Ashok Vohra vs State Of U.P. Thru Industrial Dev. ...
2012 Latest Caselaw 2352 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
Lucknow Bench Lucknow
 

 
***********
 

 
A.F.R.
 
Court No. - 27
 

 
Case :- SERVICE BENCH No. - 1158 of 2007
 

 
Petitioner :- Ashok Vohra
 
Respondent :- State Of U.P. Thru Industrial Dev. & 2 Ors.
 
Petitioner Counsel :- Md. Altaf Mansoor
 
Respondent Counsel :- C.S.C.,D.K. Upadhyay
 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble S.C. Chaurasia,J.

1. List revised. None appears for the respondent No.3. We have heard learned counsel for the petitioner Sri Altaf Mansoor as well as the learned standing counsel. The brief matrix OF the writ petition, are discussed hereinafter.

2.	The petitioner was appointed as Accountant in the U.P. Export      Corporation Limited, Lucknow, (in short as Corporation) on 7.7.1975.  He was promoted on the post of Executive (Accounts) and thereafter on the post of Senior Manager (Finance & Accounts) with effect from 29.7.1989.
 
3.	The condition of service of the petitioner is governed by the U.P.     Export Corporation Employees Service Rules, (in short the Rules) as framed and adopted by the Board of Directors of the Corporation and approved by the Bureau of Public Enterprises U.P.  According to Rule 27 of the Rules, the age of superannuation of employees of the        Corporation shall be the same as prescribed for the employees of the State of U.P.  For convenience, Rule 27 of the Rules is reproduced as under:
 
"27.	Discharge of employees on superannuation
 
(i)	The age of superannuation shall be the same as is      prescribed by the Uttar Pradesh State Government for its employees from time to time.  On attaining this age of superannuation, an employee shall be discharged from the service of the Corporation.
 
(ii)	In the case of Officers employed on contract, the Board of Directors may waive the age of superannuation with the condition that in no case shall an employee serve beyond the age of 60 years in the service of the         Corporation.
 
	An employee of the Corporation shall be allowed the discretion to retire voluntarily after completing 20 years of continuous service or attaining the age of 45 years whichever is later."
 

 
4.	A plain reading of Rule 27 (supra) reveals that so far as the age of   superannuation is concerned, it shall be the same as that of the       Government employees.  
 
5.	By the notification dated 28.11.2001 contained in Annexure No.2 to the writ petition, the State Government extended the age of               superannuation of its employees from 58 years to 60 years.  Since the petitioner was attaining the age of superannuation on 30.9.2007, he submitted his representation dated 28.3.2007 with the prayer that he may be permitted to continue in service upto the age of 60 years in terms of the amendment done with regard to State Government       employees.  However, the respondents declined to extend the benefit of the Notification dated 28.11.2001 by which the age of                  superannuation of the Government employees was enhanced.  A copy of the order dated 11.4.2007 has been filed as Annexure No.5 to the writ petition.
 
6.	A perusal of the impugned order dated 11.4.2007 reveals that the          respondents Corporation is of the view that the State Government has not taken a decision to enhance the age of superannuation of           employees of Local Bodies including the Corporation, hence the       petitioner cannot be permitted to continue upto the age of 60 years.  While communicating the impugned order dated 11.4.2007, the        respondents have failed to take notice of the provision contained in Rule 27 of the Rules (supra) which by fiction of law extends parity to the employees of the Corporation with the State Government employees so far as the age of superannuation is concerned.
 
7.	Another representation dated 22.5.2007 was submitted by the          petitioner that was too responded negatively, by the impugned order dated 7.8.2007 contained in Annexure No.7 to the writ petition.
 
8.	During the pendency of the writ petition, the Service Rules were amended by the Board's Resolution dated 9.10.2007, a copy of which is annexed to the writ petition as Annexure No.8-A, adding clause (i) in Rule 27 which is reproduced as under:-
 
"27 (i)  The age of superannuation of employees shall be 58 years.  This provision shall be deemed to have existed at all relevant times."
 

 
9.	While assailing the impugned amendment as well as the impugned  orders,  it has been submitted by Sri Altaf Mansoor that though        retrospective amendment may be done by the Government or in the Corporation in service Rules but by such retrospective amendment the right which accrues to the employees, cannot be taken away.  Learned counsel for the petitioner relied on the cases reported in (2005) 13 SCC 300: Harwindra Kumar. Vs. Chief Engineer, Karmik and others; (1997) 6 SCC 623: Chairman Railway Board and others. Vs. C.R. Rangadhaiah and others; (1972) 4 SCC 763: Ex-Major N.C. Singhal. Vs. Director General, Armed Forced Medical     Services, New Delhi and another; (1984) 3 SCC 281: Ex- Capt. K.C. Arora and another. Vs. State of Haryana and others; (1994) 5 SCC 450: Union of India and others. Vs. Tushar Ranjan      Mohanty and others; and (1983) 2 SCC 33: State of Gujarat and another. Vs. Raman Lal Keshav Lal Soni and others.
 
10.	Admittedly, the petitioner has attained the age of 58 years on 30.9.2007.  In view of the enhancement of age of superannuation, of the Government employees, under the unamended Rule 27, the        petitioner was entitled to continue upto 30.9.2009.  The impugned amendment has been done by the Resolution of the Board of           Management, dated 9.10.2010.  Meaning thereby on the date when the amendment was done, the petitioner was already entitled to continue in service in terms of the unamended service Rules for further period of two years.  Since the State Government by the notification (supra) had enhanced the age of its employees, the right of the petitioner to continue in        service upto the age of 60 years, has been affected by the impugned Resolution.
 

11. Hon'ble Supreme Court in the case of Harwindra Kumar (supra) has observed that amendment with regard to age of superannuation cannot be done retrospectively affecting right of employees who were entitled to continue upto the particular age in terms of the unamended Rules. For convenience, para-10 of the said judgment (supra) is reproduced as under:

"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."

12. In the case of Chairman Railway Board (supra), the question cropped up before the Hon'ble Supreme court was with regard to retrospective amendment of Rules affecting vested or accrued right of Government employees. Their lordships held that the retrospective amendment of statutory Rules adversely affecting the pension of employees who already retired on the date of notification was held to be invalid. In the present case, on the date when the impugned resolution was passed by the Board of Management, the petitioner had already exceeded the age of 58 years and I n terms of the Government order, he was entitled to continue for further period of 2 years Keeping in view the service career. Relevant portion from the judgment of Chairman of Railway Board (supra) is reproduced as under:

"20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.

21. In B.S. Yadav. v. State of Haryana, a Constitution Bench of this Court, while holding that the power exercised by the Governor under the Proviso to Article 309 partakes the characteristics of the legislative, not executive, power and it is open to him to give retrospective operation to the rules made under that provision, has said that when the retrospective effect extends over a long period, the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules."

22. In State of Gujarat. v. Raman Lal Keshav Lal Soni, decided by a Constitution Bench of the Court, the question was whether the status of ex- ministerial employees who had been allocated to the Panchayat service as Secretaries, Officers and Servants of Gram and Nagar Panchayats under the Gujarat Panchayat Act, 1961 as government servants could be extinguished by making retrospective amendment of the said Act in 1978. Striking down the said amendment on the ground that it offended Articles 311 and 14 of the Constitution, this Court said : (SCC p 62, para 52)

"The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right ac-quired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, there-fore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. The legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history."

23. The said decision in Raman Lal Keshav Lal Soni of the Constitution Bench of this Court has been followed by various Division Benches of this Court. (See :K.C. Arora & Anr. v. State of Haryana, T.R. Kapur. v. State of Haryana, P.D. Aggarwal v. State of U.P. K. Narayanan . v. State of Kamataka, Union of India v. Tushar Ranjan Mohanty and K. Ravindranath Pai v. State of Kamataka.

24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon (supra), B.S. Yadav (supra) and Raman Lal Keshav Lal Soni."

13. In the case of Ex-Major (supra) again, the aforesaid proposition of law has been reiterated and their lordships of Hon'ble Supreme Court has held that condition of service cannot be altered or modified to the prejudice of an employee by a subsequent administrative instruction having retrospective effect.

14. In the case of Ex-Cap. K.C. Arora (supra), it has been held by the Hon'ble Supreme Court that amendment I n the service condition taking away vested right with retrospective effect, shall be invalid if it is in violative of the present acquired or accrued fundamental rights of the affected person. Aforesaid proposition has been dealt with by the Hon'ble Supreme Court in other cases relied upon by the petitioner and lays down that service condition cannot be altered retrospectively to deprive the employees of the rights which already accrued before the amendment was done.

15. The State Government has amended the Service Rules of its employees enhancing the age of superannuation from 58 to 60 years on 28.11.2001. Accordingly, at the thrust of unamended Rule 27 (supra), the employees of the U.P. Corporation were entitled to continue in service upto the age of 60 years. Otherwise also, the petitioner has attained the age of 58 years on 30.9.2007 and in view of the amendment done with regard to Government employees in terms of the notification dated 28.11.2001, the petitioner could not have been retired from service and he should have been permitted to continue in service even after 30.9.2007 to complete the age of superannuation to the extent of 60 years.

16. In view of the settled proposition of law, the impugned orders, seems to suffer from vice of arbitrariness. In view of the unamended Rule 27, the petitioner should have been permitted to continue in service upto the age of 60 years.

17. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 11.4.2007 and 7.8.2007 passed by the respondent No.2 and 3 contained in Annexure No.5 and 7 to the writ petition with consequential benefits. The petitioner shall be deemed to be in service upto the age of 60 years and he shall be paid arrears of salary and emoluments in accordance with Rules along with post retiral benefits. Let a decision be taken keeping in view the observations made hereinabove expeditiously say, within two months from the date of receipt of a certified copy of this order and communicate the petitioner.

No orders as to costs.

[Justice S.C. Chaurasia]     [Justice Devi Prasad Singh]
 
Order Date :- 30.5.2012
 
Rajneesh AR-PS)