JUDGMENT
Mukundakam Sharma, J.
1. The present writ petition was filed by the petitioner seeking for a direction to the respondents to enhance the age of retirement from 60 years to 62 years so far the petitioner is concerned on the basis of the notification issued by the Ministry of Human Resource Development and National Council of Educational Research and Training.
2. The petitioner was appointed as a Senior Lecturer by the respondents on deputation by order dated 6th February, 1990 and he joined the service of the respondents on 20th March, 1990. The petitioner was permanently absorbed by the respondents with effect from 25th February, 1995. The age of retirement in the cadre of academic staff of the respondent/Council was 60 years. However, the Ministry of Human Resource Development issued a notification on 27th July, 1998 raising the age of retirement of academic staff working in the Colleges, University, etc., from 60 years to 62 years. The terms and tenure of service of academic staff at the Council would remain the same as available for the academic staff of the National Council of Educational Research and Training. It is stated that as and when NCERT raised the age of retirement of the academic staff from 60 years to 62 years, pursuant to notification issued by the Ministry of Human Resource Development, the age of retirement so far the petitioner is concerned also stood raised to 62 years and, therefore, the petitioner could have retired from services only on completion of 62 years and therefore, the order for retiring the petitioner at the age of 60 years is illegal and without jurisdiction. In support of his case, the petitioner in the writ petition also placed reliance on the Division Bench decision of this Court in C.W.P. No. 48/1999 disposed of on 15th September, 1999.
3. The writ petition was contested by the respondent No. 1 by filing a counter affidavit. It was conducted on behalf of the respondent No. 1 that there is concealment and suppression of material facts by the petitioner in the writ petition and it was submitted that on the said ground itself the writ petition should be dismissed. It was stated that Rule 67 on which reliance is sought for by the petitioner was amended vide notification dated 7th December, 1999. The said amended Rule 67 changed the terms and tenure of service of academic and other staff of the respondent/Council. The change stipulates that the said terms and tenure of service of all staff would be the same as available for the academic and other staff of the Directorate of Education, Government of N.C.T. of Delhi, with such modifications that may be specifically adopted by the Executive Committee form time to time. It was also stated that in view of the aforesaid amendment, the terms and tenure of service of the academic staff of the NCERT was no longer applicable to the petitioner and that after the aforesaid amendment, the service condition of the petitioner was governed by the aforesaid amended provisions. Therefore, in terms of tenure of service of the academic staff of the Directorate of Education, Government of N.C..T. of Delhi, the petitioner was rightly retired from service on completion of 60 years of age.
4. In order to appreciate the contention of the counsel appearing for the parties, it would be necessary to refer to Rule 67 as it stood originally and also the amended Rule 67. Unamended Rule 67 reads as thus:-
“67. Terms and Tenure of service of Academic Staff.
The terms and tenure of service of the academic staff at the Council shall remain the same as available for the academic staff of the National Council of Educational Research & Training.”
The amended Rule 67 is reproduced below:-
“The terms and tenure of service of academic and other staff of the Council should remain the same as available for the academic and other staff of the Directorate of Education, GNCT of Delhi with such modifications that may be specifically adopted by the Executive Committee from time to time.”
The aforesaid provision of Rule 67 was amended vide notification dated 7th December, 1999 and it became operative immediately thereafter. It was contended by the counsel appearing for the petitioner that the service condition of the petitioner could not have been changed retrospectively. According to him the aforesaid amendment would, therefore, have only prospective effect, that is to say, those employees who are appointed in the Council after 7th December, 1999 would be the only persons who would be governed by the aforesaid provisions of Rule 67. It is submitted that since the petitioner was appointed much prior to the said date, the said amended provision of Rule 67 would not be made applicable to the case of the petitioner and, therefore, the respondents acted illegally and without jurisdiction in ordering for retirement of the petitioner on completion of the age of 60 years.
5. Counsel appearing for the respondent No. 1, however, submitted that the aforesaid submission of the counsel for the petitioner is not only fallacious but the writ petition is liable to be dismissed on the ground of suppression of material facts and due to the conduct of the petitioner in coming to the Court not with clean hands. It was submitted that the petitioner has not challenged the legality and validity of the amended provisions of Rule 67 and thus, the said provision remains to be valid and, therefore, the said provision would be applicable even to the case of the petitioner as the petitioner completed 60 years of age after the aforesaid amendment has come into force.
6. In the context of the aforesaid submission of the counsel appearing for the parties, I have perused the records placed before me.
7. It is indeed true that the present writ petition was filed by the petitioner after the aforesaid amendment to the provision of Rule 67 was made vide notification dated 7th December, 1999. The petitioner relies upon the unamended provision of Rule 67 without even making a whisper in the writ petition that an amendment has been brought in by the respondents to the aforesaid provision of Rule 67 in the year 1999. It was necessary for the petitioner to mention the said fact in the petition and, therefore, the petitioner has suppressed material facts from this Court. In that view of the matter, it could be held that the petitioner has not come to this Court with clean hands. However, even otherwise in this writ petition, the petitioner has not challenged the validity of Rule 67 of the amended Rules. Therefore, the said Rule for the purpose of this writ petition shall have to be held to be valid & legal. The said amendment was brought into force on 7th December, 1999 and, therefore, whichever employee of the Council is completes the age of 60 years, after the said date would stand retired, according to the said provisions.
8. The reliance sought for by the petitioner in the Division Bench decision of this Court in T.C. Sharma v. Lt. Governor and Ors. (CWP 48/1999) disposed of on 15.9.1999 is misplaced as the said decision was rendered taking notice of and considering the unamended provision of Rule 67 of the Rules. Subsequent thereto, the said provision was amended and, therefore, the facts and circumstances of the present case would be governed by the amended provision of Rule 67. In this connection, reference may be made to the decision of the Supreme Court in K. Nagaraj v. State of Andhra Pradesh; . In the said decision it was held by the Supreme Court that the termination of service of an employee on account of his reaching the age of superannuation in accordance with a law or rules regularising his conditions of service does not amount to his removal from service within the meaning of Article 311(2). It was also held that service rules can be as much amended, as they can be made and the power to amend these rules carries with it the power to amend these rules carries with it the power to amend them retrospectively.
9. In this connection, reference may be made to a subsequent decision of the 5 judges Bench of the Supreme Court in Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors.; . In the said decision, the Supreme Court noticed all cases including the case of K. Nagaraj (supra) and it was held that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution but a rule which seeks to reverse from an anterior date, a benefit which has been granted or availed. It was held that the expressions “vested rights” or “accrued rights” are used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It was further held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution.
10. Here is a case where an amendment was brought in according to which the age of retirement was lowered form 62 years to 60 years and it was not given a retrospective operation in the sense that it did not seek to take away the benefit already available to some of the employees under the existing rules. Those employees who already retired from service prior to the aforesaid amendment stood retired at the age of 62 years and the said benefit accorded to them was not sought to be taken away by the respondent/Council but the persons who have retired after the aforesaid amendment would be governed by the terms and tenure of service as applicable under the amendment and, therefore, this is not a case of taking away vested right available under the rule in force. Even otherwise the petitioner has not challenged the validity of the rule and, therefore, no such contention could also be raised by the petitioner.
11. In view of the aforesaid facts and circumstances of the case, I find no merit in this petition and the petition stands dismissed. Pending application stands disposed of accordingly.