Jongong Taijong and Another Vs State of Arunachal Pradesh and Others

B.D. Agarwal, J.@mdashBoth the writ petitions are being disposed of by this common judgment since the writ petitions involve a common question of law.

2. Both the writ Petitioners are praying for a writ in the nature of mandamus so as to direct the Respondents to allow them to remain in service until 60 years of age as per FR 56 (as amended in the year 1998).

3. Heard Shri K. Ete, learned Counsel for the writ Petitioner in WP (C) 2006 (AP) 438 and Shri T. Son, learned Counsel for the writ Petitioner in WP (C) 2006 (AP 443) respectively whereas the Respondents were represented by Shri R.H. Nabam, learned Senior Govt. Advocate. Also perused the pleadings and documents placed with the writ petitions as well as in the affidavit-in-opposition.

4. The Petitioners'' case is that before attaining the Statehood in the year 1987, the State of Arunachal Pradesh was a Union Territory since 1972 and during that period Arunachal Pradesh was governed by the laws and rules framed by the Govt. of India. After attaining Statehood, the State of Arunachal Pradesh adopted certain enactments including the Fundamental and Supplementary Rules vide Notification dated 16.02.1989. It is the case of the Petitioners that when the FR & SR were adopted in 1989, the superannuation age of Govt. employees was 58 years. However, in the year 1998, the superannuation age was increased to 60 years under Govt. of India vide Notification No. GSR 248 (E) dated 13.5.1998. According to the writ Petitioners, despite this amendment of FR 56 increasing and enhancing the superannuation age the State of Arunachal Pradesh has restricted the retirement age upto 58 years by way of issuing Notification dated 06.01.1999.

5. For ready reference the impugned Notification dated 06.01.1999 is reproduced below:

NOTIFICATION

It is hereby notified for general information that the provisions of F Rs-56, ''Chapter-X'' (Sic IX) relating to ''Retirement'' as adopted by this Government, vide No. FIN/E/47/07 (Pt.) dated 15th February, 1989 will continue to be applicable to all the Government employees of the Government of Arunachal Pradesh.

By order and in the name of the Governor of Arunachal Pradesh.

(P.K. Nandi)

Under Secretary (Finance)

Government of Arunachal Pradesh

Itanagar.

6. The aforesaid Notification has been assailed by the writ Petitioners basically on the ground that it has changed the service condition of the writ Petitioners more particularly, in view of Section 37 of the State of Arunachal Pradesh Act, 1986. It was also argued that since the State of Arunachal Pradesh adopted the FR & SR in to in the year 1989, the State is bound to adopt the subsequent amendments made by the Central Government without any exception. It was also submitted that Notification dated 06.01.1999 is not a valid Notification to exclude the benefits of FR 56 (a).

To buttress their submissions, the learned Counsel for the writ Petitioners relied upon a judgment passed in the Case of Union Territory of Chandigarh and Others Vs. Rajesh Kumar Basandhi and Another,

7. Per contra, the learned Senior Govt. Advocate submitted that the State of Arunachal Pradesh is not bound to adopt the amendment and modifications of the adopted laws and rules and the clarificatory Notification has been issued on 06.01.1999 making it clear that FR 56 will continue to be applicable as it existed on 16.02.1989.

8. As noted earlier when the FR & SR was adopted by the State of Arunachal Pradesh, the superannuation age of Central Government employees was 58 years. It is also an admitted fact that by virtue of Notification dated 06.01.1999 the State Government has not proposed to reduce the age of superannuation from 58 years nor has it altered or modified the FR & SR originally adopted in 1989. Hence, in my considered opinion it is not a case of change of service condition. The only question that remains to be examined is as to whether the Petitioners are entitled to changed service condition applicable to the Central Government employees by virtue of amendment of FR & SR in the year 1998.

9. Section 46 of the State of Arunachal Pradesh Act, 1986 made provisions for adopting existing rules. Under this enabling provision, FR & SR was also adopted under Notification dated 16.02.1989. It is necessary to look and browse the Notification dated 16.2.1989 to ascertain whether the State is under obligation to adopt and apply subsequent amendments of the adopted Central laws as well. Hence, the Notification is reproduced below in extenso for easy reference:

NOTIFICATION

The State of Arunachal Pradesh

Adoptation of Laws Order (No. 4) 1989

The 16th February, 1989

No. FIN/E/47/87 (Pt.): Whereas by Sub-section (2) of Section 46 of the State of Arunachal Pradesh Act, 1986 (Act No. 69 of 1986) for the purpose of facilitating the application of any law in relation to the State of Arunachal Pradesh as the appropriate Government is empowered by order, to make such adaptations and modification of the law, whether by way of repeal or amendment, as may be necessary or expedient.

Now, therefore, in exercise of the power aforesaid the Government of the State of Arunachal Pradesh hereby makes the following order, namely:

1.(1) This order may be called the State of Arunachal Pradesh Adaptation of Laws Order (No. 4), 1989.

(2) It shall be deemed to have come into force on the 20th day of February, 1987.

2. (1) In their application to the State of Arunachal Pradesh or part thereof, the following rules, namely:

1. The Fundamental Rules and Supplementary Rules (Central);

2. The Central Treasury Rules;

3. House Building Advance Rules;

4. Central Civil Services (Extra-ordinary Pension) Rules;

5. The Central Provident Fund (Central Services) Rules 1962;

6. The Contributory Provident Fund Rules (India), 1962;

7. The General Financial Rules, 1963;

8. The Central Civil Services (Pension) Rules, 1972;

9. The Delegation of Financial Powers Rules, 1978;

10. The Central Civil Services (Joining Time) Rules, 1979;

11. The Central Civil Services (Commutation of Pension) Rules, 1981;

12. The Union Territory Employees'' Group Insurance Scheme, 1984;

13. The Central Civil Services (Revision of Pay) Rules, 1986, shall, unless the context otherwise requires have effect and be deemed to have had effect as if reference therein to the Government Central Government

14. Government of India, Government Department, authorities mentioned in the first column of the table hereunder set out were references to the Government, State Government, Government Departments authorities mentioned opposite to that in the second column of the Table:

(2) All the Schedules/Forms/Appendixes appended in the Principal Rules mentioned in (1) above shall mutatis-mutandis apply under the respective Principal Rules.

(3) Reference to any Government Departments or authorities, other than those specified in the Table in Column 2, shall be construed as referring to the corresponding Government Departments or authorities exercising corresponding power or authority in Arunachal Pradesh.

10. A bare perusal of the Notification nowhere indicates that the State has bound to adopt subsequent amendments in the FR & SR. Besides this, the clarificatory notification was issued by the Respondents on 06.01.1999 soon after the FR 56 was amended enhancing the superannuation age. However, the Petitioners continued to accept the aforesaid Notification. In other words, the writ petitions have been filed belatedly.

11. The Case of UT of Chandigarh (supra) is distinguishable on facts. In the said case, the Union Territory of Chandigarh had adopted the Punjab Civil Service Rules, 1989 vide Notification dated 13.1.1992. However, the effective date of adaptation was given as on 01.4.1991 and during this period i.e. 01.4.1991 to 13.1.1992, Punjab Civil Service Rules was amended twice increasing the age limit from 30 years to 35 years for getting a job of Assistant District Attorney/Land Officer. The writ Petitioner had applied for the job at the age of 33 years but his candidature was rejected on the ground that pre-amended Punjab Civil Service Rule had prescribed the maximum age for the job was 30 years. The Hon''ble Supreme Court has held that it was not open for the Union Territory to pick one amendment and refuse to apply other amendments. Besides this, the Apex Court had held that when the Service Rules was adopted w.e.f. 01.4.1991, the Union Territory was bound to adopt all the amendments as it stood as on 13.01.1982. Thus, approach of the UT was found to be self contradictory and not accepted. However, in the case before me, the question is altogether different inasmuch as, the writ Petitioners are arguing that the State is obliged to adopt all subsequent amendments of Rules which were adopted in 1989.1 have already mentioned earlier that the adaptation Notification dated 16.02.1989 is silent to declare that all the subsequent amendments to FR & SR will also be adopted until replaced by any State Rules.

12. Coming to the question of authority of Under Secretary to issue the Notification, the learned Counsel for the Petitioners submitted that in the absence of enactment of any State Rules, the Notification is untenable in law. In my considered opinion the Notification dated 06.01.1999 is only a clarificatory Notification and I do not see any illegality in issuing the Notification under the signature of Under Secretary to the Government of Arunachal Pradesh.

13. The learned Counsel for the Petitioners also submitted that in the year 1984, the superannuation age of teachers was also enhanced on the basis of enhancement of School Teachers by the Govt. of India and the same analogy should be adopted for other employees as well. In my considered opinion this submission is equally devoid of merit inasmuch as the increase in age of superannuation was made in the year 1984 while the State of Arunachal Pradesh was a Union Territory. Besides this, fixing the retirement age of one category of employees cannot be a criteria to fix the same superannuation age of the Govt. employees in the remaining departments as it would depend upon the nature of service and other criteria.

14. An identical issue also came-up before the Gauhati High Court in the Case reported in 2000 (2) GLT 228: All Manipur Retiring Govt. Employees Association and Ors. v. State of Manipur and Ors. and in that Case also, the employees of Manipur prayed for a mandamus directing the State Government to increase the retirement age upto 60 years in view of amendment of FR 56 (a) by the Central Government. The prayer was turned down by a Division Bench of this Court holding that no such writ can be issued. Although, in that case, the State of Manipur had framed its own Service Rules even men the ratio laid down in the said case is applicable in the present case before hand.

15. For the reasons set out herein above, I do not find any merit in the writ petitions.

Consequently, both the writ petitions stand dismissed. There shall be no order as to costs.