Bombay High Court
Iftekharullah Baig Saidullah Baig vs The State Of Maharashtra And Another on 26 September, 2022
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge, R. G. Avachat
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5855 OF 2019
Iftekharullah Baig s/o Saidullah Baig,
Age : 58 years, Occupation : Service,
R/o CTS No.11442, Old Collector
Office Compound, Near Masjid,
Gulshan Mahal, Aurangabad.
...Petitioner
-Versus-
1. The State of Maharashtra.
Through it's Principal Secretary,
Minority Development Department,
Mantralaya, Mumbai.
2. Maharashtra State Board of Wakf,
Panchakki, Aurangabad.
Through it's Chief Executive Officer.
...Respondents
AND
WRIT PETITION NO.8799 OF 2012
Mustafa Khan Fazal Mohammad Khan. ...Petitioner
-Versus-
The State of Maharashtra and others. ...Respondents
AND
WRIT PETITION NO.8162 OF 2019
Aziz Ahmed Siraj Ahmed. ...Petitioner
-Versus-
The State of Maharashtra and another. ...Respondents
AND
WRIT PETITION NO.7858 OF 2019
Mohammad Ayyub Khan s/o
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Mohammad Ali Khan. ...Petitioner
-Versus-
The State of Maharashtra and another. ...Respondents
AND
WRIT PETITION NO.7933 OF 2019
Siddi Anwar Husain s/o
Siddi Mahemood Husain. ...Petitioner
-Versus-
The State of Maharashtra and others. ...Respondents
AND
WRIT PETITION NO.7960 OF 2019
Shaikh Jilani s/o Shaikh Rasool. ...Petitioner
-Versus-
The State of Maharashtra and others. ...Respondents
AND
WRIT PETITION NO.9208 OF 2019
Quazi Mohammad Misbahuddin s/o
Mohammad Isaaq. ...Petitioner
-Versus-
The State of Maharashtra and another. ...Respondents
...
Shri R.S. Deshmukh, Senior Advocate a/w Shri Govind Kulkarni
and Shri D.R. Deshmukh i/by Shri Kazi S.S. and Shri Kunal Kale
in the respective petitions.
Shri P.S. Patil, AGP for Respondent 1/State.
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Shri V.J. Dixit, Senior Advocate h/f Shri Y.B. Pathan, Advocate,
for Respondent No.2 in WP 5855/2019 and for Respondent No.3
in WP 8799/2012.
Shri N.E. Deshmukh, Advocate for Respondent No.2 in WP
7858/2019, 7933/2019, 7960/2019, 9208/2019 and 8162/2019.
...
CORAM : RAVINDRA V. GHUGE,
R. G. AVACHAT &
SANDIPKUMAR C. MORE, JJJ.
Reserved on : 26th August, 2022
Pronounced on : 26th September, 2022
JUDGMENT (Per Ravindra V. Ghuge, J.) :-
1. All these petitioners are identically placed. Each of them has been appointed under the Wakf Act, 1954 and the Marathwada Wakf Board Regulations, 1964. Some of the petitioners were/are Clerk-cum-Typist, some of them were/are Drivers and some of them were/are Class-IV employees.
2. Each of these petitioners has been issued with a notice of retirement at the verge of completing 58 years of age and, consequentially, each one of them has been superannuated at the age of 58 years.
3. On 04.12.2019, the Division Bench has passed the following order :-
::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 :::
*4* FB5855o19group.odt "In all these writ petitions the contention of the petitioners is that, the age of retirement of the employees of the Maharashtra Wakf Board is 60 years.
2. The Wakf board has placed reliance upon the Maharashtra State Board of Wakf (Recruitment and Regulations) 2017 and more particularly Rule 46 of the Said regulations to contend that the age of retirement of employees of the Wakf Board is 58 years.
3. According to the petitioners, all these petitioners are appointed prior to 2005 that is even prior to the draft rules framed. At the time of their appointments, the age of retirement was 60 years and they would be governed by the recruitment rules and practice as prevailing on the date of their appointments.
4. The petitioners have placed reliance upon the judgment and order dated 18th April, 2019 in Writ Petition No. 5307 of 2018 delivered at Aurangabad and the judgment dated 29.11.2013 in Writ Petition No. 4157 of 2013 delivered at Nagpur. The Wakf Board relies on the judgment dated 06th March, 2018 in Writ Petition No. 1654 of 2006 delivered at Aurangabad, in which the Division Bench of this Court has held that, the age of retirement would be 58 years, whereas in the judgments relied by the learned counsel for the petitioners, the Court came to the conclusion that, the age of retirement would be 60 years that age of retirement is prescribed at the time of entry in service.
5. It appears that coordinate Benches of this Court have taken divergent views.
6. In the light of that, it would be appropriate that the Larger Bench decides this issue.
7. Place the matters before the Hon'ble the Chief Justice for referring the matters to the Larger Bench as prescribed in Chapter VII Rule 1 of the Bombay High Court Appellate Side Rules.
8. Interim orders passed earlier to continue till then."
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4. For the sake of clarity, a ready reference chart indicating the dates of appointment of these petitioners, their designation and their dates of retirement, is as under:-
Sr. Name of Petitioner Designation Date of Date of No. (Appointed as) Appointment Retirement (On completion of 58 years) 1 Iftekharullah Baig s/o Clerk-cum- 15.12.1986 31.05.2019 Saidullah Baig Typist 2 Mustafa Khan Fazal Driver -- 31.05.2012 Mohammad Khan 3 Aziz Ahmed Siraj Clerk 04.05.1984 30.06.2019 Ahmed 4 Mohammad Ayyub Clerk 12.08.1985 31.01.2019 Khan s/o Mohammad Ali Khan 5 Siddi Anwar Husain s/o Clerk 1982 30.06.2019 Siddi Mahemood Husain 6 Shaikh Jilani s/o Shaikh Clerk 1982 30.06.2019 Rasool 7 Quazi Mohammad Junior Clerk 22.09.1986 --
Misbahuddin s/o Mohammad Isaaq
5. In Writ Petition No.8799/2012, the Division Bench had passed the following order on 17.11.2017:-
"1 On 01.03.2017 after hearing the learned Advocates for the respective sides, this Court has passed the following order:-
"1) Heard both the sides for some time.
2) It appears that in view of the provision of
Section 110 (2)(e) read with Section 24(2) of the Wakf Act, 1995, Rules were framed ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *6* FB5855o19group.odt governing the service conditions of the employees of the Wakf Board and they were submitted to the State Government for sanction. It further appears that in the past the Rules so framed were returned back by pointing out some deficiencies.
3) The learned Counsel for the Wakf Board submitted that again the Rules were submitted to the State Government by the Wakf Board by removing the deficiencies pointed out by the State Government.
4) The record is also shown to this Court, which is to the effect that the Rules applicable to the employees of the State Government, like MCSR, will be made applicable to the employees of the Wakf Board. In the past, the Wakf institutions from all over Maharashtra, excluding Marathwada region, were registered under the Bombay Public Trusts Act, and the work, which the Wakf Board Office is doing, was being done by the Charity Commissioner's Office of the State Government.
5) In view of these circumstances, the decision to accord sanction to the Rules, needs to be taken by the State Government. If the decision is not taken within a period of three months from today, as the first proposal was sent in the year 2003 itself, this Court will be compelled to make some order to give redress to the petitioner by directing payment from the funds of Wakf Board, or making the payment by the State Government from its treasury and further orders will be passed by this Court.
6) Apparently, the State Government is required to make available the necessary funds for salary grants, pension etc.. Stand over after three months."
2 The learned Advocate for Respondent No.3/Wakf Board submits that the revised draft rules were once again submitted to the Principal Secretary, Minorities Development Department, Maharashtra State, Mumbai by ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *7* FB5855o19group.odt communication dated 21.01.2015.
3 The learned AGP for the Respondents/ State submits that such revised draft rules have still not been received by the State.
4 What intrigues us is that when this Court had passed an order on 01.03.2017 directing the State Government to accord sanction to the rules, the learned AGP did not point out to this Court that the revised draft rules have not reached the State. We are disturbed by the conduct of the State in informing us today that the revised draft rules never reached them. 5 As such, we direct Respondent No.3/ Wakf Board to submit a copy of the Revised Draft Rules, which they have forwarded by the covering letter dated 21.01.2015, to the Principal Secretary, Minorities Development Department, Maharashtra State, Mantralaya, Mumbai-32, by a hand delivery which will be sent by the special messenger within TWO WEEKS from today. Thereafter, the said rules would be accorded sanction by the State Government within SIX WEEKS after receiving them.
6 We make it clear that if Respondent No.2 or Respondent No.3 falter in implementing our orders, the Additional Chief Secretary of the Department of Minorities Development, who is the Additional Chief Executive Officer of the Maharashtra Wakf Board, shall remain personally present in this Court on the next date. We would not entertain any request for dispensing with his appearance in any circumstances.
7 Insofar as the leave encashment of the Petitioner is concerned, which is said to be about Rs.1,94,340/-, since we have made certain observations in paragraph 5 of our order dated 01.03.2017, Respondent No.3 shall now deposit the said amount in this Court within SIX WEEKS from today from it's own funds, which shall be subject to the result of this petition. If the Petitioner makes an application for withdrawal of the said amount, we would consider the said request independently. ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 :::
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8 Stand over to 16.01.2018 so as to enable the
learned AGP to inform this Court that the sanction has been accorded to the revised draft rules, failing which, the Additional Chief Secretary shall remain personally present in this Court as directed above."
6. On 27.04.2018, the Division Bench passed the following order in Writ Petition No.8799/2012:-
"1. This petition pertains to the year 2012.
The petitioner is litigating for considerable period so as to receive his post retiremental benefits. Prima facie, we are of the opinion that neither the State Government and its officials nor the respondent - Wakf Board is serious about addressing the grievance raised by the petitioner. In that view of the matter, we deem it proper to direct respondent No.3 to deposit Rs.5,00,000/- (Rupees Five Lakhs) in the Registry of this Court within two weeks from today, failing which the Chief Executive Officer will be held personally responsible for the breach of today's order. We make it clear that we have passed this order without prejudice to the contentions of the parties.
2. On depositing aforementioned amount by respondent No.3 without prejudice to the contentions of the parties and on filing personal undertaking by the petitioner that in case the reliefs claimed by the petitioner are not granted, he will bring back the money, we permit the petitioner to withdraw Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand).
3. At the request of learned Counsel appearing for respondent No.3, stand over to 14.6.2018.
4. Parties to act upon authenticated copy of this order."::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 :::
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7. By order dated 12.07.2018, the petitioner in Writ Petition No.8799/2012, was permitted to withdraw Rs.2,50,000/-.
In Writ Petition No.5855/2019, the learned Vacation Bench granted interim relief on 30.05.2019 in terms of prayer clause to the petitioner Shri Iftekharullah Baig. Vide the said order, the impugned notice of retirement dated 21.05.2019, was stayed.
8. It is undisputed that each of these petitioners were appointed in service and have been granted permanency, during the effect and operation of the Wakf Act, 1954 and the Marathwada Wakf Board Regulations, 1964. Regulation 19(1)(d) clearly prescribed that the maximum age upto which an employee could work is 60 years of age. Regulation 19(1)(d) reads as under :-
"19. Terms and conditions of services of officers and servants of the Board:-
(1) Save in cases in which the Board may decide to engage staff on some special terms and conditions, a full time employee (not being the Secretary of the Board or a person whose services are obtained on loan from any Government office or any Government or private institution) of the Board shall -
(a) ......
(b) .......
(c) ......
(d) not be continued or employed after he has
attained the age of 60 years except under a special resolution recording the reasons therefor passed at a meeting of the Board by a majority of 3/5th of the total number of the members of the Board;"::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 :::
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9. It is equally undisputed that the Wakf Act, 1995 came into force w.e.f. 01.01.1996. On 16.08.2003, the Government of Maharashtra issued the notification introducing the Maharashtra Wakf Rules, 2003. These rules did not touch the retirement age of the Class III and Class IV employees. The Marathwada Wakf Board Regulations, 1964 (for short, "the 1964 Regulations) were not repealed by the 1995 Act or the 2003 Rules. The Maharashtra State Board of Wakfs (Recruitment Regulations) Rules, 2017, were introduced in 2018. Rule 46 of the said Regulations reduced the age of retirement by two years and fixed 58 years as being the retirement age of the Wakf Board Employees.
Submissions on behalf of the petitioners
10. The learned Senior Advocate Shri Rajendra Deshmukh has addressed us on behalf of the petitioners. The contention is that the Marathwada Wakf Board Regulations, 1964 were framed under Section 68 of the Wakf Act, 1954 and published in the Maharashtra Gazette on 01.08.1968. Regulation 19(1)(d) prescribed the retirement age as 60 years. The Maharashtra Civil Services (Pension) Rules, 1982 have not been made applicable to the employees of the Wakf Board in the light of the 1954 Act and the 1964 Regulations.
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11. Reliance is placed upon the following
judgments/orders:-
(a) Chairman, Railway Board and others vs. C.R.
Rangadhamaiah and others, (1997) 6 SCC 623 (Five Judges Bench).
(b) P. Tulsi Das and others vs. Government of A.P., (2013) 1 SCC 364.
(c) Magic Wash Industries (Private) Limited and others vs. Assistant Provident Fund Commissioner and others, 1999 Vol-II CLR 426.
(d) Bank of Baroda and another vs. G. Palani and others, (2022) 5 SCC 612.
(e) Judgment dated 11.02.2020 delivered by the Division Bench of the Bombay High Court at Goa in Writ Petition No.439/2014 filed by Laxman J. Chavan and others vs. The Chief Secretary, State of Goa and others.
(f) Judgment dated 29.11.2013 delivered by this Court, Nagpur Bench, in Writ Petition No.4157/2013 filed by Mr.Shaikh Zafar s/o Shaikh Ibrahim vs. Maharashtra State Wakf Board and another.
(g) Judgment dated 18.04.2019 delivered by this Court, Aurangabad Bench, in Writ Petition No.5307/2018 filed by Mr.Faheem Akhtar s/o Akhtaruzz Aman vs. The State of ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *12* FB5855o19group.odt Maharashtra and another.
12. Shri Deshmukh has then referred to a judgment dated 06.03.2018 delivered by the Division Bench of this Court at Aurangabad, in Ghulam Mustaffa Khan vs. The State of Maharashtra and others, Writ Petition No.1654/2006. He submits that the view taken in this judgment cannot be sustained or said to be the correct position of law. He contends that this Court was dealing with a writ petition filed in 2006. The issue was as to whether, an employee, similarly situated as the petitioners before us, could have been superannuated at the age of 58 years w.e.f. 30.12.2005. It was contended before that Court that the proposed Maharashtra Wakf Board Regulations, 2003 (in short "2003 Regulations") are approved in the meeting of the Maharashtra State Board of Wakf, Aurangabad sometime in the year 2004. It was also canvassed that the proposed 2003 Regulations fixed the age of retirement at 58 years, in the meeting held on 30.11.2005. Shri Deshmukh submits that the minutes of this meeting were never confirmed in the subsequent meeting of the Board of Wakf and the State Government never approved the said regulations. Though this Court recorded that the State Government had never approved the 2003 Regulations and the earlier 1964 Regulations prescribing the age of superannuation at 60 years were in force, ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *13* FB5855o19group.odt this Court concluded that the draft regulations proposed reduction in the service tenure and the retirement age was reduced by two years and hence, there is no force in the case of the petitioners. The petition was dismissed.
13. Shri Deshmukh, therefore, submits that this Court failed to note that the draft regulations are purely in the nature of proposed regulations and unless statutorily approved by the State Government, they would never assume the character or the force of law. When the draft regulations are meaningless without approval and cannot be enforced or brought into effect until they are approved, this Court could not have relied upon such draft regulations by overlooking the 1964 Regulations which were still in force and were not repealed or replaced by new regulations. He, therefore, submits that the said judgment cannot be relied upon.
14. He then submits that the above referred judgment in Ghulam Mustafa Khan (supra) was delivered by the Division Bench of this Court without noticing an earlier judgment delivered by the Division Bench of this Court at Nagpur dated 29.11.2013 in Writ Petition No.4157/2013 filed by Shaikh Zafar Shaikh Ibrahim vs. The Maharashtra State Wakf Board and others. This Court noticed that Shaikh Zafar was appointed in 1976 when the 1964 Regulations were holding the field and the ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *14* FB5855o19group.odt service conditions made applicable to Shaikh Zafar at the time of joining duties flowed from the 1964 Regulations. It was contended before that Court that after the draft 2003 Regulations, a resolution was passed by the Wakf Board on 30.11.2005 reducing the age of retirement from 60 years to 58 years. This Court concluded that the proposed/draft regulations were not approved and cannot be enforced. This Court observed in paragraph 8 in Shaikh Zafar as under :-
"8. The issue is no more res integra. It is settled law that the age of superannuation of the employee has to be considered as it was provided at the time when he joined the service and it cannot be modified to his disadvantage subsequently. Shri Ghate, the learned Advocate for the petitioner, has rightly relied on the judgment of the Supreme Court in case of M.G. Pandke and others vs. Municipal Council, Hinganghat reported in 1992(2) Mh.L.J. 1684 in support of his submissions. In our view the law laid down by the Supreme Court in above case governs the present case. The service conditions of the petitioner were governed by the Regulations of 1964 at the time of his appointment and according to the Regulations of 1964, the age of superannuation is 60 years and therefore, the respondent- Wakf Board cannot alter the age of his superannuation to his detriment and seek to retire him at the age of 58 years."
15. Shri Deshmukh, therefore, submits that the judgment in Shaikh Zafar (supra) was not brought to the notice of the Division Bench of this Court when the judgment in ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *15* FB5855o19group.odt Ghulam Mustafa (supra) was delivered on 06.03.2018. Hence, the judgment in Ghulam Mustafa (supra) is per incurriam.
16. Shri Deshmukh has then relied upon the judgment delivered by the Division Bench of this Court at Aurangabad on 18.04.2019 in Writ Petition No.5307/2018 filed by Faheem Akhtar s/o Akhtaruzz Aman vs. The State of Maharashtra wherein, an identical issue was raised. Faheem Akhtar was appointed on 01.08.1999 and was superannuated on 31.12.2016 at the age of 58 years. The Wakf Board cited the 2017 Regulations stating that the Government has granted the sanction to these Regulations in June, 2018. The Division Bench concluded that Fhaeem Akhtar was superannuated when the 1964 Regulations were applicable and the 2017 Regulations were in the nature of draft rules. The Division Bench, therefore, concluded in paragraphs 5 and 6 as under:-
"5. It is trite that the service conditions cannot be altered to the detriment of an employee. At the time the petitioner entered the service with respondent No.2, the Marathwada Wakf Board Regulations, 1964 were in force. Clause 19 of the said Regulations provided the age of superannuation as 60 years. The said fact has been considered in the judgment delivered by the Division Bench of this Court at Nagpur in Writ Petition No.4157 of 2013 (Mr.Shaikh Zafar s/o Shaikh Irbrahim vs. Maharashtra State Wakf Board of Wakf Mandal and another) decided on 29.11.2013.
6. In light of the above, the service conditions that would govern the petitioner are the service ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *16* FB5855o19group.odt conditions on the date the petitioner was appointed. The service rules of 2018 relied by the learned counsel would not apply. The said service rules would not have retrospective application. Moreover, the petitioner is made to retire even when the rules of 2018 had not received the sanction of the Government."
17. Shri Deshmukh, therefore, submits, in the light of Shaikh Zafar (supra) and Faheem Akhtar (supra), that the Division Bench has laid down the correct position of law in these two judgments and the view taken by the Division Bench in Ghulam Mustafa (supra) would not reflect the correct position of law.
Submissions on behalf of the Wakf Board
18. Shri Dixit, the learned Senior Advocate, has contended that the petitioners before us have not challenged the 2017 Regulations. By these regulations, the 1964 Regulations stood superseded. The Wakf Board has filed a detailed affidavit specifically taking a stand that the age of superannuation of the employees was altered and reduced from 60 years to 58 years after the 2017 Regulations were brought into effect in 2018. Reliance is placed on Regulation 46, which reads as under :-
"46. Notwithstanding anything contained in these regulations, age of retirement for the employees of the Board, on any post in the offices of the Board, shall be 58 years."::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 :::
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19. Shri Dixit has then referred to paragraphs 2 and 3 of the affidavit in reply filed by the Maharashtra State Wakf Board, to contend that the Maharashtra Civil Services Rules prescribed the retirement at the age of 58 years. The Management of the Wakf Board which was known as the Marathwada Wakf Board, was governed by the 1954 Act. Rule 19(1)(d) prescribed the retirement age at 60 years. The 1954 Act and the Wakf (Amendment) Act, 1984, were repealed by Section 112 of the 1995 Act.
20. Section 112 of the 1995 Act reads as under:-
"112. Repeal and savings.
(1) The Wakf Act, 1954 (29 of 1954) and the Wakf (Amendment) Act, 1984 (69 of 1984) are hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act.
(3) If, immediately before the commencement of this Act, in any State, there is in force in that State, any law which corresponds to this Act that corresponding law shall stand repealed:
Provided that such repeal shall not affect the previous operation of that corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was in force on the day on which such things were done or action was taken."
21. Shri Dixit has placed reliance upon the following ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *18* FB5855o19group.odt judgments:-
(a) Bishun Narain Misra vs. The State of U.P. and others, (five Judges Bench), AIR 1965 SC 1567.
(b) D.Shankaran vs. D.Subba Raju, AIR 1985 SC 551.
(c) Shri Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar and others, AIR 1958 SC 538 (five Judges Bench).
22. Shri Dixit submits that once the regulations reduced the retirement age from 60 years to 58 years, this change in the rules would apply to all the employees of the Wakf Board, notwithstanding that their retirement age was 60 years when they joined duties. Considering the law laid down in Bishun Narain Misra (supra), D. Shankaran (supra) and Shri Ram Krishna Dalmia (supra), the age of retirement can be reduced at any time and the employee can be superannuated in the light of such a change.
23. The learned AGP representing the State, has adopted the submissions of Shri Dixit. He contends that once the regulations of 2017 are introduced, the age of superannuation mentioned in the said regulations would automatically apply.
ISSUES AND CONCLUSIONS
24. The issue referred to our Full Bench is in the light of ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *19* FB5855o19group.odt the divergent views noticed by the Division Bench, as recorded in paragraphs 4, 5 and 6 reproduced under paragraph 3 hereinabove. Having considered the submissions of the learned Senior Counsel on behalf of the petitioners and the Wakf Board, we are of the view that the following issues need to be dealt with by our Full Bench :-
(a) Whether, the draft regulations, without being approved by the competent authority/Government, could be enforced though the existing regulations are in operation?
(b) Whether, the age of retirement applicable to the employees at the time of joining duties, can be altered to their prejudice at any time during their service tenure?
ISSUE NO.1
25. In the case before us, the Wakf Board has plainly admitted, and could not have contradicted, the fact that these petitioners were appointed under the 1954 Act and the 1964 Regulations. Their age of superannuation was 60 years. The 2003 draft regulations were never approved by the Government until 2018.
26. In Vimal Kumari vs. State of Haryana and others, (1998) 4 SCC 114, the Honourable Supreme Court dealt with the ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *20* FB5855o19group.odt effect of the draft rules and held that if the draft rules are intended to be notified in the near future, they can be followed in the interregnum to meet emergent situations. They cannot be followed if there is no intention to notify the draft rules. This is because they are yet to acquire a statutory character under Article 309-proviso. As the draft rules were not notified for about eight years and neither did the Government offer any explanation for not doing so, it was held that the draft rules could not be invoked for regulating promotions. The draft rules were prepared in 1983 and they were lying in nascent state since then.
27. In the instant case, the regulations were proposed in 2003 in which, the retirement age was maintained at 60 years. The proposed regulations were amended in 2005 for recommending reduction of age of superannuation to 58 years. For 15 years, these proposed regulations were in cold storage from 2003 to 2018 and it was on account of the order of this Court that the Government accorded it's approval in 2018. There was no emergent situation to reduce the age of retirement from 60 years to 58 years in the light of the fact that the 1964 Regulations were still in force.
28. In Union of India through Government of Pondicherry and another vs. V. Ramkrishnan and others, (2005) 8 SCC 394, it was held that the rules validly framed under ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *21* FB5855o19group.odt proviso to Article 309, existing at the time of adhoc promotion, remained operative till replaced by another set of validly framed rules. Promotions based on draft rules, which were contrary to the rules then in force, were held to be invalid. This was the exact situation when the Division Bench of this Court dealt with Ghulam Mustaffa Khan (supra). The 1964 Regulations were in force and the proposed/draft regulations were not approved. Hence, the Division Bench could not have relied upon the draft regulations when the 1964 Regulations were in operation.
29. In Mahabir Vegetable Oils (P) Ltd. and another vs. State of Haryana and others, (2006) 3 SCC 620 , the Honourable Supreme Court held that an exemption granted, can be given retrospective effect by subordinate legislation if the power in that behalf is contained in the main Act. A statute cannot be construed to have retrospective operation unless such construction appears very clearly in terms thereof or arises by necessary and distinct implication. The State Government had notified it's intention to amend the rules and had invited objections to the draft amendments. However, in the case before us, the Government had not notified it's intention to amend the regulations, inasmuch as, there is no clause in the Regulations of 2017 that they would apply retrospectively to the employees of the Wakf Board.
30. In Mahabir Vegetables (supra), the Honourable ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *22* FB5855o19group.odt Supreme Court concluded that promisory estoppel under the administrative law would operate even in the legislative field. It was observed in paragraph 25 as under :-
"25. It is beyond any cavil that the doctrine of promissory estoppel operates even in the legislative field. Whereas in England the development and growth of promissory estoppel can be traced from Central London Property Trust Ltd. v. High Trees House Ltd. [(1947) 1 KB 130], in India the same can be traced from the decision of this Court in Collector of Bombay v. Municipal Corporation of the City of Bombay, AIR 1951 SC 469. In that case the government made a grant of land (which did not fulfill requisite statutory formalities) rent free. It, however, claimed rent after 70 years. The government, it was opined, could not do so as they were estopped. It was further held therein that there was no overriding public interest which would make it inequitable to enforce estoppel against the State as it was well within the power of the State to grant such exemption."
31. As such, until new regulations were approved by the competent authority/Government so as to replace the earlier regulations, the draft regulations could not have the force of law. They would assume the effect of law only after they are approved. These proposed regulations, in fact recommended the retirement age of 60 years. Subsequently, by resolution dated 30.11.2005, this proposal was altered and the age of superannuation was reduced to 58 years. These draft regulations remained on the file of the Government without any approval ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *23* FB5855o19group.odt until 2018. Hence, we conclude that the draft regulations without being transformed into a law, would not amount to the repealing of the earlier 1964 regulations. It is, therefore, our considered view that the draft regulations would have no effect as they are purely in the form of a draft and cannot assume the character of law. We answer issue No.1 accordingly.
32. Considering the above, we are unable to endorse the view taken by the learned Division Bench at Aurangabad in Ghulam Mustafa Khan (supra) and we conclude that it does not lay down the correct law.
ISSUE NO.2
33. In M.G. Pandke (supra), the Honourable Supreme Court dealt with the issue of retirement age of the teachers. It was held in paragraphs 13 and 14 as under:-
"13. When the Code was enforced in the year 1963, the Act and Regulations were holding the field in Vidarbha Division. Under the Act and the Regulations the age of superannuation being 60 years, the Code, while fixing 58 years as the age of superannuation for rest of Maharashtra, permitted the Vidarbha teachers to superannuate on attaining the age of 60 years. The Maharashtra Act which came into force on January 1, 1966 repealed the Act and the regulations. In Baboolal's case (supra) the High Court referred to the repealing and saving section of the Maharashtra Act and came to the conclusion that there was no provision thereunder to save the regulations. Assuming that the Regulations under the Act stood repealed, the Code which was framed by the Maharashtra Government ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *24* FB5855o19group.odt continued to hold the field. It is not disputed by the learned Counsel for the appellants that the Code by itself is not statutory and is in the nature of executive instructions. But he strongly relies on Regulation 19(7)(xvi) of Maharashtra Regulations and contends that the said Regulation makes it obligatory for the Municipal Council Hinganghat to follow the provisions, of the Code. It is for the State Government to frame the Code in whatever' manner it likes but once the Code is in operation its provisions have to be followed by the Municipal Council Hinganghat under the mandate of Regulation 19(7)(xvi) of Maharashtra Regulations. We see considerable force in the argument of the learned Counsel. The Code has been framed with the purpose of bringing security of service, uniformity, efficiency and discipline in the working of non-Government High Schools. It has to be applied uniformly to the schools run by various Muncipal Councils in the State. It is no doubt correct that the Municipal Councils have the power to frame bye-laws under the Maharashtra Municipalities Act, 1965 but if the field is already occupied under the mandate of statutory Maharashtra Regulations, the Municipal Council cannot frame bye-laws to the contrary rendering the mandate of the Maharashtra Regulations Nugatory. We are of the view that the Municipal Council Hinganghat has out stepped its jurisdiction in framing bye-law 4 of the bye-laws. We, therefore, direct that the conditions of service of the appellants shall be governed by the Code as enforced by Regulation 19(7)(xvi) of the Maharashtra Regulations. Bye-law 4 of the bye- laws shall not be applicable to the appellants.
14. We also agree with the second contention advanced by the learned Counsel for the appellants. It is not disputed that the High Schools are run by various Municipal Councils in Vidarbha Division under identical circumstances. The conditions of service of the teachers working in these schools are governed by the provisions of the Code as amended from time to time. Only the age of superannuation has been reduced from 60 to 58 years by some of the Municipal Councils by framing bye-laws. In the Municipal Councils where there are no such bye-laws, the age of superannuation continues to be 60 years. Since 1951, when the Act came into force in the ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *25* FB5855o19group.odt erstwhile State of Madhya Pradesh, the conditions of service of the teachers in Vidarbha Division have been identical. They have been and are governed by the same statutory provisions and the same Education Code. Historically the teachers working under the Municipal Councils in Vidarbha Division belong to the class. It would not be fair to bring in disparity within the class in the matter of superannuation. We, therefore, strike down bye- law 4 of the bye-laws framed by Hinganghat Municipal Council as violative of Article 16 of the Constitution of India."
34. It was thus, concluded that the condition of service regarding the age of retirement of teachers was governed by the Code as applicable and the Municipal Councils had no jurisdiction to frame bye-laws to the contrary rendering the regulations nugatory. The conditions of service are governed by the provisions of the Code applicable and the age of superannuation cannot be reduced from 60 to 58 years by framing bye-laws.
35. In Union of India and others vs. Arun Kumar Roy, AIR 1986 SC 737, the Honourable Supreme Court concluded that the Government servant, whose appointment, though originates in a contract, acquires a status and thereafter, is governed by his service rules and not by the terms of the contract. The powers of the Government under Article 309 to make rules to regulate the service conditions of it's employees are very wide and unfettered. These powers can be exercised unilaterally without the consent of the employees concerned. The ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *26* FB5855o19group.odt terms and conditions of an employee under the Government, who enters service on a contract, will, once he is appointed, be governed by the rules governing his service conditions. It will not be permissible thereafter, for him to rely upon the terms of contract which are not in consonance with the rules governing the service. Roshan Lal Tandon vs. Union of India, AIR 1967 SC 1889 and State of Jammu and Kashmir vs. Triloki Nath Khosa, AIR 1974 SC 1, were followed in Arun Kumar Roy (supra). In M.G. Pandke (supra), the Honourable Supreme Court concluded that the service conditions applicable to the employees cannot be altered to the prejudice of such employees.
36. Section 24 of the Wakf Act, 1995, which repealed the 1954 Act, specifically prescribed in sub-section (2) that the appointment of officers and other employees, their term of office and conditions of service, shall be such as may be provided by the regulations. Considering the applicability of Section 24(2) of the 1995 Act, which was brought into force on 01.01.1996, the regulations of 1964 prescribing the age of superannuation as 60 years, were not disturbed. The said regulations of 1964 were neither repealed nor replaced by new regulations. Admittedly, all the petitioners before us have been appointed prior to 1995 when the 1954 Act and the 1964 Regulations were applicable.
37. Section 110 of the 1995 Act prescribed the powers ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *27* FB5855o19group.odt of the Board to make regulations, only with the previous sanction of the State Government. Clause (e) of sub-section (2) of Section 110 mandates that the terms and conditions of service of the officers and other employees of the Board shall be under Section 24(2) of the 1995 Act. Section 24(2) adverts to the regulations insofar as the term of office and conditions of service of the employees are concerned. Section 110(3) specifically provides that all regulations made under this Section shall be published in the official gazette and shall have effect from the date of such publication. It is undisputed that the 2017 Regulations were published in the official gazette "June 21-27, 2018". It is thus, beyond any debate that the 1964 Regulations were applicable until the 2017 Regulations were introduced in June, 2018.
38. The law laid down in Bishun Narain Misra (supra) would have no applicability since the issue before the Honourable Supreme Court was based on different set of facts. The appellant joined service in July, 1933 and his age of retirement was prescribed as 55 years. Just before his retirement, the Government raised the age to 58 years. Soon thereafter, the Government again reverted back to the earlier age of superannuation which was 55 years. It was in these circumstances that the Honourable Supreme Court concluded that the Government had first raised the age from 55 years to 58 ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *28* FB5855o19group.odt years and then, reduced the age to 55 years, which was the original condition of service of the appellant.
39. In D.Shankaran (supra), the Honourable Supreme Court dealt with the power of the Government in regulating the age of retirement. Even in this case, the State of Andhra Pradesh decided to increase the age of retirement from 55 years to 58 years, which was not based on the recommendation of the A. Krishna Swamy Commission. This decision was then retracted by the Government. A data pertaining to various States was produced before the Court wherein, there were several instances of Governments increasing the retirement age to 58 years and then, retracting the decision to revert back to the original age of retirement as was the condition of service of the employees. This judgment as well would not assist the Wakf Board.
40. The judgment delivered by the Honourable Supreme Court in Shri Ram Krishna Dalmia (supra) is on the issue of determining the validity of a statute on the ground of violation of Article 14 and whether, Section 3 of the Commissions of Enquiry Act (60 of 1952) violates Article 14 of the Constitution of India.
41. In Magic Wash Industries (Private) Limited vs. Assistant Provident Fund Commissioner and others, 1999 Vol.II Current Labour Reports 426, the learned Division Bench of this Court at Goa concluded on the issue of reduction of the infancy ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *29* FB5855o19group.odt period under Section 16(1)(d) of the EPF and MP Act, 1952, that there can be no doubt that the vested rights or benefits under the legislation could be retrospectively taken away by legislation, but the statute taking away such rights or benefits must expressly reflect its intention to that effect. It was held that the amended provision does not curtail the infancy period of the already existing establishments which enjoyed five years infancy period and that the amended provision would be applicable only to establishments newly set up after coming into effect of the said provision on the statute book.
42. In Chairman, Railway Board and others vs. C.R. Rangadhamaiah and others, (1997) 6 SCC 623, the learned Five Judges Bench of the Honourable Supreme Court concluded that the retrospective amendment affecting vested or accrued rights of government employees, is invalid. It was held that the retrospective reduction of pension as admissible under the Rules and the service conditions is unreasonable, arbitrary and therefore, violative of Articles 14 and 16. A rule which operates 'in futuro' so as to govern future rights of those already in service, cannot be assailed on the ground of retrospectivity. But, a rule which seeks to reverse from an anterior date a benefit which has already been granted or availed of, can be assailed as being violative of Articles 14 and 16 of the Constitution of India. ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 :::
*30* FB5855o19group.odt In paragraph 24, the Honourable Supreme Court held as under :-
"24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon, B.S. Yadav and Raman Lal Keshav Lal Soni."
43. In P. Tulsidas and others vs. Government of Andhra Pradesh and others, (2003) 1 SCC 364, the Honourable Supreme Court concluded that the rights acquired under the provisions, were very much rights acquired and protected by law. Such rights could not be withdrawn by an Act of the legislature with retrospective effect. Rights acquired by employees under the provisions are legally protected rights and cannot be withdrawn by the legislature with retrospective effect.
44. In Bank of Baroda and another vs. G. Palani and others, (2022) SCC 612, the Honourable Supreme Court ::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:47 ::: *31* FB5855o19group.odt concluded that existing provisions of the regulations could not have been amended with retrospective effect, taking away the rights accrued to the employees, that too merely on the basis of a joint note signed between Indian Banks Association and Officers Association having no statutory basis.
45. In view of the above, we are of the view that the service conditions applicable to the employees under the Rules and Regulations existing on the date of appointment, cannot be altered to their prejudice. Issue No.2 is answered accordingly.
46. We, therefore, direct that the petitions be placed before the learned Bench as per the roster assignment.
(RAVINDRA V. GHUGE, J.)
(R. G. AVACHAT, J.)
kps (SANDIPKUMAR C. MORE, J.)
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