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2022 Supreme(Bom) 922
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
Ravindra V. Ghuge, R. G. Avachat, Sandipkumar C. More, JJ.
Iftekharullah Baig s/o Saidullah Baig – Petitioner
Versus
The State of Maharashtra and ors. – Respondents
Writ Petition No. 5855, 8162, 7858, 7933, 7960, 9208 of 2019 & 8799 of 2012
Decided On : 26-09-2022
Advocate Appeared:
Shri R.S. Deshmukh, Senior Advocate a/w Shri Govind Kulkarni and Shri D.R. Deshmukh i/by Shri Kazi S.S. and Shri Kunal Kale
For the Respondent:Shri P.S. Patil, AGP, Shri V.J. Dixit, Senior Advocate h/f Shri Y.B. Pathan, Advocate
The service conditions applicable to the employees under the Rules and Regulations existing on the date of appointment cannot be altered to their prejudice.
Headnote:
Wakf Act - Retirement Age - 1954 Act, 1964 Regulations - [REGULATIONS 19(1)(d), 2017 RULE 46] - The court addressed the issue of retirement age for employees of the Maharashtra Wakf Board. The 1964 Regulations prescribed a retirement age of 60 years, while the 2017 Regulations reduced it to 58 years. The court held that the draft regulations could not be enforced without approval and that the retirement age applicable at the time of joining duties cannot be altered to the employees' prejudice. The court concluded that the 1964 Regulations were still in force until the 2017 Regulations were introduced, and the service conditions could not be altered to the employees' detriment.
Fact of the Case:
The petitioners, appointed under the Wakf Act, were issued notices of retirement at the age of 58, despite the 1964 Regulations prescribing a retirement age of 60. The Division Bench noted divergent views and referred the matter to the Full Bench to decide the issue.
Finding of the Court:
The court found that the draft regulations could not be enforced without approval and that the retirement age applicable at the time of joining duties cannot be altered to the employees' prejudice. The court concluded that the 1964 Regulations were still in force until the 2017 Regulations were introduced, and the service conditions could not be altered to the employees' detriment.
Issues: The issues addressed were whether the draft regulations could be enforced without approval and whether the retirement age applicable at the time of joining duties can be altered to the employees' prejudice.
Ratio Decidendi: The court held that the draft regulations could not be enforced without approval and that the retirement age applicable at the time of joining duties cannot be altered to the employees' prejudice. The court concluded that the 1964 Regulations were still in force until the 2017 Regulations were introduced, and the service conditions could not be altered to the employees' detriment.
Final Decision: The court directed the petitions to be placed before the learned Bench as per the roster assignment.
JUDGMENT :
Ravindra V. Ghuge, J.
1. All these petitioners are identically placed. Each of them has been appointed under the Wakf Act, 1954 and the Marathwada Wakf Board Regulations, 1964. Some of the petitioners were/are Clerk-cum-Typist, some of them were/are Drivers and some of them were/are Class-IV employees.
2. Each of these petitioners has been issued with a notice of retirement at the verge of completing 58 years of age and, consequentially, each one of them has been superannuated at the age of 58 years.
3. On 04.12.2019, the Division Bench has passed the following order:-
“In all these writ petitions the contention of the petitioners is that, the age of retirement of the employees of the Maharashtra Wakf Board is 60 years.
2. The Wakf board has placed reliance upon the Maharashtra State Board of Wakf (Recruitment and Regulations) 2017 and more particularly Rule 46 of the Said regulations to contend that the age of retirement of employees of the Wakf Board is 58 years.
3. According to the petitioners, all these petitioners are appointed prior to 2005 that is even prior to the draft rules framed. At the time of their appointments, the age of retirement was 60 years and they would be governed by the recruitment rules and practice as prevailing on the date of their appointments.
4. The petitioners have placed reliance upon the judgment and order dated 18th April, 2019 in Writ Petition No. 5307 of 2018 delivered at Aurangabad and the judgment dated 29.11.2013 in Writ Petition No. 4157 of 2013 delivered at Nagpur. The Wakf Board relies on the judgment dated 06th March, 2018 in Writ Petition No. 1654 of 2006 delivered at Aurangabad, in which the Division Bench of this Court has held that, the age of retirement would be 58 years, whereas in the judgments relied by the learned counsel for the petitioners, the Court came to the conclusion that, the age of retirement would be 60 years that age of retirement is prescribed at the time of entry in service.
5. It appears that coordinate Benches of this Court have taken divergent views.
6. In the light of that, it would be appropriate that the Larger Bench decides this issue.
7. Place the matters before the Hon’ble the Chief Justice for referring the matters to the Larger Bench as prescribed in Chapter VII Rule 1 of the Bombay High Court Appellate Side Rules.
8. Interim orders passed earlier to continue till then.”
4. For the sake of clarity, a ready reference chart indicating the dates of appointment of these petitioners, their designation and their dates of retirement, is as under:-
| Sr. No. | Name of Petitioner | Designation (Appointed as) | Date of Appointment | Date of Retirement (On completion of 58 years) |
| 1. | Iftekharullah Baig s/o Saidullah Baig | Clerk-cum-Typist | 15.12.1986 | 31.05.2019 |
| 2. | Mustafa Khan Fazal Mohammad Khan | Driver | -- | 31.05.2012 |
| 3. | Aziz Ahmed Siraj Ahmed | Clerk | 04.05.1984 | 30.06.2019 |
| 4. | Mohammad Ayyub Khan s/o Mohammad Ali Khan | Clerk | 12.08.1985 | 31.01.2019 |
| 5. | Siddi Anwar Husain s/o Siddi Mahemood Husain | Clerk | 1982 | 30.06.2019 |
| 6. | Shaikh Jilani s/o Shaikh Rasool | Clerk | 1982 | 30.06.2019 |
| 7. | Quazi Mohammad Misbahuddin s/o Mohammad Isaaq | Junior Clerk | 22.09.1986 | -- |
5. In Writ Petition No.8799/2012, the Division Bench had passed the following order on 17.11.2017:-
“1 On 01.03.2017 after hearing the learned Advocates for the respective sides, this Court has passed the following order:-
"1) Heard both the sides for some time.
2) It appears that in view of the provision of Section 110 (2)(e) read with Section 24(2) of the Wakf Act, 1995, Rules were framed governing the service conditions of the employees of the Wakf Board and they were submitted to the State Government for sanction. It further appears that in the past the Rules so framed were returned back by pointing out some deficiencies.
3) The learned Couns
