Allahabad High Court
Sharad Chandra Tiwari & 7 Ors. vs State Of U.P. Through Prin. Secy. ... on 11 November, 2013
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 4
Case :- SERVICE SINGLE No. - 1993 of 2013
Petitioner :- Sharad Chandra Tiwari & 7 Ors.
Respondent :- State of U.P. and others
Counsel for Petitioner :- A.P.Singh
Counsel for Respondent :- C.S.C.,Balram Singh
Hon'ble Sudhir Agarwal,J.
1. This case has been taken on the mention made by learned counsel for petitioners.
2. Heard Sri A.P. Singh, learned counsel for petitioners and learned Standing Counsel for respondents.
3. Petitioners are working on different posts like Accountant, Logging Assistants, Deputy Logging Officers in U.P. Forest Corporation. The age of retirement in U.P. Forest Corporation was 58 years. All these petitioners attained the age of 58 years on various dates in the year 2012 and retired accordingly. The case set up by petitioners is that the Board of Directors of U.P. Forest Corporation passed a resolution and communicated it to Principal Secretary, Forest vide Managing Director's letter dated 23.12.2011 about enhancement of age of retirement of employees from 58 years to 60 years. It sought approval of the State Government for change of age of retirement which has now been granted by order dated 8.3.2013 (Annexure 1 to the writ petition). It is not the case of petitioners that the Corporation itself possess absolute power with regard to change of conditions of service of its employees and there was no requirement of approval of the State Government. That being so, the approval having been granted by order dated 8.3.2013, it cannot be said that it will have a retrospective effect. The employees who have already retired on attaining the age of 58 years cannot claim to have a right to continue till the age of 60 years, since decision has partaken shape of an order only after issuance of Government Order dated 8.3.2013. It is well settled that a mere decision by itself is not executable unless it partakes the status of an order, i.e., by communication or publication so as to make it known to all concerned. In the present case, the Board of Directors passed a resolution and thereafter sought approval of the State Government. It is not the case of petitioners that before issuance of order dated 8.3.2013 by State Government, at any point of time, the decision of Board of Directors became an order by its publication so as to get implemented having the effect of changing the earlier existing provision.
4. In Bachhittar Singh Vs. State of Punjab AIR 1963 SC 395, the Court held that a decision on file does not confer any right unless it partakes the nature of an order by communication to the person concerned. Similarly, a proposed or draft regulation is not to have effect of changing existing provision unless the procedure followed earlier is observed.
5. A similar question up for consideration before a Division Bench 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 24.7.2007 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."
6. In view of above and looking to the facts and circumstances of the case, in my view, retirement of petitioners in 2012, on attaining the age of superannuation of 58 years, according to the then existing provision, cannot be said to be bad and it does not warrant interference. The change in age of retirement in respect to employees of U.P. Forest Corporation, pursuant to State Government's order dated 8.3.2013, would be prospective, and, shall be applicable to the employees who would be retiring thereafter.
7. In view above, the writ petition is devoid of merit and is, accordingly, dismissed.
Dt. 11.11.2013
PS
