MOHD IQBAL Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioners were the employees of the Department of Industries and Commerce working in Sericulture Development Department, Srinagar. Petitioner No. 1 was working as Havaldar and the other petitioners were working as sentries. The case of the petitioners is that in terms of Article 226 of the Jammu and Kashmir Civil Service Rules read with Schedule II they were due to retire on attaining the age of 60 years. The petitioners after having completed 55 years did put in further period of service and have also been paid for that period. The period of service spent even after attaining the age of 55 years by the various petitioners has been shown in para No. 5 of the petition. According to the petitioners because they were allowed to continue to work even after the age of 55 years, they would be deemed to have been included in Schedule II. But suddenly the petitioners were retired by an order dated 17.7.1978. According to petitioners the order of retirement is against the principles of natural justice and the order clearly discriminates the petitioners from other persons who have been retired at the age of 60 years. Those persons also did not fall within the schedule II of Article 226 CSR. The petitioners claim on the basis of promissory estoppel that because they were allowed to continue to work even after attaining the age of 55 years they could not be retired before attaining the age of 60 years as was done in the case of other employees and on this basis a writ of Certiorari as also of Mandamus is sought.

(2.) IN the reply affidavit sworn in by Mohamad Muzaffar Azim Director Sericulture Department, it is affirmed that the petitioners were the employees of the Sericulture Department but they do not at all stand classified in Schedule II of Art. 226 CSR. The posts held by the petitioner were not menial posts but superior posts and, therefore, they were due to be retired at the age of 55 years. Because of the mistake committed by an official inadvertently, they were retained !n service even after the age of 55 years but that would not clothe the petitioner with the right to hold the posts after the age of superannuation. The petitioners are liable to be retired atonce on attaining the age of 55 years. They over -stayed due to the fact that the department could not detect it earlier. Immediately after becoming conscious about it, the department took action and informed the petitioners in this behalf. As the petitioners were not declared to be in inferior service so as to bring their case within Schedule II, therefore, they have got no locus standi to maintain the petition. No principles of natural justice are involved in the case and no question of promissory estoppel arises.

(3.) THE short question to be decided in this petition is whether the petitioners have any right to maintain the petition, It is admitted before me that the petitioners do not belong to inferior service so as to be governed by Schedule II of Art. 226 CSR. It is only in the case of menial staff that the ripe nf superannuation in their case is 60 years. It is conceded by the learned counsel for the petitioners that .Schedule II will not apply to the case of the petitioners but an argument is made that because the petitioners were allowed to continue to work even after attaining the age of 55 years, therefore, by virtue of promissory estoppel the respondent is barred from retiring the petitioners till they attain the age of 60 years. The argument is to be stated only to be rejected. Art. 226 CSR clearly provides that a Government servant is to retire on attaining the age of 55 years but he may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds which must be recorded in writing, but he is not to be retained after the age of 60 years. This art. envisaged that for retaining a Government servant even after the age of 55 years, there must be an order of the Government and that order must proceed on public grounds. If these two requirements are not fulfilled, the Government servant cannot be retrained in service and has to retire after attaining the age of 55 years.