published in http://judis.nic.in/supremecourt/filename=40490
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5527 OF 2012
(arising out of SLP (c) No. 31279 of 2010)
STATE OF UTTAR PRADESH … APPELLANT
Versus
DAYANAND CHAKRAWARTY & ORS. … RESPONDENTS
With
C.A.No.5528 of 2012 (Arising Out of SLP(C) No.35579 of
2010)
C.A.No.56175659 of 2012 (Arising Out of SLP(C) No.5218
5260 of 2011)
C.A.No. 5529 of 2012 (Arising Out of SLP(C) No.14880 of
2011)
C.A.No. 5530 of 2012 (Arising Out of SLP(C) No.19119 of
2011)
C.A.No. 5531 of 2012 (Arising Out of SLP(C) No.16519 of
2011)
C.A.No. 5532 of 2012(Arising Out of SLP(C) No.26336 of
2011)
C.A.No. 5533 of 2012(Arising Out of SLP(C) No.22838 of
2011)
C.A.No. 5534 of 2012(Arising Out of SLP(C) No.22839 of
2011)
C.A.No. 5535 of 2012(Arising Out of SLP(C) No.22840 of
2011)
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
These appeals Nos. 5527 of 2012, 5528 of 2012 and 5617
5659 of 2012 (arising out of SLP(C) Nos.31279 of 2010,
35579 of 2010, 521860 of 2011) have been preferred by the
State of Uttar Pradesh and others against the common
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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 subsequently passed on 29th April, 2010, 17th
August, 2010, 16th September, 2010, 28th October, 2010, 3rd
2Page 3
December, 2010 which were disposed of in terms of the
aforesaid judgment dated 29th July, 2010.
Before the High Court Writ Petition No.1191(SB) of
2009 was filed by the U.P. Engineers Association Jal Nigam,
praying therein to declare U.P. Jal Nigam Karamchari
(Adhivarshita Par Seva Nivarti) Viniyamawali, 2005 [U.P.
Jal Nigam Employees (Retirement on attaining age of
Superannuation) Regulations, 2005] (hereinafter referred to
as the “Regulations, 2005”) unconstitutional and ultra
vires to the provisions of the Constitution of India and
further to quash the orders dated 3rd July, 2009 and 29th
June, 2009 passed by the respondents 1 and 2 to the writ
petition, respectively. The other prayers were to restrain
the respondents from causing retirement of the members of
the writ petitioners’ association at the age of 58 years as
well as to allow them to continue to work till they attain
the age of 60 years.
Except the aforesaid writ petition, in all other writ
petitions, writ petitioners have challenged their
respective order (s) whereby they had been asked to retire
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on attaining the age of 58 years as per the provisions of
Regulations, 2005.
2. The questions involved in these appeals are:
(i) Whether two different age of superannuation of 58 and
60 years can be prescribed for the employees similarly
situated, including members of the same service, solely on
the basis of their source of entry in the service.
(ii) Whether ‘the Uttar Pradesh Jal Nigam (Retirement on
attaining age of Superannuation) Regulations, 2005’ fixing
two different age of superannuation for similarly situated
employees of Jal Nigam are discriminatory and ultra vires
under Article 14 of the Constitution of India.
3. The factual matrix of the case are as follows:
A department, known as Public Health Engineering
(hereinafter referred to as the 'PHED') was created during
the British period for performing all the works related to
public health engineering including sewerage and water
supply. Just before the independence, the State of United
Province created a Local Self Government Engineering
Department (hereinafter referred to as the 'LSGED') which
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was converted from PHED. All the engineering works of
Local Self Government were entrusted to the said 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 SelfGovernment 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
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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 subsection (2) of Section 97
of Act, 1975 and with the previous approval of the State
Government, the Nigam made regulations for regulating the
recruitment to the posts and the conditions of service of
persons appointed to the Uttar Pradesh Jal Nigam Service of
Engineers (Public Health Branch) known as the Uttar Pradesh
Service of Engineers (Public Health Branch) Regulations,
1977.
6. Subsequently, in exercise of powers conferred under
subsection (1) and clause (c) of subsection (2) of
Section 97 of the Act, 1975, and with the previous approval
of the State Government, Nigam made the “Uttar Pradesh Jal
Nigam Services of Engineers (Public Health Branch)
Regulations, 1978” (hereinafter referred to as the
“Regulations, 1978”) for regulating the recruitment to the
posts and the conditions of service of persons appointed to
the Jal Nigam Engineers (Public Health Branch). The said
Regulations, 1978 were made equally applicable to the
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employees transferred and merged from the erstwhile LSGED
and the employees directly recruited by the Nigam and it
came into force w.e.f. 27th April, 1978. Regulation 31
relates to pay, allowance, pension, leave and other
conditions of service which reads as follows:
“Regulation 31. Except as provided in
these regulations the pay, allowance,
pension, leave, imposition of penalties and
other conditions of service of the members
of the service shall be regulated by rules,
regulations or orders applicable generally
to the Government Service in connection
with the affairs of the state.”
7. There is no separate provision for age of
superannuation of employees of the Nigam prescribed under
Regulations, 1978. As per Regulation, 31, the terms and
conditions of service of the employees of the Nigam shall
be governed by the same rules, regulations and orders
generally applicable to the employees of the State
Government and hence the retirement and superannuation age
of employees of the Nigam shall stand governed by the
provisions of Rule 56(a) of the Uttar Pradesh Fundamental
Rules contained in the Financial Handbook, Volume II, Part
IIIV, which reads as follows:
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“Rule 56(a).Except as otherwise provided in
other clauses of 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 fiftyeight
years. He may be retained in service after
the date of retirement on superannuation
with the sanction 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/A1/2001 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.
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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 age of sixty years.
Provided further that a Government servant
who has attained the age of fifty eight
years on or before the first day of
November, 2001 and is on extension in
service shall retire from service on expiry
of his extended period of service.”
8. In the meantime, after issuance of Government’s order
expressing its intention to amend clause (a) of Rule 56 by
Notification dated 28th November, 2001, the Nigam by its
letter dated 31st December, 2001 enquired from the State
Government as to whether the benefit of enhancement in the
age of superannuation from 58 years to 60 years would be
applicable to the employees of the Nigam or not. In reply
thereto just before the Amendment Rules, 2002, the special
Secretary to the State Government from its Department of
Local Self Government by his letter dated 22nd January,
2002, conveyed that the employees of the Nigam shall not be
entitled to the enhancement of age of superannuation from
58 years to 60 years as the same would be applicable only
to the State Government employees. On receipt of the said
letter, on 11th July, 2002 the Nigam resolved that
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enhancement in the age of superannuation from 58 years to
60 years would not be applicable to the employees of the
Nigam.
Against the decision of the State Government dated 22nd
January, 2002 and the decision of the Nigam vide Office
Memorandum dated 11th July, 2002 a number of writ
petitions were preferred by the employees of the Nigam who
were being sought to retire on completing the age of 58
years. Some of the employees directly filed writ petitions
before this Court challenging the orders issued by the
Nigam against them to the effect that they would
superannuate upon completion of 58 years. This Court by
its judgment in Harwindra Kumar vs. Chief Engineer, Karmik
and others, 2005 (13) SCC 300 directed the Nigam to
continue the petitioners of those cases in service till
they attain the age of 60 years and the orders directing
their retirement at the age of 58 years were set aside with
the following observation:
“9. In the present case, as the Regulations have
been framed by the Nigam specifically
enumerating in Regulation 31 thereof that the
Rules governing the service conditions of
government servants shall equally apply to the
employees of the Nigam, it was not possible for
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the Nigam to take an administrative decision
acting under Section 15(1) 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
by the Nigam in the exercise of powers conferred
upon it under Section 97(2)(c) of the Act.
10. For the foregoing reasons, we are of the
view that so long as Regulation 31 of the
Regulations is not amended, 60 years which is
the age of superannuation of government servants
employed under the State of Uttar Pradesh shall
be applicable to the employees of the Nigam.
However, it would be open to the Nigam with the
previous approval of the State Government to
make suitable amendment in Regulation 31 and
alter the service conditions of employees of the
Nigam, including their age of superannuation. It
is needless to say that if it is so done, the
same shall be prospective.
11Page 12
11. For the foregoing reasons, the appeals as
well as writ petitions are allowed, orders
passed by the High Court dismissing the writ
petitions as well as those by the Nigam
directing that the appellants of the civil
appeals and the petitioners of the writ
petitions would superannuate upon completion of
the age of 58 years are set aside and it is
directed that in case the employees have been
allowed to continue up to the age of 60 years by
virtue of some interim order, no recovery shall
be made from them but in case, however, they
have not been allowed to continue after
completing the age of 58 years by virtue of
erroneous decision 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 must be paid to them
within a period of three months from the date of
receipt of copy of this order by the Nigam.
There shall be no order as to costs.”
9. After the decision in Harwindra Kumar(supra), the Nigam
in exercise of its powers conferred under subsections (1)
and (2) of Section 97 of the Act, 1975, framed Uttar
Pradesh Jal Nigam Employees (Retirement on the age of
Superannuation) Regulations, 2005 (hereinafter referred to
as the ‘Regulations, 2005’). It was issued by Office Order
dated 8th December, 2005 and made effective from 30th August,
2005. By Regulation 3 the retirement age of 60 years was
provided but for employees and Engineers who were employed
in erstwhile LSGED and who were transferred and merged in
the Nigam. In Regulation 4, a separate age of
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superannuation at the age of 58 years was prescribed for
all other employees and Engineers, who were not covered
under Regulation 3 i.e. those 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
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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 recruited is arbitrary and declared it
nonest. The writ petitioners were allowed to continue in
service till the age of 60 years.
11. As against the aforesaid judgment, the Nigam filed a
special appeal before the Division Bench of the Allahabad
High Court which by order dated 1st August, 2007 stayed the
declaration given by the learned Single Judge. However, so
far as the writ petitioners were concerned, no interim
orders were passed in the said special appeal and as such,
they were allowed to discharge their duties upto the age of
60 years.
12. The Nigam being not satisfied with the order passed by
the Division Bench moved before this Court in Chairman,
Uttar Pradesh Jal Nigam & another vs. Radhey Shyam Gautam
and another, 2007 (11) SCC 507. In the said case, taking
into consideration the earlier decision rendered in
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Harwindra Kumar(supra) and Jaswant Singh(supra) this Court
dismissed the appeal with following observation:
“10. After the amendment made in Rule 56(a) of
the Rules by the State Government and thereby
enhancing the age of superannuation of
government servants from 58 years to 60 years,
the same would equally apply to the employees of
the Nigam and in case the State Government as
well as the Nigam intended that the same would
not be applicable, the only option with it was
to make suitable amendment in Regulation 31 of
the Regulations after taking previous approval
of the State Government and by simply issuing
direction by the State Government purporting to
act under Section 89 of the Act and thereupon
taking administrative decision by the Nigam
under Section 15 of the Act in relation to the
age of the employees would not tantamount to
amending Regulation 31 of the Regulations.
11. In Harwindra Kumar case the Division Bench
decision on which the appellant places reliance
was challenged. Orders passed by the High Court
dismissing the writ petitions as well as those
by the Nigam directing that the appellants of
the civil appeals and the petitioners of the
writ petitions would superannuate upon
completion of the age of 58 years were set aside
and it was directed that in case the employees
have been allowed to continue up to the age of
60 years by virtue of some interim order, no
recovery shall be made from them but in case,
however, they have not been allowed to continue
after completing the age of 58 years by virtue
of erroneous decision 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.”
15Page 16
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 vs. Jaswant Singh &
others, 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 filed the writ petitions when they were
in service or who have obtained interim
order for their retirement, those persons
should be allowed to stand to benefit and
not others. We have been given a chart of
those nine persons, who filed writ petitions
and obtained stay and are continuing in
service. They are as follows:
1. Shri Bhawani Sewak Shukla
2. Shri Vijay Bahadur Rai
3. Shri Girija Shanker
4. Shri Yogendra Prakash Kulshresht
5. Shri Vinod Kumar Bansal
6. Shri Pradumn Prashad Mishra
16Page 17
7. Shri Banke Bihari Pandey
8. Shri Yashwant Singh
9. Shri Chandra Shekhar
And the following persons filed writ
petitions before retirement but no stay
order was granted:
1. Shri Gopal Singh Dangwal (WP No. 35384
of 2005 vide order dated 552005)
2. Shri R.R. Gautam (WP No. 45495 of 2005
vide order dated 1562005)
17. The benefits shall only be confined to
abovementioned persons who have filed writ
petitions before their retirement or they
have obtained interim order before their
retirement. The appeals filed against these
persons by the Nigam shall fail and the same
are dismissed. Rest of the appeals are
allowed and orders passed by the High Court
are set aside. There would be no order as to
costs.”
14. In Harwindra Kumar(supra) this Court held that as long
as Regulation 31 is not amended, 60 years which is the age
of superannuation of government servants employed under the
State of Uttar Pradesh shall be applicable to the employees
of the Nigam. However, liberty was given to the Nigam to
make suitable amendment in Regulation 31 with the previous
approval of the State Government to alter the service
conditions of employees of the Nigam, including their age
of superannuation. It was also made clear that if the same
is done, it shall be prospective. It appears that in view
17Page 18
of observation of this Court, the Nigam framed Regulations,
2005 but prescribed separate age of superannuation, one for
employees and engineers who were employed in erstwhile
LSGED and another for those who were directly appointed in
the Nigam. Regulations 2005 were so framed without
repealing or amending Regulation 31.
It appears that in view of the subsequent decisions of
this Court, the Nigam vide its Resolution dated 13th April,
2008, resolved to enhance the age of the superannuation of
the employees, irrespective of their source of entry, to 60
years and forwarded the same to the State Government for
its approval. The resolution aforesaid reads as follows:
Agenda Item No. Description of
Agenda
Decision taken by
the Board of
Directors
147.07 Regarding
enhancement of age
of superannuation
from 58 years to
60 years, of the
officers and
officials working
in Uttar Pradesh
Jal Nigam ,
similar to the
working Government
employees.
Proposal approved
by the Board of
Directors and it
is decided to
refer to the
Government for
obtaining the
approval of the
Government.
18Page 19
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 on attaining age of Superannuation)
Regulations”, 2005 unconstitutional as it created two
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classes of employees in determining two separate retirement
age with observation as noticed above.
18. Learned counsel for the appellantState and the Nigam
assailed the judgment mainly on the following grounds:
(i) The High Court cannot equate the employees of the public
undertakings/corporations with the employees of the State Government for
determination of age of superannuation.
(ii) The High Court was not justified in declaring that all the employees
of the Nigam shall retire on attaining the age of 60 years like State
Government employees, by pre-empting the Nigam from exercising its
power under Section 97 of the Act, 1975.
(iii) The classification between the employees of Local Self-Government
Engineering Department transferred to the Nigam and the employees
directly recruited by the Nigam, in prescribing different age of
superannuation is valid and reasonable.
(iv) The High Court was not justified in setting aside the Jal Nigam
Employees (Retirement on attaining age of Superannuation) Regulations,
2005 in absence of any challenge to the power of the Nigam to frame the
regulations particularly when the petitioners only challenged the Regulation
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(v) The High Court committed an error of law in not considering
Section 37(1) of the Act, 1975, which protects the terms and conditions of
service of the employees of erstwhile Local Self-Government Engineering
Department who were transferred to the Nigam on its creation.
(vi) The question of determination of age of superannuation is a matter
of policy of the State Government or the competitive authority of a
Corporation, and the High Court under Article 226 cannot determine the
age of superannuation.
19. Thus, from a detailed analysis and close examination of
facts relating to condition of service of employees of the
Nigam starting from its constitution till today, the
following facts emerges:
(a) The question relating to age of superannuation of employees of the Nigam
stood finally concluded on 18th November, 2005 when this Court rendered
decision in Harwindra Kumar (supra).
(b) After judgment in Harwindra Kumar (supra) based on liberty given by this
Court, the Nigam framed Regulations, 2005 prescribing two separate age of
superannuation for the employees of the Nigam, without amending Regulation 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
21Page 22
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 4 of Regulations, 2005
has been framed by the Nigam prescribing two separate age
of superannuation for similarly situated employees.
22Page 23
22. In Prem Chand Somchand Shah v. Union of India (1991) 2
SCC 48 this Court held:
“8. As regards the right to equality guaranteed under
Article 14 the position is well settled that the said
right ensures equality amongst equals and its aim is
to protect persons similarly placed against
discriminatory treatment. It means that all persons
similarly circumstanced shall be treated alike both in
privileges conferred and liabilities imposed.
Conversely discrimination may result if persons
dissimilarly situate are treated equally. Even amongst
persons similarly situate differential treatment would
be permissible between one class and the other. In
that event it is necessary that the differential
treatment should be founded on an intelligible
differentia which distinguishes persons or things that
are grouped together from others left out of the group
and that differentia must have a rational relation to
the object sought to be achieved by the statute in
question.”
23. Since creation of the Nigam, irrespective of source of
recruitment, the employees of the Nigam were treated alike
for the purpose of superannuation and were allowed to
superannuate at the age of 58 years as is evident from
Regulation 31.
24. As per decision of this Court in Prem Chand Somchand
Shah (supra) even amongst persons similarly situated
differential treatment would be permissible between one
class and the other. In that event it is necessary that
23Page 24
the differential treatment should be founded on an
intelligible differentia which distinguishes persons or
things that are grouped together from others left out of
the group and that differentia must have a rational
relation to the object sought to be achieved by the
statute. The appellants, the Nigam as well as the State
of Uttar Pradesh failed to place on record the reasons for
differential treatment which distinguishes employees of
erstwhile LSGED and those who were appointed directly in
the Nigam.
Further, as employees appointed from different source,
after their appointment were treated alike for the purpose
of superannuation under Regulation 31, subsequently solely
on the basis of source of recruitment no discrimination can
be made and differential treatment would not be permissible
in the matter of 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.
24Page 25
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 coexist, 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 Corporations cannot prevail over statutory
Regulation 31 framed by the Nigam under Section 97 (2) (C)
of the Act, 1975 with the previous approval of the State
Government. Therefore, the employees of the Nigam shall
not be guided by the State Government’s order dated 29th
25Page 26
June, 2009 but will continue in the services up to the age
of 60 years, in view of Regulation 31, having not yet
amended or repealed.
28. In Harwindra Kumar (supra) case this Court already held
that it is not possible for the Nigam to take an
administrative decision pursuant to the direction of the
State Government in the matter of policy issued under
Section 89 of the Act and directing that the age of
superannuation of 60 years applicable to the Government
servants shall not be applicable to the employees of the
Nigam. In view of such finding of this Court, the Nigam
cannot act on the basis of the State Government’s order
dated 29th June, 2009 providing uniform age of
superannuation at 58 years.
29. During the pendency of these appeals further
development has taken place. The Government of Uttar
Pradesh by its letter No.3199/9311113C/2011 dated 23rd
December, 2011 informed the Chairman, Uttar Pradesh Jal
Nigam its approval to increase the age of superannuation of
full time regular officers/employees of the Nigam from 58
years to 60 years. The State Government directed to make
26Page 27
appropriate amendments in the Regulations framed by the
Nigam, which reads as follows:
“No.3199/9311113C/2011
From: Vijay Bahadur Singh,
Special Secretary,
Government of Uttar Pradesh.
To: The Chairman,
Uttar Pradesh Jal Nigam ,
Lucknow.
Urban Developmetn Section 3 Lucknow dt.
23.12.2011
Sub: For increasing the age of retirement of full
time regular employees of Uttar Pradesh Jal
Nigam from 58 years to 60 years.
Sir,
This is in reference to your letter no.
86/P1/2005002/11 dated 23.12.2011 and
Government order no.160/4412091190/2008
dated 20.12.2011 of the Public Enterprises
Bureau Section, on the above subject.
2. In this regard I have been directed to say
that a meeting of the Board of Directors of
Jal Nigam was held on 23.12.2011 and it was
decided in the said meeting that age of
retirement of full time regular
officers/employees of Uttar Pradesh Jal
Nigam be increased from 58 years to 60
years. The aforesaid decision of Board was
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
27Page 28
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 Bahadu 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 Interlocutory Application dated 20th March, 2013 has
been filed by the counsel for the respondent in Civil
Appeal No.5528 of 2012 intimating that 1st respondent
Dayanand Chakrawarty expired on 17th February, 2013, during
the pendency of the case, leaving behind their legal heirs,
28Page 29
Mrs. Pramila Chakrawarty (widow), Ms. Manisha Chakrawarty
(daughter), Mr. Vivekanand Chakrawarty (son), Ms. Utpana
Chakrawarty (daughter) and Mr. Sampurna Nand Chakrawarty
(son).
32. In view of the observation made in the preceding
paragraphs as the employees including the respondents are
entitled to get consequential benefits, we allow the
petition for substitution to enable the heirs to derive the
benefit of the decision of this Court.
33. Now the question arises as to what consequential
benefits to which the respondents and other employees who
have not moved before any court of law shall be entitled.
By impugned judgment the High Court observed:
“Similar benefit is already available to the
employees who are continuing in service by virtue
of interim order passed by the competent court.
They should continue till the age of 60 years.
The law helps those who are vigilant and not to
those who go to sleep as per maxim VIGILANTIBUS,
ET NON DORMINTIBUS, JURA SUB VENIUNT. So, this
benefit will not be given to the employees who
peacefully retired on attaining the age of 58
years and never came before the Court. But there
may be another class of the employees who came
before this Court and could not get the interim
order but writ petitions were admitted.
29Page 30
Admittedly, these employees have not worked. So,
on the basis of no pay no work, they will not be
entitled for arrears. However, their back wages
will be restricted @20% of the basic salary as per
the ratio laid down in the case of M/s Gvalli v.
Andhra Education Society 2010 AIR 1105 SC.
Lastly, it is clarified that the extended service
will be counted for all the purpose to the above
mentioned employees. The petitions are allowed.
No cost.”
34. In Harwindra Kumar vs. Chief Engineer, Karmik and
others (Supra), this Court while allowing the employees of
Nigam to continue till the age of 60 years in view of
Regulation 31, ordered that no recovery shall be made from
those who continued up to the age of 60 years. This Court
further observed that the employees who have not been
allowed to continue after completing the age of 58 years 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 vs. Radhey Shyam Gautam,
2007 (11) SCC 507, following the decision in Harwindra
Kumar (supra) case, this Court held that the employees of
30Page 31
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 vs. 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 Rules etc. relating to absence
from duty.
Such principle can be applied to only those
employees who were not guided by any specific rule relating
to absence from duty.
If an employee is prevented by the
employer from performing his duties, the employee cannot
31Page 32
be blamed for having not worked, and the principle of ‘no
pay no work’ shall not be applicable to such employee.
38. In these cases as we have already held that
Regulation
31 shall be applicable and the age of superannuation of
employees of the Nigam shall be 60 years;
we are of the
view that following consequential and pecuniary benefits
should be allowed to different sets of employees who were
ordered to retire at the age of 58 years:
(a) The employees including respondents who moved before a court of law
irrespective of fact whether interim order was passed in their favour or not, shall
be entitled for full salary up to the age of 60 years. The arrears of salary shall be
paid to them after adjusting the amount if any paid.
(b) The employees, who never moved before any court of law and had to retire
on attaining the age of superannuation, they shall not be entitled for arrears of
salary. However, in view of Regulation 31 they will deem to have continued in
service up to the age of 60 years. In their case, the appellants shall treat the age of
superannuation at 60 years, fix the pay accordingly and re-fix the retirement
benefits like pension, gratuity etc. On such calculation, they shall be entitled for
arrears of retirement benefits after adjusting the amount already paid.
32Page 33
(c) The arrears of salary and arrears of retirement benefits should be paid to
such employees within four months from the date of receipt of copy of this
judgment.
39. The judgment passed by the Division Bench of the
Allahabad High Court, Lucknow Bench dated 29th July, 2010
and other impugned judgments stand modified to the extent
above. The appeals are disposed of with aforesaid
observation and directions. There shall be no order as to
costs.
………..……………………………………………..J.
(G.S. SINGHVI)
........……………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 2, 2013.
33
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5527 OF 2012
(arising out of SLP (c) No. 31279 of 2010)
STATE OF UTTAR PRADESH … APPELLANT
Versus
DAYANAND CHAKRAWARTY & ORS. … RESPONDENTS
With
C.A.No.5528 of 2012 (Arising Out of SLP(C) No.35579 of
2010)
C.A.No.56175659 of 2012 (Arising Out of SLP(C) No.5218
5260 of 2011)
C.A.No. 5529 of 2012 (Arising Out of SLP(C) No.14880 of
2011)
C.A.No. 5530 of 2012 (Arising Out of SLP(C) No.19119 of
2011)
C.A.No. 5531 of 2012 (Arising Out of SLP(C) No.16519 of
2011)
C.A.No. 5532 of 2012(Arising Out of SLP(C) No.26336 of
2011)
C.A.No. 5533 of 2012(Arising Out of SLP(C) No.22838 of
2011)
C.A.No. 5534 of 2012(Arising Out of SLP(C) No.22839 of
2011)
C.A.No. 5535 of 2012(Arising Out of SLP(C) No.22840 of
2011)
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
These appeals Nos. 5527 of 2012, 5528 of 2012 and 5617
5659 of 2012 (arising out of SLP(C) Nos.31279 of 2010,
35579 of 2010, 521860 of 2011) have been preferred by the
State of Uttar Pradesh and others against the common
1Page 2
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 subsequently passed on 29th April, 2010, 17th
August, 2010, 16th September, 2010, 28th October, 2010, 3rd
2Page 3
December, 2010 which were disposed of in terms of the
aforesaid judgment dated 29th July, 2010.
Before the High Court Writ Petition No.1191(SB) of
2009 was filed by the U.P. Engineers Association Jal Nigam,
praying therein to declare U.P. Jal Nigam Karamchari
(Adhivarshita Par Seva Nivarti) Viniyamawali, 2005 [U.P.
Jal Nigam Employees (Retirement on attaining age of
Superannuation) Regulations, 2005] (hereinafter referred to
as the “Regulations, 2005”) unconstitutional and ultra
vires to the provisions of the Constitution of India and
further to quash the orders dated 3rd July, 2009 and 29th
June, 2009 passed by the respondents 1 and 2 to the writ
petition, respectively. The other prayers were to restrain
the respondents from causing retirement of the members of
the writ petitioners’ association at the age of 58 years as
well as to allow them to continue to work till they attain
the age of 60 years.
Except the aforesaid writ petition, in all other writ
petitions, writ petitioners have challenged their
respective order (s) whereby they had been asked to retire
3Page 4
on attaining the age of 58 years as per the provisions of
Regulations, 2005.
2. The questions involved in these appeals are:
(i) Whether two different age of superannuation of 58 and
60 years can be prescribed for the employees similarly
situated, including members of the same service, solely on
the basis of their source of entry in the service.
(ii) Whether ‘the Uttar Pradesh Jal Nigam (Retirement on
attaining age of Superannuation) Regulations, 2005’ fixing
two different age of superannuation for similarly situated
employees of Jal Nigam are discriminatory and ultra vires
under Article 14 of the Constitution of India.
3. The factual matrix of the case are as follows:
A department, known as Public Health Engineering
(hereinafter referred to as the 'PHED') was created during
the British period for performing all the works related to
public health engineering including sewerage and water
supply. Just before the independence, the State of United
Province created a Local Self Government Engineering
Department (hereinafter referred to as the 'LSGED') which
4Page 5
was converted from PHED. All the engineering works of
Local Self Government were entrusted to the said 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 SelfGovernment 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
5Page 6
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 subsection (2) of Section 97
of Act, 1975 and with the previous approval of the State
Government, the Nigam made regulations for regulating the
recruitment to the posts and the conditions of service of
persons appointed to the Uttar Pradesh Jal Nigam Service of
Engineers (Public Health Branch) known as the Uttar Pradesh
Service of Engineers (Public Health Branch) Regulations,
1977.
6. Subsequently, in exercise of powers conferred under
subsection (1) and clause (c) of subsection (2) of
Section 97 of the Act, 1975, and with the previous approval
of the State Government, Nigam made the “Uttar Pradesh Jal
Nigam Services of Engineers (Public Health Branch)
Regulations, 1978” (hereinafter referred to as the
“Regulations, 1978”) for regulating the recruitment to the
posts and the conditions of service of persons appointed to
the Jal Nigam Engineers (Public Health Branch). The said
Regulations, 1978 were made equally applicable to the
6Page 7
employees transferred and merged from the erstwhile LSGED
and the employees directly recruited by the Nigam and it
came into force w.e.f. 27th April, 1978. Regulation 31
relates to pay, allowance, pension, leave and other
conditions of service which reads as follows:
“Regulation 31. Except as provided in
these regulations the pay, allowance,
pension, leave, imposition of penalties and
other conditions of service of the members
of the service shall be regulated by rules,
regulations or orders applicable generally
to the Government Service in connection
with the affairs of the state.”
7. There is no separate provision for age of
superannuation of employees of the Nigam prescribed under
Regulations, 1978. As per Regulation, 31, the terms and
conditions of service of the employees of the Nigam shall
be governed by the same rules, regulations and orders
generally applicable to the employees of the State
Government and hence the retirement and superannuation age
of employees of the Nigam shall stand governed by the
provisions of Rule 56(a) of the Uttar Pradesh Fundamental
Rules contained in the Financial Handbook, Volume II, Part
IIIV, which reads as follows:
7Page 8
“Rule 56(a).Except as otherwise provided in
other clauses of 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 fiftyeight
years. He may be retained in service after
the date of retirement on superannuation
with the sanction 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/A1/2001 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.
8Page 9
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 age of sixty years.
Provided further that a Government servant
who has attained the age of fifty eight
years on or before the first day of
November, 2001 and is on extension in
service shall retire from service on expiry
of his extended period of service.”
8. In the meantime, after issuance of Government’s order
expressing its intention to amend clause (a) of Rule 56 by
Notification dated 28th November, 2001, the Nigam by its
letter dated 31st December, 2001 enquired from the State
Government as to whether the benefit of enhancement in the
age of superannuation from 58 years to 60 years would be
applicable to the employees of the Nigam or not. In reply
thereto just before the Amendment Rules, 2002, the special
Secretary to the State Government from its Department of
Local Self Government by his letter dated 22nd January,
2002, conveyed that the employees of the Nigam shall not be
entitled to the enhancement of age of superannuation from
58 years to 60 years as the same would be applicable only
to the State Government employees. On receipt of the said
letter, on 11th July, 2002 the Nigam resolved that
9Page 10
enhancement in the age of superannuation from 58 years to
60 years would not be applicable to the employees of the
Nigam.
Against the decision of the State Government dated 22nd
January, 2002 and the decision of the Nigam vide Office
Memorandum dated 11th July, 2002 a number of writ
petitions were preferred by the employees of the Nigam who
were being sought to retire on completing the age of 58
years. Some of the employees directly filed writ petitions
before this Court challenging the orders issued by the
Nigam against them to the effect that they would
superannuate upon completion of 58 years. This Court by
its judgment in Harwindra Kumar vs. Chief Engineer, Karmik
and others, 2005 (13) SCC 300 directed the Nigam to
continue the petitioners of those cases in service till
they attain the age of 60 years and the orders directing
their retirement at the age of 58 years were set aside with
the following observation:
“9. In the present case, as the Regulations have
been framed by the Nigam specifically
enumerating in Regulation 31 thereof that the
Rules governing the service conditions of
government servants shall equally apply to the
employees of the Nigam, it was not possible for
10Page 11
the Nigam to take an administrative decision
acting under Section 15(1) 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
by the Nigam in the exercise of powers conferred
upon it under Section 97(2)(c) of the Act.
10. For the foregoing reasons, we are of the
view that so long as Regulation 31 of the
Regulations is not amended, 60 years which is
the age of superannuation of government servants
employed under the State of Uttar Pradesh shall
be applicable to the employees of the Nigam.
However, it would be open to the Nigam with the
previous approval of the State Government to
make suitable amendment in Regulation 31 and
alter the service conditions of employees of the
Nigam, including their age of superannuation. It
is needless to say that if it is so done, the
same shall be prospective.
11Page 12
11. For the foregoing reasons, the appeals as
well as writ petitions are allowed, orders
passed by the High Court dismissing the writ
petitions as well as those by the Nigam
directing that the appellants of the civil
appeals and the petitioners of the writ
petitions would superannuate upon completion of
the age of 58 years are set aside and it is
directed that in case the employees have been
allowed to continue up to the age of 60 years by
virtue of some interim order, no recovery shall
be made from them but in case, however, they
have not been allowed to continue after
completing the age of 58 years by virtue of
erroneous decision 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 must be paid to them
within a period of three months from the date of
receipt of copy of this order by the Nigam.
There shall be no order as to costs.”
9. After the decision in Harwindra Kumar(supra), the Nigam
in exercise of its powers conferred under subsections (1)
and (2) of Section 97 of the Act, 1975, framed Uttar
Pradesh Jal Nigam Employees (Retirement on the age of
Superannuation) Regulations, 2005 (hereinafter referred to
as the ‘Regulations, 2005’). It was issued by Office Order
dated 8th December, 2005 and made effective from 30th August,
2005. By Regulation 3 the retirement age of 60 years was
provided but for employees and Engineers who were employed
in erstwhile LSGED and who were transferred and merged in
the Nigam. In Regulation 4, a separate age of
12Page 13
superannuation at the age of 58 years was prescribed for
all other employees and Engineers, who were not covered
under Regulation 3 i.e. those 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
13Page 14
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 recruited is arbitrary and declared it
nonest. The writ petitioners were allowed to continue in
service till the age of 60 years.
11. As against the aforesaid judgment, the Nigam filed a
special appeal before the Division Bench of the Allahabad
High Court which by order dated 1st August, 2007 stayed the
declaration given by the learned Single Judge. However, so
far as the writ petitioners were concerned, no interim
orders were passed in the said special appeal and as such,
they were allowed to discharge their duties upto the age of
60 years.
12. The Nigam being not satisfied with the order passed by
the Division Bench moved before this Court in Chairman,
Uttar Pradesh Jal Nigam & another vs. Radhey Shyam Gautam
and another, 2007 (11) SCC 507. In the said case, taking
into consideration the earlier decision rendered in
14Page 15
Harwindra Kumar(supra) and Jaswant Singh(supra) this Court
dismissed the appeal with following observation:
“10. After the amendment made in Rule 56(a) of
the Rules by the State Government and thereby
enhancing the age of superannuation of
government servants from 58 years to 60 years,
the same would equally apply to the employees of
the Nigam and in case the State Government as
well as the Nigam intended that the same would
not be applicable, the only option with it was
to make suitable amendment in Regulation 31 of
the Regulations after taking previous approval
of the State Government and by simply issuing
direction by the State Government purporting to
act under Section 89 of the Act and thereupon
taking administrative decision by the Nigam
under Section 15 of the Act in relation to the
age of the employees would not tantamount to
amending Regulation 31 of the Regulations.
11. In Harwindra Kumar case the Division Bench
decision on which the appellant places reliance
was challenged. Orders passed by the High Court
dismissing the writ petitions as well as those
by the Nigam directing that the appellants of
the civil appeals and the petitioners of the
writ petitions would superannuate upon
completion of the age of 58 years were set aside
and it was directed that in case the employees
have been allowed to continue up to the age of
60 years by virtue of some interim order, no
recovery shall be made from them but in case,
however, they have not been allowed to continue
after completing the age of 58 years by virtue
of erroneous decision 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.”
15Page 16
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 vs. Jaswant Singh &
others, 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 filed the writ petitions when they were
in service or who have obtained interim
order for their retirement, those persons
should be allowed to stand to benefit and
not others. We have been given a chart of
those nine persons, who filed writ petitions
and obtained stay and are continuing in
service. They are as follows:
1. Shri Bhawani Sewak Shukla
2. Shri Vijay Bahadur Rai
3. Shri Girija Shanker
4. Shri Yogendra Prakash Kulshresht
5. Shri Vinod Kumar Bansal
6. Shri Pradumn Prashad Mishra
16Page 17
7. Shri Banke Bihari Pandey
8. Shri Yashwant Singh
9. Shri Chandra Shekhar
And the following persons filed writ
petitions before retirement but no stay
order was granted:
1. Shri Gopal Singh Dangwal (WP No. 35384
of 2005 vide order dated 552005)
2. Shri R.R. Gautam (WP No. 45495 of 2005
vide order dated 1562005)
17. The benefits shall only be confined to
abovementioned persons who have filed writ
petitions before their retirement or they
have obtained interim order before their
retirement. The appeals filed against these
persons by the Nigam shall fail and the same
are dismissed. Rest of the appeals are
allowed and orders passed by the High Court
are set aside. There would be no order as to
costs.”
14. In Harwindra Kumar(supra) this Court held that as long
as Regulation 31 is not amended, 60 years which is the age
of superannuation of government servants employed under the
State of Uttar Pradesh shall be applicable to the employees
of the Nigam. However, liberty was given to the Nigam to
make suitable amendment in Regulation 31 with the previous
approval of the State Government to alter the service
conditions of employees of the Nigam, including their age
of superannuation. It was also made clear that if the same
is done, it shall be prospective. It appears that in view
17Page 18
of observation of this Court, the Nigam framed Regulations,
2005 but prescribed separate age of superannuation, one for
employees and engineers who were employed in erstwhile
LSGED and another for those who were directly appointed in
the Nigam. Regulations 2005 were so framed without
repealing or amending Regulation 31.
It appears that in view of the subsequent decisions of
this Court, the Nigam vide its Resolution dated 13th April,
2008, resolved to enhance the age of the superannuation of
the employees, irrespective of their source of entry, to 60
years and forwarded the same to the State Government for
its approval. The resolution aforesaid reads as follows:
Agenda Item No. Description of
Agenda
Decision taken by
the Board of
Directors
147.07 Regarding
enhancement of age
of superannuation
from 58 years to
60 years, of the
officers and
officials working
in Uttar Pradesh
Jal Nigam ,
similar to the
working Government
employees.
Proposal approved
by the Board of
Directors and it
is decided to
refer to the
Government for
obtaining the
approval of the
Government.
18Page 19
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 on attaining age of Superannuation)
Regulations”, 2005 unconstitutional as it created two
19Page 20
classes of employees in determining two separate retirement
age with observation as noticed above.
18. Learned counsel for the appellantState and the Nigam
assailed the judgment mainly on the following grounds:
(i) The High Court cannot equate the employees of the public
undertakings/corporations with the employees of the State Government for
determination of age of superannuation.
(ii) The High Court was not justified in declaring that all the employees
of the Nigam shall retire on attaining the age of 60 years like State
Government employees, by pre-empting the Nigam from exercising its
power under Section 97 of the Act, 1975.
(iii) The classification between the employees of Local Self-Government
Engineering Department transferred to the Nigam and the employees
directly recruited by the Nigam, in prescribing different age of
superannuation is valid and reasonable.
(iv) The High Court was not justified in setting aside the Jal Nigam
Employees (Retirement on attaining age of Superannuation) Regulations,
2005 in absence of any challenge to the power of the Nigam to frame the
regulations particularly when the petitioners only challenged the Regulation
20Page 21
(v) The High Court committed an error of law in not considering
Section 37(1) of the Act, 1975, which protects the terms and conditions of
service of the employees of erstwhile Local Self-Government Engineering
Department who were transferred to the Nigam on its creation.
(vi) The question of determination of age of superannuation is a matter
of policy of the State Government or the competitive authority of a
Corporation, and the High Court under Article 226 cannot determine the
age of superannuation.
19. Thus, from a detailed analysis and close examination of
facts relating to condition of service of employees of the
Nigam starting from its constitution till today, the
following facts emerges:
(a) The question relating to age of superannuation of employees of the Nigam
stood finally concluded on 18th November, 2005 when this Court rendered
decision in Harwindra Kumar (supra).
(b) After judgment in Harwindra Kumar (supra) based on liberty given by this
Court, the Nigam framed Regulations, 2005 prescribing two separate age of
superannuation for the employees of the Nigam, without amending Regulation 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
21Page 22
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 4 of Regulations, 2005
has been framed by the Nigam prescribing two separate age
of superannuation for similarly situated employees.
22Page 23
22. In Prem Chand Somchand Shah v. Union of India (1991) 2
SCC 48 this Court held:
“8. As regards the right to equality guaranteed under
Article 14 the position is well settled that the said
right ensures equality amongst equals and its aim is
to protect persons similarly placed against
discriminatory treatment. It means that all persons
similarly circumstanced shall be treated alike both in
privileges conferred and liabilities imposed.
Conversely discrimination may result if persons
dissimilarly situate are treated equally. Even amongst
persons similarly situate differential treatment would
be permissible between one class and the other. In
that event it is necessary that the differential
treatment should be founded on an intelligible
differentia which distinguishes persons or things that
are grouped together from others left out of the group
and that differentia must have a rational relation to
the object sought to be achieved by the statute in
question.”
23. Since creation of the Nigam, irrespective of source of
recruitment, the employees of the Nigam were treated alike
for the purpose of superannuation and were allowed to
superannuate at the age of 58 years as is evident from
Regulation 31.
24. As per decision of this Court in Prem Chand Somchand
Shah (supra) even amongst persons similarly situated
differential treatment would be permissible between one
class and the other. In that event it is necessary that
23Page 24
the differential treatment should be founded on an
intelligible differentia which distinguishes persons or
things that are grouped together from others left out of
the group and that differentia must have a rational
relation to the object sought to be achieved by the
statute. The appellants, the Nigam as well as the State
of Uttar Pradesh failed to place on record the reasons for
differential treatment which distinguishes employees of
erstwhile LSGED and those who were appointed directly in
the Nigam.
Further, as employees appointed from different source,
after their appointment were treated alike for the purpose
of superannuation under Regulation 31, subsequently solely
on the basis of source of recruitment no discrimination can
be made and differential treatment would not be permissible
in the matter of 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.
24Page 25
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 coexist, 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 Corporations cannot prevail over statutory
Regulation 31 framed by the Nigam under Section 97 (2) (C)
of the Act, 1975 with the previous approval of the State
Government. Therefore, the employees of the Nigam shall
not be guided by the State Government’s order dated 29th
25Page 26
June, 2009 but will continue in the services up to the age
of 60 years, in view of Regulation 31, having not yet
amended or repealed.
28. In Harwindra Kumar (supra) case this Court already held
that it is not possible for the Nigam to take an
administrative decision pursuant to the direction of the
State Government in the matter of policy issued under
Section 89 of the Act and directing that the age of
superannuation of 60 years applicable to the Government
servants shall not be applicable to the employees of the
Nigam. In view of such finding of this Court, the Nigam
cannot act on the basis of the State Government’s order
dated 29th June, 2009 providing uniform age of
superannuation at 58 years.
29. During the pendency of these appeals further
development has taken place. The Government of Uttar
Pradesh by its letter No.3199/9311113C/2011 dated 23rd
December, 2011 informed the Chairman, Uttar Pradesh Jal
Nigam its approval to increase the age of superannuation of
full time regular officers/employees of the Nigam from 58
years to 60 years. The State Government directed to make
26Page 27
appropriate amendments in the Regulations framed by the
Nigam, which reads as follows:
“No.3199/9311113C/2011
From: Vijay Bahadur Singh,
Special Secretary,
Government of Uttar Pradesh.
To: The Chairman,
Uttar Pradesh Jal Nigam ,
Lucknow.
Urban Developmetn Section 3 Lucknow dt.
23.12.2011
Sub: For increasing the age of retirement of full
time regular employees of Uttar Pradesh Jal
Nigam from 58 years to 60 years.
Sir,
This is in reference to your letter no.
86/P1/2005002/11 dated 23.12.2011 and
Government order no.160/4412091190/2008
dated 20.12.2011 of the Public Enterprises
Bureau Section, on the above subject.
2. In this regard I have been directed to say
that a meeting of the Board of Directors of
Jal Nigam was held on 23.12.2011 and it was
decided in the said meeting that age of
retirement of full time regular
officers/employees of Uttar Pradesh Jal
Nigam be increased from 58 years to 60
years. The aforesaid decision of Board was
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
27Page 28
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 Bahadu 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 Interlocutory Application dated 20th March, 2013 has
been filed by the counsel for the respondent in Civil
Appeal No.5528 of 2012 intimating that 1st respondent
Dayanand Chakrawarty expired on 17th February, 2013, during
the pendency of the case, leaving behind their legal heirs,
28Page 29
Mrs. Pramila Chakrawarty (widow), Ms. Manisha Chakrawarty
(daughter), Mr. Vivekanand Chakrawarty (son), Ms. Utpana
Chakrawarty (daughter) and Mr. Sampurna Nand Chakrawarty
(son).
32. In view of the observation made in the preceding
paragraphs as the employees including the respondents are
entitled to get consequential benefits, we allow the
petition for substitution to enable the heirs to derive the
benefit of the decision of this Court.
33. Now the question arises as to what consequential
benefits to which the respondents and other employees who
have not moved before any court of law shall be entitled.
By impugned judgment the High Court observed:
“Similar benefit is already available to the
employees who are continuing in service by virtue
of interim order passed by the competent court.
They should continue till the age of 60 years.
The law helps those who are vigilant and not to
those who go to sleep as per maxim VIGILANTIBUS,
ET NON DORMINTIBUS, JURA SUB VENIUNT. So, this
benefit will not be given to the employees who
peacefully retired on attaining the age of 58
years and never came before the Court. But there
may be another class of the employees who came
before this Court and could not get the interim
order but writ petitions were admitted.
29Page 30
Admittedly, these employees have not worked. So,
on the basis of no pay no work, they will not be
entitled for arrears. However, their back wages
will be restricted @20% of the basic salary as per
the ratio laid down in the case of M/s Gvalli v.
Andhra Education Society 2010 AIR 1105 SC.
Lastly, it is clarified that the extended service
will be counted for all the purpose to the above
mentioned employees. The petitions are allowed.
No cost.”
34. In Harwindra Kumar vs. Chief Engineer, Karmik and
others (Supra), this Court while allowing the employees of
Nigam to continue till the age of 60 years in view of
Regulation 31, ordered that no recovery shall be made from
those who continued up to the age of 60 years. This Court
further observed that the employees who have not been
allowed to continue after completing the age of 58 years 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 vs. Radhey Shyam Gautam,
2007 (11) SCC 507, following the decision in Harwindra
Kumar (supra) case, this Court held that the employees of
30Page 31
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 vs. 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 Rules etc. relating to absence
from duty.
Such principle can be applied to only those
employees who were not guided by any specific rule relating
to absence from duty.
If an employee is prevented by the
employer from performing his duties, the employee cannot
31Page 32
be blamed for having not worked, and the principle of ‘no
pay no work’ shall not be applicable to such employee.
38. In these cases as we have already held that
Regulation
31 shall be applicable and the age of superannuation of
employees of the Nigam shall be 60 years;
we are of the
view that following consequential and pecuniary benefits
should be allowed to different sets of employees who were
ordered to retire at the age of 58 years:
(a) The employees including respondents who moved before a court of law
irrespective of fact whether interim order was passed in their favour or not, shall
be entitled for full salary up to the age of 60 years. The arrears of salary shall be
paid to them after adjusting the amount if any paid.
(b) The employees, who never moved before any court of law and had to retire
on attaining the age of superannuation, they shall not be entitled for arrears of
salary. However, in view of Regulation 31 they will deem to have continued in
service up to the age of 60 years. In their case, the appellants shall treat the age of
superannuation at 60 years, fix the pay accordingly and re-fix the retirement
benefits like pension, gratuity etc. On such calculation, they shall be entitled for
arrears of retirement benefits after adjusting the amount already paid.
32Page 33
(c) The arrears of salary and arrears of retirement benefits should be paid to
such employees within four months from the date of receipt of copy of this
judgment.
39. The judgment passed by the Division Bench of the
Allahabad High Court, Lucknow Bench dated 29th July, 2010
and other impugned judgments stand modified to the extent
above. The appeals are disposed of with aforesaid
observation and directions. There shall be no order as to
costs.
………..……………………………………………..J.
(G.S. SINGHVI)
........……………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 2, 2013.
33
