TMI Blog2021 (7) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... doctrine of legitimate expectation also finds no application to the facts of the present case. In STATE OF UTTAR PRADESH VERSUS DAYANAND CHAKRAWARTY AND ORS [ 2013 (7) TMI 1222 - SUPREME COURT] the court directed payment of arrears deeming the employees to have worked till sixty years in spite of no interim order being issued in that regard because (i) the Office Memorandum was held ultra vires; (ii) Harwinder Kumar, Jaswant Singh, and Radhey Shyam Gautam had already held that the age of retirement of the Jal Nigam employees shall be 60 years unless a Regulation prescribing a lower retirement age is issued in terms of Regulation 31, and had extended this benefit to all the parties who had filed writ petitions. Therefore, the above observation must be read in the context of the distinct factual situation in the case. The argument of the employees that since they had moved the Chief Minister with a representation in August 2012 before their date of superannuation which was to fall at the end of the month and that they should have the benefit of the enhancement in the age of superannuation has no substance. On 31 August 2012, the Respondents moved the High Court but no interim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary for the performance of its functions, and may determine their grades and designations. (2) Subject as aforesaid the officers and other employees of the Authority shall be entitled to receive from the funds of the Authority, such salaries and allowances and shall be governed by such other conditions of service as may be agreed upon with the Authority. Section 19 enables the authority, with the previous approval of the State government to frame Regulations for the administration of the affairs of the authority. Section 19 reads as follows: 19. Power to make Regulations . - (1) The Authority may, with the previous approval of the State Government, make Regulation not inconsistent with the provisions of this Act or the Rules made thereunder for the administration of the affairs of the Authority. (2) In particular, and without prejudice to the generality of the foregoing power, such Regulation may provide for all or any of the following matters, namely,- (a) the summoning and holding of meetings of the Authority, the time and place where such meetings are to be held, the conduct of business at such meetings, and the number of members necessary to form a quorum ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 January 2012 by which it directed NOIDA to consider the issue in its next Board meeting after taking into account the financial burden that may be occasioned to the authority by an increase in the age of retirement. The High Court specifically left it open to the government to consider whether to give effect to the increase in the age of retirement from the date on which NOIDA resolved to bear the financial burden or from such other date as the government may find expedient. As para 13 of the operative directions indicates: 13. Having regard to facts and circumstances, we dispose of the writ petition with directions that NOIDA may consider the matter in its next Board meeting, taking into account its earlier resolution made in the year 2002, to bear the financial burden, after financial assessment of such burden, and the effect of increase of retirement age on other employees. It may thereafter refer the matter to the concerned Administrative Department of the State Government for its evaluation and recommendation, and for forwarding the same to the State Government for its approval. We also direct that if such a decision is taken by the State Government, it will be open to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, this was expressly made prospective in terms of the paragraph 1 (ii), which reads as follows: (ii) This provision shall come into force in the NOIDA with immediate effect (from the date of issue of this Govt. order) and there shall not for any retrospective effect. 10. The petition before the High Court was amended to incorporate a relief seeking to quash paragraph 1(ii) of the order of the State government dated 30 September 2012. A Division Bench of the High Court at Lucknow allowed the writ petition and struck down the provisions of para 1(ii). While doing so the High Court directed that the increase in the age of superannuation to sixty years shall have retrospective effect from 29 June 2002, and the first and second Respondents would be deemed to have worked until the extended age of retirement. Their benefits were directed to be computed accordingly. This led to the filing of Special Leave Petitions before this Court Under Article 136. Assailing the judgment of the High Court, a companion petition has been filed by the Government of Uttar Pradesh. While issuing notice on 19 November 2018 on NOIDA's Special Leave Petition, this Court granted an ad interim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts that the increase in the age of retirement from fifty-eight to sixty years shall come into force with immediate effect (from the date of issue of this Government Order) and there shall not be any retrospective effect . (iii) When the order directing increase in the age of retirement is clear, namely that it shall come into force with immediate effect coupled with the words that the increase shall not have any retrospective effect, then the intention of the maker of the subordinate legislation categorical obviates any possible interpretation giving it retrospective effect. In these circumstances, the Court cannot issue directions giving retrospective effect to the amendment. The golden Rule of statutory interpretation is that in the absence of an express provision or a necessary intendment providing retrospectivity, the interpretation must only be prospective. An exception to this Rule is only available in matters of procedure. (P. Mahendran v. State of Karnataka (1990) 1 SCC 411; C. Gupta v. Glaxo-Smithkline Pharmaceuticals Ltd. (2007) 7 SCC 171); (iv) The observation of the High Court that the Government should have acted instantly when the resolution was received by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g effect and is unsustainable in law; and (vii) The High Court was under the wrong impression that NOIDA, the authority that is to bear the financial burden consequent to the increase in the age of retirement supported the case of the Respondents/employees that the Government Order issued on 20 September 2012 must have retrospective effect. 12. Mr. Vinod Diwakar, learned AAG for the State of Uttar Pradesh has adopted the submission of Mr. Ravindra Kumar, learned Counsel for NOIDA. 13. Ms Tanya Shree, learned Counsel has appeared on behalf of the Respondents to oppose the submissions in the appeals. Before elucidating the submissions, it would be necessary to extract a submission from the counter affidavit which has been filed by the Respondents in response to the present proceedings. Paragraph 6 of the counter affidavit reads as follows: Further, it is submitted that the Answering Respondents herein did not seek the benefit of enhancement of age of retirement of the employees of the Petitioner-Authority from the date of its earlier resolution dated June 29, 2002. In fact it was the case of the Answering Respondents before the Hon'ble High Court in Writ Petition bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approached the government of Uttar Pradesh with a representation seeking permission to allow them to work till the age of 60 years, the representation was not allowed. As a consequence of this they are entitled to the payment of their salary and all other consequential benefits occasioned by the extension in the age of retirement since it was the Appellant authority that did not permit the Respondents to continue in service though they were willing to work. In State of Uttar Pradesh v. Dayanand Chakrawarthy (2013) 7 SCC 595 it was held that if the employer prevents the employee from performing his duties, the employee cannot be blamed for his absence from duty and the principle of 'no pay no work' shall not be applicable to such an employee; and (vi) The Board resolution of 9 July 2012 proposed to increase the age of retirement of the employees with immediate effect. The authority is now estopped from going back on its own resolution and denying the benefit of the enhancement of age from the date of the resolution. III. The Analysis 14. The High Court while striking down para 1(ii) of the Government Order dated 30 September 2012 to enhance the age of retirement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch date, which the State Government may find it expedient. This order has attained finality since it was not challenged before this Court. 17. It was in terms of the order of the High Court that the Board of NOIDA resolved on 9 July 2012 to recommend to the State government that the age of superannuation of its employees should be enhanced with immediate effect, and the additional financial outlay would be met from the resources of the authority without any claim for grants being made to the State government. The State government responded to this proposal by acceding to the request to enhance the age of superannuation, though prospectively from 30 September 2012. 18. NOIDA, as an authority, constituted by the UP Industrial Area Development Act 1976 is bound by the rigour and discipline of the statute. The power to appoint officers and employees is conferred upon the authority by Section 5(i) subject to such control and restrictions as may be determined by general or special orders of the State government . Section 19 requires the prior approval of the State government to the Regulations framed by the authority. The Regulations governing the conditions of service were noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision on the resolution of NOIDA is in reference to the 2005 resolution, which was rejected on 22 September 2009. As stated above, the Government resolution of 2012 was impugned before the High Court, and the 2009 rejection order had attained finality in view of the judgment of the division bench of the High Court on 17 January 2012 which was not challenged before this Court. 21. Whether the decision to increase the age of superannuation should date back to the resolution passed by NOIDA or should be made effective from the date of the approval by the State government was a matter for the State government to decide. Ultimately, in drawing every cut-off, some employees would stand on one side of the line while the others would be positioned otherwise. This element of hardship cannot be a ground for the High Court to hold that the decision was arbitrary. When the State government originally decided to increase the age of superannuation of its own employees from fifty-eight to sixty years on 28 November 2001, it had left the public sector corporations to take a decision based on the financial impact which would result if they were to increase the age of superannuation for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e government. 24. The argument of the Respondents that the Appellant-authority is estopped from claiming that the government order issued on 30 September 2012 cannot be given retrospective effect from 9 July 2012 since the Board resolution proposed an increase in the retirement age of its employees with 'immediate effect' is unsustainable. For the principle of promissory estoppel to apply, one party must have made an unequivocal promise, intending to create or affect a legal relationship between the parties. [Monnet Ispat Energy Limited v. Union of India Ors., (2012) 11 SCC 1] . The recommendation of NOIDA cannot create or alter the legal relationship since it is subject to the approval of the government. Justice H L Gokhale in a concurring opinion in Monnet Ispat and Energy Ltd. v. Union of India (2012) 11 SCC 1 clarified that the principle of promissory estoppel will not apply if the communication issued was either a proposal or a recommendation. The learned judge observed: 289. As we have seen earlier, for invoking the principle of promissory estoppel there has to be a promise, and on that basis the party concerned must have acted to its prejudice. In the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erannuation) Regulations, 2005 was unconstitutional for violating Article 14 of the Constitution. This Court held that the differential superannuating age was discriminatory. However, by virtue of Regulation 31 of the UP Jal Nigam Services of Engineers (Public Health Branch) Regulations, 1978 the service conditions of State government employees is applicable to the UP Jal Nigam employees. Therefore when the Jal Nigam through an Office memorandum had resolved that the age of retirement for its employees shall be fifty eight years, though it was sixty years for State government employees, it was set aside by this Court in Harwinder Kumar v. Chief Engineer, Karmik (2005) 13 SCC 300. In Harwinder Kumar and the subsequent cases (U.P. Jal Nigam v. Jaswant Singh (2006) 11 SCC 464; U.P Jal Nigam v. Radhey Shyam Gautam (2007) 11 SCC 507) involving the age of retirement of the UP Jal Nigam employees, this Court had held that employees who had approached the courts shall be entitled to full salary until the age of sixty years. It was in this context that a two judge bench of this Court speaking through Mukhopadhaya J made the following observation in Dayanand Chakrawarthy: 48. ...We observ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
