JUDGMENT V.M. Sahai and Sabhajeet Yadav, JJ.
1. The questions which arise for our consideration in these batch of cases are as to whether amendment made in Rule 56(a) of Uttar Pradesh Fundamental Rules (in short 'the Rules') by Notification dated June 27, 2002 enhancing age of superannuation of government servants from 58 years to 60 years would be applicable to the employees of Uttar Pradesh Jal Nigam (hereinafter referred to as 'the Nigam'). And as to whether the petitioners are entitled for the same and/or similar relief which is granted in Harwindra Kumar v. Chief Engineer Karmic and Ors. or their conduct in approaching the court at belated stage disentitled them for such relief and their writ petitions are liable to be dismissed on the ground of delay and latches?
2. The petitioners of these batch of writ petitions while working on the posts of Assistant Engineers/Executive Engineers in the Nigam have been made to retire from service on attaining 58 years of their age of superannuation. Since identical question in controversy based on similar facts are involved in this batch of writ petitions, therefore, these writ petitions are taken up together for hearing and disposal.
3. The brief facts having material bearing with the question in controversy involved in the case are that the petitioners were initially employed in the Local Self Government, Engineering Department of Government of Uttar Pradesh. In the year 1975, the State Legislature enacted an Act, viz., Uttar Pradesh Water Supply & Sewerage Act, 1975 (hereinafter referred to as 'the Act'), under Section 3 whereof, the State Government was empowered to issue notification to constitute a corporation by the name of the Uttar Pradesh Jal Nigam pursuant to which a notification was issued establishing the same with effect from 18th June, 1975. From the date of the establishment of the Nigam, which is the appointed date as enumerated in Section 31 of the Act, all properties and assets which immediately before the appointed date were vested in the State Government for the purposes of Local Self Government Engineering Department were vested in and stood transferred to the Nigam and all rights, liabilities and obligations of the state Government pertaining to the said Department became the rights, liabilities and obligations of the Nigam. Under Section 37 of the Act, every person who was employed in the Local Self Government Engineering Department of the State of Uttar Pradesh shall on and from the appointed date, i.e., 18th June, 1975 would 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 had not come into force and shall continue to do so until his remuneration or other terms and conditions of service 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 governed his service.
4. Before the appointed date i.e. 18th June, 1975, the age of superannuation of these employees under Rule 56(a) of the rules was 58 years which could be extended in exceptional circumstances up to the age of 60 years. Thereafter, the State Government issued order to the Nigam under its letter dated October 31, 1975 wherein it was clearly stated that in accordance with Section 37 of the Act the service conditions of such employees of the Nigam would continue to remain the same so long the same are not altered by the Nigam in accordance with law. Thereupon, Nigam took a decision on 4th April, 1977 in conformity with the provisions of Section 37 of the Act wherein it was specifically mentioned that the rights and responsibilities as were enjoyed by the officers of the then Local Self Government Engineering Department under the Financial Hand Book, PWD Manuals, Manual of Government Orders, Civil Services Regulations, Government Conduct Rules and other Manuals of Government Orders that have been passed or shall be passed by the Government from time to time shall be deemed to be applicable to the officers of the Nigam provided any other order in this regard is not passed by the Nigam.
5. Section 97(2)(c) confers power upon the Nigam to make regulations with the previous approval of the State Government on matters, inter alia, the salaries and allowances and other conditions of service of employees of the Nigam, In exercise of the aforesaid powers under Section 97 of the Act, regulations were framed by the Nigam on 1st September, 1978 as Uttar Pradesh Jal Nigam Engineers (Public Health Branch) Service Regulations, 1978 (hereinafter referred to as 'the Regulations') which came into force with immediate effect and Regulation 31 thereof laid down that the pay, allowances, pension, leave, imposition of penalty and other terms and conditions of service of the employees of the Nigam shall be governed by such rules, regulations and orders which are equally applicable to other serving government servants functioning in the State. On 17th July, 1985, the State Government issued a general order under its Memo No. 665/44-1/85 directing thereunder that the public sector undertakings should not give the benefit of extension of age as provided to the government servants under Rule 56(a) of the Rules without the permission of the State Government.
6. On 28th November, 2001, the State Government issued a notification notifying thereunder approval of the Governor for increasing the age of superannuation of government servants from 58 years to 60 years in public interest and steps were required to be taken for making suitable amendment in Rule 56(a) of the Rules, pursuant to which rules were amended by Uttar Pradesh Fundamental (Amendment) Rules, 2002 by notification dated 27th June, 2002 which came into force with effect from 28th November, 2001 and thereunder the age of retirement of government servants was enhanced from 58 years to 60 years. In the meantime, 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 enhancement in the age of superannuation from 58 years to 60 years would be applicable to the employees of Nigam and in reply thereto, on 22nd January, 2002, Special Secretary to the Government in the Department of Local Self Government communicated that the employees of the Nigam shall not be entitled to 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. Thereupon orders were issued to the petitioners in the writ petitions to the effect that they would retire upon completing the age of 58 years.
7. We have heard learned Counsel for the petitioners and Sri Q.H. Siddiqui appearing for the Nigam as well as learned Standing Counsel for the State Government and also perused the records.
8. To appreciate the question in controversy it would be useful to refer the date of notice asking the petitioners to retire from service on attaining their age of 58 years on the date stipulated in the notice and respective dates of filing of writ petitions by them.
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9. It is necessary to point out that it is not in dispute that the petitioners were initially employed in the Local Self Government, Engineering Department of the Government of U.P.. On establishment of Nigam their services stood transferred from the aforesaid department of Government to the Nigam by virtue of Section 37 of the Act from the appointed date, consequently they became employee of the Nigam and since then they were continuously working on their respectives posts of Assistant Engineers and/or Executive Engineers, It is also not in dispute that the petitioners were working on their respective posts on the date of commencement of the amended Fundamental Rules 56 (a), which came into force w.e.f. 28th November 2001 but they were retired from service after the aforesaid cut of date on attaining 58 years of their age, without permitting them to continue in service till attaining 60 years age of superannuation.
10. Now so far as first question is concerned it is necessary to point out that similar controversy has been dealt with by the Hon'ble Apex Court in Harwindra Kumar v. Chief Engineer, Karmik and Ors. , wherein after discussing the relevant provisions of statute applicable to the facts and circumstances of the case Hon'ble Apex Court in Para 11 and 12 of the decision held as under:
11. 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. For the foregoing reasons, the appeals as well as writ petitions are allowed, orders passed by the High Court dismissing the writ petitions as well as those by the Nigam directing that the appellants of the civil appeals and petitioners of the writ petitions would superannuate upon completion of the age of 58 years are set aside and it is directed that in case the employees have been allowed to continue upto the age of 60 years by virtue of some interim order, no recovery shall be made from them but in case, however, they have not been allowed to continue after completing the age of 58 years by virtue of erroneous decision taken by the Nigam for no fault of theirs, they would be entitled to payment of salary for the remaining period upto the age of 60 years which must be paid Jo them within a period of three months from the date of receipt of copy of this order by the Nigam. There shall be no order as to costs.
11. Relying upon the aforesaid decision of Hon'ble Apex Court a Division Bench of this Court in para 12, 13 and 14 of the decision rendered in batch of the writ petitions namely Civil Misc. Writ Petition No. 57044 of 2005, Bihangesh Nandan Sharan and Ors. v. State of U.P. and Ors. along with the connected writ petitions decided on 9.1.2006 has held as under:
12. Thus in given facts and circumstances of the case, we are of the considered opinion that the law laid, down by the Hon'ble Apex Court is fully applicable and squarely covers the case of petitioners, therefore, we have no hesitation to hold that the amendment made in Rule 56 (a) of Fundamental Rules referred herein before shall equally apply to the employees of Nigam covered by aforesaid Regulations by virtue of Regulation 31, and the petitioners would be entitled to he superannuated on attaining their age of 60 years. The decision of Nigam dated 11.7.2002 resolving not to apply 60 years enhanced age of superannuation to the petitioners and pursuant impugned order passed by Nigam retiring the petitioners earlier to attaining the age of 60 years i.e. on attaining the age of 58 years only are not sustainable being contrary to law and decision rendered by Hon'ble Apex Court. Accordingly, the decision of Nigam dated 11.7.2002 and orders passed by Nigam retiring the petitioners from service on attaining their age 58 years are hereby quashed.
13. However, it is made clear that since we have interpreted the provisions of Regulation 31 of Regulations in context of provisions of Act and in connection of applicability of amendment made in Rule-56 (a) of U.P. Fundamental Rules by Notification dated 27.6.2002, which have retrospective operation with effect from 28th November 2001, therefore, the observations made in our decision should be understood in context of only those provisions meaning thereby it shall apply to only those employees of the Nigam who are governed by Regulations referred herein before and were in service of the Nigam till the date of commencement of amended provisions of aforesaid Fundamental Rules and have been superannuated on or after 28th November 2001 but in view of the proviso second of amended Rule-56 (a) if a Government servant who has attained the age of 58 years on or before the first day of November 2001 and is on extension in service shall be retired from service on expiry of his extended period of service. Thus he would not be entitled to take benefits of amended fundamental Rules.
14. In the result, the petitioners are entitled to be continued in service on their respective posts till attaining 60 years age of their superannuation. In case the petitioners were permitted to continue in service after attaining their age of 58 years at the strength of any interim order passed by this Court and they have also been paid their salary, the respondents are directed to continue them in service till attaining their age of 60 years and pay their salary admissible to their respective posts by treating their age of retirement 60 years. If any of the petitioner has not been permitted to continue in service in absence of any interim order and has not been paid his salary without his fault, the Nigam is directed to reinstate him on his post for remaining period till attaining his age of 60 years and pay his salary alongwith arrears of remaining period within a period of three months from the date of production of certified copy of the order passed by this Court before the Nigam. The Nigam is further directed to finalize post retiral benefits of the petitioners by treating their age of retirement 60 years. With the aforesaid directions, the writ petition succeeds and allowed.
12. Thus in view of the aforesaid discussion it is clear that the question in issue and controversy is covered by law laid down by the Hon'ble Apex Court in Harvindra Kumar's case (supra) has been followed and applied by a Division Bench of this Court in Bihangesh Nandan Saran and others case (supra). The aforesaid decisions are also binding upon this Court, therefore, we are in complete agreement with the view taken herein before in the aforesaid cases on the question in issue, the same is answered accordingly.
13. Now so far as next question is concerned, the learned Counsel for Nigam has vehemently argued that since the petitioners have approached this Court after expiry of much time from their respective dates of retirement as such they are not entitled for similar relief as granted in Harvindra Kumar's case and other cases referred herein before as their blameworthy conduct disentitled them to seek such relief. Thus he urged that the petitioners are not entitled for discretionary and equitable relief under Article 226 of the Constitution of India and the petitions are liable to be dismissed on the ground of delay and latches alone. In support of his contention learned Counsel for Nigam has placed strong reliance upon a decision rendered by a Division Bench of this Court in Writ Petition No. 5242 of 2006 Radha Krishna Gupta v. State of U.P. and Ors. decided on 27.1.2006 wherein this Court has refused to entertain the petition and dismissed the same on the ground of unexplained undue delay and latches alone without entering into merits of the writ petition The petitioner of the aforesaid case was Assistant Engineer of the Nigam and has been retired from service on attaining 58 years of his age on 30.1.2004. He approached this Court after lapse of almost about two years and had claimed two years salary. Thus before dealing with the case in detail we would like to deal with legal position in this regard.
14. The issue in question is not res-integra rather has received consideration of Hon'ble Apex court on several occasions. In State of Maharashtra v. Digamber , the Hon'ble Apex Court has dealt with the issue at length by taking note of earlier decisions of Hon'ble Apex Court and Court in England and in para 12, 18, 19 and 20 of the decision Hon'ble Apex Court has held as under:
12...Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain latches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to latches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action, not being available later on. Further, where granting of relief is claimed against the State on alleged, unwarranted executive action, is bound, to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or latches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the latches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as latches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.
18. Latches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled him for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221), thus:
Now the doctrine of latches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy.
19. Whether the above doctrine of latches which disentitled grant of relief to a party by Equity Court of England, could disentitle the grant of relief to a person by the High Court in exercise of its power under Article 226 of the-Constitution, when came up for consideration before a Constitution Bench of this Court in Moon Mills Ltd. v. M.R. Meher, President Industrial Court, Bombay AIR 1967 SC 1450 it was regarded as a principle that disentitled a party for grant of relief from a High Court in exercise of its discretionary power under Article 226 of the Constitution.
20. A three-Judge Bench of this Court in Maharashtra State Raod Transport Corporation v. Shri Balwant Regular Motor Service, Amravati , reiterated the said principle of latches or undue delay as that which applied in, exercise of power by the High Court under Article 226 of the Constitution.
15. Thus from the aforesaid settled legal position, it is clear that before granting discretionary relief under Article 226 of the Constitution it is necessary for this Court to examine as to whether the conduct of petitioners on account of latches or undue delay, acquiescence or waiver, disentitles him for such reliefs. For that purpose it is necessary to examine that as to whether it would be practically unjust to give a remedy either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it or whether by his conduct and neglect, he has, though perhaps not waiving that remedy, yet, put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterward to be asserted. While examining the matter it should also be kept in mind that in every case if an argument against relief which otherwise would be just, is founded upon mere delay that delay of course not amounting to a bar by any statute or limitations, waiver and acquiescence the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as it relates to the remedy. Where the relief is claimed against the unwarranted executive action of the State, the need to explain the delay and latches are more stringent than in other cases for the simple reason that state due to latches or undue delay on the part of person seeking relief may not be able to show that executive action complained of was legal or correct for want of the record pertaining to the action or for the officers who were responsible for such action not being available later on. Further where the relief is claimed against the state on alleged unwarranted executive action is bound to result loss of public exchequer of state or in damage to other public interest, this Court before granting such relief is required to satisfy itself that the delay or latches on the part of citizen or any other person in approaching for relief under Article 226 of the Constitution on alleged violation of his legal right was wholly justified in facts and circumstances of the case. Therefore, before examining the case within aforesaid parameters, it is necessary to consider the true content and meaning of expression, 'waiver' and 'doctrine of acquiescence'.
16. In this connection a reference can be made to a decision of Hon'ble Apex Court rendered in Motilal Padampat Sugar Mills Co. Ltd. v. The State of U.P. and Ors. , wherein in para 6 of the decision Hon'ble Apex Court has explained the meaning of the expression 'waiver' known in the legal parlance as under:
6...Waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be "an intentional act with knowledge" per Lord Chelmsford, L.C. in Earl of Darnley v. London, Chatham and Dover Rly. Co. (1867) 2 HL 43 at P. 57. There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it. It is pointed out in Halsbury's Laws of England (4th ed.) Vol. 16 in para 1472 at p. 994 that for a "waiver to he effectual it is essential that the person granting it should be fully informed as to his rights" and Isaacs, J. delivering the judgment of the High Court of Australia in Craine v. Colonial Mutual Fire Insurance Co. Ltd. (1920) 28 CLR 305 has also emphasised that waiver "must be with knowledge, an essential supported by many authorities.
The Hon'ble Apex Court has further observed as under:
Moreover, it must he remembered that there is no presumption that every person knows the law. It is often said that every one is presumed to know the law, but that is not a correct statement; there is no such maxim known to the law. Over a hundred and thirty years ago, Maule J., pointed out in Martindale v. Falkner (1846) 2 Constitution Bench 706 "There is no presumption in this country that every person knows the law; it would be contrary to common sense and reason if it were so". Scrutton, L.J., also once said: "It is impossible to know all the statutory law, and not very possible to know all the common law. " But it was Lord Atkin who, as in so many other spheres, put the point in its proper context when he said in Evans v. Bartlam 1937 Authorised Controller 473"...the fact is that there is not and never has been a presumption that every one knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application. It is, therefore, not possible to presume, in the absence of any material placed before the Court, that the appellant had full knowledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated 25th June, 1970. We accordingly reject the plea of waiver raised on behalf of the State Government.
17. In Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association and Ors. 1988 (Supp) S.C.C. 55 in para 14 of the decision Hon'ble Apex Court observed as under:
14...In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case....
18. Now coming to the meaning of expression 'acquiescence' it is pointed out that in para 1473 (page 994-995) Halsbury's Laws of England Fourth Edition Volume 16, the meaning and import of the expression 'acquiescence' has been given as under:
1473. Estoppel and acquiescence. The term "acquiescence" is used where a person refrains from seeking redress when there is brought to his notice a violation of his rights of which he did not know at the time, and in that sense acquiescence is an element in latches. Subject to this, a person whose rights have been infringed without any knowledge or assent on his part has vested in him a right of action which, as a general rule, cannot be divested without accord and satisfaction or release under seal.
The term is, however, properly used where a person having a right, and seeing another person about to commit or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed; a person so standing by cannot afterwards be heard to complain of the Act. In that sense the doctrine of acquiescence may be defined as quiescence under such circumstances that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by words or conduct, the principle of estoppel by representation applying both at law and in equity, although its application to acquiescence is equitable". The estoppel rests upon the circumstances that the person standing by in effect makes a misrepresentation as to a fact, namely, his own title' a mere statement that he intends to do something, for example to abandon his right, is not enough, furthermore, equitable estoppel is not applied in favour of a volunteer.
19. In Govindsa Marotisa v. Ismail and Anr. A.I.R. 1950 Nag. 22 (Division Bench) while explaining the meaning of the acquiescence Hidayatullah (J) (as he then was) observed that acquiescence proper is nothing more than absolute or positive waiver. It amount to abandonment of right. In Sidde Gowda v. Nadakala Sidda Naika and Ors. , it was held that acquiescence is founded on conduct with knowledge of one's own legal right. In Gobinda Ramanuj Das Mohanta v. Ram Charan Das and Anr. A.I.R. 1925 Calcutta 1107, a Division Bench of Calcutta High Court has held that estoppel by acquiescence connotes that the person estopped in effect has represented to the person who is infringing his right that he is not entitled to complain that his right is being invaded and that the party relying upon this representation has altered his position to his detriment.
20. In K. Ramdas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and Ors. , in para 30 of the decision Hon'ble Apex Court has held that an excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. The Hon'ble Apex Court observed as under:
30. The High Court was not correct in holding that though the impeached resolution sanctioning plan for conversion of building into a cinema was in violation of the Town Planning Scheme yet it could not be disturbed because the third respondent is likely to have spent money. An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. The Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. Lord Selborne in Maddison v. Alderson (1883) 8 App Cas 467 said that courts of equity would not permit the statute to be made an instrument of fraud. The impeached resolution of the Municipality has no legal foundation. The High Court was wrong in not quashing the resolution on the surmise that money might have been spent. Illegality is incurable.
21. Now further question arises for consideration that what is legal nature of right of petitioners, which was allegedly invaded and is sought to be enforced in these writ petitions? In this regard it is necessary to point out that a Constitution Bench of the Hon'ble Apex Court while explaining the scope of phrase "matters relating to employment" as enshrined under Article 16(1) of the Constitution of India in General Manager, Southern Railway and Anr. v. Rangachari in para 14 and 16 of the decision has held as under:
14. Article 16(1) reads thus:
There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
If the words used in the Article are wide in their import they must be liberally construed in all their amplitude. Thus construed it would be clear that matters relating to employment cannot be confined only to the initial matters prior to the act of employment. The narrow construction would confine the application of Article 16(1) to the initial employment and nothing else; but that clearly is only one of the matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are, and must be, deemed to be included in the expression "matters relating to employment" in Article 16(1). What Article 16(1) guarantees is equality of opportunity to all citizens in respect of all the matters relating to employment illustrated by us as well as to an appointment to any office as explained by us.
16. If the narrow construction of the expression "matters relating to employment" is accepted, it would make the fundamental right guaranteed by Article 16(1) illusory. In that case it would be open to the State to comply with the formal requirements of Article 16(1) by affording equality of opportunity to all citizens in the matter of initial employment and then to defeat its very aim and object by introducing discriminatory provisions in respect of employees soon after their employment. Would it, for instance, be open to the State to prescribe different scales of salary for the same or similar posts, different terms of leave or superannuation for the same or similar posts? On the narrow construction of Article 16(1), even if such a discriminatory course is adopted by the State in respect of its employees that would not be violative of the equality of opportunity guaranteed by Article 15(1). Such a result could not obviously have been intended by the Constitution. In this connection it may be relevant to remember that Article 16(1) and (2) really give effect to the equality before law guaranteed, by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). The three provisions form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment.
22. The same view has been reiterated by subsequent Constitution Benches of Hon'ble Apex Court in Govind Dattatray Kelkar and Ors. v. Chief Controller of Imports and Exports and Ors. , in State of Mysore and Anr. v. P. Narasinga Rao , in State of Jammu and Kashmir v. Triloki Nath Khosa and Ors. and in Mohammad Shujat Ali and Ors. v. Union of India and Ors. , with further elucidation that Article 16 of the Constitution is only an incident of the application of the concept of the equality enshrined in Article 14. It gives effect to the doctrine of equality in the matters of employment, follows that there can be reasonable classification of the employees for the purpose of appointment and other incidents of the service including the age of retirement or superannuation and state can not make any discrimination in identically circumstanced employees.
23. In this connection a further reference can be made to the decision of Hon'ble Apex Court in H.R. Adyanthaya etc. etc. v. Sandoz (India) Ltd. etc. etc. wherein in para 6 of the decision Hon'ble Apex Court has observed that although the service conditions and their protection are not fundamental right, but they are creatures of either of statute or contract of employment. What service conditions would be available to a particular employees, whether they are liable to be varied, and to what extent are matters governed either by the statute or the terms of the contract. The legislature cannot be mandated to prescribe any particular service conditions to the employees or to a particular set of employees and legislature is free to prescribe particular service condition applicable to the particular set of employees and it cannot be faulted so long as the classification made is intelligible and has a rational nexus with the object sought to be achieved. For ready reference para 6 of the decision is reproduced as under:
6...The service conditions and their protection are not fundamental rights. They are creatures either of statute or of the contract of employment. What service conditions would be available to particular employees, whether they are liable to be varied, and to what extent are matters governed either by the statute or the terms of the contract. The legislature cannot be mandated to prescribe and secure particular service conditions to the employees or to a particular set of employees. The service conditions and the extent of their protection as well as the set of employees in respect of which they may be prescribed and protected, are all matters to be left to the legislature. Hence when a legislation extends protective umbrella to the employees of a particular class, it cannot be faulted so long as the classification made is intelligible and has a rational nexus with the object sought to be achieved...
24. Now further question arises for consideration as to whether a fundamental right can be waived or not? In this connection it is necessary to point out that in Behram v. State of Bombay a Constitution Bench of Hon'ble Apex Court without finally deciding the question the majority of the Judges of Hon'ble Apex Court expressed the view that fundamental rights though primarily for the benefit of the individual have been put into our constitution on the ground of public policy and in pursuance of the objective declared in the preamble of the Constitution hence none of them can be waived, Similarly in Basheshar v. Commissioner of Income Tax a constitution Bench of Hon'ble Apex Court has held that fundamental right being in the nature of prohibition addressed to the State, none of the fundamental rights in our constitution can be waived by an individual. Subsequently in Olga Tellis v. Bombay Corporation a constitution Bench of Hon'ble Apex Court has unanimously held by upholding the foregoing view that there cannot be any estoppel against the constitution, the paramount law of land and that a person cannot waive any of the fundamental rights conferred upon him by the Constitution in Part III by any act of his. Thus in view of the aforesaid discussion it is clear that the age of superannuation of an employee of State Government or Corporation owned and controlled by the State Government like Nigam in question, is governed by statutory Rules referred hereinabove, but the discrimination amongst the employees on the part of Nigam which is state agency or State Government would certainly amount to encroachment of fundamental rights of individual employee so discriminated.
25. Now at this juncture it would be useful to examine the decision of Hon'ble Apex Court rendered in case of Hanvindra Kumar (supra). From a close analysis of observation made by Hon'ble Apex Court in para 11 and 12 of the decision it is clear that Apex Court has held that so long as Regulation 31 is not amended, 60 years, which is age of superannuation of government servants employed under State of U.P. shall be applicable to the employees of Nigam. However if the Regulations are amended with previous approval of the State Government it is needless to say that same shall be prospective. In the operative portion of the decision it was further held that if the appellant and petitioners have not been allowed to continue after completing 58 years by virtue of erroneous decision taken by Nigam for no fault of their, they would be entitled to payment of salary for remaining period upto 60 years Thus in para 11 of the decision Hon'ble Apex Court has laid down the law in respect of question in controversy involved in the aforesaid case by interpreting the provisions of Regulations 31 of the Regulations in context of the relevant provision of the Act and amended Rule 56(a) of U.P. Fundamental Rules, whereas in para 12 of the decision, necessary directions were issued in respect of Appellant and petitioners who were before Hon'ble Apex Court, since the law laid down by Hon'ble Apex Court is declaratory/clarificatory in nature, therefore, it is retrospective in operation unless Hon'ble Apex Court itself has made it clear and intended to apply prospeetively. Accordingly, it would cover the cases of retirement of employee of Nigam governed by Regulation 31 w.e.f. the date of commencement of the amended Rule 56 (a) of U.P. Fundamental Rules. But this Court has no jurisdiction or power to restrict the application of law declared by Hon'ble Apex Court under Article 14 of the Constitution of India. In this connection it would be useful to refer some case law on the point.
26. In L.C. Golak Nath v. State of Punjab , in para 51 of the decision while dealing with the question as to whether the decision in that case should be given prospective or retrospective operation, Eleven Judges Constitution Bench of the Hon'ble Apex Court laid down following propositions:
(1) The doctrine of prospective overruling can be invoked only in matters arising under our constitution; (2) It can be applied only by the highest court of the country i.e. Supreme Court as it has the constitutional jurisdiction to declare law binding on all courts in India; (3) The scope of retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matters before it. Hon'ble Apex Court then declared that the said decision will not affect the validity of (Seventeenth Amendment) Act 1964 or other amendments made to the Constitution taking away or abridging the fundamental rights. Thereafter in Woman Rao v. Union of India , in Atma Prakash v. State of Haryana , in Orissa Cement Ltd. v. State of Orissa and in Union of India v. Mohd. Ramzan Khan , the Hon'ble Apex Court has evolved and applied the same doctrine of prospective overruling. Thus in given facts and circumstances of the case, there appears no scope for restricting or limiting the scope of law laid down by Hon'ble Court in Harwindra Kumar's case in its application to the cases arising out after the said decision of Apex Court only.
27. Now applying the law enunciated herein before it is to be seen that the petitioners have been retired from service in the year 2004 and 2005 on different dates indicated against their names in date chart shown in the earlier part of this judgment. They have filed their respective writ petitions in the year 2005 on different dates as indicated in the aforesaid date chart. It is not the submission of the learned Counsel for the respondents that relief claimed in the writ petitions is either barred by time under any statute or law of limitation. It is also not or cannot be the submission of the learned Counsel for the respondents that because of delay and latches, the Nigam would not be able to show that action was legal and correct for want of the record pertaining to aforesaid unwarranted action or for the officers who were responsible for such action are not available. The only submission he can put forth that the relief claimed in the writ petitions is bound to result loss of public exchequer of state or Nigam, thus this Court is required to balance the hardship and grievances of respective parties. But before doing so at this juncture it is also necessary to examine as to whether the petitioners have waived or acquiesced their right by their own conduct in approaching the court after expiry of much time from the date of their respective retirements?
28. In this connection it is necessary to point out that as observed by Hon'ble Apex Court in M.P. Sugar Mills Co. Ltd. (supra) while taking note of observation made by the courts abroad outside the country that there is no presumption that every person knows the law but for the sake of argument even if it is presumed that the petitioners were aware of the commencement of amended F.R. 56 (a) from the date of its publication in the official gazette of state government on 27th June 2002, even then with regard to its applicability in respect of their retirement no presumption can be drawn for the simple reason that even Nigam administration was not sure about it as revealed from the correspondence made between Nigam and State Government itself as indicated herein before. On the basis of directions given by State Government the Nigam has ultimately decided that the benefits of enhanced age of retirement applicable to employees of State Government shall not be extended to the employees of Nigam vide its decision dated 11.7.2002. The direction of State Government dated 15.1.2002 issued in this regard have been challenged before this Court in batch of writs. A Division Bench of this Court on March 20, 2002 has decided the aforesaid batch of writ petition in Harwindra Kumar v. Chief Engineer, Karmik, U.P. Jal Nigam and Ors. (2002) 2 UPLBEC 1511 along with connected writ petitions, upholding the direction of State Government and decision of Nigam to retire its employees on attaining 58 years. Thereafter it appears that being unsuccessful before this Court, Sri Harvindra Kumar and other aggrieved employees of the Nigam have approached Hon'ble Apex Court, thereupon Hon'ble Supreme Court has decided the Appeal and writ petitions on 18.11.2005 . Meanwhile it appears that two Division Benches of this Court, one composing of Hon'ble The Chief Justice Mr. Ajoy Nath Ray and Hon'ble Mr. Justice Ashok Bhusan in Special Appeal No. 559 of 2005 decided on 10.5.2005 and another Division Bench comprising of both of us in Vijai Bahadur Rai v. State of U.P. and Ors. 2005 E.S.C. 2600 vide detail reasoned interim order dated 27.5.2005, have held the decision of earlier Division Bench rendered in Harwindra Kumar's case (supra) (2002) 2 U.P.L.B.E.C. 1511 as per incuriam and permitted the petitioner to continue in service till attaining 60 years age of superannuation. Therefore in the aforesaid back drop of the case it cannot be said that petitioners were aware of their right to be retired from service On attaining 60 years of their age earlier to the aforesaid decisions of Division Benches of this Court rendered in the month of May 2005 and legal position authoritatively settled and crystallised by the Hon'ble Apex Court in Harwindra Kumar's case (supra) , decided on 18.11.2005. Thus for this simple reason, we have no hesitation to hold that earlier to the aforesaid decisions since the petitioners were not aware of their aforesaid right, hence it cannot be held that they have abandoned or relinquished or waived and also acquiesced their right by the time they approached this Court. Accordingly their conduct cannot be held to be blameworthy on account of delay and latches in approaching this Court, rather in given facts and circumstances of the case they are fully justified in approaching the court at such belated stage.
29. Further as indicated earlier, since the law declared by the Hon'ble Apex Court in Harwindra Kumar's case (supra) cannot be limited in its application in respect of cases arising out after the aforesaid decision only rather it has to be applied from the date of commencement of amended provisions of Rule 56 (a) of Fundamental Rules. Therefore, it is not legally permissible to make any distinction amongst the employees of Nigam covered by the Regulation 31 and amended provisions of F.R. 56(a) of the aforesaid rules so far as remedy is concern. It is also because of the reason that such distinction among them would in fact be discrimination and would violate not only statutory rights of employees but would also infringe their fundamental rights which cannot be said to be waived and acquiesced by them and accordingly they cannot be estopped from challenging their retirement on account of alleged waiver and acquiescence. It would be needless to say that even excess of statutory power cannot be validated by acquiescence of the aggrieved party.
30. Besides this, in the aforesaid decision of Harwindra Kumar Hon'ble Apex Court itself has granted relief of full salary to the employees of Nigam who were not permitted to continue in service after 58 years till they attained 60 years of their age in absence of any interim order in their favour, on account of erroneous decision taken by Nigam, for no fault of theirs and they were held entitled to payment of salary for remaining period upto 60 years, without saying any thing more, thus it cannot be held that the employees of the Nigam who have approached this Court, and are otherwise entitled to continue service till attaining 60 years are to be denied the aforesaid benefits without any justification tinder law merely on account of fact that they have approached this Court at belated stage for which we have already held that they have full justification. Making any further classification amongst the employees of Nigam covered by Regulation 31 of regulations and amended proviso of F.R. 56(a) of U.P. Fundamental Rule to deny similar benefits without any rational basis merely on the basis of micro distinction that some of them approached this Court and remaining have come after expiry of some time would be overdoing and would be an artificial classification among them particularly when their relief is otherwise not barred by time under any statute or law of limitation shown to us. Thus in our considered opinion in given facts and circumstances of the case any alleged loss of public exchequer of Nigam and/or of State Government would also not disentitle the petitioners to relief claimed in the writ petition. The denial of similar relief would be justified only in cases of unexplained, inordinate delay or latches, where the relief would be barred by time under any statute or law of limitations or in others situations referred herein before or grant of relief would upset the settled existing situation since long back and cause undue hardship to administration of affairs of the Nigam or in other similar situations.
31. Now examining the issue from another angle it is to be pointed out that even in cases of disciplinary inquiries where very conduct of employees are under trial or examination in such proceedings, after conclusion of such inquiry if the employee is exonerated from the charges levelled against him, under relevant rules such employees are entitled to full salary for the period of suspension and/or for the period under which they remain out of employment on account of such disciplinary action. The case of petitioners are on better footing than those of aforesaid employees. Their conduct has never been in question in any such proceedings, they have been prevented from discharging their duties and availing the amenities and privilege of their office, not because of their any questionable conduct rather because of the erroneous decision taken by the Nigam and respondents authorities, therefore, there can be no justification under law to punish them for wrongful and unwarranted action of respondents authorities. In our considered opinion, the denial of legitimate relief to the petitioners would amount to grant of premium to the respondents for their unwarranted action, which would be against both justice and equity.
32. Thus in view of foregoing discussions, we are of the considered opinion that while deciding the case of Sri Radha Krishna Gupta (supra) the Division Bench of this Court did not consider the binding precedents on the question in issue referred herein before and has completely ignored the same, therefore, the decision so rendered by Division Bench of this Court with all respect may be treated as given "per incuriam", and cannot be binding upon us,
33. When a decision can be said to be given "per incuriam" has drawn attention of Hon'ble Apex Court on several occasions. A seven Judges Constitution Bench of Hon'ble Apex Court in A.R. Antulay v. R.S. Nayak and Anr. , while taking note of various authorities and juristic opinions expressed in authoritative books on the subject in para 44 of the decision held as under:
44. It appears that when this Court gave the aforesaid directions on 16th February, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar's case (supra). See Halsbury's Laws of England, 4th Edn. Vol. 26 page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn. Pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293 at p. 300). Also see the observations of Lord Goddard in Moore v. Hewitt (1947) 2 All ER 270 at p. 272-A) and Penny v. Nicholas (1950) 2 All ER 89, 92A. "Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account to be demonstrably wrong. See Morelle v. Wakeling (1955) 1 All ER 708, 718F. Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. . We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Lal Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.
34. In Municipal Corporation Delhi v. Gurnam Kaur , Hon'ble Apex Court has held that a decision treated as given per incuriam, when it is given in ignorance in terms of a statute or a rule having force of a statute, the observation made by Hon'ble Apex Court in para 11 of the decision is "A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute". In Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court , in para 40 of the decision Hon'ble Apex Court has held that a decision be said generally to be given per incuriam, when court has acted in ignorance of a previous decision of its own or when High Court has acted in ignorance of a decision of Supreme Court,
35. Now coming to the cases relied by Division Bench of this Court in Radha Krishna Gupta's case (supra), it is to be seen that in State of Karnataka and Ors. v. S.M. Kotrayya and Ors. Hon'ble Apex Court while dealing with the provisions of Section 21 of Administrative Tribunal Act, 1985 has held that having regard to the scheme of provisions of statute the petitioners are required to give satisfactory explanation for delay caused till the date of filing of application after expiry of period prescribed in Sub-section (1) and Sub-section (2) thereof and the Hon'ble Apex Court has further held that there is no proper explanation at all.
36. In Jagdish Lal and Ors. v. State of Haryana and Ors. , the question of determination of seniority and challenge to promotions were under consideration. The High Court has dismissed the writ petition of appellants before Apex Court on the ground of unexplained inordinate delay and on merits too. In appeal Hon'ble Apex Court has taken the same view and dismissed the appeal of writ petitioners holding that matter in issue has already attained finality accordingly cannot be reopened and also refused to direct the re-determination of seniority sought for in given facts and circumstances of the case in such belated stage.
37. In Rup Diamonds and Ors. v. Union of India and Ors. , the petitioners claim for revalidation and endorsement of six Imprest Licences for import of Open General Licence items upon fulfillment of their export obligation was rejected by the authorities on the grounds noted in para 6 of the decision that claim were made after 4 years and 7 months, and claim was also not acceptable on merits because of absence of provisions in Licence Policy under consideration to accept the claim after such lapse of time. The petitioners preferred writ petition before Hon'ble Apex Court under Article 32 of the Constitution basing its claim, on parity of decisions rendered by Bombay High Court against which special leave petitions were dismissed by Hon'ble Apex Court as noticed in para 7 of the decision. While dealing with legal effect of aforesaid decision in para 8 of the decision, in para 9 Hon'ble Apex Court has observed that the claim of petitioner was not acceptable on account of inordinate delay before the authorities and before this Court also.
38. Thus in view of law laid down by Hon'ble Apex Court in State Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. , the observations made by the Hon'ble Apex Court should be understood in context in which they appear. The observations made in para 19 of the decision is as under:
19. Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Kudid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and. provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments.
39. Further, what is ratio of the decision, and how it can be ascertained has been very clearly dealt with in Krishna Kumar v. Union of India . The observations made by Hon'ble Apex Court in para 18 and 19 of the decision are as under:
18. The doctrine of precedent that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propositions wider than the case itself required. " This was what Lord Selborne said in Caledonian Railway Co. v. Walker's Trustees (1882)(7) AC 259) and Lord Halsbury in Quinn v. Leathern (1901) AC 495(502), Sir Frederick Pollock has also said: "Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.
19. In other words, the enunciation of the reason or principle upon which a question before a Court has been decided is alone as a precedent. The ratio decidendi is the under-lying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case, which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration, if it is not clear, it is not the duty of the Court to spell it out with difficulty in order to be bound by it. In the words of Halsbury, 4th Edn. Vol. 26 para 573:
The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duly to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment all are taken as forming the ratio decidendi.
40. Thus in view of aforesaid discussion, it is clear that while rendering the decision in Radha Krishna Gupta's case earlier Division Bench of this Court with all respect did neither ascertain the ratio of decisions referred in the judgment nor discussed, as to how the factual situation fits in with the fact and situation of the decision on which reliance was placed. Contrary to it the decision of Hon'ble Apex Court, which requires consideration of various, factors in this regard, referred herein before in our judgment has been completely ignored by the Division Bench, therefore, being a decision given per incuriam, cannot be held to be binding authority under law.
41. It is no doubt true that petitioners have woke up when they got impetus from the some decisions of this Court in the month of May 2005, but merely on that count alone it would not be just to reject their writ petitions when the relief claimed therein is otherwise admissible as discussed herein before and not barred by any statute or law of limitations or when they did not waive and acquiesce their right by the time they approached this Court, or in case of grant of relief which has been earlier granted by this Court and finally by Hon'ble Apex Court, would ultimately upset the administration of affairs of Nigam or there exist similar other situations justifying refusal of such relief, the denial to grant similar relief to the petitioners in our mind would not serve any cause of justice rather defeat it and would also whittle down law of land declared by Hon'ble Apex Court in Harwindra Kumar's case and be subversive to the judicial discipline.
42. Thus having regard to the facts and circumstances of the case discussed herein before we are of the considered opinion that the writ petitions are not liable to be dismissed on the ground of delay, latches, waiver and acquiescence. The petitioners are entitled to similar relief as granted by Hon'ble Apex Court, with necessary modifications as we have held in our earlier decision rendered in batch of writ petition namely Writ Petition No. 57044 of 2005, Biharigesh Nandan Saran v. State of U.P. and Ors. along with other connected cases decided on 9.1.2006. Thus the second question formulated herein before, is answered accordingly.
43. Thus in view of foregoing discussions, writ petitions succeed and allowed in the terms and directions given in the writ petition of Behangesh Nandan Saran and other connected cases decided by us on 9.1.2006, as noted in earlier part of our judgment.
There shall be no order as to costs.