Allahabad High Court
State Of U.P. Thru.Prin. Secy Nagar ... vs Kamesh Srivastava & Others on 9 November, 2020
Bench: Pankaj Mithal, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 276 of 2020 Appellant :- State Of U.P. Thru.Prin. Secy Nagar Vikas Lko. & Anr. Respondent :- Kamesh Srivastava & Others Counsel for Appellant :- C.S.C. Counsel for Respondent :- Ajay Kishor Pandey,Rishabh Kapoor Hon'ble Pankaj Mithal,J.
Hon'ble Saurabh Lavania,J.
Heard learned Counsel for the parties.
The delay of 238 days in filing the Special Appeal is condoned as the same has not been opposed and reasons given in the affidavit filed in support of application for condonation of delay (C.M.Application No. 63049 of 2020), are sufficient, in our view, to condone the delay in filing the present appeal.
Sri Shishir Jain Advocate, has filed Vakalatnama on behalf of the respondent no. 1, which is taken on record.
Heard Dr. Udai Veer Singh, learned Additional Chief Standing Counsel for the State-appellants, Sri Shishir Jain, for respondent no. 1, Sri Ajay Kishor Pandey, learned Counsel for respondent nos. 2 to 5 and Sri Rishabh Kapoor, learned Counsel for respondent nos. 7 and 8.
Dr. Udai Veer Singh, while assailing the judgment under appeal argued on two aspects i.e. providing benefit of pay/pay scale as per recommendations of Pay Commission is not covered under expression "Condition Of Service" and secondly the Section 89 empowers the State Government to issue direction to Nigam, which are binding and to be followed by Nigam.
Relying on the provisions of Regulations of 1978 particularly Regulation 26 and 31 as also the judgment of the Hon'ble Supreme Court in the case of Harwindra Kumar Versus Chief Engineer, Karmik and Others reported in (2005) 13 SCC 3, Sri Shishir Jain, learned Counsel for the petitioner-respondent, opposed the arguments advanced by the learned Counsel for the State and also submitted that providing benefits of recommendation of Pay Commission is covered under the expression "Condition of Service", thus the judgment under appeal is not liable to be interfered.
This intra Court appeal has been preferred by the State against the judgment and order dated 27.2.2020 passed by the Writ Court, allowing three writ petitions in which Writ Petition No. 11991 (SS) of 217 (Kamlesh Srivastava and 5 others Versus State of U.P. and Others), is the leading one.
The respondents are erstwhile employees of Local Self Government Engineering Department, who were later on absorbed in the U.P. Jal Nigam established under the U.P. Water Supply and Sewerage Act, 1975 (in short "1975 Act") and there were granted the benefits of 6th Pay Commission w.e.f. 12.3.2010 thus, they have approached the Writ Court, seeking relief that they are entitled to the benefits of 6th Pay Commission w.e.f. 1.1.2006 as has been provided to the State Government employees.
The learned Single Judge has allowed the writ petition on the basis of the provisions of Section 37 of U.P. Water Supply and Sewerage Act, 1975 read with Regulation 31 of U.P. Jal Nigam Service of Engineers (Public Health Branch) Regulations,1978, which provides that the service conditions of employees of the Jal Nigam are to be same as are applicable to the employees of the State Government.
The learned Single Judge also relied upon the decision of Hon'ble Supreme Court in the case of Harwindra Kumar (Supra) , wherein the aforesaid provisions as also Section(s) 15(1), 89(1) and 97 of the 1975 Act, were considered and with regard to the age of superannuation it was held that the employees of the Jal Nigam are entitled to retire on completion of 60 year of age as is the age of superannuation prescribed for the State employees.
The Hon'ble Supreme Court in dealing with the Section(s) 15(1), 89(1) and 97 of the 1975 Act, in para 9 of the judgment passed in the case of Harwindra Kumar (Supra) observed that " 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 it was permissible for the Nigam on the basis of such a direction of the State Government in 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) of the Act".
The impugned judgment and order also observed that the benefits admissible under the recommendations of the 6th Pay Commission are covered under the expression 'Conditions of Service'.
The expression "Conditions of Service" is of wide import. It means all those conditions which regulates the holding of a post by a person right from the time of appointment till his retirement and even beyond it in matter like pension etc. In this way as also in view of Regulation 26, which provides Pay Scale, and Regulation 31 of Regulations of 1978, which was considered by the Hon'ble Supreme Court in the case of Harwindra Kumar (Supra) while extending the benefit of age of superannuation to the employee of Nigam wherein expression "Vetan" has been mentioned, we are of the view that providing benefit of the recommendations of Pay Commission is included in expression "Condition of Service".
In view of the aforesaid facts and circumstances and findings written by the learned Single Judge as also the observations made by us, we do not find that there is any error or illegality in the impugned order.
The Special Appeal is devoid of merits and it is dismissed.
Order Date :- 9.11.2020 Jyoti/-