Allahabad High Court
Dayanand Chakrawarty S/O Late Ram Nath vs State Of U.P. Thru Prin. Secy. Nagar ... on 29 July, 2010
Author: Rajiv Sharma
Bench: Rajiv Sharma
1
RESERVED
Writ Petition No. 1595 (SB) of 2009
Dayanand Chakrawarty ...... Petitioner
Versus
State of U.P. and others ...... Opposite parties
along with
Writ Petition No. 1191 (SB) of 2009
U.P. Engineers Association Jal Nigam
Branch and another ...... Petitioners
Versus
State of U.P. and others ...... Opposite parties
along with
Writ Petition No. 135 (SB) of 2009
Virendra Kumar Srivastava ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 44 (SB) of 2009
Uma Shanker Mittal ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 79 (SB) of 2009
Uma Shanker Vaish ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 701 (SB) of 2009
Upendra Nath Singh ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 702 (SB) of 2009
Jitendra Pal Singh ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 1598 (SB) of 2009
Hansraj ...... Petitioner
Versus
State of U.P. and others ...... Opposite parties
along with
Writ Petition No. 940 (SB) of 2009
2
Sri Niwas Goel ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 613 (SB) of 2009
Azizul Haq Ansari ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 624 (SB) of 2009
Kuldeep Hari ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 1597 (SB) of 2009
Kailash Narain Singh ...... Petitioner
Versus
State of U.P. and others ...... Opposite parties
along with
Writ Petition No. 684 (SB) of 2009
Prem Prakash Singh ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 632 (SB) of 2009
Surendra Kumar Jain ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 1596 (SB) of 2009
Rakesh Kumar Saxena ...... Petitioner
Versus
State of U.P. and others ...... Opposite parties
along with
Writ Petition No. 513 (SB) of 2009
Brij Kishore Dubey ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 335 (SB) of 2009
Ram Lagan ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 1026 (SB) of 2007
Ved Prakash ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
3
along with
Writ Petition No. 234 (SB) of 2008
Om Prakash Srivastava ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 352 (SB) of 2008
Prakash Chandra Agarwal ...... Petitioner
Versus
The Managing Director and another ...... Opposite parties
along with
Writ Petition No. 885 (SB) of 2008
Raj Kumar Tyagi ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 906 (SB) of 2008
Surendra Pal Sharma ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 526 (SB) of 2008
Abdul Raheem Khan ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 518 (SB) of 2008
Gyan Prakash ...... Petitioner
Versus
The Managing Director, U.P. Jal Nigam
and another ...... Opposite parties
along with
Writ Petition No. 691 (SB) of 2008
Mohd. Aslam ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 1338 (SB) of 2008
Faiku Prasad ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 1488 (SB) of 2008
Ashok Kumar ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 1527 (SB) of 2008
4
Shyam Babu ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 1526 (SB) of 2008
Hari Kant Sharma ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 7858 (SS) of 2008
Mohan Singh ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 7857 (SS) of 2008
Phool Chandra Dubey ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 6666 (SS) of 2008
Dev Pratap Singh ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 6558 (SS) of 2008
Rajpal Singh ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 6501 (SS) of 2008
Ghanshyam Singh ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 3255 (SS) of 2008
Ram Pyare Yadav ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 3994 (SS) of 2008
Abdul Muiz ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 835 (SB) of 2008
Batuk Nath ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
5
along with
Writ Petition No. 901 (SB) of 2008
Bhola Nath ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 879 (SB) of 2008
Desh Raj Singh ...... Petitioner
Versus
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 1905 (SB) of 2008
Ganesh Prasad ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 893 (SB) of 2008
Rakesh Kumar Jain ...... Petitioner
Versus
U.P. Jal Nigam and others ...... Opposite parties
along with
Writ Petition No. 590 (SB) of 2009
Ashok Kumar Mathur ...... Petitioner
Versus
The Managing Director,
U.P. Jal Nigam and another ...... Opposite parties
along with
Writ Petition No. 1644 (SB) of 2009
Brahma Prasad ...... Petitioner
Versus
State of Uttar Pradesh and others ...... Opposite parties
along with
Writ Petition No. 134 (SB) of 2009
Ashok Kumar ...... Petitioner
Versus
The Managing Director, U.P. Jal Nigam
and another ...... Opposite parties
Counsel for the Sri S.K. Kalia, Senior Advocate, assisted by Sri
petitioners : Upendra Nath Mishra, Sri O.P. Srivastava, Sri
Vivek Raj Singh, Dr. Ved Prakash (in person)
and Km. Savita Jain
Counsel for the Sri V.S. Tripathi,
opposite parties Sri I.P. Singh
*********
6
Hon'ble Rajiv Sharma, J.
Hon'ble Dr. Satish Chandra, J.
Heard learned Counsel for the parties and perused the records.
The afore-captioned writ petition No.1191 (SB) of 2009 has been filed by U.P. Engineers Association Jal Nigam, praying therein to declare U.P. Jal Nigam Karamchari (Adhivarshita Par Seva Nivarti) Viniyamawali, 2005 [hereinafter referred to as '2005 Regulation'] as unconstitutional and ultra vires to the provisions of the Constitution of India and further to quash the orders 3.7.2009 and 29.6.2009 passed by the opposite parties No.1 and 2 to the writ petition, respectively. The other prayers are to restrain the opposite parties from retiring the members of the 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. In other words, the petitioners prayed for the enhancement of their superannuation from 58 to 60 years at par with other State Government employees.
Except writ petition No. 1191 (SB) of 2009, in all the above writ petitions, writ petitioners have challenged the order, whereby petitioners have been asked to retire on attaining the age of 58 years as per the provisions of Regulation 2005.
Since question that arises in these writ petitions is as to whether the age of superannuation of the petitioners, who are employees of U.P. Jal Nigam, is 58 years or 60 years, as such, all these writ petitions are being decided by this common order for the sake of convenience.
FACTS:
In the year 1927 i.e. before independence, British Government created a department, known as Public Health Engineering Department [hereinafter referred to as 'PHED'], which was entrusted with the responsibility of performing all the works related to Public Health Engineering including works related to sewerage and water supply. In the year 1946, State of United Province created a department known as Local Self Government Engineering Department [hereinafter referred to as 'LSGED'], which was the converted form of PHED and in this department, all 7 the engineering works of Local Self Government were entrusted.
In the year 1975, U.P. Jal Nigam was constituted vide Notification dated 18.6.1975 issued by the State Government under Section 3 of the Uttar Pradesh Water Supply and Sewerage Act, 1975 [hereinafter referred to as the 'Act' for the sake of brevity] and the status of the Nigam is a local authority under sub-Section (3) of Section 3 of the Act. Section 37 (1) of the Act provided that the services of the employees and engineers of the erstwhile LSGED will be transferred and merged into the newly created U.P. Jal 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.
The Board of U.P. Jal Nigam in its 2nd Meeting dated 4.4.1977 resolved ( Agenda Item No. 2.21) that all the provisions of Financial Handbook, Manual of Government Order, Civil Services Regulations, Government Servant Rules and other Government Orders are applicable to the employees of the Nigam, provided the Nigam has not passed any other order.
Subsequently, U.P. Jal Nigam Service of Engineers (Public Health Branch) Regulations, 1977 [hereinafter referred to as Rules, 1977] were framed.
In the year 1978, U.P. Jal Nigam, pursuant to the powers conferred on U.P. Jal Nigam under Section 97 sub-Sections (1) and (2) of the Act, 1975 had framed new regulations known as "U.P. Jal Nigam Service of Engineers (Public Health Branch) Regulations, 1978" [hereinafter referred to as Regulations 1978] with prior approval of the State Government, which became effective from 27.4.1978. The Regulations 1978 so made are equally applicable to the employees transferred from erstwhile LSGED and the employees recruited directly by the U.P. Jal Nigam. According to Regulation 31 of Regulations, 1978, except as otherwise provided in the Regulations, the service terms and conditions of the employees of U.P. Jal Nigam shall be governed by the same rules, regulations and orders generally applicable to the employees of the State Government engaged in connection with the management of the State affairs.
Regulation 1978 does not make any provision of 8 retirement/superannuation age of an employee of U.P. Jal Nigam and in the absence of any specific provision, the same terms and conditions apply to the employees of U.P. Jal Nigam as are applicable to other State Government employees in respect of their retirement and superannuation age and accordingly, the employees of U.P. Jal Nigam stands governed by the provisions of 56 (a) of the Uttar Pradesh Fundamental Rules contained in the Financial Handbook, Volume II, Part II-IV. It may be mentioned that in the year 1977, the age of retirement of State Government employees as per Rule 56 (a) of U.P. Financial Handbook was 58 years. It is only in the year 2001, the State Government vide its official order No. 1098/A-1/2001 dated 28.11.2001 amended clause (a) of Rule 56. Consequently, these Rules were amended by Uttar Pradesh Fundamental (Amendment) Rules, 2002 by Notification dated 27.6.2002, which came into force w.e.f. 28.11.2001, whereby the superannuation age of the Sate Government servants/employees was enhanced from 58 years to 60 years.
After the issuance of notification dated 28th November, 2001, on behalf of Nigam a letter was written to the State Government on 31st December, 2001 making inquiry thereunder 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 Nigam or not and in reply thereto, on 22nd January, 2002, Special Secretary to the Government in the Department of Local Self Government conveyed that the employees of the Nigam shall not be entitled for enhancement of superannuation age from 58 years to 60 years as the same would be applicable only to the government servants. On receipt of the said order, the Nigam resolved on 11th July, 2002 that enhancement in the age of superannuation from 58 years to 60 years would not be applicable to the employees of the Nigam.
Against the orders of the State Government and the U.P. Jal Nigam declaring non-applicability of amendments in Fundamental Rules 56 (a) to the employees of U.P. Jal Nigam, several writ petitions were filed complaining that they are being sought to retire on completing the age of 58 years. In the meantime, some employees of U.P. Jal Nigam instead of moving the High Court 9 have directly filed writ petitions before the Apex Court challenging the orders issued by the Nigam against them to the effect that they would superannuate upon completion of the age of 58 years. The Apex Court, while disposing of the bunch of the civil appeals, in the leading case of Harwindra Kumar Versus Chief Engineer Karmik and others [2005 (13) SCC 300], directed the U.P. Jal Nigam to continue the petitioners in service till they attain the age of 60 years and the orders retiring them at the age of 58 years were set-aside but simultaneously, liberty was granted to U.P. Jal Nigam to amend Regulation 31, in case they so desire, but the said amendment was ordered to apply only prospectively.
Pursuant to the judgment in the case of Harwindra Kumar (supra), the U.P. Jal Nigam, in exercise of its powers under Section 97 (1) and (2) of the Act, 1975, framed U.P. Jal Nigam Employees (Retirement on the age of Superannuation) Rules, 2005 [hereinafter referred to as Rules 2005]. Rules 2005 were issued vide office Order dated 8.12.2005 and were made effective from 30.8.2005. In Rule 3 of Rules, 2005 provides the retirement age of 60 years for such employees and Engineers, who were employed in erstwhile LSGED and who were transferred and employed in the Jal Nigam. Rule 4, however, prescribed retirement age of 58 years for all other employees and engineers, who were not covered under Rule 3 i.e. those who were directly appointed in Jal Nigam.
After framing of the aforesaid Rules 2005, U.P. Jal Nigam filed a review petition, before the Hon'ble Supreme Court, which was numbered as Review Petition No. 24 of 2006, seeking review of the decision of Harwindra Kumar (supra). The Apex Court, vide order dated 29.8.2006, dismissed the review petition. Thereafter, several employees of U.P. Jal Nigam, who were retired long back on attaining the age of 58 years, preferred writ petitions and sought benefit of the directions given by the Apex Court in Harwindra Kumar (supra). However, aain the matter reached to the Apex Court. The Apex Court in Chairman, U.P. Jal Nigam Vs Jaswant Singh & others [(2006) 11 SCC 464], while dismissing the appeal, observed that the persons, who were 'fence sitters' and did not file writ petitions before their retirement, would not get the benefit of the law laid down in 10 Harwindra Kumar (supra).
In the year 2007, when certain engineers of U.P. Jal Nigam were likely to attain the age of 58 years, they approached this Court by filing writ petitions. However, the matter once again reached to the Apex Court for adjudication. The Apex Court in Chairman, U.P. Jal Nigam & another Versus Radhey Shyam Gautam and another [(2007) 11 SCC 507], while considering its earlier decisions rendered in Harwindra Kumar (supra) and Jaswant Singh (supra), dismissed the appeal and held that after amendment made in Rule 56-A of the Fundamental Rules of the State Government and after enhancement of the age of retirement of Government Servant from 58 years to 60 years, the same enhanced age would apply to the employees of the Nigam, unless Regulation 31 is suitably amended.
In the meantime, several writ petitions were filed before this Court at Allahabad inter-alia challenging the 2005 Rules. This Court at Allahabad, vide order dated 21.5.2007, while allowing the bunch of writ petitions (leading writ petitions No. 45800 of 2006) has held that Regulation-4 of the said Rules to the extent it provides superannuation age of 58 years for the employees of the Nigam, who were directly appointed except Group 'D' employees is arbitrary and as such it was declared non-est. Further, all the petitioners of the writ petitions were allowed to continue to work till they attain the age of 60 years.
Against the order dated 21.5.2007, U.P. Jal Nigam filed a special appeal and a Division Bench of this Court at Allahabad, vide order dated 1.8.2007, stayed the order dated 21.5.2007 inter alia on the grounds that the provisions of 2005-Regulation were declared ultra vires, though the same were not even challenged in the writ petition filed by Ram Singh. However, so far as the writ petitioners of other 38 petitioners, no interim orders were passed in special appeal and as such, they have been allowed to discharge their duties at the age of 60 years.
In the year 2008, while realizing the discrimination among the similarly situated Engineers having two different ages of retirement i.e. 58 years and 60 years and it generates unnecessary litigation. U.P. Jal Nigam, vide Board's resolution at agenda item No. 147.07 dated 13.4.2008, resolved that age of 11 retirement would be 60 years and the consequential amendment was proposed in Retirement Regulations, 2005, which was sent for approval of the State Government. But the State Government, vide order 29.6.2009, provided uniform age of retirement as 58 years for all employees working in Government companies and Government corporations.Finally, the State Government, vide order dated 3.7.2009, refused to accept the the recommendations of the Board of U.P. Jal Nigam dated 13.4.2008. In this background, the petitioners have filed present writ petitions.
Learned Counsel for the petitioners submit that the provisions of Regulation 4 of Rules- 2005, suffers from the 'vice of discrimination' and 'unreasonable classification' and as such, it is ultra vires to the provisions of Article 14 of the Constitution of India insofar as the provisions of different ages of retirement for similarly situated employees of two different modes of appointment i.e. absorption and direct appointment amounts to creating a class within homogeneous class because Engineers, who were appointed by absorption from erstwhile LSGED and those, who were directly appointed in U.P. Jal Nigam, are governed by the same set of Service Regulations, which are uniformally applicable on all the Engineers of U.P. Jal Nigam, even the substantive appointment of absorbed Engineers of erstwhile LSGED in December, 1977 as well as fresh direct recruitment of Assistant Engineers of October 1977 in U.P. Jal Nigam was made under the provisions of same Service Regulations, 1977. Thus, there is no difference between the two sets of Engineers appointed by two modes.
According to them, the twin test to be applied for determination of validity of any administrative action or decision regarding classification of sub-groups within a group of people i.e. 'reasonableness of classification' and rationale 'nexus circulated with the object' sought to be achieved, are not satisfied in the instant case and by applying the aforesaid twin test, it is clear that U.P. Jal Nigam has in fact resorted to hostile discrimination among similarly situated persons, by providing two different age of retirement of 58 years and 60 years for similarly situated Engineers, which cannot be sub-divided and sub-classified on the 12 basis of arbitrary and irrational principle. To give strength to their aforesaid arguments, reliance has been placed upon D.S. Nakara Vs. Union of India [1983 (1) SCC 305, State of Bihar Vs. Bihar State 'Plus-2' Lecturers Associations [2008 (7) SCC 231], Confederation of Ex-Servicemen Association Vs. Union of India [2006 (8) SCC 399] and Food Corporation of India vs. Ashish Kumar Ganguly [2009 (7) SCC 734].
Next contention of the Learned Counsel for the petitioners is that impugned provisions of Regulation 4 of the Rules, 2005 were never published in the official gazette and were published in newspaper only in the month of December, 2009. Thus, they ought not to have been implemented and several engineers of U.P. Jal Nigam/Members of petitioners' associations, who were prematurely retired between 2005 to 2009, ought not to have been retired and therefore, their premature retirement orders, which were illegally passed, cannot be sustained in the eyes of law, as they are void ab initio. The factum that Rules, 2005 was not published in the official gazette till October, 2009, has been admitted by the Counsel of U.P. Jal Nigam before this Court during the hearing of case i.e. Mahesh Chandra Gupta Vs. State of U.P. and others [Writ Petition No. 1424 (SB) of 2009, held on 28.9.2009]. Subsequently, the U.P. Jal Nigam carried out the exercise of publication of the Rules, 2005, which was published on 8.11.2009 in the Times of India and Dainik Jagran and this fact was duly recorded in the order dated 12.11.2009 in Mahesh Chandra Gupta (Supra). He furthersubmits that when the mode of publication of any legislation or sub-ordinate legislation is prescribed under the statute, the same has to be published/circulated in that manner alone, otherwise the normal mode of publication of legislation/subordinate legislation in the official gazette should be adopted. The object and purpose of the publication and circulation of any law is to inform the general public and not to keep the said law in the files of the law maker. Thus, limited circulation of any law would also not render the said law as valid law unless widest possible publicity is given to it specially in the absence of any notification.
Placing reliance on B.K. Srinivasan Vs. State of Karnataka [1987 (1) SCC 658], learned Counsel for the 13 petitioner submits that admittedly, Rules, 2005 were published for the first time albeit in the newspapers on 8.11.2009 and, therefore, prior to 8.11.2009 i.e. the date of its publication, the Rules 2005 ought not to have been given effect to, but U.P. Jal Nigam passed several orders of premature retirement against various engineers of U.P. Jal Nigam.
Elaborating their contentions it has been argued by the Petitioners' Counsel that the order dated 3.7.2009 passed by the State Government is completely irrational, arbitrary and suffers from the vice of utter non-application of mind insofar as special status conferred on the absorbed employees of erstwhile LSGED under Section 37 (1) of the Act was not an absolute right created in favour of the employees of erstwhile LSGED, but was a conditional right. The service conditions of the erstwhile LSGED were protected under Section 37 (1) of the Act but 'only' till the time the said service conditions are not modified/altered by any law. The aforesaid special status conferred on the erstwhile employees of LSGED under Section 37 (1) of the Act was altered as soon as the service Regulations of the Engineers of U.P. Jal Nigam were framed in the year 1977 and again introduced in 1978. The Service Regulations of 1978 are uniformly applied on all the Engineers of U.P. Jal Nigam irrespective of their mode of appointment i.e. either directly appointed in U.P. Jal Nigam or absorbed from erstwhile LSGED. Thus all the Engineers of U.P. Jal Nigam, even though some of them having special status under Section 37 (1) of the Act, are governed by the same set of Service Regulations after promulgation of the Service Regulations, 1978 and as such no differentiation can be created amongst them.
Learned Counsel for the petitioners submits that service conditions of all the Engineers of U.P. Jal Nigam whether their promotion, pay-scale, disciplinary actions, leave conditions or post-retiral benefits etc. are governed by the same set of Service Regulations, 1978. Even seniority list is also the same. Regulation 31 of the Service Regulations clearly provides that those service conditions of the Engineers of Jal Nigam, which are not covered by the Service Regulations shall be governed by such provisions, which are normally applicable upon the Government Servants. Age of retirement is not provided in the Engineers 14 Service Regulations 1977 and 1978, and therefore, the age of retirement applicable on the Government Servant shall be uniformally applicable on all the Engineers of U.P. Jal Nigam.
Learned Counsel for the petitioners further submits that since the age of retirement of Government Servant remained at 58 years from 1977 till 2001, therefore, the same age of 58 years remained applicable on all the Engineers of Jal Nigam irrespective of their mode of appointment i.e. direct appointment or absorption from erstwhile LSGED.
Learned Counsel for the petitioners further argued that U.P. Jal Nigam is neither a Government Company nor Government Corporation but it has been created as a 'Local Authority' under Clause 3 (3) of the Act, right from the date of its inception. Since the functions of the erstwhile Local Self Government Engineering Department were entrusted on the newly created body i.e. Jal Nigam, therefore, Jal Nigam was developed as a 'Local Authority'. It has been pointed out that Section 3 (3) of the Act initially provided that the Nigam shall for all purposes be deemed to be a local authority and since the said provision was not very clear, therefore, the State Government introduced an amendment in Section 3 (3) of the Act by U.P. Act No. 5 of 2007 with retrospective effect i.e. 1.1.2003. Therefore, the State Government committed an error, i.e. not accepting the recommendations of the Board which are based on cogent reasons and an step forward to remove discrimination. Lastly, they made a request to enhance the age of superannuation to the petitioners at par with Government employees.
On the other hand, Sri I.P. Singh, learned Counsel, appearing on behalf of U.P. Jal Nigam, has vehemently submitted that in U.P. Jal Nigam, there are two groups of employees; (i) who are appointed in LSGED and (ii) who were appointed after establishment of U.P. Jal Nigam.
So far as Rules 1978 are concerned, there is no provision for age of retirement and as such, pursuant to the judgment and order of the Apex Court in the case of Harwinder Singh (supra), Regulation 2005 was framed with prior approval of the State Government under Section 97 of the Act. As per provisions 15 enumerated in 2005 Regulation, impugned order for retirement at the age of 58 years have been issued. He submits that those employees, whose services have not been transferred from the then LSGED to U.P. Jal Nigam, shall be retired on superannuation on attaining the age of 58 years. However, those employees, whose services have been transferred from LSGED to U.P. Jal Nigam, would retire on attaining the age of 60 years.
It has been pointed out by the Counsel for the Jal Nigam that since the petitioners are from allied cadre and were employed directly by the U.P. Jal Nigam after its creation and their services have not been transferred from erstwhile LSGED, their claim for the enhancement of retiring age is not justified. He submits that when the State Government enhanced the age of retirement of its employee in the year 2001, age of the retirement was not enhanced in the U.P. Jal Nigam and it remained 58 years.
Sri I.P. Singh has submitted that in compliance of the decision of Board of Directors of U.P. Jal Nigam, an office memorandum dated 15.1.2002 and 11.7.2002 were issued, wherein it was circulated that the amendment in Rule 56 (a) Financial Handbook Volume 2 to 4 made by Notification dated 27.6.2002 are not applicable in U.P. Jal Nigam, therefore, the age of retirement on superannuation of the employees of U.P. Jal Nigam was 58 years and in the year 2005, Regulation 2005 was framed, wherein it is provided that the age of retirement on superannuation of those employees who have directly been appointed in U.P. Jal Nigam shall be 58 years and whose services have been transferred from LSGED shall be 60 years. He also pointed out that in view of Section 97 of the Act, the regulations framed thereunder are not require to be notified but simply to be approved by the State Government.
Sri V.S. Tripathi, learned Additional Chief Standing Counsel, has submitted that the Government has power to alter the age of superannuation and can create two classes. If the Government had taken a policy decision in this regard, the Court cannot interfered with as held by the Apex Court in K. Nagraj and 16 others Versus State of Andhra Pradesh and another [(1985) 1 Supreme Court Cases 523]. Paras 14 and 28 reads as under :
"14.The contentions of Shri Venugopal which arc set out in paragraphs (c) to (g) above and, partly in paragraph (b) itself, are by and large matters of legislative policy in the formulation of which the Government of the day must be allowed a free, though fair play. Indeed, the acceptance of argument advanced by the various counsel for the petitioners must lead to the conclusion that there, has to be a uniform age of retirement all over India. If reduction of the retirement age from 58 to 55 is to be regarded as arbitrary on the ground that it overlooks the advance made in longevity, fixation of retirement age at 58 is also not likely to sustain the charge of arbitrariness. The argument could still be made that improvement in the expectation of life requires that the age of retirement should be fixed at 60 or 62 or even at 65. Then again, though immutable considerations which are generally or universally true like increased life-expectation are as much Jammu and Kashmir as for Tamil Nadu, that cannot justify the conclusion that fixation of the retirement age at 55 in Jammu and Kashmir is invalid since the State of Tamil Nadu has fixed it at 58. Both can fall within the constraints of the Constitution and neither the one nor the other can be considered to be arbitrary or unreasonable. There is no one fixed or focal point of reasonableness. There can be a large and wide area within which the administrator or the legislator can act, without violating the constitutional mandate of reasonableness. That is the area which permits free play in the joints. The following table will show the variation in the retirement age which exists at present in the various States in India:
State Retirement Age
Haryana 58 years
Jammu & Kashmir 55 years
17
Karnataka 1979-58 years
1981-55 years
Kerala 1967-55 years
1968-58 years
1969- 55 years
1984-58 years
Madhya Pradesh 58 years;
Reduced to 55 years 1967;enhanced to
58 years in 1970.
Maharashtra 58 years
Orissa 58 years
Previously 55 years; enhanced to 58 years.
Rajasthan 55 years (Reduced from 58 years to 55 years about 12 years back) Uttar Pradesh 58 years (Reduced to 55 years in 1962; enhanced to 58 years) Tamil Nadu 58 years (For District Judges, lowered from 58 to 55 years) West Bengal 58 years (since 1961) It is clear from this table that the area between the ages of 55 and 58 is regarded in our country as a permissible field of operation for fixing the age of retirement. Neither the American nor the English notions or norms for fixing retirement age can render invalid the basis which is widely accepted in our country as reasonable for that purpose."
28. On the basis of this data, it is difficult to hold that in reducing the age of retirement from 58 to 55, the State Government or the Legislature acted arbitrarily or irrationally. There are precedents within our country itself for fixing the retirements age at 55 or for reducing it from 58 to 55. Either the one or the other of these two stages is regarded generally as acceptable, depending upon the employment policy of the Government of the day. It is not possible to lay down an inflexible rule that 58 years is a 18 reasonable age for retirement and 55 is not. If the policy adopted for the time being by the Government or the Legislature is shown to violate recognised norms of employment planning, it would be possible to say that the policy is irrational since, in that event, it would not bear reasonable nexus with the object which it seeks to achieve. But such is not the case here. The reports of the various Commissions, from which we have extracted relevant portions, show that the creation of new avenues of employment for the youth is an integral part of any policy governing the fixation of retirement age. Since the impugned policy is actuated and influenced predominantly by that consideration, it cannot be struck down as arbitrary or irrational. We would only like to add that the question of age of retirement should always be examined by the Government with more than ordinary care, more than the State Government has bestowed upon it in this case. The fixation of age of retirement has minute and multifarious dimensions which shape the lives of citizens. Therefore, it is vital from the point of view of their well-being that the question should be considered with the greatest objectivity and decided upon the basis of empirical data furnished by scientific investigation. What is vital for the welfare of the citizens is, of necessity vital for the survival of the State. Care must also be taken to ensure that the statistics are not perverted to serve a malevolent purpose."
In support of his submission, he has also relied upon State of Uttar Pradesh and others Versus Chaudhari Ran Beer Singh and another [(2008) 5 Supreme Court Cases 550] Para-13 reads as under :
"13. Cabinet's decision was taken nearly eight years back and appears to be operative. That being so there is no scope for directing reconsideration as was done in Ram Milan's case, though learned Counsel for the respondents prayed that such a direction should be given. As rightly contended by learned Counsel for the State, in matters of policy decisions, the scope of 19 interference is extremely limited. The policy decision must be left to the Government as it alone can decide which policy should be adopted after considering all relevant aspects from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown. Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the government the Court cannot interfere even if a second view is possible from that of the Government."
With regard to the argument that policy decision would generally not to be interfered, reliance has been placed upon Paragraphs 15 and 17 of State of Kerala and another Versus Naveena Prabhu and others [(2009) 3 Supreme Court Cases 649]. Paras 15 and 17 reads as under :
"15.The decision of the Government to exclude the staff of the hospital attached to the college from the purview of the aforesaid orders was made specifically stating that direct payment system is not introduced by the Government so far as college hospital is concerned. The same being a policy decision of the Government and having not been challenged as either arbitrary or discriminatory at any stage by the respondents, thus we are not called upon to scrutinize the legality and validity of the aforesaid decision. Besides, the same being a policy decision of the Government, the same stands as this Court generally does not interfere with the policy decision of the Government.
17.Our attention could not be drawn to the fact 20 that there is any assessment by any authority with regard to the nature of duties and responsibilities discharged by the teaching and non-teaching staff of the college vis-`-vis the staff of the hospital. Without going into the technicalities, it could also be said that nature of duties and responsibilities in the college would be distinctly different and separate from that of the duties and responsibilities of the staff in the hospital attached to the college. This Court also cannot issue any direction for over inclusion of the staff as it involves financial implications."
On the strength of the decision rendered in T.P. George and others Versus State of Kerala and others [1992 Supp (3) Supreme Court Cases 191]Sri V.S. Tripathi has argued that the age of retirement cannot be hit by Article 14 of the Constitution, as held by the Apex Court in Para-6 reads as under :
"Although the appeals and the writ petitions, in our view, cannot succeed, we do feel that age of retirement fixed at 55 years in the case of teachers of affiliated colleges is too low. It is only after a teacher acquires several years of teaching experience that he really becomes adept at his job and it is unfortunate if the students have to lose the benefit of his experience by reason of an unduly early age of retirement. However, it is not for the Court to prescribe the correct age of retirement but that is a policy function requiring considerable expertise which can properly be done by the State Government or the State Legislature or the Universities concerned. We hope that some time in near future, the State Government will be able to consider the question and determine the age of retirement as it best thinks fit."
According to learned State Counsel, fixation of age for retirement is a policy decision of State and it cannot hit by Article 21 14 and 16 as held by the Apex Court in Shri B. Narayana Murthy and others Versus The State of Andhra Pradesh, Etc. [ 1971 (2) Supreme Court Cases 425]. Paras 9 and 10 reads as under :
"9. The petitioners before us are feeling aggrieved by Clause (d) of the Memorandum issued by the Government on November 8, 1968, and it is this clause which is the main target of challenge on behalf of the petitioners.
10. Mr. Sarjoo Prasad who led the attack on behalf of the petitioners and addressed us in support of Writ Petition No. 217 of 1970 categorized his challenge under three heads:
(1) that the classification made by the Government order fixing November 30, 1967, as the date for determining as to who should retire at the age of 55 years and whose service should be extended is arbitrary and highly discriminatory;
(2) that the Government order dated November 3, 1967 can only affect persons joining service after that date and not those who were already in service because their service conditions could not be unilaterally changed to their prejudice; and (3) that Government is estopped to vary the date of retirement of the petitioners because they had on the faith of the modified conditions of their service arranged their affairs on the basis of their retirement at the age of 60 years. By way of illustration it was pointed that their contributions to the provident fund and their life insurance policies had been so planned as to suitably fit in with their retirement at the completion of 60 years.22
As regard the fixation of age of retirement, it has been argued by the State Counsel that the same is within the ambit of State as held by the Apex Court in B.Bharat Kumar and others Versus Osmania University and others [(2007) 11 Supreme Court Cases 58]. Para 19 reads as under :
"19. Learned Counsel also argued, to a great extent, the desirability of the age of superannuation being raised to 60 or 62 as the case may be. We again reiterate that it is not for this Court to formulate a policy as to what the age of retirement should be as by doing so we would be trailing into the dangerous area of the wisdom of the Legislation. If the State Government in its discretion, which is permissible to it under the scheme, decides to restrict the age and not increase it to 60 or as the case may be 62, it was perfectly justified into doing so."
Learned State Counsel referred to a decision rendered in Dilip Kumar Garg and another Versus State of Uttar Pradesh and others [2009 4 Supreme Court Cases 753] to show the scope of judicial review by the Court. Relevant paragraphs i.e. paras 15 and 17 reads as under:
"15.In our opinion Article 14 should not be stretched too far, otherwise it will make the functioning of the administration impossible. The administrative authorities are in the best position to decide the requisite qualifications for promotion from Junior Engineer to Assistant Engineer, and it is not for this Court to sit over their decision like a Court of Appeal. The administrative authorities have experience in administration, and the Court must respect this, and should not interfere readily with administrative decisions. See Union of India v. Pushpa Rani and Ors. : (2008) 9 SCC 243 and Official Liquidator v. Dayanand and Ors.:
(2008) 10 SCC 1."23
17. In Tata Cellular v. Union of India : AIR 1996 SC 11, it has been held that there should be judicial restraint in administrative decision. This principle will apply all the more to a Rule under Article 309 of the Constitution.
Apart from the above, it has been argued by the State Counsel that in view of the decision rendered in Air India Versus Nargesh Meerza and others [(1981 (4) SCC 335] and A.K. Bindal and another Versus Union of India and others [2003 AIR SCW 2625] employees of Government Company cannot claim protection under Article 311 as admissible to the Government employees. The relevant paragraphs of the report reads as under:-
"39. Thus, from a detailed analysis and close examination of the cases of this Court starting from 1952 till today, the following propositions emerge:
(1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts.
Thus, where the class or categories of service are essentially different in purport and spirit, Article 14 cannot be attracted.
(2) Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination 24 having a close nexus with the objects sought to be achieved so that in such cases Article 14 will be completely out of the way.
(3) Article 14 certainly applies where equals are treated differently without any reasonable basis.
(4) Where equals and unequals are treated differently, Article 14 would have no application.
(5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity.
(6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:
(a) the nature, the mode and the manner of recruitment of a particular category from the very start,
(b) the classifications of the particular category.
(c) the terms and conditions of service of the members of the category,
(d) the nature and character of the posts and promotional avenues,
(e) the special attributes that the particular category possess which are not to be found in other classes, and the like.
"60. Having regard, therefore, to the various 25 circumstances, incidents, service conditions, promotional avenues, etc. of the AFPs and AHs, the inference is irresistible that AHs though members of the cabin crew are an entirely separate class governed by different set of rules, regulations and conditions of service. Mr. Nariman submitted that job functions performed by the AFPs and AHs being entirely different, is also an important circumstance to prove that AHs is a class completely separate from the class of AFPs. We are, however, not impressed with this argument because a perusal of the job functions which have been detailed in the affidavit, clearly shows that the functions of the two, though obviously different overlap on some points but the difference, if any, is one of degree rather than of kind. Moreover, being members of the crew in the same flight, the two separate classes have to work as a team, helping and assisting each other particularly in case of emergency. This aspect of the matter was highlighted by the Mahesh Award which observed thus:
The management claims that there cannot be and should not be, any inflexibility or rigidity regarding the functions and duties of the different categories of cabin crew and the Management should have full authority and discretion as regards the interchangeability of job allocations and functions and duties of the different categories of cabin crew and for effecting from time to time such interchanges of job allocations and of functions and duties as it might think fit.
... .... ....
There is not the slightest doubt that the Cabin Crew have to work as a team as pointed out by 26 Shri S.S. Hemmadi (AMW-5). Although there are different duties fixed for different categories, it is necessary for each category to give help and do the work of other categories for the smooth flight.
Paras 14 and 17 of A.K. Bindal and another Versus Union of India and others [2003 AIR SCW 2625] reads as under:-
"14. The Fertilizer Corporation of India and Hindustan Fertilizer Corporation are both companies registered under the Companies Act with the only difference that they are Government Companies within the meaning of Section 617 of the Companies Act. What will be the legal position of a Government Company and whether its employees will be traced to be governed servants was examined in Heavy Engineering Mazdoor Union v. State of Bihar and Ors.: (1969) IILLJ 549 SC and it was held as under in para 4 of the reports:
".....It is an undisputed fact that the company was incorporated under the Companies Act and it is the company so incorporated which carries on the undertaking. The undertaking, therefore, is not one carried on directly by the Central Government or by any one of its departments as in the case of posts and telegraphs or the railways....."
17.The legal position is that identity of the Government Company remains distinct from the government. The Government Company is not identified with the Union but has been placed under a special system of control and conferred certain privileges by virtue of the provisions contained in Sections 619 and 620 of the Companies Act. Merely because the entire share 27 holding is owned by the Central Government will not make the incorporated company as Central Government. It is also equally well settled that the employees of the Government Company are not civil servants and so are not entitled to the protection afforded by Article 311 of the Constitution (Pyare Lal Sharma v.
Managing Director: (1990)ILLJ32SC ). Since employees of Government Companies are not government servants they have absolutely no legal right to claim that government should pay their salary or that the addition expenditure incurred on account of revision of their pay scale should be met by the government. Being employees of the companies it is the responsibility of the companies to pay them salary and if the company is sustaining glosses continuously over a period and odes not have the financial capacity to revise or enhance the pay scale, the petitioners cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account of revision of pay scales. It appears that prior to issuance of the Office Memorandum dated 12.4.1993 the Government had been providing the necessary funds for the management of Public Sector Enterprises which had been incurring losses. After the change in economic policy introduced in early nineties, Government took a decision that the Public Sector Undertakings will have to generate their own resources to meet the additional expenditure incurred on account of increase in wages and that the government will not provide any funds for the same. Such of the Public Sector Enterprises (Government Companies) which had become sick and had been referred to BIFR, 28 were obviously running on huge losses and did not have their own resources to meet the financial liability which would have been incurred by revision of pay scales. By the Office Memorandum dated 19.7.1995 the Government merely reiterated its earlier stand and issued a caution that till a decision was taken to revive the undertakings no revision in pay scale should be allowed. We, therefore do not find any infirmity legal or constitutional in the two Office Memorandums which have been challenged in the writ petitions."
While concluding his arguments, State Counsel vehemently argued that belated publication of notification would not render publication of entire scheme illegal and bad as held by the Apex Court in Phagwara Improvement Trust Versus State of Punjab and others [ 1991 Supp (2) Supreme Court Cases 753] and Hon'ble Chief Justice, High Court of Bombay and others Versus B.S. Nayak and others [(2001) 9 Supreme Court Cases 763]. Lastly, he made a request to dismiss writ petitions.
We have heard learned Counsel for the parties on a couple of days and perused the records.
In order to resolve the controversy, we deem it fit to record the history of Jal Nigam, which can be summed up as under :-
In the year 1894-95, a small Sanitary Engineering Branch with its headquarters of Allahabad was established under the administrative control of U.P. Public Works Department. A few technical assistants were deployed in the branch and this unit was entrusted with the job of preparation of projects of water supply which were to be executed through contractors including the engineering companies. The first sanitary division was established with skeleton staff in the year 1913-14 at Saharanpur. Promulgating of UP Municipalities Act in the year 1916 bestowed some powers in local bodies. Creation of local bodies in towns ushered in pressure building to provide better amenities especially 29 drinking water. Royal sanitary commission constituted by the Government visited the entire state to take stock of drinking water & sanitation facilities and submitted its report towards end of the year 1920. Consequently in the year 1927, the then existing Sanitary Engineering branch was enlarged & given status of a full fledged department. This new department was named as PUBLIC HEALTH ENGINEERING DEPARTMENT and was headed by an officers of the rank of Superintending Engineer.
In the year 1943, a committee by the name of "Bhore Health & Development Committee" was formed to study the problems of public health related to safe drinking water & drainage facility to the public of the state and assess financial requirements there of. Its report was published in the year 1946 & the commitment of the government to implement its recommendations gave an impetus to expansion of public health engineering department . In the year 1949 a separate department of local self government at the secretariats level was created. This resulted in christening of public health engineering department as Local Self Government Engineering Department [hereinafter referred to as 'LSGED'] in the year 1949 and this name remained as such till 17th June 1975.
In the year 1975, the State Government promulgated the Uttar Pradesh Water Supply and Sewerage Act, 1975 [hereinafter referred to as the 'Act'] through U.P. act. No 43 of 1975 empowering itself to constitute a Corporation by the name of "Uttar Pradesh Jal Nigam" with effect from a date to be notified in the Gazette. Gazette notification No. 2516(2)/xvii-v-1-60-1978 dated 18th September 1978 states that UP act No.43 of 1975 shall be deemed to have come into force on June 18, 1975. The same become the date of creation of UP Jal Nigam as well. In accordance to principal provisions of section 37 of Act No 43 of 1975, every person who was employed in the LSGED of the State Govt. shall become employee of the U.P. Jal Nigam subject to various mandatory conditions.
Under the above Act, provision was made that if in the opinion of the State Government, local conditions so require, for the improvement of water supply and sewerage services in any area, it may constitute a body to be known as Jal Sansthan for the 30 area. As such, Jal Sansthans were created in 5 KAVAL towns namely Kanpur, Allahabad, Varanasi, Agra & Lucknow. Three Jal Sansthans were also created namely Jhansi Division Jal Sansthan for Bundelkhand region, Kumaon Jal Sansthan for Kumaon region, Garhwal Jal Sansthan for Garhwal region. While the KAVAL Jal Sansthans were made responsible for the operation and maintenance of water supply and sewerage systems of respective towns, the regional Jal Sansthans were given power for Operation and maintenance of rural and urban Water Supply and sewerage pertaining to their specific jurisdiction as notified in the Gazette. The Jhansi Jal Sansthan was further bifurcated into Jhansi Jal Sansthan with headquarter at Jhansi and Chitrakoot Dham Jal Sansthan with headquarter at Kawi.
U.P. Jal Nigam has been given power to prepare, execute and promote water supply, sewerage/ River pollution Control Works etc. all over the State. U.P. Jal Nigam shall hand over such works for maintenance to local bodies in urban areas and to respective Jal Sansthans, in their jurisdiction. In the rural area, other than as specified in the jurisdiction of Jal Sansthan, water supply projects are being maintained by U.P. Jal Nigam. Hand pumps in rural areas all over UP were earlier maintained by UP Jal Nigam, which have been handed over to respective village panchayats.
"To appreciate the point in issue, it would be necessary to refer to the relevant provisions of Sections 15, 31(1), 37, 89 and 97 of the Act and Regulation 31 of the Regulations which read thus:-
"15. Powers of the Jal Nigam. (1) The Nigam shall, subject to the provisions of this Act have power to do anything which may be necessary or expedient for carrying out its functions under this Act.
(2) Without prejudice to the generality of the foregoing provision, such power shall include the power
(i) to inspect all water supply and sewerage 31 facilities in the State by whomsoever they are operated;
(ii) to obtain such periodic or specific information from any local body and operating agency as it may deem necessary;
(iii) to provide training for its own personnel as well as employees of the local bodies;
(iv) to prepare and carry out schemes for water supply and sewerage;
(v) to lay down the schedule of fees for all services rendered by the Nigam to the State Government, local bodies, institutions or individuals;
(vi) to enter into contract or agreement with any person, firm or institution, as the Nigam may deem necessary, for performing its functions under this Act;
(vii) to adopt its own budget annually;
(viii) to approve tariffs for water supply and sewerage services applicable to respective local areas comprised within the jurisdiction of Jal Sansthans and such local bodies as have entered into an agreement with the Nigam under Section 46;
(ix) to borrow money, issue debentures to obtain subventions and grants and manage its own funds;
(x) to disburse loans to local bodies for their water supply and sewerage schemes;
(xi) to incur expenditure and to grant loans and advances to such persons or authorities as the Nigam may deem necessary for performing the functions under 32 this Act.
31. Vesting and transfer of property to Nigam. (1) As from June, 18, 1975, the date of establishment of the Nigam hereinafter in this Chapter referred to as "the appointed date", - a) all properties and assets (including waterworks, buildings, laboratories, stores, vehicles, furnitures and other furnishing) which immediately before the appointed date were vested in the State Government for the purposes of the Local Self Government Engineering Department shall vest in and stand transferred to the Nigam; and b) all the rights, liabilities and obligations of the State Government whether arising out of any contract or otherwise pertaining to the said departments shall be the rights, liabilities and obligations of the Nigam.
37. Transfer of employees to Nigam. (1) Save as otherwise provided in this section every person, who was employed in the Local Self Government Engineering Department of the State Government shall on and from the appointed date become employee of the Nigam and shall hold his office or service therein by the same tenure, at the same remuneration and upon same other terms and conditions, and with the same rights and privileges as to pension, gratuity and other matters as he would have held the same on the appointed date if this Act has not come into force, and shall continue to do so until his employment in the Nigam is terminated or until his remuneration or other terms and conditions of services are revised or altered by the Nigam under or in pursuance of any law or in accordance with any provision which for the time being governs his service.
3389. Directions to the Nigam on questions of policy. (1) In the discharge of its functions, the Nigam shall be guided by such directions on questions of policy as may be given to it by the State Government.
(2) If any question arises whether any matter is or is not a matter as respects which the State Government may issue a direction under sub-
section (1), the decision of the State Government shall be final.
97. Regulations. (1) The Nigam and a Jal Sansthan may, with the previous approval of the State Government, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Nigam or a Jal Sansthan.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely
a) xxxxxxx xxxxxxxxxx xxxxxxxx xxxxxx b) xxxxxxx xxxxxxxxxx xxxxxxxx xxxxxx c) the salaries and allowances and other conditions of service of employees of the Nigam or a Jal Sansthan other than employees employed on contract basis.
Regulation 31 Besides the provision made under these regulations, the pay and allowances, pension, leave, imposition of penalty and other terms and conditions of service shall be governed by such rules, regulations and orders which are equally applicable to other serving government servants concerned functioning in the State."
Regulation 31 of the Uttar Pradesh Jal Nigam Service of Engineers (Public Health Branch), Regulation 1977, which deals 34 with regulation or pay leave allowance, pension and other conditions of service: 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 servants serving in connection with the affairs of the State.
In the instant case, sole controversy is pertaining to the enhancement of the retirement age 58 years to 60 years of the employees who are working in the UP Jal Nigam. Initially the matter reached to the Hon'ble Supreme Court in the case of Harvinder Kumar v. Chief Engineer, Karmik from where the Hon'ble Supreme Court observed that:-
"It would be clear that the appointed date for the purpose of the Act was 18th June, 1975 when the Nigam was established and under Section 37 of the Act, conditions of service of the appellants/petitioners who were employed in the Local Self Engineering Department of the Government of Uttar Pradesh before the appointment date, were continued to remain the same as they were before the appointed date unless and until the same are altered by the Nigam under the provisions of the Act. Section 97 confers power upon the Nigam with the previous approval of the State Government to frame Regulations in relation to service conditions of employees of the Nigam and acting thereunder, Regulations were framed by the Nigam in the year 1978. Regulation 31 whereof provides that service conditions of the employees of the Nigam shall be governed by such Rules, Regulations and Orders which are applicable to other serving Government servants functioning in the State of Uttar Pradesh. Thus, from a bare reading of Section 37 and Regulation 31, it would be clear that the service conditions of the employees of the Nigam would be the same as are applicable to the employees of the 35 State Government under the Rules, Regulation and Orders applicable to such Government servants so long the same are not altered by the Nigam in accordance with the provisions of the Act. If Regulations would not have been framed, the Nigam had residuary power under Section15(1) of the Act whereby under general power it could change the service conditions and the same could remain operative so long Regulations were not framed but in the present case, Regulations were already framed in the year 1978 specifically providing in Regulation 31 that the conditins of service of the employees of the Nigam shall be governed by the Rules, Regulations and Orders governing the conditions of service of Government servants which would not only mean Rules then in Regulation 31, it has been mentioned that the Rules then in existence shall only apply. 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 age of the employees which would not tantamount to amending Regulation 31 of the Regulations." (Emphasis added) In principle, the Hon'ble Supreme Court has not denied the enhancement of age for superannuation from 58 years to 60 years but for the purpose, the Hon'ble Supreme Court has 36 directed to seek necessary approval of the Government for the amendment of Regulation 31 of the Regulations. The Government has never approved the proposal for the said amendment.
Thus, by virtue of Regulation of 2005, the Engineers/employees were divided into two categories, namely-
(1) who were transferred from erstwhile LSGED; and (2) those who were directly recruited For the first category, the superannuation of age is 60 years at par with the State Government Employees. But for the second category, the age of superannuation is 58 years. Thus, there is a discrimination between the employees. Needless to mention that after joining, all the employees have the same pay-scale, privilege and amenities regardless to the source of their recruitment as long as they are working on the identical posts. They will have to be treated alike.
Article 14 of the Constitution of India provides the equality before law or equal protection of law. Since the guarantee of equal protection embraces the entire "realm of State action", it was extended not only when an individual is discriminated against in the matter of his right or in the manner but also in the matter of granting the privilege including in the job matters as per the ratio laid down in the case of Kasturi Lal v. State of Jammu & Kashmir AIR 1980 SC 1992.
In the case of D.S. Nakara and others v. Union of India 1983 (1) SCC 305 it was observed by the Apex Court that in order, however, to pass the test of permissible classification, two conditions must be fulfilled, viz.,
(i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and
(ii) that differentia must have a rational relation to the objects sought to be achieved by the statute in question. The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
37Equal laws would have to applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same. The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive. As a corollary to this well established proposition, the net question is, on whom the burden lies to affirmatively establish the rational principle on which the classification is founded correlated to the object sought to be achieved.
Needless to mention that the thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the every nature of things the society being composed of unequals, a welfare State will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of State affirmative action. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The Court realistically appraising the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in Part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Legislative and executive action may accordingly be sustained if it satisfies the twin tests (supra) of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate it to the objects sought to be achieved. This approach is also noticed in Ramana Dayaram 38 Shetty v. International Airport Authority of India when at SCR page 1034 (SCC p. 506), where the Apex Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. In the instant cases, no material was brought on record by the opposite parties to justify the classification in question.
In the case of Food Corporation of India and others v. Ashish Kumar Ganguly and others 2009 (7) SCC 734, the Hon'ble Supreme Court observed that a statutory authority or an administrative authority must exercise its jurisdiction one way or the other so as to enable the employees to take recourse to such remedies as are available to them in law, if they are aggrieved thereby. The question which, however, arises for consideration is as to whether having exercised its jurisdiction in favour of a class of employees, a statutory authority can deny a similar relief to another class of employees. In case of this nature, in our opinion, the writ court was entitled to declare such a stand taken by the statutory authority as discriminatory on arriving at a finding that both the classes are entitled to the benefit of a statutory rule. In a case of this nature, legal right of the respondents emanated from violation of the equality clause contained in Article 14. If they were otherwise similarly situated there was absolutely no reason why having regard to the provisions contained in Article 39-A of the Constitution of India, the respondents should be treated differently. It is, therefore, not a case where persons differently situated are being treated differently.
Moreover, equality before law is co-relative to the concept of rules of law for alround evaluation of social order a basic postulate of the rule of law is that "justice should not only be done but not must also be same to be done". However, Article 14 does not prohibit reasonable classification but it must deal with members of a well defined class, it is not obnoxious and it is not open to deny equal protection on the ground that it has no application to other persons as per the ratio laid down in the case of State of Bombey v. Balsara FN, AIR 1951 SC 318.
39Further, the classification would be justified if it is not palpably, arbitrarily as observed in the case of Re Special Courts Bill, AIR 1979 SC 478. What is required is that it must be real and substantial and must bear some just and reasonable relation to the object of the legislation. The class of similar persons who availed the equal right and remedy cannot constitute a separate class.
In the instant case, the need not be great pertaining to the employees who were transferred from erstwhile LSGED. The need of all employees is identically same. After joining, their duties, salaries, perks in the Jal Nigam are same. Hence, both the classes will have to be treated alike regardless their source of recruitment.
Reference may be noted to the ratio laid down in the case of High Court of Judicature at Allahabad v. Surnaam Singh 2000 (2) SCC; and also in the case of All India Judge Association v. Union of India, AIR 1992 SC 165 where it was observed that the judicial officer was entitled to enhance retirement age up to 60 years without being assessed his work and conduct. It means that without any pre-condition, the age of superannuation can be enhanced.
Learned counsel for the Jal Nigam has heavily relied on the ratio laid down in the case of B. S. Yadav v. Chief Manager, Central Bank of India, 1987 (3) SCC 120 where the classification of the employees recreated before nationalization and after nationalization was held permissible. The Hon'ble Apex Court observed that the question invited is not one of more competence. It invites justice and fairness too. There was good reason to make a distinction between the employees who had entered service prior to nationalization and those who joined thereafter. There was also need for standardizing the conditions of service of all such employees belonging to the 14 banks. The Government of India took the advice of the Pillai Committee and the Study Group of Banker and after due deliberation evolved a uniform pattern of conditions. The Hon'ble Supreme Court observed (Para 16) that-
"Having regard to all aspects of the matter, the nationalised banks have tried to be fair and just insofar 40 as the question of age of retirement is concerned. We cannot say in the circumstances that the Bank's attitude is unreasonable, particularly when the age of retirement of the new entrants is quite consistent with the conditions prevailing in almost all the sectors of public employment." (Emphasis added) But the fact remains that in the case B.S. Yadav (supra), the issue was pertaining to the reduction of age to maintain the universal retirement age. On the other hand, in the instant cases, issue is pertaining to the enhancement of age of retirement to maintain the universal retirement age as per the policy of the government regarding its employees who now will continue till the age of 60 years. Similar benefit was also given to the employees of the local authorities.
In the year of 2007, the Water and Sewerage Act was amended. The benefit of age of superannuation was extended to the employees of the local authorities up to 60 years. The Jal Nigam is also a local authority by virtue of Water and Sewerage Act, 2007. So, the benefit of 60 years will have to be given to all its employees alike. Therefore, all employees have to be treated alike regarding their age of superannuation. Further, regarding the enhancement of age for retirement it was only the government decision where the resolution of Board of Director dated 13.4.2008 was rejected. The Regulation 2005 dated 8.12.2005 which created the discrimination, never put up before the Hon'ble Supreme Court even at the time of review petition filed on 22.12.2005 in the case of Harvinder Kumr (supra). On 29.08.2006, this review petition was dismissed by the Hon'ble Supreme Court. Moreover, it is evident that Regulations 31 is the special regulation applicable to the engineers and the same was never amended by the Regulations 2005 and are generally applicable to all employees. Legally, special statute has to continue as the special law prevails over the general law in accordance with principle mentioned in the Article 254 of the Constitution of India.
Since the creation of the Jal Nigam, there was no discrimination and there was a single cadre for 30 years. But the discrimination was created in the year 2005 when the Rule 56 (a) 41 was amended and discrimination was made by creating two classes (supra). Nowhere, rationality is defined for creating this discrimination. Board of Director has recommended for enhancement of the age up to 60 years to eliminate the discrimination; and the Chairman also wrote for the enhancement of the age of 60 years but the Government has rejected the same on 29.7.2009 but without mentioning any specific reason. When it is so then we are of the view that the discrimination between two classes of the employees are arbitrary and not sustainable in the eye of law as all the similar cadres of the employees will have to be treated alike.
Moreover, there is another aspect of case pertaining to the publication of the Regulations 2005 which were published first time only on 8.11.2009 in the newspapers, and made effective. It was never published in the Gazette nor any publication was issued prior 2009. Without due publication, the law is not sustainable as per the ratio laid down in the case of Hon'ble Chief Justice, High Court of Bombay and others v. B.S. Nayak and others, 2001 (9) SCC 763 where it was observed that:-
"We do not find any justification for the Division Bench of the High Court to strike down the criteria in question on the ground that the same had not been given due publicity. The question of giving publicity to the criteria would not arise as the leaned Chief Justice has formulated the criteria for filling up the posts of Private Secretaries which he thought appropriate for efficient administration and for efficient discharge of the duties of the Hon'ble Judges. It cannot be disputed that the Private Secretaries to the Hon'ble Judges play an important role in taking down dictations and writing judgments and, if merit is not given its due consideration and appointments are made on the basis of seniority."
Therefore, the Regulations 2005 which have created discriminatory two classes of employees regarding retirement age is not sustainable in the eye of law. Moreover, Section 38 of the U.P. Municipalities Act, 1916 provides the age of retirement from service of all officers of the Centralised Services shall be 60 years 42 beyond which no one shall ordinarily be retained in the service of the Palika. There is no reason why the similar benefit cannot be given to the employees of the Nigam alike. It may be mentioned that in the case of B.S. Yadav (supra), the benefit pertaining to the enhancement of the age was never denied as discussed above. In the instant case, there is no question of the reduction of the age. Here are the cases where the question is for the enhancement of the age to eliminate the discrimination as stated above. Being local authority also the benefit of 60 years will be given to all employees of the Jal Nigam regardless to the modes of retirement.
By considering the totality of the facts and circumstances of the cases in hand and out of abundance of caution as per maximum EX ABUN DANTI CAUTELA, we are of the view that there is no reasonable nexus differentia to create the classification of employees which was created by the Regulation 2005 and same was never published in gazette and it was published first time in the newspaper on 8th November, 2009. So, Regulations 2005 are ultra vires and discriminatory as per Article 14 of the Constitution of India and not sustainable in the eye of law for the reasons mentioned above. Therefore, all the writ petitions are allowed and we set aside the Regulations 2005. So, all the employees of the Jal Nigam shall retire on attaining the age of 60 years like State Government employees.
However, this benefit of the enhancement of age shall be confined to the persons who have filed the writ petition before their retirement and obtained the interim order. But interim order was vacated by an order passed by this Court on 10.2.2010 (by the Bench consisting of Hon'ble Sunil Ambwani, J and Hon'ble Dr. Satish Chandra, J) where it was observed-
"The petitioners appointed after the establishment of the Jal Nigam on 18.06.1975 are covered by the U.P. Jal Nigam (Retirement on Superannuation) Regulation, 2005. They have superannuated and are not entitled to continue up to 60 years. They can be adequately compensated in terms of pay and allowances if the writ petition succeeds. The interim orders in 43 all the writ petitions are therefore vacated."
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. 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.
Dated: 29th July, 2010 [ Dr. Satish Chandra,J.] [ Rajiv Sharma,J.] HM/Kul 44