JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. The appeal is taken up and summarily disposed of.
2. It is preferred by the U.P. Jal Nigam from an interim order passed by Hon'ble Mr. Justice Vineet Saran on 31.3.2005.
3. By that order, his Lordship has permitted the respondent-writ petitioner to continue in service of the Jal Nigam until he attains the age of 60 . There is an undertaking from the writ petitioner, however, that in case the writ is lost, he would refund the excess monies paid to him by the Jal Nigam. The case of the Jal Nigam in the court below and before us has consistently been that the standard age of retirement of all its employees is 58 and the writ petitioner is no exception.
4. The impugned interim order is contrary to a reported Division Bench judgment of our High Court. That judgment was delivered in he case of Harwindra Kumar v. Chief Engineer, Karmik, U.P. Jal Nigam, Lucknow and Ors. and the judgment is reported at (2002) 2 UPLBBC 1511. It is held therein that although by Government Order and Notification dated 28.11.2001, the age of the State Government employees has been enhanced generally from 58 to 60, yet such enhancement is not applicable to the employees of the Jal Nigam.
5. The Jal Nigam is indeed not the State Government. It is an incorporated body brought into existence by the Uttar Pradesh Water Supply and Sewerage Act, 1975. We shall call it 'the 1975 Act' hereafter.
6. Under Section 37 of the 1975 Act it is provided as follows -
"--employee of the Nigam-shall hold his office - upon same.....terms ........as he would have held the same on the appointed date, if this Act had not come into force,---".
7. Since all the Jal Nigam employees at the material time were employees transferred from the State Government, the effect of this Section clearly was that the service conditions of the Nagam employees were frozen as the service conditions of the State Government employees on the appointed date.
8. The appointed date was 18.6.1975.
9. The Division Bench opined that the Government Order enhancing the retirement age came much later than 1975 and, therefore, the benefit thereof would not automatically extend to the employees of the Jal Nigam
10. So far there is nothing we have to say in the matter. However, the Jal Nigam framed Regulations in 1978 acting under Section 97 of the 1975 Act. As the said section prescribes, such Regulations were framed with the previous approval of the State Government. Under the said Regulations, under sub-regulation (2) (c) the Nigam is empowered by the Act to frame Regulations controlling "the salary and allowances and other conditions of service of employees of the Nigam........". The argument before us has simply been that on the basis of this enabling section the Nigam framed in 1978 certain Regulations, of which the 31 reads as follows:
"Except as provided under these Rules the salary, allowance, pension, leave, imposition of penalty and other conditions of service of the members of the service shall be regulated by those. Rules, Notifications or Orders which normally/generally apply to existing State services in relation to affairs of State".
11. The Regulations are in Hindi, but the above is a reasonably accurate English translation taken substantially from ground No. 7 of the memorandum of appeal filed on behalf of the Nigam before us.
12. The respondents argued that the Government Notification enhancing the State Government employees' age relates to a condition of service and it is a Government Order issued by and under the authority of His Excellency the Governor. As such by reason of the operation of Regulatkm-31, the said Government Order would automatically benefit the employees of the Nigam unless something can be shown to the contrary.
13. This, obviously, is a matter of the greatest importance; the Regulation is in the nature of subordinate statutory legislation, but legislation it certainly is.
14. The problem arises because the Division Bench judgment mentioned above did not take into account this Regulation-31 at all. It was said by the appellants that many sometimes the Jal Nigam employees have been unsuccessful litigants in this Court and even before Hon'ble the Supreme Court in getting a pronouncement as to the higher retirement age. Another appeal court order was placed before us as passed as recently as on 5.5.2005 in Civil Misc. Writ Petition No. 35384 of 2005: Gopal Singh Dangwal's case, where another Division Bench of our High Court, referring to the case of Harwindra Kumar (Supra), has in clear terms forward upon the impugned order, which is in appeal before us.
15. The appellants have further placed before us by way of a supplementary affidavit a letter dated 22.1.2002 written by one Mr. Bhagwan Shankar, Special Secretary to the Government of Uttar Pradesh to the Jal Nigam, where it is stated, in answer to the Nigam's earlier letter, that the Government Notification dated 28.11.2001 is not applicable to the employees of the Nigam.
16. The Nigam itself, by way of a circular dated 11.7.2002 has sought to clarify to all concern, certainly encompassing its employees also that the enhanced retirement age applicable to the State Government employees, is not applicable to the employees of the Nigam.
17. With the greatest of respect to all concerned, these clarificatory letters and circulars are on a plaint far below where written legislator, or law operates. If by the clear operation of Regulation-31 mentioned above, the State Government's service conditions for retirement at the age of 60 is incorporated by force of law in the service conditions of the employees of the Jal Nigam, then and in that event, the only way to remove that difficulty, if difficulty it is, is to bring out legislation of at least equal force and clarify the matter or annul the benefit, which has already accrued to the employees of the Jal Nigam. The State Government and the Nigam (which is an Article 12 authority) are model litigants and ought to be credited with reasonably accurate knowledge of the laws and legal principles. It. should be fairly easy for them to see that by reason of a Regulation, which had the prior approval of the State Government, all the Nigam's employees must retire as on date at the age of 60 and not before. If the matter has to be changed, it has to be changed by the Nigam by way of framing of a new Regulation again with the prior approval of the State Government.
18. We are of the most respectful and humble opinion that the case of Harwindra Kumar (Supra) was decided per incuriam. The phrase 'per incuriam', in the world of precedent has strict meaning. It is applicable to those judgements, which are passed; (i) without considering the binding authorities or and against those; or (ii) without considering written and applicable law and of against those; or (iii) without following the ordinary understandable rules of reason or basic law.
19. We have absolutely no doubt that the Division Bench judgment did not consider Regulation-31 simply because none of the parties placed the same before it. We are co-ordinate Benches and similar things have happened to us in the past also. In these situations, it is no use casting blame on any person for the past act, but it is of great use to try and set things henceforth
20. We have had to pass a detailed order because it is not a light and easy matter to say, even prima facie, that the judgment of co-ordinate Division Bench has passed per incuriam.
21. On the legal basis, we are, therefore, prima facie satisfied that the writ petitioner has an extremely strong case to go to trial in the writ court.
22. Even if that be so, the question remains whether we should allow the appeal and direct that if the writ is ultimately won, the writ petitioner will get back his arrear salary and other benefits. In our considered opinion, in matters like present one, one can never set the clock back merely by paying money. Two years of additional service means two years of a competely different type of life. There might be benefits in relation to quarters, attendants, staying place with regard to school going children and a host of other matters. There is also a psychological factor of the person who is still in service; it might not be easy or even possible simply to payout money in this matter as an adequate compensation at the end. We make it clear that, however might we have worded our order above, the order and observations are prima facie and without prejudice to the final rights and contentions of the parties in the writ. This unnecessarily is to be so, because we are deciding an appeal from an interim order and this shall be no more than the interim order passed in aid of the writ petition until it is decided.
23. As such, we are in respectful agreement with the order passed by the learned Single Judge.
24. The appeal is dismissed.