Hon'ble S.C. Chaurasia,J.
1. List revised. None appears for the respondent No.3. We have heard learned counsel for the petitioner Sri Altaf Mansoor as well as the learned standing counsel. The brief matrix OF the writ petition, are discussed hereinafter.
11. Hon'ble Supreme Court in the case of Harwindra Kumar (supra) has observed that amendment with regard to age of superannuation cannot be done retrospectively affecting right of employees who were entitled to continue upto the particular age in terms of the unamended Rules. For convenience, para-10 of the said judgment (supra) is reproduced as under:
"10. For the foregoing reasons, we are of the view that so long Regulation 31 of the Regulations is not amended, 60 years which is the age of superannuation of government servants employed under the State of Uttar Pradesh shall be applicable to the employees of the Nigam. However, it would be open to the Nigam with the previous approval of the State Government to make suitable amendment in Regulation 31 and alter service conditions of employees of the Nigam, including their age of superannuation. It is needless to say that if it is so done, the same shall be prospective."
12. In the case of Chairman Railway Board (supra), the question cropped up before the Hon'ble Supreme court was with regard to retrospective amendment of Rules affecting vested or accrued right of Government employees. Their lordships held that the retrospective amendment of statutory Rules adversely affecting the pension of employees who already retired on the date of notification was held to be invalid. In the present case, on the date when the impugned resolution was passed by the Board of Management, the petitioner had already exceeded the age of 58 years and I n terms of the Government order, he was entitled to continue for further period of 2 years Keeping in view the service career. Relevant portion from the judgment of Chairman of Railway Board (supra) is reproduced as under:
"20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.
21. In B.S. Yadav. v. State of Haryana, a Constitution Bench of this Court, while holding that the power exercised by the Governor under the Proviso to Article 309 partakes the characteristics of the legislative, not executive, power and it is open to him to give retrospective operation to the rules made under that provision, has said that when the retrospective effect extends over a long period, the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules."
22. In State of Gujarat. v. Raman Lal Keshav Lal Soni, decided by a Constitution Bench of the Court, the question was whether the status of ex- ministerial employees who had been allocated to the Panchayat service as Secretaries, Officers and Servants of Gram and Nagar Panchayats under the Gujarat Panchayat Act, 1961 as government servants could be extinguished by making retrospective amendment of the said Act in 1978. Striking down the said amendment on the ground that it offended Articles 311 and 14 of the Constitution, this Court said : (SCC p 62, para 52) "The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right ac-quired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, there-fore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. The legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history."
23. The said decision in Raman Lal Keshav Lal Soni of the Constitution Bench of this Court has been followed by various Division Benches of this Court. (See :K.C. Arora & Anr. v. State of Haryana, T.R. Kapur. v. State of Haryana, P.D. Aggarwal v. State of U.P. K. Narayanan . v. State of Kamataka, Union of India v. Tushar Ranjan Mohanty and K. Ravindranath Pai v. State of Kamataka.
24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon (supra), B.S. Yadav (supra) and Raman Lal Keshav Lal Soni."
13. In the case of Ex-Major (supra) again, the aforesaid proposition of law has been reiterated and their lordships of Hon'ble Supreme Court has held that condition of service cannot be altered or modified to the prejudice of an employee by a subsequent administrative instruction having retrospective effect.
14. In the case of Ex-Cap. K.C. Arora (supra), it has been held by the Hon'ble Supreme Court that amendment I n the service condition taking away vested right with retrospective effect, shall be invalid if it is in violative of the present acquired or accrued fundamental rights of the affected person. Aforesaid proposition has been dealt with by the Hon'ble Supreme Court in other cases relied upon by the petitioner and lays down that service condition cannot be altered retrospectively to deprive the employees of the rights which already accrued before the amendment was done.
15. The State Government has amended the Service Rules of its employees enhancing the age of superannuation from 58 to 60 years on 28.11.2001. Accordingly, at the thrust of unamended Rule 27 (supra), the employees of the U.P. Corporation were entitled to continue in service upto the age of 60 years. Otherwise also, the petitioner has attained the age of 58 years on 30.9.2007 and in view of the amendment done with regard to Government employees in terms of the notification dated 28.11.2001, the petitioner could not have been retired from service and he should have been permitted to continue in service even after 30.9.2007 to complete the age of superannuation to the extent of 60 years.
16. In view of the settled proposition of law, the impugned orders, seems to suffer from vice of arbitrariness. In view of the unamended Rule 27, the petitioner should have been permitted to continue in service upto the age of 60 years.
17. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 11.4.2007 and 7.8.2007 passed by the respondent No.2 and 3 contained in Annexure No.5 and 7 to the writ petition with consequential benefits. The petitioner shall be deemed to be in service upto the age of 60 years and he shall be paid arrears of salary and emoluments in accordance with Rules along with post retiral benefits. Let a decision be taken keeping in view the observations made hereinabove expeditiously say, within two months from the date of receipt of a certified copy of this order and communicate the petitioner.
No orders as to costs.
[Justice S.C. Chaurasia] [Justice Devi Prasad Singh] Order Date :- 30.5.2012 Rajneesh AR-PS)