SHAIK AH Vs. COMMISSIONER M C HYD

JUDGEMENT

(1.) THE petitioner herein, who is employed as a Drainage Channel Inspector in the Municipal Corporation of Hyderabad, has filed this petition for the issue of a writ of certiorari and to quash the Memorandum No. 8790/Dr/A8/ 71/6873 dated 16-12-1971 issued from the office of the Executive Engineer. Drainage Division, Municipal Corporation of Hyderabad, retiring the petitioner from service with effect from 5-4-1972. He also seeks a further direction that he should be continued in service till he attains the age of 60 years. THE relevant facts are as follows : THE petitioner joined the service in the Drainage Department of the erstwhile Government of Hyderabad In the years 1954 the Drainage Department was abolished and the entire staff was made over to the Drainage Division of the Municipal Corporation of Hyderabad and ever since the petitioner has been working in the said Division as a Sluice Inspectoral the Drainage Disposal Works Amberpet. At the time of filing the writ petition he was working in the maintenance Section of the Drainage Division. THE petitioner states that by virtue of the provisions of section 140 of the Hyderabad Municipal Corporation Act, the Hyderabad Civil Service Rules for the time being in force relating to the appointment and conditions of service are applicable to the Municipal Service including the employees of the Drainage Division Under rule 231 of the Hyderabad Civil Service Rules hereinafter referred to as "the rules", a workman whether in superior service or in interior service, shall ordinarily be retained in service upto the age of 10 years THE "petitioner submits that the Drainage Division of the Corporation is an Industrial Establishment' that the petitioner is a' workman' emplayed in the said Industrial Establishment on a monthly rate of pay and that therefore he is entitled to continue in service upto the age of 60 years as per the said rule 231. In Memorandum No. 8790/Dr/A8/71/6863 dated 16-12-1971 the Executive Engineer. Drainage Division had given a notice to the petitioner that he was due to retire on 5-4-1972 on the attainment of the age of 5 years. THE petitioner made representations to the concerned authority of the corporation to continue him in service till he attains the age of 60 years and that he could not be retired at the age of 55 years; but no reply was received from the Corporation. He has there upon filed this writ petition for the reliefs mentioned above. THE Corporation has filed a counter-stating that the petitioner was employed in the Drainage Division. But it is stated that the drainage division is not 'an industrial Establishment', that the petitioner is not a 'workman', that he was unpointed as a Drainage Inspector and doing only supervisory work and not manual work and that therefore he would not be entitled to continue in service up to the age of 60 years. Sri Tej Rai Kapoor the learned counsel for the petitioner raised the following contentions:-

(2.) FROM the averments in the affidavit filed in support of the petition it is clear that the petitioner is performing not only supervisory duties, but. also manual duties. It can not be said that the duties performed by him are purely and exclusively of a supervisory nature. The counter affidavit does not disclose as to the nature of the staff employed to do the various types of dutis or mentioned in para 2 of the petition. In the counter affidavit is stated that the nature of duties of the Inspector in the Maintenance Section are: (1) to supervise the staff posted under him and to report any irregularities found to his immediate superior officer and (2) to maintain the work like the removal of silt clearing of drainage, sluice control, cleaning of drainage, sluice control, clnning of channels, controlling shutters, etc. At the same time it is stated that these are actually done by the labourers posted under the Inspector and the Inspector only supervises the work as per the Instructions of the higher officers. In the reply affidavit the petitioner states as follows: