Om Prakash Tiwari vs State Of U.P. And 2 Others
2018 Latest Caselaw 765 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 34
 

 
Case :- WRIT - A No. - 15760 of 2014
 

 
Petitioner :- Om Prakash Tiwari
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Abhishek Misra,B.R.J. Pandey
 
Counsel for Respondent :- C.S.C.,S.K. Dwivedi
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ifaqat Ali Khan,J.

1. This writ petition has been filed under Article 226 of Constitution of India assailing notice dated 29.10.2013 (Annexure 16 to the writ petition) issued by Chief Executive Officer, Bhadohi Industrial Development Authority (hereinafter referred to as 'BIDA') informing petitioner that he would attain age of superannuation of 58 years and would retire on 31.03.2014 as provided in Fundamental Rule 56.

2. Petitioner was appointed as Assistant Architect by letter dated 17.03.1983. BIDA is a Development Authority constituted under U. P. Industrial Area Development Act, 1976 (hereinafter referred to as 'Act 1976). For governing service conditions of employees of BIDA, Regulations were framed under Section 19 of Act, 1976 namely Bhadohi Industrial Development Authority Service Regulations, 1988 (hereinafter referred to as 'Regulations 1988).

3. Regulation 25 deals with age of superannuation of employees of BIDA and reads as under :

"25. The age of superannuation will be the same as is prescribed by the State Government for its employees from time to time.

On attaining the age of superannuation, an employee shall be discharged from the service of the Authority provided that with the prior approval of the State Government, the Authority may in exceptional circumstances and for every special reason, upon the recommendation of the Chief Executive Officer, grant extension of service to any employee beyond the age of 58 years, provided that no such extension will be beyond the age of 60 years.

An employee of the Authority shall be allowed the discretion to retire voluntarily from service on attaining the age of 50 years or completing twenty years of service whichever falls later."

(emphasis added)

4. Petitioner contended that State Government by Notification dated 27.06.2002 enhanced age of superannuation of government employees under Fundamental Rule 56 from 58 years to 60 years, hence, petitioner is also entitled to continue upto the age of 60 years in view of Regulation 25 of Regulations 1988. It is said that there was no requirement, yet, BIDA made a proposal and forwarded to Government by letter dated 29.11.2007 to approve enhancement of age of superannuation of employees of BIDA from 58 years to 60 years. Government accepted the said proposal by letter dated 30.09.2012 with the following conditions :

"(1) भर्ती करने के नियमित एवं पूर्णकालिक कार्मिको की अनिवार्य आयु 58 वर्ष से 60 वर्ष बढ़ाये जाने पर जो भी अतिरिक्त वित्तीय व्यय भार आयेगा उसका वहन नवीन ओखला औद्योगिक विकास प्राधिकरण अपने स्रोतों से करेगा इस हेतु राज्य सरकार द्वारा किसी भी प्रकार की वित्तीय सहायता न तो वर्तमान में और न ही भविष्य में दी जाएगी ।

(2) यह प्राविधान नोएडा प्राधिकरण में तात्कालिक प्रभाव (शासनादेश निर्गत होने की तिथि) से ही लागू होंगे तथा इसका कोई पूर्वगामी प्रभाव नहीं होगा "

"(1) The additional financial expenditure to be incurred due to enhancement of compulsory age of superannuation of regular and full time employees from 58 years to 60 years would be borne by New Okhla Industrial Development Authority from its own sources and for this purpose State Government will not provide any financial assistance either in present or in future.

(2) This provision will apply to the Noida Authority with immediate effect (from date of issuance of government order) and there will be no predecessor effect." 					(emphasis added)
 
				(English Translation by Court)  
 

5. It is said that aforesaid exercise was unwarranted and unnecessary for the reason that Regulation 25 itself was clear to provide age of superannuation as 60 years and, therefore, impugned notice proposing to retire petitioner at the age of 58 years is illegal.

6. Learned Standing Counsel submitted that there is no valid extension of age of superannuation of State Government employees, since Fundamental Rule 56 was not amended by Provincial Legislation, but only Rule framing power was exercised though Fundamental Rule 56, as existed, is a Provincial Legislation, hence could not have been amended by Rule framing authority and that being so, petitioner cannot claim enhanced age of superannuation.

7. We find substance in submission of learned counsel for petitioner that Regulation 25 by reference has applied Rules relating to superannuation applicable to State Government employees from time to time. Since, Regulation 25 itself says that provisions, applicable to State Government employees from time to time, will be applicable to the employees of BIDA, if any amendment is made by government to the Rules relating to superannuation, applicable to its employees, same would automatically be applicable to BIDA also and this will not require any approval of State Government or any other authority.

8. Therefore, Fundamental Rule 56, which is admittedly applicable to State Government employees and provides age of superannuation, if has been validly amended, enhancing age of superannuation from 58 to 60 years, in our view, petitioner cannot be made to retire on attaining of 58 years i.e. on 30.06.2014 as that would be contrary to Regulation 25 of Regulations 1988 read with Fundamental Rule 56.

9. Now we proceed to examine whether Fundamental Rule 56, as applicable to State Government employees, has been amended to enhance age of superannuation of State Government employees, in accordance with law or not.

10. 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. No amendment therein can be made in exercise of power under Proviso to Article 309 of Constitution i.e. Rule framing power, since legislature has already intervened by promulgating a principal enactment containing a single provision i.e. Fundamental Rule 56. Learned counsel for petitioner admitted that Government Notification dated 28th November, 2001 is not enactment of Provincial Legislature but a legislative power exercised by Governor under proviso to 309. It is subordinate to legislation made by Provincial Legislature. Since Fundamental Rule 56 is inserted and substituted in the statute book, by virtue of Provincial legislation, same cannot be amended by mere Government notification. Therefore, in law, it cannot be said that retirement age of 58 years, provided in Fundamental Rule 56, stands amended to 60 years by Notification dated 28th November, 2001.

11. On repeated query made from learned counsel for petitioner, he could not dispute that there is no legislative amendment in Fundamental Rule 56, inserted by U.P. Act No. 33 of 1976.

12. The amendment notification dated 28.11.2001 is a notification by Governor in exercise of Rule framing power under Proviso to Article 309 of Constitution. It appears that State Government has 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. In the present case, by notification dated 28.11.2001, issued in exercise of Rule framing power under proviso to Article 309 of Constitution, State Government has sought to amend Fundamental Rule 56, by increasing age of retirement to 60 years, which is impermissible in law. It will have no impact of amending Fundamental Rule 56, inserted by U.P. Act No. 33 of 1976. Hence, Fundamental Rule 56 as inserted by U. P. Act No.33 of 1976 remained unaltered. In the eyes of law, still age of superannuation of government servants is 58 years.

13. That being so, amendment notification dated 28.11.2001 which has been issued by State Government by exercising power under proviso 2 Article 309 of the Constitution of India i.e. Rule framing power, is of no consequence. A Provincial Principal Legislation can be amended only by same procedure and not by exercising Rule framing power. Power under Proviso to Article 309 of Constitution is permissible to be exercised only when Principal Legislation has not made any enactment in respect of recruitment and conditions of service, but once Principal Legislature has come into existence, Rule framing power under Proviso to Article 309 of Constitution cannot be exercised. Fundamental Rule 56 on the Statute Book has been brought in by Provincial Principal Legislation. It cannot be altered, modified or amended in any manner by Rule framing power. In view thereof, we are afraid that any benefit can be granted to petitioner.

14. Now we may further observe that G. O. dated 30.09.2012 whereby government accepted proposal for enhancement of age, is not in respect of BIDA, but in respect of New Okhla Industrial Development Authority (NOIDA), hence, reference to said government order, in our view, even otherwise, is of no benefit to petitioner.

15. In the result we find no merit in the writ petition. Dismissed accordingly.

16. Interim order, if any, stands vacated.

Order Date : 22.05.2018

Manish Himwan/AK