B.S. Chauhan (Bhuri Singh ... vs State Of U.P. And 3 Ors.
2013 Latest Caselaw 7488 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 69356 of 2013
 

 
Petitioner :- B.S. Chauhan (Bhuri Singh Chauhan)
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Virendra Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. The petitioner is an employee in District Rural Development Agency (hereinafter referred to as the 'DRDA'), which is a society registered under the Societies Registration Act, 1860 (hereinafter referred to as the "Act, 1860"). As per the existing provisions applicable to employees of DRDA the age of retirement is 58 years and, therefore, the employees are being retired on attaining the age of 58 years. In Fundamental Rules 56 an amendment was made in exercise of power under proviso to Article 309 of the Constitution changing age of retirement from 58 to 60 years. The employees of DRDA claiming that DRDA is a society managed by State Government officials and, therefore, is an instrumentality of the State, hence is covered by Article 12 of the Constitution. That being so, the employees of DRDA are holders of civil posts and the Rules, applicable to government employees, are applicable to them hence with the enhancement of age of retirement vide Fundamental Rule 56, they are also entitled to continue up to the age of 60 years.

2. This issue came to be considered by a Division Bench of this Court in Special Appeal No.687 of 2010 (State of U.P. Vs. Pitamber). The Court formulated the following question:

"Whether employees of DRDA are Government employees and are holding civil post in the civil service of State to make applicable Fundamental Rule 56".

3. Two more questions were formulated by this Court as under:

"(1) Considering the Bye-laws of the Society and more specifically Bye-laws 19 and 20 (h) read with Government Notification dated March 17, 1994, was it open to the State Government to have issued the Government Order dated 09.03.2004 fixing the age of retirement of the employees of DRDA as 58 years?

(2) Whether the employees of DRDA are holding civil posts and/or are Government employees of the State, in order to make applicable Rule 56 of the Fundamental Rules and, consequently, would they be governed by Government Notification dated 28.11.2001, whereby the age of retirement of the government servants has been fixed as 60 years under Rule 56 of the Fundamental Rules?"

4. Answering the above questions, in paras 16 and 17, the Division Bench said in its judgment dated 19.08.2010 as under:

"16. Considering the above referred judgments and the material on record, it will be clear that firstly the DRDA is a Society registered under the Societies Registration Act. Its funding is 70 percent from the Central Government and 30 percent from the State Government. The members of the Society and also the Working Committee are basically persons holding the posts in government service, mostly in the State Government and some in the Central Government, as the object is of rural development. Bye-law 20 (h) recognizes that the staff are to be appointed by the Governing Body. The accounts are to be approved by the Governing Body in its annual general meeting. Suits are to be filed against the Society. Thus, though there may be funding by the Central/State Governments and control by the State Government, nonetheless they are employees of the Society. Some posts are filled up on transfer by the Governor and in respect of others, appointments are to be made by the Chief Executive Officer, who is the District Magistrate. Considering the tests laid down in Kanik Chandra Dutta (supra), we are clearly of the opinion that the tests laid down in the judgment of the Supreme Court are not satisfied. Once it is held that they are the employees of DRDA and are not holding civil posts in the service of State, Rule 56 of the Fundamental Rule would not apply to them.

17. In the light of that, we are clearly of the opinion that the appeal filed by the State will have to be allowed. The employees of DRDA after 09.03.2004 will have to retire at the age of 58 years. Consequently, we hold that the view taken by the learned Single Judge in the case of Kalika Prasad (supra) that Rule 56 of the Fundamental Rules would apply so far as the employees of DRDA are concerned, does not lay down the correct law and, hence, we overrule the judgment in Kalika Prasad (supra) and all other judgments, which have taken a similar view."

5. There are two more writ petitions, i.e., Writ Petitions No. 51679 of 2009, 29195 of 2011 (Shoeb Ullah Khan Vs. State of U.P. and others). Both these writ petitions came up before a Division Bench on 04.07.2011. Following the decision in State of U.P. and others Vs. Pitamber (supra), the Court held that employees of DRDA are entitled to continue till the age of retirement, i.e., 58 years only and not 60 years, therefore, the notice issued to them, informing their date of retirement on attaining the age of superannuation as 58 years were valid.

6. Another Hon'ble Single Judge has also followed aforesaid Division Bench decision in Writ Petition No.30920 of 2013 (Lal Ji and Anr. Vs. State of U.P. & 3 Ors.) decided on 29.5.2013 and myself has also followed the same in Writ Petition No.4650 of 2013 (Shiv Lal Vs. State of U.P. & Ors.) decided on 25.7.2013 and several other matters.

7. In that view of the matter, petitioner is not entitled to continue till the age of 60 years as per the existing provisions and is liable to retire on attaining the age of 58 years.

8. There is another aspect of the matter. I find that even under Fundamental Rule 56, age of retirement, if strictly speaking, is still 58 years and there is no amendment in the eyes of law. Fundamental Rule 56 was inserted and substituted by provincial legislation i.e. vide U.P. Act No. 33 of 1976 [U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1976] and therefore, any amendment therein could have been made only by principal provincial legislature and no amendment therein could have been made in exercise of powers under Proviso to Article 309 of the Constitution since legislature has already intervened by promulgating an enactment containing a single provision i.e. Fundamental Rule 56, therefore, even if what has been said by the petitioner is accepted to the correct, since there is no amendment by competent legislature in Fundamental Rule 56, it cannot be said that age of retirement therein has extended to 60 years so as to entitle the petitioner to retire on attaining the age of 60 years. The amendment notification dated 28.11.2001 is a formal amendment notification by State Government in exercise of rule framing power and it appears that State Government completely failed to notice that Fundamental Rule 56 having been brought on statute book by a legislative Act, no amendment can be made therein in exercise of rule framing power under proviso to Article 309 of the Constitution.

9. The petitioners in the present case, however contended that the State Government has taken a decision to enhance the age of retiremeent of the employees of Local Self Governed Bodies as 60 years vide Government Order dated 01.08.2013 and, therefore, petitioner is entitled to continue till the age of 60 years and the earlier decision rendered by Division Bench in State of U.P. and others Vs. Pitamber (supra) would have no application to the present case. He drew my attention to Annexure-10 to the writ petition, which contains a decision taken by the Cabinet and also the Government Order dated 12.08.2013 (Annexure-11 to the writ petition).

10. From a bare perusal of Government Order dated 12.08.2013 firstly I find that it is applicable to Local Self Government Bodies i.e. Local Bodies, and not to the societies or companies and corporations registered under the respective statutes i.e. Societies Registration Act or the Companies Act etc.

11. What a Local Self Government Body is well established and a society registered under Act, 1860 does not qualify for the same. Even assuming that DRDA qualify to be a Local Self Government Body, still the Government Order dated 12.08.2013 by itself does not construe an order of the Government so as to have the effect of changing the existing provision relating to age of superannuation of the employees of such bodies.

12. I have carefully read the entire order and find that it has communicated a policy decision of State Government that the age of superannuation of employees and Officers in Local Self-governed Bodies would be extended from 58 to 60 years after following the procedure laid down therein. The procedure has also been prescribed in paras 1 to 6 thereof, which read as under:

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English Translation by the Court:

"(1) Before considering enhancement of age limit from 58 years to 60 years for retirement of employees/officers of the concerned autonomous body, functional requirement shall be ascertained to see which posts have gone short of or out of utility as of now. The process of scrapping of such less useful/useless posts shall be initiated by the body.

(2) It shall, thereafter, be seen at the level of the body how much additional burden of expenditure shall arise if the age of superannuation is enhanced from 58 years to 60 years.

(3) After assessment of the financial burden, approval of the governing body shall be obtained on presentation of a proposal by the body to the governing body specifying clear provisions for affording such financial burden. After getting approval from the governing body, the said proposal shall be made available by the body to its Administrative Department.

(4) The Administrative Department, while looking into the proposal, shall ensure:

(i) Whether or not recommendation has been made for the bodies operated with 100% government grant after keeping in view the burden of expenditure as contained in the aforesaid proposal and the savings accruing from the scrapping of useless posts.

(ii) The bodies run partly with the government grant shall be allowed as grant, from the budgetary provision, so much percentage of amount from the burden of additional expenses, contained in the proposal, as much percentage of amount that is being allowed by the state government as grant to such bodies and in order to examine whether the said body has sufficient resources or not to bear the remaining burden of expenses, the savings accruing from the scraping of non-useful posts shall also be taken into consideration.

(iii) Whether or not the bodies running with their own means have sufficient resources to bear the burden of expenses as contained in the aforesaid proposal.

(5) After ensuring the aforesaid arrangement the proposal along with the recommendation shall be referred to the concerned Finance (Expenditure Control) Section for their consent and approval from the Finance Department shall be obtained.

(6) On receipt of approval from the Finance (Expenditure Control) Department on the aforesaid proposal, consent from the Cabinet shall be obtained by the concerned Administrative Department for enhancement of age of superannuation of the employees/officers of the body from 58 years to 60 years and accordingly an order shall be issued with consent from the Finance Department."

13. It is, thus, evident that until the aforesaid procedure is completed and pursuant thereto a decision is taken by Council of Ministers and approval of Finance Department is obtained and then an order is issued, till that date, the said Government Order would not have any effect of change in the age of superannuation and it would continue to be governed by the existing provisions. As and when new provision comes into existence, it will operate prospectively, unless made operative retrospectively.

14. In the present case, it is not the case of the petitioner that the aforesaid procedure has been followed and the decision has been taken by the Council of Ministers with the concurrence of Finance Department, as contemplated in para 6 of the aforesaid Government Order. So far as the employees, who are attaining age of superannuation in presenti, i.e., according to existing provision, they will continue to be governed by existing provision and are bound to retire accordingly. Whenever, decision will be taken and an order is issued, having the effect of change of present provision, subsequent retirements would be governed accordingly.

15. The question, whether, in case such a decision though taken, but not executed, lacking some procedure flaw, would confer any right to claim higher age of superannuation was considered in detail by a Division Bench of this Court (in which I was also a member) in Daya Shankar Singh Vs. State of U.P. and others 2008 (3) ADJ 21 (DB) wherein, in somewhat similar circumstances, it was held as under:

"A draft Regulation cannot be acted upon when the statutory Regulations made in accordance with the Act are already operative and holding the field. In Abraham Jacob Vs. Union of India 1998 (4) SCC 65 and Vimal Kumari Vs. State of Haryana 1998 (4) SCC 114, it was held that draft rules may be acted upon to meet urgent situations when no rule is operative.

In Union of India & another Vs. V. Ramakrishnan & others 2005 (8) SCC 394, the Apex Court considering almost a similar situation held :

"A rule validly made even if it has become unworkable unless repealed or replaced by another rule of amended, continues to be in force."

In Mahabir Vegetable Oils (P) Ltd. & another Vs. State of Haryana & others 2006 (3) SCC 620, the Apex Court in para-37 of the judgment observed :

"It is now well-settled principle of law that the draft rules can be invoked only when no rule is operative in the field."

The logical inference is that if a valid rule is already operative, a draft rule would have no application at all.

An interesting situation occurred in Alphonse Cazilingarayar & others Vs. Inspector General of Police & others 2000 (10) SCC 153 where the Central Administrative Tribunal (Madras Bench) declared Draft Recruitment Rules pertaining to the post of Radio Supervisor (Operations) Grade-I illegal and unconstitutional. In appeal, the Apex Court held that the judgment of the Tribunal setting aside Draft Rules as unconstitutional was totally uncalled for being premature since the Draft Rules were not approved by the State and remained only draft rules. It was open to the Government/Appropriate Authority to consider either to approve draft rules or not or to frame fresh rules and, therefore, there was no cause of action available to anyone to challenge the draft rules. The same could not have the effect of affecting any right of the employees. Till the rules are amended as per the procedure prescribed, any order or decision taken by the authorities for amending or changing Regulations is only an administrative/executive order, which would not confer any right upon either of the parties contrary to the statutory provisions.

In Rajinder Singh Vs. State of Punjab 2001 (5) SCC 482 dealing with a similar situation, the Court held :

"The settled position of law is that no government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence."

In Ashok Lanka & another Vs. Rishi Dixit & others 2005 (5) SCC 598 the Court held :

"We are not oblivious of the fact that framing of rules is not an executive act but a legislative act; but there cannot be any doubt whatsoever that such subordinate legislation must be framed strictly in consonance with the legislative intent as reflected in the rule-making power contained in Section 62 of the Act. (para- 57)

Very recently, a similar controversy with respect to the appointment of Heads of Department in State University came up for consideration before a Division Bench in which one of us (Hon'ble Sudhir Agarwal, J.) was also a member in Prof. Kalawati Shukla (Smt.) & others Vs. State of U.P. & others 2008 (1) ADJ 209. There statute 2.20 of Gorakhpur University framed in exercise of power under Section 50 of U.P. State Universities Act, 1973 provided that the senior most teacher in each department in the University shall be the Head of Department. State Government issued a G.O. dated 24.07.2007 providing that the Head of Departments in the University shall be by rotation and for the said purpose required Universities to take steps for amendment of the concerned Statutes. The statute, in fact, were not amended. The University acting as per the decision of the Government contained in the G.O. dated 24.7.2007 issued orders appointing Head of Departments by roaster instead of senior most teacher. This Court, following an earlier Division Bench decision in Ankur Yadav Vs. State of U.P. & others 2007 (10) ADJ 10 held that unless the statute is amended, no action could have been taken according to the Government Order dated 24.7.2007. The Court quoted the following observation of the Division Bench in Ankur Yadav (supra):

"...........the Statutes of the University framed under the Act would govern the field and so long as the Statutes are not amended, no person can be appointed in the University governed by the act and the Statutes framed thereunder by ignoring the qualification prescribed thereunder. No amount of proposal, acceptance, waiver, acquiescence etc. either by the University or the State Government would have the effect of amending the Statutes unless the Statute as such is amended in accordance with the procedure prescribed under Section 50 of the Act........

It is not disputed that the First Statute of the University was not amended in the manner provided under Section 50 of the Act till the date the petitioner was appointed and thus principle of estoppel, waiver or acquiescence would not apply against law ........"

If the contention of the learned Counsel for the petitioner is accepted that once the resolution has been passed by the Board of Directors, UPSWC for making amendment in the Regulations, the petitioners are entitled for the benefit as per the said resolution irrespective of the fact whether the said resolution is sanctioned by the State Government for the purpose of making amendment in the Regulations as it would amount to making the procedure prescribed under Section 42 redundant."

16. In view of above and looking to the facts and circumstances of the case, in my view, retirement of petitioner on 31.12.2013, on attaining the age of superannuation of 58 years, according to existing provision, does not warrant any interference. The Government Order dated 12.08.2013 would come into effect only when the entire procedure laid down in para 1 to 6 is completed and, thereafter, a decision is taken and order is issued having effect of amending present provision, extending age of superannuation from 58 to 60 years. Presently it is not the case in present writ petition.

17. The writ petition, therefore, lacks merit. Dismissed.

Order Date :- 17.12.2013

AK