NITAY CHANDRA KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER is an employee of Bihar Police Building Construction Corporation. He has been made to retire on reaching the age of 58 years on 31.12.2005. His contention is that this is an arbitrary decision which has been taken by the respondents for more than one reason. First contention of the counsel for the petitioner is that vide resolution dated 16.10.1974 when the Corporation came into existence Board of Directors had resolved that till their own rules are formulated and framed by the Corporation, the various codes and the service rules of the State of Bihar shall be applicable to the employees of the Corporation. Since the Corporation has neither formulated its rule thereafter nor has this resolution been annulled in any manner, the employees of the Corporation are being governed by the Bihar Service Code and other allied rules in this regard. There does not seem to be much of a difference between the employees of the Corporation and the State Government in application of the rules to them. By way of policy decision vide a notification issued on 24.3.2005 a decision was taken to enhance the age of retirement of the employees of the State Government from 58 years to 60 years. This was brought into effect immediately. This notification issued in the name of the Governor also states that a corresponding amendment to Rule 73 of the Bihar Service Code will follow. The corresponding amendment to Rule 73 thereafter was issued on 29.3.2006. This being the position there was no occasion for the respondents to retire the petitioner at the age of 58 years.

(2.) AFFIDAVITS in opposition have been filed on behalf of the respondents. They do not deny that the resolution in question was taken way back in 1974 adopting the service rules and conditions in so far as the employees of the Corporation are concerned. But they state that the amendment to Rule 73 has only come into effect from 29.3.2006 and the petitioner had already retired on 31.12.2005. If the benefit of the amended rule is to accrue to the petitioner then it shall accrue from the date of amendment brought to the rule and not prior to the same. They also state in the counter affidavit that the Board of Directors have expressed their reservation in extending the age of retirement of the employees of the Corporation keeping in mind their precarious financial conditions and over -staffing prevalent under them.

(3.) IN so far as the first submission of the counsel appearing on behalf of the respondents with regard to amendment to Rule 73 and its applicability is concerned, the Court records that the notification issued by the State of Bihar while exercising its executive powers was issued on 24.3.2005. This notification was made applicable immediately from the date of the said notification. The notification also talks in terms of bringing about a corresponding change in Rule 73 subsequently. The notification therefore has already created a right in favour of the employees and it had taken effect from 24.3.2005 itself. If a corresponding amendment to Rule 73 came out to be issued on 29.3.2006 then the notification dated 24.3.2005 shall continue to occupy the field till the amendment was brought about to Rule 73. If such an interpretation and reading is not given to the said notification then an anomalous situation could arise with regard to such employees who have been allowed to continue in service based on notification dated 24.3.2005 though the actual amendment to the rule has come into effect on 29.3.2006. That was not the object and purpose of the notification which was brought about by the State Government on 24.3.2005. The object and the purpose of the notification dated 24.3.2005 has been formulized by bringing an amendment in Rule 73 of Bihar Service Code subsequently.