Bombay High Court
Shaikh Jilani Shaikh Rasoool vs The State Of Maharashtra And ... on 26 September, 2022
Bench: Ravindra V. Ghuge, R. G. Avachat, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5855 OF 2019
Iftekharullah Baig s/o Saidullah Baig,
Age : 58 years, Occupation : Service,
R/o CTS No.11442, Old Collector
Office Compound, Near Masjid,
Gulshan Mahal, Aurangabad.
...Petitioner
-Versus-
1. The State of Maharashtra.
Through it's Principal Secretary,
Minority Development Department,
Mantralaya, Mumbai.
2. Maharashtra State Board of Wakf,
Panchakki, Aurangabad.
Through it's Chief Executive Officer.
...Respondents
AND
WRIT PETITION NO.8799 OF 2012
Mustafa Khan Fazal Mohammad Khan. ...Petitioner
-Versus-
The State of Maharashtra and others. ...Respondents
AND
WRIT PETITION NO.8162 OF 2019
Aziz Ahmed Siraj Ahmed. ...Petitioner
-Versus-
The State of Maharashtra and another. ...Respondents
AND
WRIT PETITION NO.7858 OF 2019
Mohammad Ayyub Khan s/o
::: Uploaded on - 27/09/2022 ::: Downloaded on - 27/09/2022 18:53:58 :::
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Mohammad Ali Khan. ...Petitioner
-Versus-
The State of Maharashtra and another. ...Respondents
AND
WRIT PETITION NO.7933 OF 2019
Siddi Anwar Husain s/o
Siddi Mahemood Husain. ...Petitioner
-Versus-
The State of Maharashtra and others. ...Respondents
AND
WRIT PETITION NO.7960 OF 2019
Shaikh Jilani s/o Shaikh Rasool. ...Petitioner
-Versus-
The State of Maharashtra and others. ...Respondents
AND
WRIT PETITION NO.9208 OF 2019
Quazi Mohammad Misbahuddin s/o
Mohammad Isaaq. ...Petitioner
-Versus-
The State of Maharashtra and another. ...Respondents
...
Shri R.S. Deshmukh, Senior Advocate a/w Shri Govind Kulkarni
and Shri D.R. Deshmukh i/by Shri Kazi S.S. and Shri Kunal Kale
in the respective petitions.
Shri P.S. Patil, AGP for Respondent 1/State.
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Shri V.J. Dixit, Senior Advocate h/f Shri Y.B. Pathan, Advocate,
for Respondent No.2 in WP 5855/2019 and for Respondent No.3
in WP 8799/2012.
Shri N.E. Deshmukh, Advocate for Respondent No.2 in WP
7858/2019, 7933/2019, 7960/2019, 9208/2019 and 8162/2019.
...
CORAM : RAVINDRA V. GHUGE,
R. G. AVACHAT &
SANDIPKUMAR C. MORE, JJJ.
Reserved on : 26th August, 2022
Pronounced on : 26th September, 2022
JUDGMENT (Per Ravindra V. Ghuge, J.) :-
1. All these petitioners are identically placed. Each of
them has been appointed under the Wakf Act, 1954 and the
Marathwada Wakf Board Regulations, 1964. Some of the
petitioners were/are Clerk-cum-Typist, some of them were/are
Drivers and some of them were/are Class-IV employees.
2. Each of these petitioners has been issued with a
notice of retirement at the verge of completing 58 years of age
and, consequentially, each one of them has been superannuated at
the age of 58 years.
3. On 04.12.2019, the Division Bench has passed the
following order :-
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"In all these writ petitions the contention
of the petitioners is that, the age of retirement
of the employees of the Maharashtra Wakf
Board is 60 years.
2. The Wakf board has placed reliance upon the
Maharashtra State Board of Wakf (Recruitment
and Regulations) 2017 and more particularly
Rule 46 of the Said regulations to contend that
the age of retirement of employees of the Wakf
Board is 58 years.
3. According to the petitioners, all these
petitioners are appointed prior to 2005 that is
even prior to the draft rules framed. At the time
of their appointments, the age of retirement
was 60 years and they would be governed by
the recruitment rules and practice as prevailing
on the date of their appointments.
4. The petitioners have placed reliance upon the
judgment and order dated 18th April, 2019 in
Writ Petition No. 5307 of 2018 delivered at
Aurangabad and the judgment dated
29.11.2013 in Writ Petition No. 4157 of 2013
delivered at Nagpur. The Wakf Board relies on
the judgment dated 06th March, 2018 in Writ
Petition No. 1654 of 2006 delivered at
Aurangabad, in which the Division Bench of
this Court has held that, the age of retirement
would be 58 years, whereas in the judgments
relied by the learned counsel for the petitioners,
the Court came to the conclusion that, the age
of retirement would be 60 years that age of
retirement is prescribed at the time of entry in
service.
5. It appears that coordinate Benches of this Court
have taken divergent views.
6. In the light of that, it would be appropriate that
the Larger Bench decides this issue.
7. Place the matters before the Hon'ble the Chief
Justice for referring the matters to the Larger
Bench as prescribed in Chapter VII Rule 1 of
the Bombay High Court Appellate Side Rules.
8. Interim orders passed earlier to continue till
then."
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4. For the sake of clarity, a ready reference chart
indicating the dates of appointment of these petitioners, their
designation and their dates of retirement, is as under:-
Sr. Name of Petitioner Designation Date of Date of
No. (Appointed as) Appointment Retirement
(On
completion
of 58 years)
1 Iftekharullah Baig s/o Clerk-cum- 15.12.1986 31.05.2019
Saidullah Baig Typist
2 Mustafa Khan Fazal Driver -- 31.05.2012
Mohammad Khan
3 Aziz Ahmed Siraj Clerk 04.05.1984 30.06.2019
Ahmed
4 Mohammad Ayyub Clerk 12.08.1985 31.01.2019
Khan s/o
Mohammad Ali Khan
5 Siddi Anwar Husain s/o Clerk 1982 30.06.2019
Siddi Mahemood
Husain
6 Shaikh Jilani s/o Shaikh Clerk 1982 30.06.2019
Rasool
7 Quazi Mohammad Junior Clerk 22.09.1986 --
Misbahuddin s/o
Mohammad Isaaq
5. In Writ Petition No.8799/2012, the Division Bench
had passed the following order on 17.11.2017:-
"1 On 01.03.2017 after hearing the learned
Advocates for the respective sides, this Court
has passed the following order:-
"1) Heard both the sides for some time.
2) It appears that in view of the provision of
Section 110 (2)(e) read with Section 24(2) of
the Wakf Act, 1995, Rules were framed
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governing the service conditions of the
employees of the Wakf Board and they were
submitted to the State Government for
sanction. It further appears that in the past the
Rules so framed were returned back by
pointing out some deficiencies.
3) The learned Counsel for the Wakf Board
submitted that again the Rules were submitted
to the State Government by the Wakf
Board by removing the deficiencies
pointed out by the State Government.
4) The record is also shown to this Court, which is
to the effect that the Rules applicable to the
employees of the State Government, like
MCSR, will be made applicable to the
employees of the Wakf Board. In the
past, the Wakf institutions from all over
Maharashtra, excluding Marathwada region,
were registered under the Bombay Public
Trusts Act, and the work, which the Wakf
Board Office is doing, was being done by the
Charity Commissioner's Office of the
State Government.
5) In view of these circumstances, the
decision to accord sanction to the Rules, needs
to be taken by the State Government. If the
decision is not taken within a period of three
months from today, as the first proposal was
sent in the year 2003 itself, this Court
will be compelled to make some order to give
redress to the petitioner by directing
payment from the funds of Wakf Board, or
making the payment by the State
Government from its treasury and further
orders will be passed by this Court.
6) Apparently, the State Government is
required to make available the necessary funds
for salary grants, pension etc.. Stand over after
three months."
2 The learned Advocate for Respondent
No.3/Wakf Board submits that the revised draft
rules were once again submitted to the
Principal Secretary, Minorities Development
Department, Maharashtra State, Mumbai by
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communication dated 21.01.2015.
3 The learned AGP for the Respondents/ State
submits that such revised draft rules have still
not been received by the State.
4 What intrigues us is that when this Court had
passed an order on 01.03.2017 directing the
State Government to accord sanction to the
rules, the learned AGP did not point out to this
Court that the revised draft rules have not
reached the State. We are disturbed by the
conduct of the State in informing us today that
the revised draft rules never reached them.
5 As such, we direct Respondent No.3/ Wakf
Board to submit a copy of the Revised Draft
Rules, which they have forwarded by the
covering letter dated 21.01.2015, to the
Principal Secretary, Minorities Development
Department, Maharashtra State, Mantralaya,
Mumbai-32, by a hand delivery which will be
sent by the special messenger within TWO
WEEKS from today. Thereafter, the said rules
would be accorded sanction by the State
Government within SIX WEEKS after
receiving them.
6 We make it clear that if Respondent No.2 or
Respondent No.3 falter in implementing our
orders, the Additional Chief Secretary of the
Department of Minorities Development, who is
the Additional Chief Executive Officer of the
Maharashtra Wakf Board, shall remain
personally present in this Court on the next
date. We would not entertain any request for
dispensing with his appearance in any
circumstances.
7 Insofar as the leave encashment of the
Petitioner is concerned, which is said to be
about Rs.1,94,340/-, since we have made
certain observations in paragraph 5 of our order
dated 01.03.2017, Respondent No.3 shall now
deposit the said amount in this Court within
SIX WEEKS from today from it's own funds,
which shall be subject to the result of this
petition. If the Petitioner makes an application
for withdrawal of the said amount, we would
consider the said request independently.
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8 Stand over to 16.01.2018 so as to enable the
learned AGP to inform this Court that the
sanction has been accorded to the revised draft
rules, failing which, the Additional Chief
Secretary shall remain personally present in
this Court as directed above."
6. On 27.04.2018, the Division Bench passed the
following order in Writ Petition No.8799/2012:-
"1. This petition pertains to the year 2012.
The petitioner is litigating for considerable
period so as to receive his post retiremental
benefits. Prima facie, we are of the opinion
that neither the State Government and its
officials nor the respondent - Wakf Board is
serious about addressing the grievance raised
by the petitioner. In that view of the matter, we
deem it proper to direct respondent No.3 to
deposit Rs.5,00,000/- (Rupees Five Lakhs)
in the Registry of this Court within
two weeks from today, failing which the
Chief Executive Officer will be held
personally responsible for the breach of
today's order. We make it clear that we have
passed this order without prejudice to the
contentions of the parties.
2. On depositing aforementioned amount by
respondent No.3 without prejudice to the
contentions of the parties and on filing
personal undertaking by the petitioner that
in case the reliefs claimed by the
petitioner are not granted, he will bring back
the money, we permit the petitioner to
withdraw Rs.2,50,000/- (Rupees Two Lakhs
Fifty Thousand).
3. At the request of learned Counsel appearing for
respondent No.3, stand over to 14.6.2018.
4. Parties to act upon authenticated copy of this
order."
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7. By order dated 12.07.2018, the petitioner in Writ
Petition No.8799/2012, was permitted to withdraw Rs.2,50,000/-.
In Writ Petition No.5855/2019, the learned Vacation Bench
granted interim relief on 30.05.2019 in terms of prayer clause
to the petitioner Shri Iftekharullah Baig. Vide the said order, the
impugned notice of retirement dated 21.05.2019, was stayed.
8. It is undisputed that each of these petitioners were
appointed in service and have been granted permanency, during
the effect and operation of the Wakf Act, 1954 and the
Marathwada Wakf Board Regulations, 1964. Regulation 19(1)(d)
clearly prescribed that the maximum age upto which an
employee could work is 60 years of age. Regulation 19(1)(d)
reads as under :-
"19. Terms and conditions of services of officers
and servants of the Board:-
(1) Save in cases in which the Board may decide to
engage staff on some special terms and
conditions, a full time employee (not being the
Secretary of the Board or a person whose
services are obtained on loan from any
Government office or any Government or
private institution) of the Board shall -
(a) ......
(b) .......
(c) ......
(d) not be continued or employed after he has
attained the age of 60 years except under a
special resolution recording the reasons
therefor passed at a meeting of the Board by a
majority of 3/5th of the total number of the
members of the Board;"
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9. It is equally undisputed that the Wakf Act, 1995
came into force w.e.f. 01.01.1996. On 16.08.2003, the
Government of Maharashtra issued the notification introducing
the Maharashtra Wakf Rules, 2003. These rules did not touch the
retirement age of the Class III and Class IV employees. The
Marathwada Wakf Board Regulations, 1964 (for short, "the 1964
Regulations) were not repealed by the 1995 Act or the 2003
Rules. The Maharashtra State Board of Wakfs (Recruitment
Regulations) Rules, 2017, were introduced in 2018. Rule 46 of
the said Regulations reduced the age of retirement by two years
and fixed 58 years as being the retirement age of the Wakf Board
Employees.
Submissions on behalf of the petitioners
10. The learned Senior Advocate Shri Rajendra
Deshmukh has addressed us on behalf of the petitioners. The
contention is that the Marathwada Wakf Board Regulations, 1964
were framed under Section 68 of the Wakf Act, 1954 and
published in the Maharashtra Gazette on 01.08.1968. Regulation
19(1)(d) prescribed the retirement age as 60 years. The
Maharashtra Civil Services (Pension) Rules, 1982 have not been
made applicable to the employees of the Wakf Board in the light
of the 1954 Act and the 1964 Regulations.
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11. Reliance is placed upon the following
judgments/orders:-
(a) Chairman, Railway Board and others vs. C.R.
Rangadhamaiah and others, (1997) 6 SCC 623 (Five Judges
Bench).
(b) P. Tulsi Das and others vs. Government of A.P.,
(2013) 1 SCC 364.
(c) Magic Wash Industries (Private) Limited and others
vs. Assistant Provident Fund Commissioner and others, 1999
Vol-II CLR 426.
(d) Bank of Baroda and another vs. G. Palani and
others, (2022) 5 SCC 612.
(e) Judgment dated 11.02.2020 delivered by the
Division Bench of the Bombay High Court at Goa in Writ
Petition No.439/2014 filed by Laxman J. Chavan and others vs.
The Chief Secretary, State of Goa and others.
(f) Judgment dated 29.11.2013 delivered by this Court,
Nagpur Bench, in Writ Petition No.4157/2013 filed by
Mr.Shaikh Zafar s/o Shaikh Ibrahim vs. Maharashtra State Wakf
Board and another.
(g) Judgment dated 18.04.2019 delivered by this Court,
Aurangabad Bench, in Writ Petition No.5307/2018 filed by
Mr.Faheem Akhtar s/o Akhtaruzz Aman vs. The State of
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Maharashtra and another.
12. Shri Deshmukh has then referred to a judgment
dated 06.03.2018 delivered by the Division Bench of this Court
at Aurangabad, in Ghulam Mustaffa Khan vs. The State of
Maharashtra and others, Writ Petition No.1654/2006. He submits
that the view taken in this judgment cannot be sustained or said
to be the correct position of law. He contends that this Court was
dealing with a writ petition filed in 2006. The issue was as to
whether, an employee, similarly situated as the petitioners before
us, could have been superannuated at the age of 58 years w.e.f.
30.12.2005. It was contended before that Court that the proposed
Maharashtra Wakf Board Regulations, 2003 (in short "2003
Regulations") are approved in the meeting of the Maharashtra
State Board of Wakf, Aurangabad sometime in the year 2004. It
was also canvassed that the proposed 2003 Regulations fixed the
age of retirement at 58 years, in the meeting held on 30.11.2005.
Shri Deshmukh submits that the minutes of this meeting were
never confirmed in the subsequent meeting of the Board of Wakf
and the State Government never approved the said regulations.
Though this Court recorded that the State Government had never
approved the 2003 Regulations and the earlier 1964 Regulations
prescribing the age of superannuation at 60 years were in force,
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this Court concluded that the draft regulations proposed
reduction in the service tenure and the retirement age was
reduced by two years and hence, there is no force in the case of
the petitioners. The petition was dismissed.
13. Shri Deshmukh, therefore, submits that this Court
failed to note that the draft regulations are purely in the nature of
proposed regulations and unless statutorily approved by the State
Government, they would never assume the character or the force
of law. When the draft regulations are meaningless without
approval and cannot be enforced or brought into effect until they
are approved, this Court could not have relied upon such draft
regulations by overlooking the 1964 Regulations which were still
in force and were not repealed or replaced by new regulations.
He, therefore, submits that the said judgment cannot be relied
upon.
14. He then submits that the above referred judgment in
Ghulam Mustafa Khan (supra) was delivered by the Division
Bench of this Court without noticing an earlier judgment
delivered by the Division Bench of this Court at Nagpur dated
29.11.2013 in Writ Petition No.4157/2013 filed by Shaikh Zafar
Shaikh Ibrahim vs. The Maharashtra State Wakf Board and
others. This Court noticed that Shaikh Zafar was appointed in
1976 when the 1964 Regulations were holding the field and the
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service conditions made applicable to Shaikh Zafar at the time of
joining duties flowed from the 1964 Regulations. It was
contended before that Court that after the draft 2003 Regulations,
a resolution was passed by the Wakf Board on 30.11.2005
reducing the age of retirement from 60 years to 58 years. This
Court concluded that the proposed/draft regulations were not
approved and cannot be enforced. This Court observed in
paragraph 8 in Shaikh Zafar as under :-
"8. The issue is no more res integra. It is settled
law that the age of superannuation of the
employee has to be considered as it was
provided at the time when he joined the service
and it cannot be modified to his disadvantage
subsequently. Shri Ghate, the learned Advocate
for the petitioner, has rightly relied on the
judgment of the Supreme Court in case of M.G.
Pandke and others vs. Municipal Council,
Hinganghat reported in 1992(2) Mh.L.J. 1684
in support of his submissions. In our view the
law laid down by the Supreme Court in above
case governs the present case. The service
conditions of the petitioner were governed by
the Regulations of 1964 at the time of his
appointment and according to the Regulations
of 1964, the age of superannuation is 60 years
and therefore, the respondent- Wakf Board
cannot alter the age of his superannuation to his
detriment and seek to retire him at the age of
58 years."
15. Shri Deshmukh, therefore, submits that the
judgment in Shaikh Zafar (supra) was not brought to the notice
of the Division Bench of this Court when the judgment in
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Ghulam Mustafa (supra) was delivered on 06.03.2018. Hence,
the judgment in Ghulam Mustafa (supra) is per incurriam.
16. Shri Deshmukh has then relied upon the judgment
delivered by the Division Bench of this Court at Aurangabad on
18.04.2019 in Writ Petition No.5307/2018 filed by Faheem
Akhtar s/o Akhtaruzz Aman vs. The State of Maharashtra
wherein, an identical issue was raised. Faheem Akhtar was
appointed on 01.08.1999 and was superannuated on 31.12.2016
at the age of 58 years. The Wakf Board cited the 2017
Regulations stating that the Government has granted the sanction
to these Regulations in June, 2018. The Division Bench
concluded that Fhaeem Akhtar was superannuated when the 1964
Regulations were applicable and the 2017 Regulations were in
the nature of draft rules. The Division Bench, therefore,
concluded in paragraphs 5 and 6 as under:-
"5. It is trite that the service conditions cannot be
altered to the detriment of an employee. At the
time the petitioner entered the service with
respondent No.2, the Marathwada Wakf Board
Regulations, 1964 were in force. Clause 19 of
the said Regulations provided the age of
superannuation as 60 years. The said fact has
been considered in the judgment delivered by
the Division Bench of this Court at Nagpur in
Writ Petition No.4157 of 2013 (Mr.Shaikh
Zafar s/o Shaikh Irbrahim vs. Maharashtra
State Wakf Board of Wakf Mandal and another)
decided on 29.11.2013.
6. In light of the above, the service conditions that
would govern the petitioner are the service
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conditions on the date the petitioner was
appointed. The service rules of 2018 relied by
the learned counsel would not apply. The said
service rules would not have retrospective
application. Moreover, the petitioner is made to
retire even when the rules of 2018 had not
received the sanction of the Government."
17. Shri Deshmukh, therefore, submits, in the light of
Shaikh Zafar (supra) and Faheem Akhtar (supra), that the
Division Bench has laid down the correct position of law in these
two judgments and the view taken by the Division Bench in
Ghulam Mustafa (supra) would not reflect the correct position of
law.
Submissions on behalf of the Wakf Board
18. Shri Dixit, the learned Senior Advocate, has
contended that the petitioners before us have not challenged the
2017 Regulations. By these regulations, the 1964 Regulations
stood superseded. The Wakf Board has filed a detailed affidavit
specifically taking a stand that the age of superannuation of the
employees was altered and reduced from 60 years to 58 years
after the 2017 Regulations were brought into effect in 2018.
Reliance is placed on Regulation 46, which reads as under :-
"46. Notwithstanding anything contained in these
regulations, age of retirement for the
employees of the Board, on any post in the
offices of the Board, shall be 58 years."
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19. Shri Dixit has then referred to paragraphs 2 and 3 of
the affidavit in reply filed by the Maharashtra State Wakf Board,
to contend that the Maharashtra Civil Services Rules prescribed
the retirement at the age of 58 years. The Management of the
Wakf Board which was known as the Marathwada Wakf Board,
was governed by the 1954 Act. Rule 19(1)(d) prescribed the
retirement age at 60 years. The 1954 Act and the Wakf
(Amendment) Act, 1984, were repealed by Section 112 of the
1995 Act.
20. Section 112 of the 1995 Act reads as under:-
"112. Repeal and savings.
(1) The Wakf Act, 1954 (29 of 1954) and the Wakf
(Amendment) Act, 1984 (69 of 1984) are hereby
repealed.
(2) Notwithstanding such repeal, anything done or any
action taken under the said Acts shall be deemed to
have been done or taken under the corresponding
provisions of this Act.
(3) If, immediately before the commencement of this
Act, in any State, there is in force in that State, any
law which corresponds to this Act that
corresponding law shall stand repealed:
Provided that such repeal shall not affect the
previous operation of that corresponding law, and
subject thereto, anything done or any action taken
in the exercise of any power conferred by or under
the corresponding law shall be deemed to have
been done or taken in the exercise of the powers
conferred by or under this Act as if this Act was in
force on the day on which such things were done
or action was taken."
21. Shri Dixit has placed reliance upon the following
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judgments:-
(a) Bishun Narain Misra vs. The State of U.P. and
others, (five Judges Bench), AIR 1965 SC 1567.
(b) D.Shankaran vs. D.Subba Raju, AIR 1985 SC 551.
(c) Shri Ram Krishna Dalmia vs. Shri Justice S.R.
Tendolkar and others, AIR 1958 SC 538 (five Judges Bench).
22. Shri Dixit submits that once the regulations reduced
the retirement age from 60 years to 58 years, this change in the
rules would apply to all the employees of the Wakf Board,
notwithstanding that their retirement age was 60 years when they
joined duties. Considering the law laid down in Bishun Narain
Misra (supra), D. Shankaran (supra) and Shri Ram Krishna
Dalmia (supra), the age of retirement can be reduced at any time
and the employee can be superannuated in the light of such a
change.
23. The learned AGP representing the State, has
adopted the submissions of Shri Dixit. He contends that once the
regulations of 2017 are introduced, the age of superannuation
mentioned in the said regulations would automatically apply.
ISSUES AND CONCLUSIONS
24. The issue referred to our Full Bench is in the light of
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the divergent views noticed by the Division Bench, as recorded
in paragraphs 4, 5 and 6 reproduced under paragraph 3
hereinabove. Having considered the submissions of the learned
Senior Counsel on behalf of the petitioners and the Wakf Board,
we are of the view that the following issues need to be dealt with
by our Full Bench :-
(a) Whether, the draft regulations, without being approved
by the competent authority/Government, could be
enforced though the existing regulations are in
operation?
(b) Whether, the age of retirement applicable to the
employees at the time of joining duties, can be altered
to their prejudice at any time during their service
tenure?
ISSUE NO.1
25. In the case before us, the Wakf Board has plainly
admitted, and could not have contradicted, the fact that these
petitioners were appointed under the 1954 Act and the 1964
Regulations. Their age of superannuation was 60 years. The 2003
draft regulations were never approved by the Government until
2018.
26. In Vimal Kumari vs. State of Haryana and others,
(1998) 4 SCC 114, the Honourable Supreme Court dealt with the
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effect of the draft rules and held that if the draft rules are
intended to be notified in the near future, they can be followed in
the interregnum to meet emergent situations. They cannot be
followed if there is no intention to notify the draft rules. This is
because they are yet to acquire a statutory character under Article
309-proviso. As the draft rules were not notified for about eight
years and neither did the Government offer any explanation for
not doing so, it was held that the draft rules could not be invoked
for regulating promotions. The draft rules were prepared in 1983
and they were lying in nascent state since then.
27. In the instant case, the regulations were proposed in
2003 in which, the retirement age was maintained at 60 years.
The proposed regulations were amended in 2005 for
recommending reduction of age of superannuation to 58 years.
For 15 years, these proposed regulations were in cold storage
from 2003 to 2018 and it was on account of the order of this
Court that the Government accorded it's approval in 2018. There
was no emergent situation to reduce the age of retirement from
60 years to 58 years in the light of the fact that the 1964
Regulations were still in force.
28. In Union of India through Government of
Pondicherry and another vs. V. Ramkrishnan and others, (2005)
8 SCC 394, it was held that the rules validly framed under
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proviso to Article 309, existing at the time of adhoc promotion,
remained operative till replaced by another set of validly framed
rules. Promotions based on draft rules, which were contrary to
the rules then in force, were held to be invalid. This was the
exact situation when the Division Bench of this Court dealt with
Ghulam Mustaffa Khan (supra). The 1964 Regulations were in
force and the proposed/draft regulations were not approved.
Hence, the Division Bench could not have relied upon the draft
regulations when the 1964 Regulations were in operation.
29. In Mahabir Vegetable Oils (P) Ltd. and another vs.
State of Haryana and others, (2006) 3 SCC 620 , the Honourable
Supreme Court held that an exemption granted, can be given
retrospective effect by subordinate legislation if the power in that
behalf is contained in the main Act. A statute cannot be construed
to have retrospective operation unless such construction appears
very clearly in terms thereof or arises by necessary and distinct
implication. The State Government had notified it's intention to
amend the rules and had invited objections to the draft
amendments. However, in the case before us, the Government
had not notified it's intention to amend the regulations, inasmuch
as, there is no clause in the Regulations of 2017 that they would
apply retrospectively to the employees of the Wakf Board.
30. In Mahabir Vegetables (supra), the Honourable
*22* FB5855o19group.odt
Supreme Court concluded that promisory estoppel under the
administrative law would operate even in the legislative field. It
was observed in paragraph 25 as under :-
"25. It is beyond any cavil that the doctrine of
promissory estoppel operates even in the
legislative field. Whereas in England the
development and growth of promissory
estoppel can be traced from Central London
Property Trust Ltd. v. High Trees House Ltd.
[(1947) 1 KB 130], in India the same can be
traced from the decision of this Court in
Collector of Bombay v. Municipal Corporation
of the City of Bombay, AIR 1951 SC 469. In
that case the government made a grant of land
(which did not fulfill requisite statutory
formalities) rent free. It, however, claimed rent
after 70 years. The government, it was opined,
could not do so as they were estopped. It was
further held therein that there was no
overriding public interest which would make it
inequitable to enforce estoppel against the State
as it was well within the power of the State to
grant such exemption."
31. As such, until new regulations were approved by the
competent authority/Government so as to replace the earlier
regulations, the draft regulations could not have the force of law.
They would assume the effect of law only after they are
approved. These proposed regulations, in fact recommended the
retirement age of 60 years. Subsequently, by resolution dated
30.11.2005, this proposal was altered and the age of
superannuation was reduced to 58 years. These draft regulations
remained on the file of the Government without any approval
*23* FB5855o19group.odt
until 2018. Hence, we conclude that the draft regulations without
being transformed into a law, would not amount to the repealing
of the earlier 1964 regulations. It is, therefore, our considered
view that the draft regulations would have no effect as they are
purely in the form of a draft and cannot assume the character of
law. We answer issue No.1 accordingly.
32. Considering the above, we are unable to endorse the
view taken by the learned Division Bench at Aurangabad in
Ghulam Mustafa Khan (supra) and we conclude that it does not
lay down the correct law.
ISSUE NO.2
33. In M.G. Pandke (supra), the Honourable Supreme
Court dealt with the issue of retirement age of the teachers. It
was held in paragraphs 13 and 14 as under:-
"13. When the Code was enforced in the year 1963, the
Act and Regulations were holding the field in
Vidarbha Division. Under the Act and the
Regulations the age of superannuation being 60
years, the Code, while fixing 58 years as the age of
superannuation for rest of Maharashtra, permitted
the Vidarbha teachers to superannuate on attaining
the age of 60 years. The Maharashtra Act which
came into force on January 1, 1966 repealed the
Act and the regulations. In Baboolal's case (supra)
the High Court referred to the repealing and saving
section of the Maharashtra Act and came to the
conclusion that there was no provision thereunder
to save the regulations. Assuming that the
Regulations under the Act stood repealed, the Code
which was framed by the Maharashtra Government
*24* FB5855o19group.odt
continued to hold the field. It is not disputed by the
learned Counsel for the appellants that the Code by
itself is not statutory and is in the nature of
executive instructions. But he strongly relies on
Regulation 19(7)(xvi) of Maharashtra Regulations
and contends that the said Regulation makes it
obligatory for the Municipal Council Hinganghat
to follow the provisions, of the Code. It is for the
State Government to frame the Code in whatever'
manner it likes but once the Code is in operation its
provisions have to be followed by the Municipal
Council Hinganghat under the mandate of
Regulation 19(7)(xvi) of Maharashtra Regulations.
We see considerable force in the argument of the
learned Counsel. The Code has been framed with
the purpose of bringing security of service,
uniformity, efficiency and discipline in the working
of non-Government High Schools. It has to be
applied uniformly to the schools run by various
Muncipal Councils in the State. It is no doubt
correct that the Municipal Councils have the power
to frame bye-laws under the Maharashtra
Municipalities Act, 1965 but if the field is already
occupied under the mandate of statutory
Maharashtra Regulations, the Municipal Council
cannot frame bye-laws to the contrary rendering
the mandate of the Maharashtra Regulations
Nugatory. We are of the view that the Municipal
Council Hinganghat has out stepped its jurisdiction
in framing bye-law 4 of the bye-laws. We,
therefore, direct that the conditions of service of
the appellants shall be governed by the Code as
enforced by Regulation 19(7)(xvi) of the
Maharashtra Regulations. Bye-law 4 of the bye-
laws shall not be applicable to the appellants.
14. We also agree with the second contention advanced
by the learned Counsel for the appellants. It is not
disputed that the High Schools are run by various
Municipal Councils in Vidarbha Division under
identical circumstances. The conditions of service
of the teachers working in these schools are
governed by the provisions of the Code as
amended from time to time. Only the age of
superannuation has been reduced from 60 to 58
years by some of the Municipal Councils by
framing bye-laws. In the Municipal Councils
where there are no such bye-laws, the age of
superannuation continues to be 60 years. Since
1951, when the Act came into force in the
*25* FB5855o19group.odt
erstwhile State of Madhya Pradesh, the conditions
of service of the teachers in Vidarbha Division
have been identical. They have been and are
governed by the same statutory provisions and the
same Education Code. Historically the teachers
working under the Municipal Councils in Vidarbha
Division belong to the class. It would not be fair to
bring in disparity within the class in the matter of
superannuation. We, therefore, strike down bye-
law 4 of the bye-laws framed by Hinganghat
Municipal Council as violative of Article 16 of the
Constitution of India."
34. It was thus, concluded that the condition of service
regarding the age of retirement of teachers was governed by the
Code as applicable and the Municipal Councils had no
jurisdiction to frame bye-laws to the contrary rendering the
regulations nugatory. The conditions of service are governed by
the provisions of the Code applicable and the age of
superannuation cannot be reduced from 60 to 58 years by
framing bye-laws.
35. In Union of India and others vs. Arun Kumar Roy,
AIR 1986 SC 737, the Honourable Supreme Court concluded
that the Government servant, whose appointment, though
originates in a contract, acquires a status and thereafter, is
governed by his service rules and not by the terms of the
contract. The powers of the Government under Article 309 to
make rules to regulate the service conditions of it's employees
are very wide and unfettered. These powers can be exercised
unilaterally without the consent of the employees concerned. The
*26* FB5855o19group.odt
terms and conditions of an employee under the Government, who
enters service on a contract, will, once he is appointed, be
governed by the rules governing his service conditions. It will
not be permissible thereafter, for him to rely upon the terms of
contract which are not in consonance with the rules governing
the service. Roshan Lal Tandon vs. Union of India, AIR 1967 SC
1889 and State of Jammu and Kashmir vs. Triloki Nath Khosa,
AIR 1974 SC 1, were followed in Arun Kumar Roy (supra). In
M.G. Pandke (supra), the Honourable Supreme Court concluded
that the service conditions applicable to the employees cannot be
altered to the prejudice of such employees.
36. Section 24 of the Wakf Act, 1995, which repealed
the 1954 Act, specifically prescribed in sub-section (2) that the
appointment of officers and other employees, their term of office
and conditions of service, shall be such as may be provided by
the regulations. Considering the applicability of Section 24(2) of
the 1995 Act, which was brought into force on 01.01.1996, the
regulations of 1964 prescribing the age of superannuation as 60
years, were not disturbed. The said regulations of 1964 were
neither repealed nor replaced by new regulations. Admittedly, all
the petitioners before us have been appointed prior to 1995 when
the 1954 Act and the 1964 Regulations were applicable.
37. Section 110 of the 1995 Act prescribed the powers
*27* FB5855o19group.odt
of the Board to make regulations, only with the previous sanction
of the State Government. Clause (e) of sub-section (2) of Section
110 mandates that the terms and conditions of service of the
officers and other employees of the Board shall be under Section
24(2) of the 1995 Act. Section 24(2) adverts to the regulations
insofar as the term of office and conditions of service of the
employees are concerned. Section 110(3) specifically provides
that all regulations made under this Section shall be published in
the official gazette and shall have effect from the date of such
publication. It is undisputed that the 2017 Regulations were
published in the official gazette "June 21-27, 2018". It is thus,
beyond any debate that the 1964 Regulations were applicable
until the 2017 Regulations were introduced in June, 2018.
38. The law laid down in Bishun Narain Misra (supra)
would have no applicability since the issue before the
Honourable Supreme Court was based on different set of facts.
The appellant joined service in July, 1933 and his age of
retirement was prescribed as 55 years. Just before his retirement,
the Government raised the age to 58 years. Soon thereafter, the
Government again reverted back to the earlier age of
superannuation which was 55 years. It was in these
circumstances that the Honourable Supreme Court concluded
that the Government had first raised the age from 55 years to 58
*28* FB5855o19group.odt
years and then, reduced the age to 55 years, which was the
original condition of service of the appellant.
39. In D.Shankaran (supra), the Honourable Supreme
Court dealt with the power of the Government in regulating the
age of retirement. Even in this case, the State of Andhra Pradesh
decided to increase the age of retirement from 55 years to 58
years, which was not based on the recommendation of the A.
Krishna Swamy Commission. This decision was then retracted
by the Government. A data pertaining to various States was
produced before the Court wherein, there were several instances
of Governments increasing the retirement age to 58 years and
then, retracting the decision to revert back to the original age of
retirement as was the condition of service of the employees. This
judgment as well would not assist the Wakf Board.
40. The judgment delivered by the Honourable Supreme
Court in Shri Ram Krishna Dalmia (supra) is on the issue of
determining the validity of a statute on the ground of violation of
Article 14 and whether, Section 3 of the Commissions of Enquiry
Act (60 of 1952) violates Article 14 of the Constitution of India.
41. In Magic Wash Industries (Private) Limited vs.
Assistant Provident Fund Commissioner and others, 1999 Vol.II
Current Labour Reports 426, the learned Division Bench of this
Court at Goa concluded on the issue of reduction of the infancy
*29* FB5855o19group.odt
period under Section 16(1)(d) of the EPF and MP Act, 1952, that
there can be no doubt that the vested rights or benefits under the
legislation could be retrospectively taken away by legislation, but
the statute taking away such rights or benefits must expressly
reflect its intention to that effect. It was held that the amended
provision does not curtail the infancy period of the already
existing establishments which enjoyed five years infancy period
and that the amended provision would be applicable only to
establishments newly set up after coming into effect of the said
provision on the statute book.
42. In Chairman, Railway Board and others vs. C.R.
Rangadhamaiah and others, (1997) 6 SCC 623, the learned Five
Judges Bench of the Honourable Supreme Court concluded that
the retrospective amendment affecting vested or accrued rights of
government employees, is invalid. It was held that the
retrospective reduction of pension as admissible under the Rules
and the service conditions is unreasonable, arbitrary and
therefore, violative of Articles 14 and 16. 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. But,
a rule which seeks to reverse from an anterior date a benefit
which has already been granted or availed of, can be assailed as
being violative of Articles 14 and 16 of the Constitution of India.
*30* FB5855o19group.odt
In paragraph 24, the Honourable Supreme Court held as under :-
"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, B.S. Yadav
and Raman Lal Keshav Lal Soni."
43. In P. Tulsidas and others vs. Government of
Andhra Pradesh and others, (2003) 1 SCC 364, the Honourable
Supreme Court concluded that the rights acquired under the
provisions, were very much rights acquired and protected by law.
Such rights could not be withdrawn by an Act of the legislature
with retrospective effect. Rights acquired by employees under
the provisions are legally protected rights and cannot be
withdrawn by the legislature with retrospective effect.
44. In Bank of Baroda and another vs. G. Palani and
others, (2022) SCC 612, the Honourable Supreme Court
*31* FB5855o19group.odt
concluded that existing provisions of the regulations could not
have been amended with retrospective effect, taking away the
rights accrued to the employees, that too merely on the basis of a
joint note signed between Indian Banks Association and Officers
Association having no statutory basis.
45. In view of the above, we are of the view that the
service conditions applicable to the employees under the Rules
and Regulations existing on the date of appointment, cannot be
altered to their prejudice. Issue No.2 is answered accordingly.
46. We, therefore, direct that the petitions be placed
before the learned Bench as per the roster assignment.
(RAVINDRA V. GHUGE, J.)
(R. G. AVACHAT, J.)
kps (SANDIPKUMAR C. MORE, J.)
