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2009 DIGILAW 169 (ALL)

RAKESH KUMAR SAXENA v. STATE OF U P

2009-01-20

R.K.AGRAWAL, S.P.MEHROTRA

body2009
S. P. MEHROTRA, J. The petitioner has filed the present writ petition under Article 226 of the Constitution of India, inter alia, praying for quashing the order dated 12. 1. 2009 (Annexure No. 1 to the writ petition) whereby the petitioner has been retired at the age of 58 years from the post of Assistant Project Engineer (Electrical & Mechanical) with effect from 31. 1. 2009. 2. From the averments made in the writ petition, it appears that the petitioner was initially working as a Junior Engineer in the office of the respondent No. 2 (New Okhla Industrial Development Authority - in short "authority") on work basis with effect from 16. 11. 1976. By the order dated 9. 10. 1984 service of the petitioner was regularised on the said post. A copy of the order dated 9. 10. 1984 has been field as Annexure No. 2 to the writ petition. 3. Clause (ii) of paragraph (2) of the said order dated 9. 10. 1984 provided that the petitioner "will be governed by the rules and regulations of the Authority made from time to time". 4. It further appears that the petitioner was promoted to the post of Assistant Project Engineer (Electrical & Mechanical) by order dated 9. 6. 2006, a copy whereof has been filed as Annexure No. 3 to the writ petition. When the petitioner was working on the post of Assistant Project Engineer (Electrical & Mechanical), the impugned order dated 12. 1. 2009 was issued, inter alia, stating that the petitioner would retire with effect from 31. 1. 2009 on completing the age of superannuation, namely, 58 years. A copy of the said order dated 12. 1. 2009, as already mentioned, has been filed as Annexure No. 1 to the writ petition. 5. Against the said order dated 12. 1. 2009, the petitioner has filed the present writ petition claiming reliefs as mentioned above. 6. We have heard Sri Nagendra Pratap Singh, learned counsel for the petitioner, Sri Ramendra Pratap Singh, learned counsel for the respondent No. 2 and learned Standing Counsel appearing for respondent No. 1, and perused the record. 7. 5. Against the said order dated 12. 1. 2009, the petitioner has filed the present writ petition claiming reliefs as mentioned above. 6. We have heard Sri Nagendra Pratap Singh, learned counsel for the petitioner, Sri Ramendra Pratap Singh, learned counsel for the respondent No. 2 and learned Standing Counsel appearing for respondent No. 1, and perused the record. 7. It is submitted by Sri Nagendra Pratap Singh, learned counsel for the petitioner, that a proposal to enhance the age of superannuation of the employees working in the New Okhla Industrial Development Authority (Respondent No. 2) from 58 years to 60 years was submitted for consideration in the 108th Meeting of the Board of the said Authority to be held on 26th June, 2002. A copy of the said proposal has been filed as Annexure No. 6 to the writ petition. It is further submitted that the said proposal was approved by the Board of the said Authority in its 108th Meeting, which was actually held on 29th June, 2002, as is evident from the communication dated 12th July, 2002, a copy whereof has been filed as Annexure No. 8 to the writ petition. It is submitted that in view of the fact that the decision was taken by the Board of the said Authority to enhance the age of superannuation of the employees from 58 years to 60 years, the petitioner is entitled to continue till he attains the age of 60 years and the impugned order dated 12. 1. 2009 is illegal. 8. In reply Sri Ramendra Pratap Singh, learned counsel for the respondent No. 2, submits that the regulations are framed by the respondent No. 2 (New Okhla Industrial Development Authority) in exercise of its power conferred under Section 19 of the U. P. Industrial Area Development Act, 1976 (for short "the Act of 1976" ). Sub-section (1) of Section 19 of the Act of 1976, requires that the regulations may be framed by the respondent No. 2 (New Okhla Industrial Development Authority) with the previous approval of the State Government. Sub-section (1) of Section 19 of the Act of 1976, requires that the regulations may be framed by the respondent No. 2 (New Okhla Industrial Development Authority) with the previous approval of the State Government. It is submitted that even though proposal for enhancement of age of retirement from 58 years to 60 years has been sent to the State Government yet no approval so far has been received from the State Government, in the circumstances, the age of retirement of the employees of the respondent No. 2 continue to be governed by Regulation 25 of the New Okhla Industrial Development Authority Service Regulations, 1981 (for short "the Service Regulations of 1981"), which provides that an employee shall retire at the age of 58 years. 9. Learned counsel for the respondent no. 2 has made a reference to the provisions of Regulation 81 of the Service Regulations of 1981, which provides that the Authority may with the previous approval of the State Government add, amend, vary or rescind these regulations to such extent as it may consider expedient. As the previous approval of the State Government has not so far been received, it is submitted that the Regulation 25 of the Service Regulations of 1981, has not so far been amended, in the circumstances, the impugned order dated 12. 1. 2009 has been rightly issued by the respondent No. 2. 10. We have considered the submissions made by the learned counsel for the parties. Section 5 of the Act of 1976 provides as follows: "5. Staff of the Authority.-- (1) Subject to such control and restrictions as may be determined by general or special orders of the State Government, the Authority may appoint such number of officers and employees as may be necessary for the performance of its functions, and may determine their grades and designations. (2) Subject as aforesaid the officers and other employees of the Authority shall be entitled to receive from the funds of the Authority such salaries and allowances and shall be governed by such other conditions of service as may be agreed upon with the Authority. " 11. Sub-section (2) of Section 5, thus, inter alia, provides that the officers and other employees of the Authority "shall be governed by such other conditions of service as may be agreed upon with the Authority. " As noted above, the order dated 9. 10. " 11. Sub-section (2) of Section 5, thus, inter alia, provides that the officers and other employees of the Authority "shall be governed by such other conditions of service as may be agreed upon with the Authority. " As noted above, the order dated 9. 10. 1984 (Annexure No. 2 to the writ petition), regarding appointment of the petitioner, inter alia, provides that the petitioner "will be governed by the rules and regulations of the Authority framed from time to time", thus the petitioner agreed to be governed by the regulations framed by the respondent No. 2. Section 19 of the Act of 1976 provides as under:- "19. Power to make regulations.-- (1) The Authority may with the previous approval of the State Government, make regulation not inconsistent with the provisions of this Act or the rules made thereunder for the administration of the affairs of the Authority. (2) In particular, and without prejudice to the generality of the foregoing power, such regulation may provide for all or any of the following matters, namely, -- (a) the summoning and holding of meetings of the Authority, the time and place where such meetings are to be held, the conduct of business at such meetings, and the number of members necessary to form a quorum thereat; (b) the powers and duties of the Chief Executive Officer; (c) the form of register of application for permission to erect a building; (d) the management of properties of the Authority; (e) fees to be levied in the discharge of its functions; (f) such other matters as are to be provided for in regulation. " 12. Sub-section (1) of Section 19 of the Act of 1976, thus, provides that the Authority may with the previous approval of the State Government, make regulation not inconsistent with the provisions of this Act or the rules made thereunder "for the administration of the affairs of the Authority. " Clause (f) of sub-section (2) of Section 19 of the Act of 1976 provides that without prejudice to the generality of the power conferred under sub-section (1) of Section 19 of the Act of 1976, such regulation may provide for "such other matters as are to be provided for in regulation. " Clause (f) of sub-section (2) of Section 19 of the Act of 1976 provides that without prejudice to the generality of the power conferred under sub-section (1) of Section 19 of the Act of 1976, such regulation may provide for "such other matters as are to be provided for in regulation. " In view of the wide language used in sub- section (1) of Section 19 and in view of clause (f) of sub-section (2) of Section 19 of the Act of 1976, we are of the opinion that it was open to the Authority, respondent No. 2, to frame regulations governing service conditions of the employees employed in the New Okhla Industrial Development Authority (Respondent No. 2 ). 13. Regulation 25 of the Service Regulations of 1981, framed by the Authority, provides that "an employee shall retire at the age of fifty-eight years. " Thus, in view of Regulation 25 of the Service Regulations of 1981, the age of retirement, in case of the petitioner would be 58 years. Even though the proposal has been sent by the Board of respondent No. 2 (New Okhla Industrial Development Authority) for enhancement of the age of superannuation from 58 years to 60 years, yet the State Government has not so far granted its approval to the said proposal. 14. Regulation 81 of the Service Regulations of 1981 provides that "the Authority may with the previous approval of the State Government add, amend, vary or rescind these regulations to such extent as it may consider expedient. " 15. Sub-section (1) of Section 19 of the Act of 1976, as noted above, provides that the Authority may with the previous approval of the State Government, make regulation not inconsistent with the provisions of this Act or the rules made thereunder for the administration of the affairs of the Authority. 16. Thus, previous approval of the State Government is a must before any amendment may be made by the Authority in the Service Regulations of 1981. No such previous approval has so far been granted by the State Government for amending the aforementioned Regulation 25 of the Service Regulations of 1981. In the circumstances, the age of retirement as provided for in the said Regulation 25, namely, 58 years, will continue to remain operative. 17. No such previous approval has so far been granted by the State Government for amending the aforementioned Regulation 25 of the Service Regulations of 1981. In the circumstances, the age of retirement as provided for in the said Regulation 25, namely, 58 years, will continue to remain operative. 17. Learned counsel for the petitioner has referred to the provisions of Regulation 58 of the Service Regulations of 1981 and submitted that in view of Regulation 58, the Authority (respondent No. 2) should give effect to the age of retirement as laid down in Rule 56 (a) of the Uttar Pradesh Fundamental Rules, namely, 60 years in respect of the State Government employees. 18. We have considered the submission made by the learned counsel for the petitioner. Regulation 58 of the Service Regulations of 1981 provides as follows:- "58. If any difficulty, arises in giving effect to the provisions of these regulations, the Authority may, by a general or special order, do anything not inconsistent with the provisions of Financial Hand Book, Volume 2 Part II to IV of the Government of Uttar Pradesh, which appears to it to be necessary or expedient for the purpose of removing the difficulty. " 19. A perusal of Regulation 58 of the Service Regulations of 1981 shows that it would apply if any difficulty arises in giving effect to the provisions of the said regulations. In our opinion, when there is an express provision in Regulation 25 of the Service Regulations of 1981, providing that the age of retirement would be 58 years, there is no occasion to resort to the provisions of Regulation 58 of the Service Regulations of 1981. 20. In view of the above, we are of the opinion that the age of retirement in respect of the petitioner is 58 years, and the impugned order dated 12. 1. 2009 retiring the petitioner from service with effect from 31. 1. 2009 has been rightly issued. 21. Before parting with the case a reference is made to the Division Bench decision of this Court in Daya Shankar Singh vs. State of U. P. and others, 2008 (3)ADJ 21 (DB), relied upon by the learned counsel for the respondent No. 2 wherein the Division Bench in paragraph 48 of the said decision has held as under:- "48. 21. Before parting with the case a reference is made to the Division Bench decision of this Court in Daya Shankar Singh vs. State of U. P. and others, 2008 (3)ADJ 21 (DB), relied upon by the learned counsel for the respondent No. 2 wherein the Division Bench in paragraph 48 of the said decision has held as under:- "48. There is another obstacle blocking the road of petitioners for getting any relief in these writ petitions. They have challenged various orders whereby the State Government has declined to grant sanction for amendment of Regulation-12 of Staff Regulations. Even if the aforesaid orders passed by the State Government are held to be bad being non-speaking, that per se would not result in granting sanction to UPSWC having the effect of amendment of Regulation-12 enhancing age of superannuation of Class-I and Class-II employees of UPSWC from 58 to 60 years. The Regulations would stand amended only when the previous sanction is accorded by the State Government and, thereafter, the amendment is published in official Gazette. Therefore, at present, and, according to the existing Regulation-12 of Staff Regulations, which governs conditions of service of the employees of UPSWC, the Class-I and Class- II employees are liable to retire on attaining the age of 58 years. The petitioners have already attained the said age and, therefore, even otherwise, no relief can be granted to them. Their claim that in the absence of any sanction by the State Government, they should be held to be entitled to continue upto 60 years of age based on the resolution of the Board of Directors is clearly misconceived inasmuch a mere resolution of Board of Directors of UPSWC would not result in amending statutory regulations framed under Section 42 of 1962 Act and, therefore, the relief as sought by the petitioners, being in the teeth of the existing Regulation-12 of Staff Regulations, cannot be granted by this Court. " (Emphasis supplied) 22. The above decision, thus, supports the conclusions mentioned above in the present judgment. 23. In view of the above, we are of the view that the writ petition lacks merit and the same is liable to be dismissed. The writ petition is accordingly, dismissed. .