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2021 Supreme(Mad) 1903
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Anita Sumanth, J.
C. Ponnusamy & Another – Petitioners
Versus
The Commissioner, Salem Corporation, Salem & Others – Respondents
W.P. No. 14561 & 14562 of 2009
Decided On : 22-09-2021
Advocate Appeared:
For the Petitioner:M. Ravi, Advocate.
For the Respondent:G. Sankaran, Standing Counsel, C. Selvaraj, Government Advocate.
Headnote:
Constitution of India,1950 - Article 226 - Appointed as Road Gang Mazdoors - Premature retirement - Challenged - Petitioners were appointed as Road Gang Mazdoors in Municipal Administration and Water Supply Department - Post was later re-designated as Road Maintenance Worker - Petitioners challenge orders issued by R3 to effect that they would be retired from service upon their attaining the age of 55 years - Petitioners would contend that their retirement age as basic servants is 60 years, in accordance with Fundamental Rules of Tamil Nadu Government (FR) - They are aggrieved by act of respondents imposing premature retirement upon them - Municipal Corporation had, on instructions from Government, retired employees on Non Muster Rolls (NMRs) at the age of 58 years - In V.Krishnamurthy's case, Court categorically held that Instructions obtained from State could hardly override Fundamental Rules, specifically FR 56, in terms of which the retirement age of Basic Servants would be 60 years. Any instructions/order contrary to FR would not be liable to be accepted or applied – Held, Besides, under similar circumstances, Hon'ble First Bench of Court, in M.P.No. in W.A.No. has only passed an order that in event of success of writ petitioner therein, he is entitled to monetary benefits and in event of his failure, wages paid for period he has worked should not be recovered - Aforesaid order dated stands complied as confirmed by learned counsel for petitioner - However, petitioners have been unfairly forced into premature retirement consequently losing benefit of employment with connected monetary benefits - Corporation is bound to compensate petitioners for same - Let benefits due to petitioners for remaining period of employment that they would have been entitled to, had they not been forcibly retired, be computed and paid over, deeming petitioners to have been in service for period as computed aforesaid, within a period of four weeks from date of uploading of this order - Writ petitions are allowed.
JUDGMENT :
(Prayer in WP.No.14561 of 2009: Writ Petition filed under Article 226 of the Constitution of India praying to Writ of Certiorarified Mandamus calling for orders (1) Na.Ka.No.L7/265/09 dated 09.02.2009 of the fourth respondent and (2) Na.Ka.No.L7/265/2009 dated 31.07.2009 of the first respondent quash the same and to direct the respondents to allow the petitioner to continue to serve in his post in the Salem Corporation till he attains the age of sixty years and to retire him from service only on his attaining the age of sixty years with all consequential service and monetary benefits as such grant declaration that the petitioner's retirement shall be on attaining the age of sixty years.
WP.No.14561 of 2009: Writ Petition filed under Article 226 of the Constitution of India praying to Writ of Certiorarified Mandamus calling for orders (1) Na.Ka.No.L7/266/09 dated 09.02.2009 of the fourth respondent and (2) Na.Ka.No.L7/266/2009 dated 31.07.2009 of the first respondent quash the same and to direct the respondents to allow the petitioner to continue to serve in his post in the Salem Corporation till he attains the age of sixty years and to retire him from service only on his attaining the age of sixty years with all consequential service and monetary benefits as such grant declaration that the petitioner's retirement shall be on attaining the age of sixty years.)
1. These petitioners were appointed as Road Gang Mazdoors in the Municipal Administration and Water Supply Department in 1976. The post was later re-designated as Road Maintenance Worker. The petitioners challenge orders issued by R3 to the effect that they would be retired from service on 31.07.2009, upon their attaining the age of 55 years. The petitioners would contend that their retirement age as basic servants is 60 years, in accordance with the Fundamental Rules of the Tamil Nadu Government (FR). They are aggrieved by the act of the respondents imposing premature retirement upon them.
2. This issue is covered by earlier decisions of this Court in the case of V.Krishnamurthy Vs. The Commissioner of Municipal Administration (W.P.No.7485 of 2009), order dated 18.08.2009, wherein this Court considered the case of a Mazdoor working in the Salem City Municipal Corporation. Reference was made therein to a case decided in Madurai in re. T.Pandaram (W.P.(Md).No.1771 of 2007) wherein a learned Single Judge, by order dated 19.04.2007, accepted the contention of that petitioner to the effect that the age limit fixed for one cadre of basic employees in the Government will be equally applicable for others who are performing similar/identical work.
3. Both in the cases of T.Pandaram as well as V.Krishnamurthy, the Municipal Corporation had, on instructions from the Government, retired employees on Non Muster Rolls (NMRs) at the age of 58 years. In V.Krishnamurthy's case, this Court categorically held that Instructions obtained from the State could hardly override the Fundamental Rules, specifically FR 56, in terms of which the retirement age of Basic Servants would be 60 years. Any instructions/order contrary to the FR would not be liable to be accepted or applied.
4. At para 4, the Bench states in V.Krishnamurthy's case, also relying upon the earlier decision in the case of T.Pandaram, as follows:
'4. Admittedly, the NMRs working in Municipal Corporations are in the cadre of basic servants. As per FR 56, the retirement age of basic servants is admittedly 60 yers. Therefore, there can be no doubt that the petitioner's retirement age must only be 60 years. But, the only contention raised in the additional counter affidavit by the 2nd respondent is that the Government has directed the Corporations to retire the NMRs at the age of 58 years and that is the reason why the petitioner has to retire in the age 58 years. In my considered opinion, the said Government Order, which is only an administrative instruction cannot override the statutory rule (i.e.) FR 56. Therefore, the 2nd re
