INDUBEN RAMJIBHAI MALAVIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THESE appeals under section 100 of the Code of Civil Procedure are filed by original plaintiffs. They filed suits seeking declaration that they being employees of the erstwhile Junagadh State, they could not be retired at the age of 58 years but would be entitled to continue in service till 60 years of age as they would continue to be governed by the rules of erstwhile Junagadh State even after its merger into Saurashtra State which merged into bilingual State of Bombay and then Gujarat State on bifurcation from Bombay State.

(2.) THE appellant of Second Appeal No. 86 of 1997 had filed Regular Civil Suit No. 700 of 1985 and his case in the suit is that he was initially appointed by the Revenue Commissioner vide order dated 10.2.1948 as writer clerk in the erstwhile Junagadh State, that the Junagadh State merged into Saurashtra State and thereafter in Bombay State and then, the State of Bombay was bifurcated and State of Gujarat came into existence with effect from 1.5.1960 and the services of the plaintiff came to be allocated to the newly formed State of Gujarat. During the regime of the Junagadh State, the Junagadh State had framed State Account Code and as per Clause 241-A(13) of the said Code, the superannuation age was provided at the age of 60 years, that the said Rules of Junagadh State were still applicable to the plaintiff and, therefore the plaintiff was to retire at the age of 60 years i.e. 31.10.1986, that the Collector Junagadh passed order dated 30.9.1983 to retire the plaintiff with effect from 31.10.1984 on plaintiff's completing the age of 58 years as on 9.10.1984, that as per the agreement with the Covenanting State, the service condition of the plaintiff were protected till the age of 60 years and that rule 161 of the BCSRs which provided retirement at 58 years was against the provisions of Article 311(2) of the Constitution of India. That as per Section 115(7) of the State Reorganization Act, 1956, such rules could not be framed to the disadvantage of the plaintiff and, therefore, the suit was filed by the plaintiff.

(3.) THE suit was resisted by the State Authority stating that the Civil Court had no jurisdiction to entertain the suit; that the appellant had opted for pension rules of the merged State; that as per the provisions of section 161(1)(c) of the Bombay Civil Service Rules, the appellant being class III employee was liable to retire compulsorily at the age of 58 years, therefore, order dated 10.10.85 was passed to retire the appellant at the age of 58 years; that the appellant was bound by the option exercised by him to be governed by the rules of merged State; that the order retiring the appellant compulsorily at the age of 58 years was not in contravention of the constitutional provisions and there is no breach of any fundamental right of the appellant.