Heard Sri Raj Kumar Singh learned counsel for the petitioner and learned Standing Counsel for the State.
Petitioner has made following prayer :
"a. issue a writ, order or direction in the nature of certiorari thereby quashing the clause 3 of the impugned order dated 24.7.2012 ( contained as Annexure no. 1 to the writ petition) wherein it is provided that this order will be effective with immediate effect and the last para of the order dated 26.7.2012 (contained in Annexure no. 2 to the writ petition) wherein it is said that the order will be effective with immediate effect, with respect to the petitioners only.
b. issue a writ, order or direction in the nature of mandamus directing the opposite parties treat the petitioners as if he was in continuous service on 24.7.2012 ignoring the clause 3 of the order dated 24.7.2012 and the last para of the order dated 26.7.2012.
c. issue a writ, order or direction in the nature of certiorari thereby quashing the impugned Notice/office dated 19.8.2011 issued by the opposite party no. 4.
d. issue a writ, order or direction in the nature of mandamus, commanding and directing the opposite parties to allow the petitioners to continue in service till he attains the age of 60 years i.e. till 31.1.2014 and to pay him salary each and every month when it falls due and give all the consequential benefits to the petitioners.
d1. issue a writ, order or direction in nature of certiorari thereby quashing the impugned order dated 16.4.2012 (contained as Annexure no. 5 to the writ petition) with respect to petitioners only.
e. issue any other suitable order or direction which this Hon'ble Court may deem fit, just and proper under the circumstances of the case in favour of the petitioner.
f. Allow the writ petition of the petitioners with cost."
The petitioner has argued that he has been deliberately denied the benefit of order dated 24.7.2012. By this order age of retirement in the department has been enhanced from 58 to 60 years with prospective effect.The enhancement of retirement age of the petitioners was subject to the decision taken by the State Government, as per the orders dated 24/30.1.2012 passed by this Hon'ble Court in the writ petition filed by the petitioner. Now the State Government has taken a decision on the basis of the letter dated 29.4.2012 and its G.O. dated 20.12.2011. On these two dates the petitioners were in service hence the petitioners are entitled to the benefit of order dated 24.7.2012 passed by the State Government but the State Government has denied the benefit of order dated 24.7.2012 to the petitioners by saying that the orders will be prospective in nature.
The matter relating to enhancement of age of superannuation of the employees of the Corporation from 58 to 60 years had been placed before the Board of Directors of the Corporation at Lucknow vide Resolution No. 3448, it was considered by the Board of Directors of the Corporation at Lucknow in its 168 meeting on 11.4.2008 and was duly approved by them. As such Corporation and as such petitioners were entitled to continue in services till they attain the age of 60 years.
Petitioner has further argued that in pursuance to the letter dated 20.12.2011, in U.P. Housing and Development Board, Jal Nigam, Bridge Corporation & other corporations retirement age has been enhanced but in the Department of the petitioner the same has not been given effect even after completion of all the formalities. In other corporations the benefit of enhancement of retirement age has been been given with retrospective effect say Handloom Corporation.
As per the date of birth of the petitioners, they would have attained the age of superannuation on 31.1.2014, whereas the petitioners have been retired at the age of 58 years i.e. w.e.f. 31.1.2012 which is not sustainable in the eyes of law as the State Government has been pleased to grant approval to enhance the retirement age of the corporation's employees following the Government Order dated 20.12.2011 and the letter dated 29.4.2012 written by the Managing Director of the Corporation to the Principal Secretary.
The U.P. State Road Transport Corporation was created by the notification dated 31.5.1972 w.e.f. 1.6.1972 invoking the provision of Section 3 of the Road Transport Corporation Act, 1950 for providing efficient, adequate, economic and properly coordinated transport services in the State of U.P. and by means thereof the employees of U.P. Roadways the State Government came to be merged with the Corporation.
A Government Order dated 5.7.1972 was issued and thereby it was provided that whenever the Corporation shall frame service regulations for the employees in exercise of power under section 45 of the Road Transport Corporations Act, 1950, it shall include the assurance of the State Government that the service conditions of the corporations employees shall not be inferior to that of the State Government employees and further the span of service, seniority, promotion, pay fixation, leave and financial benefits shall remain same as it would have been if they would have continued under the State Government as State employees of U.P. Roadways.
The Corporation framed Service Regulations for its employees known as U.P. State Road Transport Corporation Employees Service Regulation - 1981 ( this regulation was framed while exercising the powers under section 5(2 (c) of the Road Transport Act, 1950) for regulating the conditions of the services of thee employees appointed in the Corporation. It is specified that prior to framing of aforesaid regulations, the services of the employees of the corporation were governed by the rules, governing service conditions of the employees of State Government. It is admitted that as on date the petitioners are governed by the aforesaid regulations. Regulation 37 provides that the retirement age will be 58 years.
In exercise of powers under Article 309 of the Constitution of India, an amendment in Fundamental Rule- 56 of the U.P. Fundamental Rules, contained in Financial Handbook, Volume, Part II, Part II-IV, which came to be known as the Uttar Pradesh Fundamental (Amendment) Rules, 2002 was incorporated under the notification dated 27.6.2002, whereby age of retirement of the Government employees was enhanced from 58 to 60 years.
The approval of the Board of Directors has got the Statutory Force because the Regulations have been made as per the provision of the Road Transport Act, 1950 and as per section 45 (2)(c) the regulations have been made and the following the regulations the Board of Directors have taken a decision to enhance the age of superannuation from 58 to 60 years then there is no scope to deny the benefit of extension of retirement age from 58 to 60 years to the petitioners from the date 20.12.2011 or 29.4.2012 by the State Government ( the only thing which requires to be done that is the grant of approval) because the government on the basis of letter dated 29.4.2012 and the G.O. dated 20.12.2011 has taken the decision to enhance the retirement age.
Board of Directors in its meeting no. 168 which was held on 11.4.2008 decided that the retirement age of the employees of the corporation be enhanced from 58 to 60 years. Managing Director of the Corporation had sent the approval granted by the Board of Directors of the Corporation to Principal Secretary, Transport Department, Government of U.P., Lucknow for enhancing the age of retirement of the employees of the Corporation from 58 to 60 years.
After decision of State Government the opposite party no. 2 vide letter dated 20.12.2011 had informed to the Chairman / M.D./ C.E.O. of all the corporations regarding the enhancement of the retirement age. In pursuance to the aforesaid letter dated 20.12.2011, in U.P. Housing and Development Board, Jal Nigam, Bridge Corporation the retirement age has been enhanced but in the Department of the petitioner the same has not been given effect even after completion of all the formalities.
Uttar Pradesh State Control over Public Corporation Act, 1975 framed by the U.P. Act No. 41 of 1975, provide that every statutory body established / constituted under any U.P. Act shall discharge of its function guided by such directions on question of policy, as may be given by the State Government. Uttar Pradesh Power Corporation Ltd. is also public Sector Corporation but the State Government discriminated with the department of petitioner as in the Uttar Pradesh Power Corporation Ltd. and other corporations, the age of retirement of the employees has been enhanced from 58 years to 60 years.
On 8.7.2011 and 18.7.2011 the Hon'ble Court passed an order that the employees of the U.P. Jal Nigam may be permitted to continue as contract employee till they completes 60 years. On 3.9.2012 petitioner made representation to the authorities to enhance the age by giving the benefit of letter dated 24/26-7-2-2012.
On 30.3.2012 Government of U.P. Special Secretary wrote a letter to the Managing Director regarding enhancement of age. Managing Director wrote a letter to the Principal Secretary that the Board of Directors has already taken a decision to enhance the retirement age from 58 to 60 years. Managing Director wrote a letter on 29.4.2012 to the Principal Secretary.
A general letter was issued by the Principal Secretary regarding grant of dearness allowance to all the corporations. On 17.4.2012 an order was passed by the Principal Secretary for enhancement of age of the Handloom Corporation from 58 to 60 years with retrospective effect.
On 24.7.2012 an order was passed to the effect that the Corporation can enhance the retirement age of its employees from 58 to 60 years.
The Corporation in pursuance of the order dated 24.7.2012 accorded the benefit given by the State Government regarding enhancement of retirement age.
A perusal of Annexure no. 1, issued by the Principal Secretary Sri B.S. Bhullar dated 24.7.2012 addressed to the Managing Director, U.P. State Road Transport Corporation, Lucknow ( hereinafter referred to as 'Nigam') shows that the government has granted permission for extending the age of superannuation of regular and full time employees of Nigam. It is interesting to note that this has been done with reference to the letter of the Managing Director bearing no. 37GCHQ/12592 CHEO/84 dated 29.4.2012. It has been mentioned that the financial burden arising out of this extension of age of retirement will be borne out by the Nigam itself. No financial assistance will be provided by the State Government and this scheme shall pay effective from immediate effect.
Annexure no. 2 is clearly an 'office order' issued by Sri Alok Kumar, Managing Director dated 26.7.2012 i.e. exactly after two days from the order of Principal Secretary. This order also clearly mentions that the permission has been granted by the government with reference to the letter written by he Managing Director dated 29.4.2012 (supra).
Annexure no. 5 is a government order issued by Sri B.S. Bhullar, Principal Secretary dated 16.4.2012 with regard to the extension of age of superannuation from 58 to 60 years in the Nigam. This rejection order has been passed on the various references made by the Managing Director to the Principal Secretary e.g. dated 23.2.2011, 5.11.2012, 10.2.2012, 30.3.2012 and 13.4.2012. It is important to note that last letter has been sent on 13.4.2012 and the rejection order has been passed three days' later on 16.4.2012 by the Principal Secretary. The Principal Secretary has rejected the recommendation of the Managing Director on the ground that the financial condition of the Nigam was not good with reference to the financial year 2009-10 and 2010-11. It has been mentioned that since the Nigam was running in loss, hence, there was no good ground to extend the age of the employees for superannuation from 58 to 60 years.
Comparative study of Annexure no. 1 and 5 gives contradictory picture. Vide Annexure no. 5 the case has been rejected on 16.4.2012 and on the last recommendation letter written on 13.4.2012. Vide Annexure no. 1 dated 24.7.2012 the age of superannuation has been allowed to be extended from 58 to 60 years on the recommendation of the same Managing Director vide his letter dated 29.4.2012. The recommendation made on 13.4.2012 is the ground for rejection and the recommendation dated 29.4.2012 is the ground of permission. The Managing Director and the Principal Secretary are the same and both the recommendations are of April, 2012 i.e. the same month and the year.
If the court lifts the veil some interesting facts come to the fore. It transpires that there was a contempt petition pending against the Principal Secretary Mr. B.S. Bhullar for non-compliance of the orders passed by this court in W.P. No. 527 of 2012 ( Sita Ram Singh and two others) vide order dated 30.1.2012. Following orders were passed which has been annexed as Annexure no. 4 to the writ petition. The order is as follows :
"Hon'ble Devendra Kumar Arora,J.
Notice on behalf of opposite party no.1 has been accepted by the learned Chief Standing Counsel, while Sri Mahesh Chandra, learned counsel has accepted notices on behalf of opposite parties no. 2 and 3.
Learned counsel for the petitioners submits that the present case is covered by the judgment and order dated 24.01.2012 passed in� Writ Petition No.435 (S/S) of 2012, Saleem Akhtar vs. State of U.P. and others. The aforesaid order reads as under:-
"The issue with respect to enhancement of age of the employees of U.P. State Road Transport Corporation is pending before the State Government since 05.01.2012. The learned counsel for the petitioner informs that the Election Commission of India has already informed the Chief Election Officer of the State that the Commission has no objection with respect to take decision by the State Government regarding enhancement of age of the employees of the Corporation, but no propaganda/ advertisement be made.
As the matter is pending before the State Government regarding enhancement of age of the employees of the Corporation, accordingly the Principal Secretary, Transport Department, Civil Secretariat, Lucknow is hereby directed to examine and take decision on the recommendation sent by the Managing Director, U.P. State Road Transport Corporation for enhancing the age of the employees and take decision within one month from the date of receipt of a certified copy of this order.
The retirement of the petitioner will be subject to the decision of the State Government.
The present writ petition is disposed of finally in terms of the judgment & order dated 24.01.2012, passed in Writ Petition No. 435 (S/S) of 2012, Saleem Akhtar vs. State of U.P. & others.
The retirement of the petitioners will be subject to the decision of the State Government.
With the aforesaid observations and directions, the writ petition is disposed of finally. "
By this order the court had directed the opposite parties to take a decision on the recommendation sent by the Managing Director of the Nigam for enhancement of the age of the retirement of employees within one month from the date of receipt of the certified copy of that order. When this order was not complied with within the stipulated period contempt petition was moved and orders were passed on 29.3.2012 for compliance of the resolution dated 5.1.2012 passed by the Board of Directors. It was directed that in case the decision has not been taken in compliance of the court's order respondent no. 1 i.e. Principal Secretary shall appear on 17.4.2012.
When the Principal Secretary was summoned he rejected the resolution / recommendation of the Managing Director on 16.4.2012 in great haste with malice towards the petitioner as well as contempt petitioners. The contempt petition naturally failed and the endeavour of the petitioner was thwarted. When the temperature cooled down in the office of the Principal Secretary the same officer granted the permission for extending the age of superannuation after three months on the recommendations made in the month of April itself. It was made prospective so that benefit may not accrue to the petitioners in a way it was a attempted to teach them a lesson.
In the case of S.R. Bommai Vs. Union of India & others (1994) 3 SCC 1, the Hon. Supreme Court has held that "when the Act is alleged to be malafide and there is no reason except which occasion to exercise the said powers, the said Act should be considered to be ex-facie arbitrary and malafide. In those circumstances, the Court has to interject itself, otherwise, it would result into failure and / or miscarriage of justice."
Taking the facts and circumstances of this case mentioned above and the law laid down by the Hon'ble Supreme Court, the court finds that a case has been made out by the petitioners. Although the permission has been given with prospective effect but the petitioners case was already covered by the court's order. As per the court's order passed in W.P. No. 527 of 2012 ( Sitaram Singh and two others) dated 30.1.2012. The said order has already been quoted in the body of the order. Since the retirement of the petitioner was subject to the decision of the State Government and State Government has taken a positive decision on extending the age of retirement from 58 to 60 years, hence, the case of the petitioner should be included in the benefit given to others vide order dated 24.7.2012.
The writ petition is, thus, allowed.
The petitioners will be treated to have retired after attaining the age of 60. If they have already completed the age of 60 years they will be entitled to the salary and other benefits including allowances till they have attained the age of 60 years. They will be treated to be in service during this period. The benefit will only be available to the persons who are included in this bunch of writ petitions.
The order dated 24.7.2012 (contained as Annexure no. 1 to the writ petition) the order dated 26.7.2012 (contained in Annexure no. 2 to the writ petition) shall be quashed to the effect which denies the benefit to the petitioners by being prospective in nature. This prospectiveness shall remain intact for others who are governed by that government order.
29.5.2014.
Om