It is so ?

It is admitted that the respondents have framed Service Regulations. It also appears from the petition that the age of retirement is prescribed in Regulation 29. The relevant portion (as originally enacted) read as under :-

"29. Retirement;

(i) All staff members shall retire on attaining the following ages of retirement;

Men Women Group I 65 Year 60 Years Group II 65 Year 60 Years Group III 60 Year 55 Years. It was further provided that any staff member found to be incapable of carrying out his duties could be retired prematurely. With effect from June 1, 1978, this Regulation was amended to inter alia provide as under :-

"29. Retirement;

(i) Retirement age for all staff members both male and female shall be uniform at age 60 with effect from 1st July, 1978. Group II male staff members who are already in employment and who in the ordinary course of events would retire at the age of 65 years will continue to do so."

Thereafter, according to the petitioner, this Regulation was amended in October, 1993 to provide as under:-

"The retirement age for all the staff members, both male and female, shall be uniform at age 65 years with effect from October 9, 1993."

The amended provision was circulated amongst the employees vide letter dated October 9, 1993. A copy of this letter has been produced by the petitioner with the writ petition as Annexure P.2. It is in pursuance of the above provision that the petitioner was ordered to be retired on his attaining the age of 60 years w.e.f. August 8,1997.

Fixation of an age for retirement is a common feature of all Services in our country. It is calculated to ensure that the employee is given a chance to serve till he can work efficiently. Equally, the employer should be able to utilise the services of an experienced employee. At the same time, it has to be ensured that there is no stagnation at different levels in the Service. Consequently, an age for retirement is prescribed with the object to counter-Balancing conflicting interests and claims. In case of civil servants, the age of retirement has been fixed at 58 years with a provisions that the employee can be retired even at the age of 50 years or thereafter. In case of certain other Services, even higher age of retirement has been fixed. What should be the age ? It is a question of policy. It is for the employer to decide. It is not for the Courts to fix it. The Court can intervene only when it is shown that the age has been arbitrarily fixed. It is unreasonable. It does not provide a sufficient tenure of service. Otherwise, the occasion for court''s interference does not arise.

It is true that in the present case, the employer had initially provided that the employees like the petitioner shall be entitled to continue in service upto the age of! 65 years. Subsequently, the age of retirement was reduced. However, in respect of persons who had joined Group-II Service prior to June 1, 1978, no change was; made. Later on, in the year 1993, even this provision was altered. A Uniform age has! been prescribed. It is not unreasonable. It is not arbitrary. It ensures a sufficiently'' long tenure. Thus, it cannot be said that the action is violative of the provisions of" Article 14 of the Constitution.

It can''t be disputed that an employer has the right to fix the age of retirement. This power includes within its fold the discretion to revise the age already fixed. There can be an upward or a downward revision. No employee can claim a vested right to continue in service till he attains the age which had been prescribed at the time of his entry into service. If such a course were permitted, different employees would be retiring at different ages. Similarly, if the age of retirement fixed in case of a civil servant can be varied from time to time even after he has joined service, there appears to be no reason to hold that an employee working in a Medical College which is affiliated to a University has a right to continue in service till he attains the age which was fixed for superannuation at the time of his joining. Mr. Sehgal could not support his claim on the basis of either any principle of law Or any precedent.

Learned counsel for the petitioner referred to the decision of their Lordships of the Supreme Court in Miss Raj Soni v. Air Officer Incharge Administration and Anr. 1990(2) R.S.J. 172 to contend that the petitioner has a right to continue in service till the age of 65 years. In this case, the petitioner was enforcing her right under a statutory rule which prescribed the age of retirement. Rule 110 inter alia provided that except where an existing employee is entitled to have a higher age of retirement, every employee of a recognised private school, whether aided or not shall hold office until he attains the age of 58 years. The petitioner Raj Soni was an existing employee. It was found by their Lordships that "prior to the coming into force of the Act and the Rules, the management was following the Delhi Education Code which provided 60 years as the age of superannuation and as such under Rule 110 of the Rules the petitioner has a statutory right to continue upto the age of 60 years. In the present case, no statutory provision protects the petitioner''s claim for continuance in service upto 65 years. Consequently, he can derive no advantage from the decision in this case.

Mr. Sehgal also referred to the decision of the Supreme Court in S.P. Dubey v. M.P.S.R.T. Corpn. and Anr. 1990(6) S.L.R. 24. In this case, Dubey had joined service as a clerk with a Transport Company in the year 1947. The Board of Directors of the Company had fixed the age of superannuation as 60 years. By a notification dated August 31, 1955, the Company was taken over by the State of Madhya Pradesh. In the notification, it was inter alia provided that the conditions of service of the existing employees would not be adversely affected. On this basis, Dubey questioned the order by which he had been retired at the age of 58 years. He claimed a right to continue in service till the age of 60 years. Their Lordships held in Para 9 that the, persons who were serving with the company were taken into Government service with a specific assurance that their conditions of service were not to be adversely affected. When the State Government takes over a private company and gives an assurance of the type it is but fair that the State Government should honour the same. Thus, the State Service rules which fixed the age of superannuation at 58 years could not be made applicable to the appellant...." Consequently, the claim of the employee was accepted. Such is not the situation in the present case.

Mr. Sehgal contended that CWP No. 15423 of 1993 involving a similar issue had already been admitted and the operation of the order of retirement had been stayed. Mere admission of a writ petition does not constitute a binding precedent. We were not inclined to follow the course of admitting the writ petition and staying the order of retirement for it would have resulted in suspending the operation of a rule.

The right of an employer to vary the age of retirement has been considered by the Apex Court. In K. Nagaraj and Others Vs. State of Andhra Pradesh and Another, , the action of the State Government in reducing the age of retirement from 58 years to 55 years was held to be in conformity with law. The rights pf an employee in a private medical college which is merely affiliated to a University are not at a higher pedestal than those of a civil servant who enjoys constitutional protection. Still further, the petitioner has not been even able to show that he had any contractual right.

No other point had been raised.

In view of the above, no ground for interference is made but. The writ petition is, accordingly, dismissed in limine.