High Court
Case Details
MC 1503/2013 ‘BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN This is an application by the petitioner renewing the prayer for passing interim order.
Legal Reasoning
Petitioner was an Associate Professor of Indian Institute of Bank Manage ment (IIBM), Guwahati. In the writ petition, she has challenged communication da ted 23.11.2012 issued by the Chief Administrative Officer, IIBM informing her th at she would be retiring at the close of business on 31.12.2012 in terms of Serv ice Rule 21. According to the petitioner, she has been punitively retired at the age of 60 years whereas the retirement age is 62 years in which case she contin ues in service till 31.12.2014.
Decision
On 20.12.2012, the writ petition was admitted for hearing. The Court had passed the following interim order:- (cid:28)It appears from the IIBM Staff Service Rules that Rule 29 provides for retirement of an employee, initially on attaining the age of 60 years or on comp letion of 33 years of service, whichever is earlier, which, however, was subsequ ently extended to 62 years. The Indian Institute of Bank Management thereafter a mended the said Service Rules by insertion of Rule 29A which provides for retire ment review and compulsory retirement as a sequel to retirement review to weed o ut the inefficient, negligent and non compliant employees from IIBM. It appears from the impugned order dated 23.11.2012, that the petitioner has been informed that she will retire from service on the close of business on 31.12.2012 in terms of the IIBM Service Rule 29, the relevant portion of which is quoted below:- ’Ms J.Devi, Associate Professor, Indian Institute of Bank Management, Guwahati-781022. 23rd November,2012 Madam, RETIREMENT FROM THE SERVICES OF IIBM We would like to inform you that you will be retiring at the close of bu siness of 31st December, 2012 in terms of the Institute’s staff Service Rules 29 . Accordingly, you may submit the required forms duly filled in time for early s ettlement of your post retirement claims. In this regard, we enclose certain forms pertaining to release of PF and Gratuity (LIC) for your use. Yours faithfully, (Sanjiv Sinha) Chief Administrative Officer’ As noticed above, in view of Rule 29 an employee has to retire from serv ice at the age of 62 years or on completion of 33 years of service, whichever is earlier. The date of birth of the petitioner being 1.1.1953 she will attain the a ge of superannuation on 31.12.2014 on which date she will attain 62 years of age . The petitioner on 31.12.2012 would also not complete 33 years of service she h aving been appointed on 23.9.1985. Hence, prima facie, the petitioner could not be made to retire on 31.12.2012 under Rule 29 and the impugned order does not re flect retiring of the petitioner by invoking the newly inserted Rule 29A. In view of the above, I am of the view that an interim order is called a nd hence till the next date fixed the operation of the impugned order dated 23.1 1.2012 issued by the Chief Administrative Officer shall remain suspended (cid:29). On an application filed by the IIBM for vacation/modification of the abo ve interim order dated 20.12.2012, which was registered as Misc. case No. 3/2013 , this Court vacated the interim order. The relevant portion of order dated 11.1 .2013 reads as under:- (cid:28)The applicant, Indian Institute of Bank Management (IIBM), by the prese nt application is seeking vacation and/or modification of the interim order date d 20th December, 2012 passed in WP(C) No. 6277/2012, whereby and whereunder the order dated 23rd November, 2012 issued by the Chief Administrative Officer intim ating the petitioner that she will retire from service on the close of the busin ess on 31st December, 2012, has been stayed, on the basis of the submission that the retirement age of the employee of the IIBM, under the provisions of the rec ruitment Rules is 62 (sixty two) years. The applicant on oath has stated that though the retirement age of the s taff of NIBM is 62 (sixty two) years, the retirement age of the staff of IIBM ha s not been enhanced from 60(sixty) to 62(sixty two) years. It also appears from the document annexed as Annexure-12 to the affidavit-in-opposition filed by the writ petitioner in the Misc. Case that the writ petitioner would retire from ser vice on 31st December, 2012, her case, however, was recommended for extension. The writ petitioner though claimed that the retirement age of the staff of IIBM was extended to 62(sixty two) years, nothing, however, could be placed b efore the Court to substantiate such claim and, on the other hand, the IIBM has stated on oath that the retirement age of its staff is 60(sixty) years, which th e petitioner has admittedly attained on 31st December, 2012. That being the position, the interim order dated 20th December, 2012 sta nds vacated (cid:29). However, the Court while vacating the interim order, granted liberty to the petitioner to file appropriate application during the pendency of the writ p etition if she could produce any proof relating to enhancement of the age of ret irement of the staff of IIBM. Following the aforesaid order, petitioner had filed an application for a mendment of the writ petition, which was granted. Thereafter, the present misc. case has been filed seeking reconsideration of the interim prayer. Mr. Choudhury, learned senior counsel appearing for the petitioner submi ts that following the recommendation of the 5th and 6th Central Pay Commissions, National Institute of Bank Management (NIBM), Pune has revised the pay scale as well as enhanced the service tenure of its staff and faculty. In the last decad e or so a number of faculty members at NIBM had retired at the age of 62 years i nstead of 60 years. He also submits that the decision of NIBM is followed by the IIBM. He submits that petitioner has been given house furnishing loan and festi val advance in the year 2011 and as per the relevant rules governing loans to st aff and faculty, such loans are disbursed provided that the employee has about 6 years to retire in service. He has also referred to petitioner’s leave statemen t marked as Annexure 2 to the writ petition to contend that her superannuation d ate could not have been 31.12.2012. Opposing the above submission of Mr. Choudhury, learned senior counsel f or the petitioner, Mr. K.K. Mahanta, learned senior counsel appearing for the re spondents submits that the Court had duly considered the matter and, thereafter, had vacated the interim order passed earlier. No case has been made out for pas sing of stay order afresh. He also submits that the question whether IIBM is a (cid:28) State (cid:29) within the meaning of Article 12 of the Constitution of India is yet to b e gone into by the Court and, therefore, at this stage it would not be proper to once again pass the stay order after it was vacated earlier. Referring to Rule 29 of the IIBM Service Rules, he submits that the retirement age of an employee of IIBM is 60 years or on completion of 33 years of service, whichever is earlie r. IIBM is not bound by the decision of NIBM. Having regard to the submissions made and considering the fact that this Court had earlier considered the matter at length while vacating the stay order , I am of the view that at this stage, granting stay order afresh would not be j ustified. Since petitioner has already been retired from service w.e.f. 31.12.20 12, it would amount to putting her back in service. Considering all aspects of the matter, I am of the view that it would me et the ends of justice if the main case itself is finally heard. Naturally, reti rement of the petitioner would be subject to the outcome of the writ petition. Accordingly, let WP(C) No. 6277/2012 be listed for hearing in the Part-I list on 16.9.2013. Misc. case is disposed of.