VALIBEN JETHABHAI BHANJI VS. PATAN MUNICIPALITY

( 1 ) IN the present petition, the petitioner, an employee of respondent Patan Municipality has challenged the notice/order dated 28. 11. 2005 by which the petitioner is ordered to be prematurely retired with effect from 28. 2. 2006.

( 2 ) ON 28th February,2006 when this petition came up for preliminary hearing, this Court passed the following order:"1]. Draft amendment allowed. 2]. In the present petition, the petitioner has challenged an order/notice dated 28-11-2005 by which it is conveyed to the petitioner by the employer that her service will stand terminated on 28-02-2006 after office hours. This order has been passed by which the petitioner is compulsorily retired upon reaching the age of 55 years. 3]. The petitioner has challenged the validity of rule permitting the employer to resorting to compulsory retirement. Prima facie, I find that there is no substance to the said challenge. Similar rules contained in various services including one governing the employees of the central Government contained in Fundamental rule 56-J have been upheld by the Hon ble Supreme Court way back in the year 1954 and this view has been reiterated many times thereafter. 4]. The petitioner has however, through the draft amendment stated before this Court that since her engagement as Sweeper on 01-09-1974, she has been working honestly and sincerely and that no adverse remarks have been communicated to her at any point of time nor has she received any show cause notice nor any departmental inquiry initiated against her. It is thus the case of the petitioner that she has an unblemished service record. In view of the averments made in the draft amendment, issue notice returnable on 14th March, 2006. 5]. So far as interim relief is concerned, it may be noted that the impugned order is passed on 28-11-2005. The present petition is filed on 24-02-2006 and moved for the first time on 27-02-2006. This leaves virtually no time for the Court to issue notice to the other side and grant them hearing why the interim relief should not be granted. The learned advocate is unable to explain why the petition was not filed and moved earlier. I carry an impression that it is not the fault of the petitioner but a clear error on the part of the petitioner s advocate in not moving the petition earlier. Despite the creation of the unfortunate situation by the advocate of the petitioner, I cannot deny the relief to the petitioner which would ultimately hurt the petitioner and not her advocate. 6]. On the basis of averments made in the draft amendment reproduced here-in-above, considering the fact that the petitioner is engaged as Safai Kamdar, I find that the impugned notice/order of her termination is required to be stayed at-least till the next date of hearing. Therefore, by way of ad interim relief, it is directed that impugned order dated 28-11-2005 shall stand stayed till 14-03-2006. Direct service is permitted today. "the above interim order continued from time to time and the petitioner was protected from termination of service.

( 3 ) AT the request and with the consent of the learned advocates appearing for the parties, the petition has been taken up for final disposal at the admission stage.

( 4 ) BEFORE adverting to the legal controversies arising, short facts need to be noted.

( 5 ) THE petitioner was appointed as Sweeper by the respondent Municipality on 1. 9. 74. Since then she has been discharging her duties on regular establishment. The case of the petitioner is that her service is satisfactory and that there has been no complaint about her performance of duties. Despite this, respondent has issued the impugned notice dated 28. 11. 2005 requiring the petitioner to retire from service with effect from 28. 2. 2006. The notice itself records that the petitioner having completed the age of 55 years on 15. 12. 2005, the said notice is issued against her terminating her service from 28. 2. 2006 upon completion

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