Hon'ble Manish Mathur,J.
(ORAL)
1. U.P. Jal Nigam has preferred this special appeal directed against order dated 1.12.2010 rendered in Writ Petition No.8157(S/S) of 2010 titled "Chandra Kishore Yadav versus State of U.P.".
Vide the impugned order, the writ petition was allowed in terms of judgment dated 29.7.2010 rendered in Writ Petition No.1595(S/B) of 2009. U.P. Jal Nigam Karamchari (Adhivarshita Par Seva Nivarti) Viniyamawali, 2005 was quashed. The petitioner was held entitled to continue in service upto the age of sixty years subject to any decision rendered by Hon?ble Supreme Court of India.
2. Learned counsel for the appellant contends that that at the point in time when the appeal was filed in the year 2011, the respondent/writ petitioner was 58 years of age. In consequence and in deference to the impugned order, the respondent/writ petitioner would have superannuated at the age of sixty years, i.e. a long back. In such circumstances, cause of action would not survive in view of changed circumstances.
3. We are also of the view that the issue has been settled by Hon'ble Supreme Court in (2005)13 SCC 300 Harwindra Kumar versus Chief Engineer, Karmik and others, (2007)11 SCC 507 Chairman, U.P. Jal Nigam and another versus Radhey Shyam Gautam and another and (2013)7 SCC 595 State of Uttar Pradesh versus Dayanand Chakrawarty and others.
4. Hon?ble the Supreme Court in the case of Harwindra Kumar v. Chief Engineer, Karmik and others(supra) has enunciated in paragraphs 9 and 10 of the report as under :
?9. In the present case, as the 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 the 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 the 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 the 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 was it permissible for the Nigam on the basis of such a direction of the State Government in the 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)(c) of the Act.?
?10. For the foregoing reasons, we are of the view that so long as 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 the 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.?
5. With regard to a similar issue, subsequently, Hon?ble the Supreme Court in the case of Chairman, U.P. Jal Nigam and another v. Radhey Shyam Gautam and another(supra) has held in paragraphs 9 and 10 of the report as follows :
?9. 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, the 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 as the same are not altered by the Nigam in accordance with the provisions of the Act. If the regulations have not 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 as 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, has it been mentioned that the Rules then in existence shall only apply.?
?10. 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 the age of the employees would not tantamount to amending Regulation 31 of the Regulations.?
6. Subsequent to the aforesaid two judgments of Hon'ble the Supreme Court, U.P. Jal Nigam framed Uttar Pradesh Jal Nigam (Retirement on Attaining Age of Superannuation) Regulations, 2005 prescribing two separate ages of superannuation for the employees of the Nigam. The said Rules were challenged before this Court and the matter went up to Hon?ble the Supreme Court in which [State of Uttar Pradesh v. Dayanand Chakrawarty and others(supra)] in paragraphs 28.2, 29, 32 to 36 of the report it was held as follows:-
?28.2. After the judgment in Harwindra Kumar [Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 : 2006 SCC (L&S) 1063] based on liberty given by this Court, the Nigam framed the 2005 Regulations prescribing two separate ages of superannuation for the employees of the Nigam, without amending Regulation 31. The Nigam subsequently by the Resolution dated 13-4-2008 proposed to amend the 2005 Regulations prescribing the common age of 60 years for superannuation for all the employees of the Nigam. The State Government by its Order dated 29-6-2009 prescribed the uniform age of superannuation as 58 years for all the employees working in the government undertakings i.e. government companies and government corporations and then in view of such decision, the State Government refused to accord approval to the recommendations of the Nigam dated 13-4-2008 by its Letter dated 3-7-2009.?
?29. In view of the subsequent development after the decision rendered in Harwindra Kumar case [Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 : 2006 SCC (L&S) 1063] , again the question of age of superannuation of employees of the Nigam has been reopened keeping in view of such fact, the question required to be determined as raised in these cases.?
?32. Since creation of the Nigam, irrespective of source of recruitment, the employees of the Nigam were treated alike for the purpose of superannuation and were allowed to superannuate at the age of 58 years as is evident from Regulation 31.?
?33. As per the decision of this Court in Prem Chand Somchand Shah [(1991) 2 SCC 48] even amongst persons similarly situated differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute. The appellants, the Nigam as well as the State of Uttar Pradesh failed to place on record the reasons for differential treatment which distinguishes employees of erstwhile Lsged and those who were appointed directly in the Nigam.?
?34. Further, as employees appointed from different sources, after their appointment were treated alike for the purpose of superannuation under Regulation 31, subsequently solely on the basis of source of recruitment no discrimination can be made and differential treatment would not be permissible in the matter of condition of service, including the age of superannuation, in absence of an intelligible differentia distinguishing them from each other. We therefore hold that the High Court by the impugned judgment [Dayanand Chakrawarty v. State of U.P., (2010) 6 All LJ 1] rightly declared the 2005 Regulations unconstitutional and ultra vires Article 14 of the Constitution of India.?
?35. Regulation 31 of the Uttar Pradesh Jal Nigam Services of Engineers (Public Health Branch) Regulations, 1978 Special Regulation; it will not be affected by later Regulation 4 of the Uttar Pradesh Jal Nigam (Retirement on Attaining Age of Superannuation) Regulations, 2005, in absence of express repeal of Special Regulation. By implication it cannot be inferred that Regulation 31 stands repealed in view of the subsequent 2005 Regulations.?
?36. Even if it is treated that both the General Regulation 4 of the 2005 Regulations and Special Regulation 31 of the 1978 Regulations co-exist, one which is advantageous i.e. Regulation 31 shall be applicable to the members of the same service.?
7. In view of the law as detailed above and particularly the fact that the respondent/writ petitioner would have attained age of sixty years long back, we find no reason to adjudicate.
8. The appeal is accordingly disposed of.
Order Date :- 28.8.2019 kkb/