Court No. - 36
Case :- WRIT - A No. - 7707 of 2021 Petitioner :- Raj Rani & Others Respondent :- State Of U.P And Others Counsel for Petitioner :- Bakhteyar Yusuf Counsel for Respondent :- Pranjal Mehrotra
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Bakhteyar Yusuf, learned counsel for the petitioners, Shri Suryabhan Singh, learned Standing Counsel for the State-respondent No. 1 and Shri Pranjal Mehrotra, learned counsel for the respondent Nos. 2 & 3.
Petitioners are before this Court praying for following reliefs:-
"A. to issue a writ, order or direction in the nature of mandamus commanding the respondent authorities to implement the recommendations of the 6th pay commission on the petitioners and pay its benefit w.e.f. 1.1.2006 at part with the State Government employees.
B. To issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the dearness allowances and 6% interest to the petitioners from the date of its actual payment.
C. To issue a writ, order or direction in the nature of mandamus commanding respondents to decide the representation of the petitioners in the light of judgement and order dated 27.2.2020 (Annexure No. 1) so that grievance of the petitioners can be redressed. "
After the coming into force of 6th Pay Commission, different orders were passed recommending the benefits of payments of 6th Pay Commission to the petitioners w.e.f. 12.03.2010 while the State Government employees were paid the said benefits from 01.01.2006. Petitioners are praying parity with the State Government employees.
Counsel for the petitioners submits petitioners were appointed with the Local Self Government Engineering Department of the State of U.P. Later, U.P. Water Supply and Sewerage Act, 1975 came into force and, therefore, in furtherance of the provisions of the said Act, U.P. Jal Nigam was established and petitioners became employees of U.P. Jal Nigam. Further he submits that as per Section 37 of the U.P. Water Supply and Sewerage Act, 1975 read with Regulation 31 of U.P. Jal Nigam Service of Engineers (Public Health Branch) Regulations, 1978, the service conditions of employees of the Jal Nigam are to be same as are applicable to the employees of the State Government. He further submits that the entire controversy with regard to the status of the employees of the Jal Nigam was considered at length by Supreme Court in case of Harwindra Kumar Vs. Chief Engineer, Karmik and Others reported in (2005) 13 SCC 300 and after referring to the provisions of the said Act, Rules and Regulations applicable, in paragraph-7, 9 and 10, the Supreme Court held-:
"7................From the aforesaid provisions, it would be clear that the appointed date for the purposes of the Act was 18th June, 1975 when the Nigam was established and under Section 37 of the Act, conditions of service of the appellants/petitioners who were employed in the Local Self Engineering Department of the Government of Uttar Pradesh before the appointed date, were continued to remain the same as they were before the appointed date unless and until the same are altered by the Nigam under the provisions of the Act. Section 97 confers power upon the Nigam with the previous approval of the State Government to frame Regulations in relation to service conditions of employees of the Nigam and acting thereunder, Regulations were framed by the Nigam in the year 1978, Regulation 31 whereof provides that service conditions of the employees of the Nigam shall be governed by such rules, regulations and orders which are applicable to other serving government servants functioning in the State of Uttar Pradesh. Thus, from a bare reading of Section 37 and Regulation 31, it would be clear that the service conditions of the employees of the Nigam would be the same as are applicable to the employees of the State Government under the Rules, Regulations and Orders applicable to such government servants so long the same are not altered by the Nigam in accordance with the provisions of the Act. If Regulations would not have been framed, the Nigam had residuary power under Section 15(1) of the Act whereby under general power it could change the service conditions and the same could remain operative so long regulations were not framed but in the present case, regulations were already framed in the year 1978 specifically providing in Regulation 31 that the conditions of service of the employees of the Nigam shall be governed by the Rules, Regulations and Orders governing the conditions of service of government servants which would not only mean then in existence but any amendment made therein as neither in Section 37 nor in Regulation 31, it has been mentioned that the Rules then in existence shall only apply. After the amendment made in Rule 56(a) of the Rules by the State Government and thereby enhancing the age of superannuation of government servants from 58 years to 60 years, the same would equally apply to the employees of the Nigam and in case the State Government as well as the Nigam intended that the same would not be applicable, the only option with it was to make suitable amendment in Regulation 31 of the Regulations after taking previous approval of the State Government and by simply issuing direction by the State Government purporting to act under Section 89 of the Act and thereupon taking administrative decision by the Nigam under Section 15 of the Act in relation to age of the employees would not tantamount to amending Regulation 31 of the Regulations.
9. In the present case, as Regulations have been framed by the Nigam specifically enumerating in Regulation 31 thereof that the Rules governing the service conditions of government servants shall equally apply to the employees of the Nigam, it was not possible for the Nigam to take an administrative decision acting under Section 15(1) of the Act pursuant to direction of the State Government in the matter of policy issued under Section 89 of the Act and directing that the enhanced age of superannuation of 60 years applicable to the government servants shall not apply to the employees of the Nigam. In our view, the only option for the Nigam was to make suitable amendment in Regulation 31 with the previous approval of the State Government providing thereunder age of superannuation of its employees to be 58 years, in case, it intended that 60 years which was the enhanced age of superannuation of the State Government employees should not be made applicable to employees of the Nigam. It was also not possible for the State Government to give a direction purporting to Act under Section 89 of the Act to the effect that the enhanced age of 60 years would not be applicable to the employees of the Nigam treating the same to be a matter of policy nor it was permissible for the Nigam on the basis of such a direction of the State Government in policy matter of the Nigam to take an administrative decision acting under Section 15(1) of the Act as the same would be inconsistent with Regulation 31 which was framed by the Nigam in the exercise of powers conferred upon it under Section 97(2) of the Act.
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. "
Learned counsel for the petitioners further submits that the case of the petitioners is squarely covered with the judgment and order passed in Writ Petition No.11991 (S/S) of 2017 (Kamlesh Srivastava & 5 Ors. Vs. State of U.P. & Ors) dated 27.2.2020.
Sofar as the factual and legal aspect of the matter is concerned, the same is not disputed by learned counsel for the respondents.
In view of above, this Court is of the considered opinion that the decision aforesaid directly applies to the present case too.
Hence, this writ petition also stands disposed of, following the aforesaid order dated 27.2.2020 with direction to the respondents to pay the benefits of the 6th Pay Commission to the petitioners w.e.f. 01.01.2006 as was provided to the State Government employees and further to pay the dearness allowance as is being provided to the State Government employees. Respondents are also directed to pay an interest of 6% on the aforesaid benefits from the date they became due till the date same are paid to the petitioners.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 28.7.2021 Jaswant Digitally signed by JUSTICE MAHESH CHANDRA TRIPATHI Date: 2021.08.02 15:06:20 IST Reason: Document Owner Location: High Court of Judicature at Allahabad