Research › Search › Judgment

Allahabad High Court · body

2004 DIGILAW 214 (ALL)

Surya Bhan Singh v. State of U. P.

2004-02-04

N.K.MEHROTRA

body2004
JUDGMENT N. K. Mehrotra, J.—This is a petition for issuing a writ of certiorari quashing the retirement order dated 19.12.2003 passed by the opposite party No. 4 as contained in Annexure-1 to the writ petition and for issuing a writ of mandamus declaring Regulation 47 (1) of the U. P. Cane Co-operative Service Regulations, 1975 as ultra vires. 2. Impugned order Annexure-1 is retirement notice by which the petitioner has been asked to retire on superannuation at the age of 58 years with effect from 31.1.2004. 3. The petitioner is a seasonal clerk in service of the Cane Union, Mankapur, District Gonda. The case of the petitioner is that he was appointed on 28.3.1970 when there was no service rules or regulations. In the year 1975, U. P. Cane Service Regulations (hereinafter referred to as the ‘Regulations’) were framed which govern the service conditions of the petitioner. Admittedly, under Regulation 47, the age of superannuation of Class III Employee is 58 years. It is alleged by the petitioner that the State Government vide Notification dated 28.11.2001 (Annexure-3) has amended Rule 56 (a) of the U. P. Fundamental Rules whereby the existing age of retirement of the Government servant has been enhanced to 60 years. According to the petitioner, the Co-operative Societies registered under the Co-operative Societies Act, 1965 are State Instrumentalities and as such the members of the Cane Union should be governed by the Notification dated 28.11.2001 regarding the age of superannuation because in other matters such as dearness allowance and house rent, the rates prescribed by the Government are applicable to the members of the Cane Union as per the order of the State Government dated 9.2.1984. A copy of the Government Order dated 9.2.1984 is Annexure-4. 4. It is further alleged that similarly, in the matter of pay scale, the recommendation of the Pay Commission are applicable to the members of the Cane Union and as such there is a parity in almost all services benefits to the members of the Cane Union with that of the State Government employees except in the age of retirement and thus it is a clear case of discrimination. It is also alleged that the Cane Commissioner has been conferred with uncontrolled power by way of excessive delegation in extending the age of retirement in the cases as provided under Regulation 47. It is also alleged that the Cane Commissioner has been conferred with uncontrolled power by way of excessive delegation in extending the age of retirement in the cases as provided under Regulation 47. Therefore, Regulation 47 is unreasonable and absolutely arbitrary and is liable to be struck down as being violative of Article 14 of the Constitution of India. It is further averred that in Writ Petition No. 181 (S/S) of 2002 and in Writ Petition No. 1338 (S/B) of 2003, this Court has passed interim orders on 11.1.2003 and 31.10.2003 staying the retirement notice by interim orders. 5. After hearing the learned counsel for the petitioner and Shri K. S. Pawar standing counsel for the opposite parties 3 to 5, and Shri A. K. Pandey standing counsel for the opposite parties 1 and 2 , I am of the view that the contentions raised by the learned counsel for the petitioner, have no force. First of all, I refer Regulation 47 of the Regulations which admittedly applies in the case of petitioner which is as follows : “47. Compulsory Retirement.—(a) The date of compulsory retirement of a member of the Cane Co-operative Service other than the fourth class employees shall be the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement only under very special circumstances with the sanction of Cane Commissioner in the interest of the Cane Co-operative to be recorded in writing. He may be retained in service after the date of compulsory retirement only under very special circumstances with the sanction of Cane Commissioner in the interest of the Cane Co-operative to be recorded in writing. Provided (i) the Recruiting and Appointing Authority concerned may at any time, without assigning any reason, require a member of the Cane Co-operative Service to retire on three months notice or pay in lieu of the whole or part thereof, after he attains the age of 55 years or such lesser age as together with the period of notice in lieu of which the pay is substituted would aggregate to 55 years so however, that in the case of pay being given in lieu of whole or part of such notice the said period shall stand added to the employees qualifying service for the purpose of calculating federation share of C.P.F. and the death-cum-retirement gratuity due to him and for no other purpose : (i) the member of the Cane Co-operative Service, may, after attaining the age of 55 years voluntarily retire after giving three months’ notice, to the Recruiting and Appointing Authority concerned ; (ii) Provided further that : (i) The notice of voluntary retirement given under part (ii) of the first proviso by an employee against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the Recruiting and Appointing Authority concerned subject to the condition that in case of a contemplated disciplinary proceeding, employee is informed before the expiry of the period of notice. (ii) The notice once given by member of the Cane Co-operative Service under Part (ii) of the first provision shall not be withdrawn by him except with the permission of the Recruiting and Appointing Authority concerned. (b) The date of compulsory retirement of a fourth class servant of the Cane Co-operative Service is the date on which he attains the age of 60 years. He may be retained in service after that date only under very special circumstances and with the approval of the Cane Commissioner. (c) In giving notice under proviso 1 (i) of sub-regulation (a) above the Recruiting and Appointing Authority shall be guided by the instructions and standards laid down by the State Government for Government servants from time to time.” 6. (c) In giving notice under proviso 1 (i) of sub-regulation (a) above the Recruiting and Appointing Authority shall be guided by the instructions and standards laid down by the State Government for Government servants from time to time.” 6. The petitioner being a seasonal clerk is a Class III employee, therefore, as per the existing Rules, he has to retire on 31.1.2004 on attaining the age of 58 years. Learned counsel for the petitioner has referred two interim orders of this Court in Writ Petition No. 181 (S/S) of 2002 : P. P. Shukla v. State of U. P., Writ Petition No. 1338 (S/B) of 2003, Surendra Kumar Sinha v. State of U. P. and others, in which an interim stay order has been granted by this Court but I am of the view that the interim orders are not the precedent. Further, it will not be out of place to mention here that in Civil Appeal No. 7294/2002 (arising out of S.L.P. No. (C) No. 7903/2002, Managing Director, U. P. State Industrial Development Corporation v. L. P. Pandey, Hon’ble Supreme Court has not appreciated the interim orders of stay interfering the retirement notice without seeing the rules. 7. The next contention of the petitioner is that at the time he came into service, the U. P. Cane Co-operative Services Regulations, 1975 were not in existence and these rules cannot be made applicable in the case of the petitioner. I find no force in this contention. The Cane Commissioner has the power to frame regulations under the U. P. Cane Co-operative Societies Act and after exercising the statutory power, these regulations have been framed and the petitioner being an employee cannot have any right to challenge the fixation of the superannuation age by these regulations. 8. The next contention of the petitioner is that the petitioner is entitled to the benefit of notification dated 27.6.2002 by which the Fundamental Rule 56 has been amended by enhancing the age of superannuation of the Government servant from 58 years to 60 years. 9. I am of the view that the Fundamental Rule 56 is applicable in the case of Government servants. The petitioner is an employee of the Cane Society which is not a Government service. 9. I am of the view that the Fundamental Rule 56 is applicable in the case of Government servants. The petitioner is an employee of the Cane Society which is not a Government service. Even if the contention of the petitioner is accepted that he is a Government servant even then he cannot have any right to challenge the rules relating to the age of superannuation because if for the different classes of the Government servant, there can be different age of superannuation. Class IV employees are also Government servants and in the case of Class IV employees, the age of retirement is 60 years. So it is the service conditions which dealt with the age of superannuation in different classes of Government employees. 10. Learned counsel for the petitioner has argued that in case of dearness allowance and house rent allowance, similar facilities have been provided in case of employees of the Cane Union and their pay structure is also recommended by the Pay Commission as is clear from Annexure-4 notification issued by the Government, but in the age of superannuation, the age of retirement of the employees of the Cane Union is 58 years while in the case of Government servant it is 60 years and it amounts to discrimination. I find no force in this contention because there can be no discrimination in case of the employees of different classes or categories. If the employees belong to the two classes are being governed by the different rules, it cannot be the case of discrimination. The petitioner has challenged the vires of Regulation 47 (1) of the U. P. Cane Co-operative Service Regulations, 1975 on the ground that it gives excessive delegated power to the Commissioner for giving extension in special circumstances because this regulation provides that an employee may be retained in service after the age of compulsory retirement only under very special circumstances with the sanction of the Cane Commissioner and those special circumstances are not prescribed. 11. I am of the view that it does not amount to excessive delegation of power. It provides a special power to the Commissioner to grant extension in the matter of suitable cases and at the time of granting extension, the Cane Commissioner shall disclose the special circumstances on the basis of which an employee is granted extension. 11. I am of the view that it does not amount to excessive delegation of power. It provides a special power to the Commissioner to grant extension in the matter of suitable cases and at the time of granting extension, the Cane Commissioner shall disclose the special circumstances on the basis of which an employee is granted extension. This clause controls unlimited power and arbitrariness of the Cane Commissioner in stead of it being an example of excessive delegation. 12. I am of the view that the provisions under Regulation 47 of the Regulations does not infringe the right of the employees who are governed by this Regulations nor it is violative of any provision of the Constitution, therefore, no useful purpose will be solved by entertaining the writ petition. 13. In Narendra Chandra Hemraj and others v. Lieut., Governor Administrator Union Territory Himachal Pradesh and others, 1972 (1) SLR 940, it has been held by the Hon’ble Supreme Court that executive cannot be asked not to enforce a provision of law. 14. In Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187 , it has been held that there can be no doubt that no Court can direct the Legislature to enact a particular law. Similarly, when an Executive Authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a Legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority. 15. In view of the aforesaid legal position, there can be no ground to quash Regulation 47 cited above and no useful purpose is going to be solved by entertaining this writ petition for considering the quashing of the aforesaid Regulation 47. 16. In view of the above, the writ petition is dismissed.