TMI Blog2013 (7) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2012 (arising out of SLP (C) Nos. 31279 of 2010, 35579 of 2010, 5218-60 of 2011) have been preferred by the State of Uttar Pradesh and Ors. Against the common judgment dated 29th July, 2010 passed by the Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition (C) No. 1595(S/B) of 2009 etc.etc. Whereby the High Court declared Uttar Pradesh Jal Nigam Employees (Retirement on attaining age of superannuation) Rules, 2005 which have created two separate age of retirement amongst same classes of employees discriminatory and unconstitutional and held that the employees of the Jal Nigam are entitled to continue in service upto the age of 60 years with further directions to pay 20% of back wages to those writ Petitioners who in the meantime were forced to retire on attaining the age of 58 years in absence of any interim order in their cases. The benefit of enhancement of age was confined to the persons who had filed the writ petitions before their retirement and was not granted to those who in the meantime retired at the age of 58 years and had not moved before the High Court. The other appeals have been preferred against the judgments s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id newly created department. 4. By Notification dated 18th June, 1975 issued Under Section 3 of the Uttar Pradesh Water Supply and Sewerage Act, 1975 (hereinafter referred to as the Act, 1975), the State Government constituted Uttar Pradesh Jal Nigam (hereinafter referred to as the Nigam ). Section 37(1) of the Act, 1975 provided that the services of the employees and engineers of the Local Self-Government Engineering Department (LSGED) will be transferred and merged into the newly created Nigam on the same terms and conditions, which were governing their services prior to such absorption, till the said service conditions are altered/changed by the Rules or Regulations framed in accordance with law. 5. In its second meeting dated 4th April, 1977 vide Agenda Item No. 2.21 the Board of Nigam resolved that all the provisions of Financial Handbook, Manual of Government Order, Civil Services Regulations, Government Servant Rules and other Government orders shall be applicable to the employees of the Nigam, provided the Nigam has not passed any other order. Initially, in exercise of powers conferred under Sub-section (1) and Clause (c) of Sub-section (2) of Section 97 of Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the government on public grounds which must be recorded in writing but he must not be retained after the age of sixty years except in very special circumstances. The age of retirement of the State Government employees as per Rule 56(a) of Uttar Pradesh Fundamental Rules was 58 years. In the year 2001, the State Government vide its Official Order No. 1098/A-1/2001 dated 28th November, 2001 informed of its intention to amend Clause (a) of Rule 56. Consequently, Rule 56(a) was amended by The Uttar Pradesh Fundamental (Amendment) Rules, 2002 vide Notification dated 27th June, 2002, which came into force on 28th November, 2001. As per the amended Clause (c) of Rule 56, the age of superannuation of the State Government employees was enhanced from 58 years to 60 years, which reads as follows: Rule 56(a).Except as otherwise provided in this rule, every government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. Provided that a Government servant whose date of birth is the first day of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act pursuant to the direction of the State Government in the matter of policy issued Under Section 89 of the Act and directing that the enhanced age of superannuation of 60 years applicable to the government servants shall not apply to the employees of the Nigam. In our view, the only option for the Nigam was to make suitable amendment in Regulation 31 with the previous approval of the State Government providing thereunder the age of superannuation of its employees to be 58 years, in case it intended that 60 years which was the enhanced age of superannuation of the State Government employees should not be made applicable to the employees of the Nigam. It was also not possible for the State Government to give a direction purporting to act Under Section 89 of the Act to the effect that the enhanced age of 60 years would not be applicable to the employees of the Nigam treating the same to be a matter of policy nor was it permissible for the Nigam on the basis of such a direction of the State Government in the policy matter of the Nigam to take an administrative decision acting Under Section 15(1) of the Act as the same would be inconsistent with Regulation 31 which was framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e who were directly appointed in the Nigam. Regulation 3 and 4 reads as follows: Retirement on attaining age of superannuation: 3. Age of superannuation of every employee who was employed in the Engineering Department of the Local Self Government Under Section 37(1) of the Act, and has been transferred to the Corporation and is employed in the Corporation, will be 60 years. 4. The age of superannuation of the employees different from those under Rule 3 above, will be 58 years. But the age of superannuation of the Group 'D' employee who have been employed prior to 5.11.1985, will be 60 years. After framing the aforesaid Regulation, 2005, the Nigam filed a review petition before this Court being Review Petition No. 24 of 2006, seeking review of decision in Harwindra Kumar (supra). The review petition was dismissed by this Court on 29th August, 2006. 10. A number of employees challenged Regulation 4 by filing Writ Petition No. 45800 of 2006, etc. The Allahabad High Court by its common judgment dated 21st May, 2007 allowed the writ petitions and held that Regulation 4 to the extent it provides superannuation age of 58 years for those employees directly re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Nigam for no fault of theirs. They would be entitled to payment of salary for the remaining period up to the age of 60 years which was to be paid to them within a period of three months from the date of receipt of copy of this Court's order by the Nigam . 13. In the meantime, a large number of employees of the Nigam, who were forced to retire on attaining the age of 58 years, preferred writ petitions and sought benefit of the directions given by this Court in Harwindra Kumar (supra). The matter ultimately, moved before this Court in Chairman, Uttar Pradesh Jal Nigam v. Jaswant Singh and Ors. 2006 (11) SCC 464. While dismissing the appeal this Court observed: 16. Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years' salary and increased benefit of pension and other consequential benefits. Therefore, we are not inclined to grant any relief to the persons who have approached the court after their retirement. Only those persons who have f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f entry, to 60 years and forwarded the same to the State Government for its approval. The resolution aforesaid reads as follows: Image 15. But the State Government provided a uniform age for superannuation as 58 years for all employees working in Government Companies and Government Corporations by its order dated 29th June, 2009. For the said reason, by its order dated 3rd July, 2009, the State Government refused to accord approval to the recommendations of the Nigam dated 13th April, 2008. 16. On being aggrieved by the said action of the State Government the employees of the Nigam preferred the writ petitions in question before the Allahabad High Court. A number of writ petitions were heard together and disposed of by the common impugned judgment dated 29th July, 2010. The other writ petitions which were taken up or filed subsequently were disposed of by the impugned separate orders in terms with common judgment dated 29th July, 2010. 17. By the impugned common judgment dated 29th July, 2010 the Division Bench of the Allahabad High Court, Lucknow Bench, Lucknow in Writ Petition (C) No. 1595(S/B) of 2009 etc.etc. Declared Uttar Pradesh Jal Nigam Employees (Retirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation 31. The Nigam subsequently by Resolution dated 13th April, 2008 proposed to amend Regulations 2005 prescribing common age of 60 years for superannuation for all employees of the Nigam. The State Government by its order dated 29th June, 2009 prescribed uniform age of superannuation as 58 years for all the employees working in the Government Undertakings i.e. Government Companies and Government Corporations and then in view of such decision, the State Government refused to accord approval to the recommendations of the Nigam dated 13th April, 2008 by its letter dated 3rd July, 2009. 20. In view of the subsequent development after decision rendered in Harwindra Kumar (supra) case, again the question of age of superannuation of employees of the Nigam has been reopened keeping in view of such fact, the question required to be determined as raised in these cases. 21. This Court in Harwindra Kumar (supra) held that so long as Regulation 31 is not amended, 60 years which is the age of superannuation of the government servants shall be applicable to the employees of the Nigam. However, in contravention of finding of this Court without amending Regulation 31, new Regulation 3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f condition of service, including age of superannuation, in absence of an intelligible differentia distinguishing them from each other. We therefore hold that the High Court by impugned judgment rightly declared Regulations, 2005 unconstitutional and ultra wires of Article 14 of the Constitution of India. 25. Regulation 31 of the 'Uttar Pradesh Jal Nigam Services of Engineers (Public Health Branch) Regulations, 1978' Special Regulation; it will not be affected by later Regulation 4 of the Uttar Pradesh Jal Nigam (Retirement on attaining age of Superannuation) Regulations, 2005, in absence of express repeal of Special Regulation. By implication it cannot be inferred that the Regulation 31 stands repealed in view of subsequent Regulations, 2005. 26. Even if it is treated that both the General Regulation 4 of Regulations, 2005 and Special Regulation 31 of Regulations, 1978 co-exist, one which is advantageous i.e. Regulation 31 shall be applicable to the members of the same service. 27. The State Government's order dated 29th June, 2009 prescribing a uniform age of superannuation at 58 years for the employees working in the Government Companies and Government Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered by the Government and Government has decided that age of full time regular officers/employees of Uttar Pradesh Jal Nigam be increased from 58 years to 60 years. 3. However, the aforesaid increase in the age of retirement will be subject to the condition that all the additional financial burden which will be incurred due to aforesaid increase in the age of retirement, will be borne by Uttar Pradesh Jal Nigam from its own resources and no financial assistance whatsoever will be given by the Government in this regard. 4. I have been further directed to say that appropriate amendments in the rules/Regulations/standing orders of the Uttar Pradesh Jal Nigam pertaining to fixation of the age of retirement of the personnel of the Jal Nigam will be made by the Jal Nigam on its own. Yours SD/- Illegible Vijay Bahadur Singh Special Secretary. 30. In view of the finding as recorded above and the State Government's letter dated 23rd December, 2011 no interference is called for in the impugned judgment, whereby the High Court held Regulations, 2005 unconstitutional, violative of Article 14 and set aside the orders of retirements. 31. An Interl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs by virtue of erroneous decision taken by the Nigam for no fault of theirs, would also be entitled to payment of salary for the remaining period up to the age of 60 years. 35. In Chairman, U.P. Jal Nigam v. Radhey Shyam Gautam 2007 (11) SCC 507, following the decision in Harwindra Kumar (supra) case, this Court held that the employees of the Nigam shall be entitled for full salary for the remaining period up to the age of 60 years. 36. However, in U.P. Jal Nigam v. Jaswant Singh 2006 (11) SCC 464 this Court allowed the benefits of arrears of salary only to those employees of the Nigam who had filed writ petitions and denied the same to others who have not moved before a court of law. 37. In view of the orders passed by this Court in Harwindra Kumar (supra), Radhey Shyam Gautam (supra) and Jaswant Singh (supra), it was not open to the High Court to rely on some other decision of this Court, ratio of which is not applicable in the present case for determining back wages of Respondents restricting it to be 20% of the basic salary. We observe that the principle of 'no pay no work' is not applicable to the employees who were guided by specific rules like Leave Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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