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2018 DIGILAW 217 (ALL)

B. D. SINGHAL v. STATE OF U. P.

2018-01-25

SHABIHUL HASNAIN, SIDDHARTHA VARMA

body2018
JUDGMENT By the Court.—Heard Sri Deepak Kumar, Advocate holding brief of Sri Rahul Agarwal, learned counsel for the petitioners and Sri Shivam Yadav, learned counsel for the respondent Nos. 2 and 3 (Noida Authority) as well as the learned Standing Counsel for the State of U.P. 2. The Noida Authorities to be in conformity with various State agencies, the details of which are being provided here as under, enhanced the retirement age of its employees to 60 years in a Board meeting. The State authorities which had enhanced the retirement age of their employees from 58 to 60 are being enumerated here as under: (i) The State of U.P. : By the order of the State Government dated 28.11.2001 the fundamental Rule 56 (a) was amended and the age of retirement of a Government servant was enhanced from the age of 58 to 60 years. (ii) The Krishi Utpadan Mandi : By the order dated 16.5.2005 the State Government had enhanced the retirement age of the employees of Krishi Utpadan Mandi Samiti from 58 to 60. (iii) The U.P. Jal Vidyut Nigam : By the Government Order dated 15.12.2006 the retirement age of the employees of U.P. Raj Vidyut Utpadan Nigam Ltd. was enhanced to 60 years of age and (iv) The Lucknow Prani Udyan : By the order dated 6.7.2007 the State Government had enhanced the retirement age to 60 years of its employees of the Lucknow Prani Udyan. 3. Learned counsel has stated that initially the question of enhancement of retirement age was considered by a Board meeting of the Noida Authorities on 29.6.2002, immediately after the State Government had amended the Fundamental Rule 56(a) on 27.6.2002. Thereafter, on 22.3.2005, by way of a reminder the Chairman and the Chief Executive Officer of the Noida Authorities had again written to the State Government that they had, by their earlier resolution, enhanced the retirement age from 58 years to 60 years and that an approval be given. However, on 22.9.2009, the State Government communicated its decision to the Noida Authorities that they were not in favour of extending the age of retirement from 58 to 60 years and that the age of retirement would continue as 58 for the employees working with the Noida Authorities. However, on 22.9.2009, the State Government communicated its decision to the Noida Authorities that they were not in favour of extending the age of retirement from 58 to 60 years and that the age of retirement would continue as 58 for the employees working with the Noida Authorities. The order of the State Government dated 22.9.2009 was assailed in Writ Petition No. 48162 of 2010 and this Court disposed of the writ petition with the following order: “13. Having regard to facts and circumstances, we dispose of the writ petition with directions that NOIDA may consider the matter in its next Board meeting, taking into account its earlier resolution made in the year 2002, to bear the financial burden, after financial assessment of such burden, and the effect of increase of retirement age on other employees. It may thereafter refer the matter to the concerned Administrative Department of the State Government for its evaluation and recommendation, and for forwarding the same to the State Government for its approval. We also direct that if such a decision is taken by the State Government, it will be open to the State Government to consider to give effect to the increase in the age of retirement with effect from the date when the NOIDA had resolved to bear the financial burden, or from any such date, which the State Government may find it expedient.” 4. Thereafter the Noida Authorities by their resolution No. 176 dated 9.7.2012 and the consequential commuication dated 17.7.2012, requested the State Government to enhance the retirement age and also clarified that the financial burden would be borne by the Authority itself. However, when nothing was done by the State Government, the petitioners approached this Court by means of this writ petition and this Court on 31.8.2012 passed the following order: “Claim in this petition is for enhancement of the age from 58 years to 60 years. Sri Navin Sinha, learned Sr. Advocate assisted by Sri Shivam Yadav states that Noida authority has resolved for the needful. This happened in the past also. This Court in writ petition No. 48162 of 2010 decided on 17.1.2012 by making various observations in this respect and after referring resolution of the Noida authority asked the State Government to take a decision in this respect. Order of this Court is dated 17.1.2012. This happened in the past also. This Court in writ petition No. 48162 of 2010 decided on 17.1.2012 by making various observations in this respect and after referring resolution of the Noida authority asked the State Government to take a decision in this respect. Order of this Court is dated 17.1.2012. In view of the aforesaid, it is for the respondent No. 1 to take appropriate decision keeping in mind the resolution of the development authority. Sri Pradhan, learned Additional Chief Standing Counsel assures the Court that the order of this Court and the order passed in the earlier writ petition will be again immediately informed/placed before the competent authority with a request that taking of the decision may be expedited. Let the matter be listed in the week commencing 8th October, 2012. Certified copy of this order may be made available to the learned counsel for the parties on payment of usual charges, and to the learned Standing Counsel free of cost, if applied, on on before 4.9.2012.” 5. It appears that after the order was placed before the State Government on 30.9.2012 a Government Order was issued and the age of retirement was raised from 58 to 60. However by condition No. 1(2) of the order dated 30.9.2012 it was observed that the order was to apply prospectively and persons who had retired earlier were not to be given any benefit of it. Aggrieved thereof the petitioners amended the instant writ petition and prayed for the quashing of the of the clause No. 1(2) of the Government Order dated 30.9.2012. Clause-1(2) of the Government Order is being reproduced here as under: ^^¼2½ ;g izkfo/kku uks,Mk izkf/kdj.k esa rkRdkfyd izHkko ¼'kklukns'k fuxZr gksus dh frfFk½ ls gh ykxw gksxas rFkk bldk dksbZ iwoZxkeh izHkko ugha gksxkA** 6. Learned counsel for the petitioners while assailing clause-1(2) of the Government Order dated 30.9.2012 made the following submissions: (I) When the Noida Authorities since 2002 after the State Government had raised the retirement age from 58 to 60 had also raised the age of retirement of its employees then the State Government had no business to delay the formal approval which had to come from it. (II) When the Noida Authorities since 2002 (and specifically in the year 2006) had been writing that if the retirement age was increased then the financial burden would be borne by the Noida Authorities, then the State Government should have issued orders immediately. (III) In fact, the relationship of an employee and employer existed between the petitioners and the Noida Authorities only and the State Government was only a body which had to approve the resolutions of the Noida Authority. (IV) When the State Government by amending its own fundamental Rule 56 (a) had increased the retirement age from 58 to 60 then it could not have found anything wrong with the increasing of the age of the employees of the Noida Authorities. (V) When the State Authorities simply slept over the matter and did not give the approval to the resolutions of the Noida Authorities as and when they were passed the petitioners were not to be victimised. (VI) If the State Government, instead of approving the increase in the age of the employees of the Noida Authorities from 58 to 60 on 30.9.2012, had approved the same as and when the resolutions were sent by the Noida Authorities then the petitioners’ interest would have been safeguarded and they would have also retired at the age of 60 years. (VII) The State Government could have very well either accepted the resolution of the Noida Authority or could have rejected the same as and when it reached it but it was not proper for it to have slept over the matter ad infinitum. Furthermore, there was absolutely no justification for them to have provided the extension of retirement age prospectively. 7. In reply, however the learned Standing Counsel on behalf of the State Government stated that State Government had a lot of business at its hands and delays do occur. For the delay, thus, the State could not be blamed. 8. The Noida Authorities however supported the case of the petitioners and disapporoved the clause 1(2) of the Government Order dated 30.9.2012 by which the increase in the age of retirement was done with effect from 30.9.2012 prospectively. 9. For the delay, thus, the State could not be blamed. 8. The Noida Authorities however supported the case of the petitioners and disapporoved the clause 1(2) of the Government Order dated 30.9.2012 by which the increase in the age of retirement was done with effect from 30.9.2012 prospectively. 9. Having heard the learned counsel for the parties and after having gone through the record, we are of the considered view that the Government Order dated 30.9.2012 was arbitrary inasmuch as it increased the age of retirement from 58 to 60 with effect from 30.9.2012 and did not increase the age of retirement for such employees who had retired before 30.9.2012. In the first place, the Government should have acted instantly when the resolutions were received by it from the Noida Authorities and secondly we see no reason why it had refused to give the advantage of extension in age retrospectively when the Resolution was received by it more than three years back. Definitely clause 1(2) of the Government Order dated 30.9.2012 appears to be absolutely arbitrary inasmuch as it has prospectively applied the order dated 30.9.2012 by which it had allowed the Noida Authorities to extend the age of retirement. 10. In such circumstances, we see no reason why the clause 1(2) of the Government Order dated 30.9.2012 should be retained. 11. Clause 1(2) of the Government Order dated 30.9.2012 is struck down and the Government Order dated 30.9.2012 shall apply retrospectively i.e. from the date the Resolution dated 29.6.2002 was passed. The petitioners shall be deemed to have worked with the Noida Authorities till the age of 60 years. They shall be given their arrears of salary which shall be calculated deeming that they had worked till the age of 60 years. Retirement benefit shall also be accordingly calculated. The writ petition is allowed.