Supreme Court of India
STATE OF UTTAR PRADESHversusDAYANAND CHAKRAWARTY & ORS.
- Citation
- 2013 INSC 405
- Decided
- 2 July 2013
- Disposal
- Disposed off
- Bench
- G S SINGHVI
Holding
The 2005 Regulations are unconstitutional and ultra vires Article 14 because they create an unjustified classification; Regulation 31 of the 1978 Regulations remains operative, making the superannuation age 60 for all employees.
Summary
The Uttar Pradesh Jal Nigam, a state corporation, had two categories of engineers—those transferred from the former Local Self‑Government Engineering Department and those directly recruited. While the State amended its fundamental rules to raise the superannuation age from 58 to 60 years for government servants, the Nigam’s 2005 Regulations prescribed a lower retirement age of 58 for directly recruited staff and 60 for transferred staff. The High Court declared these Regulations unconstitutional under Art. 14. The Supreme Court held that the 2005 Regulations lacked an intelligible basis for differential treatment, that Regulation 31 of the 1978 Regulations (which aligned the Nigam’s retirement age with the State’s 60‑year rule) remained effective, and therefore the 2005 Regulations were ultra‑vires. The Court ordered that all employees be deemed to serve until 60 years, granting full salary up to that age to those who had approached the courts, while others would receive pension‑related benefits but no arrears of salary. The appeals were disposed of with these modifications and no costs were awarded.
Issues considered
- Whether prescribing two different superannuation ages (58 and 60) for similarly situated employees of the same service, solely on the basis of source of entry, violates Article 14 of the Constitution.
- Whether the Uttar Pradesh Jal Nigam Employees (Retirement on attaining age of Superannuation) Regulations, 2005 are ultra vires the Uttar Pradesh Water Supply and Sewerage Act, 1975 and the Constitution.
- Whether Regulation 31 of the 1978 Regulations continues to govern the superannuation age despite the later 2005 Regulations.
- What pecuniary benefits are due to employees who retired at 58 years, both those who filed writ petitions and those who did not.
Legislation cited
- Constitution of Indias. Article 14
- Uttar Pradesh Fundamental Ruless. 56(a)
- Uttar Pradesh Water Supply and Sewerage Act, 1975s. 15, s. 3, s. 37(1), s. 89, s. 97(2)(c)
Subjects
Service lawSuperannuationArticle 14EqualityDifferential treatmentUttar Pradesh Jal NigamRetirement agePecuniary benefitsNo work no pay
Judgment
[2013] 10 S.C.R. 1023
STATE OF UTTAR PRADESH
v.
DAYANAND CHAKRAWARTY & ORS.
(Civil Appeal No. 5527 of 2012)
JULY 2, 2013
8
[G.S. SINGHVI AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
Service Law:
c
Superannuation - State framed Regulations, 2005 -
Fixing two different ages of superannuation (58 and 60) - For
the employees of one Department, solely on the basis of their
source of entry in the service - Propriety and constitutional
validity of - Held: The employees from the two sources were 0
treated alike for the purpose of superannuation under
Regulation 31 of 1978 Regulations - Subsequently no
discrimination can be made and differential treatment would
not be permissible, solely on the basis of their source of entry
- Thus, Regulations, 2005 is unconstitutional and ultra vires E
Art. 14 of the Constitution - The employees who were ordered
to retire at the age of 58 are entitled to pecuniary benefit - The
employees who approached the Court, shall be entitled to full
salary upto 60 years of age - The employees who did not
approach the Court shall not be entitled to full salary upto 60 F
years of age, but they would be deemed to have continued
in service upto 60 years and their retiral benefits to be fixed
accordingly - Uttar Pradesh Jal Nigam Employees
(Retirement on the age of Superannuation) Regulations, 2005
- Regulation 4 - Uttar Pradesh Jal Nigam Services of
Engineers (Public Health Branch) Regulations, 1978 - G
Regulation 3.1 - Constitution of India, 1950 - Art. 14.
Principles - Principle of 'No work no pay' - Applicability -
Held: The principle is not applicable to the employees guided
1023 H
1024 SUPREME COURT REPORTS [2013] 10 S.C.R.
A by specific rules relating to absence from duty - It is also not
applicable to the employee who was prevented by the
employer from performing his duties.
Constitution of India, 1950 - Art. 14 - Differential
8 treatment of similarly situated persons/groups - Permissibility
- Held: Differential treatment would be permissible between
two similarly situated persons/groups - But such treatment
should be founded on an intelligible differentia and that
differentia must have rational relation to the object sought to
C be achieved by the statute.
Appellant-State constituted Uttar Pradesh Jal Nigam
under Uttar Pradesh Water Supply and Sewerage Act,
1975. The services of the employees of erstwhile Local
Self Government Engineering Department (LSGED) were
D transferred/merged with the Jal Nigam. The Jal Nigam, in
exercise of the powers conferred under the 1975 Act,
made Uttar Pradesh Jal Nigam Service of Engineers
(Public Health Branch) Regulations, 1978. The Regulation
was made equally applicable to the employees
E transferred/merged from LSGED and to the directly
recruited employees of the Jal Nigam. Regulation 31 of
the 1978 Regulations stipulated that the service
conditions of the employees of the Nigam would be
governed by the Rules/Regulations, generally applicable
F to the employees of the State Government. Thus the
retirement/superannuation age of the employees of the
Nigam were to be governed by r. 56(a) of Uttar Pradesh
Fundamental Rules. The State by amending the
Fundamental Rules, enhanced the age of superannuation
G from 58 to 60 years. However, this amendment was not
made applicable to the employees of the Nigam. The
same was challenged. The order for retirement of the
employees of the Nigam at the age of 58, was set aside
by Supreme Court. Thereafter, the Nigam framed Uttar
H Pradesh Jal Nigam Employees (Retirement on the age of
STATE OF UTTAR PRADESH v. DAYANAND 1025
CHAKRAWARTY
Superannuation) Regulations, 2005. As per the 2005 A
Regulations, the age of superannuation of the employees
directly recruited with the Nigam would be 60 years,
whereas of those transferred/merged from LSGED would
be 58 years. The Regulation was held discriminatory and
unconstitutional by the High Court. B
In appeal to this Court, the questions for
consideration were whether two different age of
superannuation of 58 and 60 years can be prescribed for
the employees similarly situated, including members of C
the same service, solely on the basis of their source of
entry in the service; and whether the Uttar Pradesh Jal
Nigam (Retirement on attaining age of Superannuation)
Regulations, 2005 fixing two different age of
superannuation for similarly situated employees of Jal
Nigam are discriminatory and ultra vires Article 14 of the D
Constitution.
Disposing of the appeals, the Court
HELD: 1. Differential treatment would be permissible E
between one class and the other, even amongst persons
similarly situated. In that event, it is necessary that the
differential treatment should be founded on an intelligible
differentia which distinguishes persons or things that are
grouped together from others left out of the group and
F
that differentia must have a rational relation to the object
sought to be achieved by the statute. The appellants, the
Nigam as well as the State of Uttar Pradesh failed to place
on record the reasons for differential treatment which
distinguishes employees of erstwhile LSGED and those
who were appointed directly in the Nigam. Further, as G
employees appointed from different source, after their
appointment were treated alike for the purpose of
superannuation under Regulation 31 of the 'Uttar
Pradesh Jal Nigam Services of Engineers (Public Health
Branch) Regulations, 1978', subsequently solely on the H
1026 SUPREME COURT REPORTS [2013) 10 S.C.R.
A basis of sources of recruitment, no discrimination can be
made and differential treatment would not be permissible
in the matter of condition of service, including age of
superannuation, in absence of an intelligible differentia
distinguishing them from each other. The High Court
B rightly declared Regulations, 2005 unconstitutional and
ultra vires of Article 14 of the Constitution of India. [Para
24] [1044-D-H]
2. Regulation 31 of 1978 Regulations (Special
C Regulation), will not be affected by later Regulation 4 of
the Uttar Pradesh Jal Nigam (Retirement on attaining age
of Superannuation) Regulations, 2005, in absence of
express repeal of Special Regulation. By implication, it
cannot be inferred that Regulation 31 stands repealed in
view of subsequent Regulations, 2005. Even if it is treated
D that both the General Regulation 4 of Regulations, 2005
and Special Regulation 31 of Regulations, 1978 co-exist,
one which is advantageous i.e. Regulation 31 shall be
applicable to the members of the same service. [Paras 25
and 26] [1045-A-C]
E
3. The State Government's order dated 29th June.•
2009 prescribing a uniform age of superannuation at 58
years for the employees working in the Government
Companies and Government Corporations cannot prevail
F over statutory Regulation 31 framed by the Nigam under
Section 97 (2) (c) of the Act, 1975 with the previous
~ approval of the State Government. Therefore, the
employees of the Nigam shall not be guided by the State
Government's order dated 29th June, 2009 but will
G continue in the services up to the age of 60 years, in view
of Regulation 31, having not yet amended or repealed.
[Para 27) ·[1045-D-E]
4. During the pendency of these appeals, further
development has taken place. The Government of Uttar
H Pradesh by its letter No.3199/9-3-11-113C/2011 dated
STATE OF UTTAR PRADESH v. DAYANAND ··ia21
CHAKRAWARTY r·
23rd December, 2011 informed the Chairman, Uttar A
Pradesh Jal Nigam its approval to increase the age of
superannuation of full time regular officers/employees of
the Nigam from 58 years to 60 years. The State
Government directed to make appropriate amendments
in the Regulations framed by the Nigam. [Para 29) [1045- B
H; 1046-A-B]
5. The principle of 'no pay no work' is not applicable
to the employees who were guided by specific rules like
Leave Rules etc. relating to absence from duty. Such
principle can be applied to only those employees who C
were not guided by any specific rule relating to absence
from duty. If an employee is prevented by the employer
from performing his duties, the employee cannot be
blamed for having not worked, and the principle of 'no
pay no work' shall not be applicable to such employee. D
[Para 37] [1049-G-H]
6. In the present cases, following consequential and
pecuniary benefits should be allowed to different sets of
employees who were ordered to retire at the age of 58 E
years. (a) The employees including respondents who
moved before a court of law irrespective of fact whether
interim order was passed in their favour or not, shall be
entitled for full salary up to the age of 60 years. The
arrears of salary shall be paid to them after adjusting the
F
amount if any paid. (b)The employees, who never moved
any court of law and had to retire on attaining the age of
superannuation, they shall not be entitled for arrears of
salary. However, in view of Regulation 31 they will be
deemed to have continued in service up to the age of 60
years. In their case, the appellants shall treat the age of G
superannuation at 60 years, fix the pay accordingly and
re-fix the retirement benefits like pension, gratuity etc. On
such calculation, they shall be entitled for arrears of
retirement benefits after adjusting the amount already
paid. [Para 38] [1050-A-E] H
1028 SUPREME COURT REPORTS (2013] 10 S.C.R.
A Harwindra Kumar vs. Chief Engineer, Karmik and Ors.
2005 (13) SCC 300: 2005 (5) Suppl. SCR 317; Chairman,
U.P. Jal Nigam vs. Radhey Shyam Gautam 2007 (11) SCC
507: 2007 (4) SCR 583; Chairman, Uttar Pradesh Jal Nigam
VS. Jaswant Singh and Ors. 2006 (11) sec 464: 2006 (8)
B Suppl. SCR 916; Prem Chand Somchand Shah vs. Union
of India (1991) 2 SCC 48: 1991 (1) SCR 232 - relied on.
Case Law Reference:
1991 (1) SCR 232 relied on Para 22
c 2005 (5) Suppl. SCR 317 relied on Para 34
2007 (4) SCR 583 relied on Para 35
2006 (8) Suppl. SCR 916 relied on Para 36
D CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5527 of 2012.
From the Judgment and Order dated 29.07.2010 of the
High Court of Judicature at Allahabad, Lucknow Bench,
E Lucknow in Writ Petitiqn No. 1~95 (S/B) of 2009.
WITH
C.A. Nos. 5528, 5529, 5530, 5531, 5532, 5533, 5534, 5535
& 5617-5659 of 2012.
F Pramod Swarup, Tanmaya Agarwal, Prachi Bajpai,
Shomila Bakshi, K.C. Kaushik, Shivram, Rachna Gupta,
Upendra Nath Misra, Nikhil Majithia, Jitendra Mohan Sharma,
Kumar Parimal for the appearing parties.
The Judgment of the Court was delivered by
G
SUDHANSU JYOTI MUKHOPADHAYA, J. These
appeals Nos. 5527 of 2012, 5528 of 2012 and 5617-5659 of
2012 (arising out of SLP(C) Nos.31279 of 2010, 35579 of
2010, 5218-60 of 2011) have been preferred by the State of
H Uttar Pradesh and others against the common judgment dated
STATE OF UTTAR PRADESH v. DAYANAND 1029
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
29th July, 2010 passed by the Division Bench of the High Court A
of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ
Petition (C) No.1595(S/B) of 2009 etc.etc. whereby the High
Court declared Uttarl .Pradesh Jal Nigam Employees
(Retirement on attaining age of superannuation) Rules, 2005
which have created two separate age of retirement amongst B
same classes of employees discriminatory and unconstitutional
and held that the employees of the Jal Nigam are entitled to
continue in service upto the age of 60 years with further
directions to pay 20% of back wages to those writ petitioners
who in the meantime were forced to retire on attaining the age c
of 58 years in absence of any interim order in their cases.
The benefit of enhancement of age was confined to the
persons who had filed the writ petitions before their retirement
and was not granted to those who in the meantime retired at
the age of 58 years and had not moved before the High Court. D
The other appeals have been preferred against .the
judgments subsequently passed on 29th April, 2010, 17th
August, 2010, 16th September, 2010, 28th October, 2010, 3rd
December, 2010 which were disposed of in terms of the E
aforesaid judgment dated 29th July, 2010.
Before the High Court Writ Petition No.1191 (SB) of 2009
was filed by the U.P. Engineers Association Jal Nigam, praying
therein to declare U.P. Jal Nigam Karamchari (Adhivarshita Par
Seva Nivarti) Viniyamawali, 2005 [U.P. Jal Nigam Employees F
(Retirement on attaining age of Superannuation) Regulations,
2005) (hereinafter referred to as the "Regulations, 2005")
unconstitutional and ultra vires to the provisions of the
Constitution of India and further to quash the orders dated 3rd
July, 2009 and 29th June, 2009 passed by the respondents 1 G
and 2 to the writ petition, respectively. The other prayers were
to restrain the respondents from causing retirement of the
members of the writ petitioners' association at the age of 58
years as well as to allow them to continue to work till they attain
the age of 60 years. H
1030 SUPREME COURT REPORTS [2013) 10 S.C.R.
A Except the aforesaid writ petition, in all other writ petitions,
writ petitioners have challenged their respective order (s)
whereby they had been asked to retire on attaining the age of
58 years as per the provisions of Regulations, 2005.
2. The questions involved in these appeals are:
B
(i) Whether two different age of superannuation of 58 and
60 years can be prescribed for the employees similarly
situated, including member$ of the same service, solely on
the basis of their source of entry in the service.
c
(ii) Whether 'the Uttar Pradesh Jal Nigam (Retirement on
attaining age of Superannuation) Regulations, 2005' fixing
two different age of superannuation for similarly situated
employees of Jal Nigam are discriminatory and ultra vires
D under Article 14 of the Constitution of India.
3. The factual matrix of the case are as follows:
A department, known as Public Health Engineering
(hereinafter referred to as the 'PHED') was created during the
E British period for performing all the works related to public
health engineering including sewerage and water supply. Just
before the independence, the State of United Province created
a Local Self Government Engineering Department (hereinafter
referred to as the 'LSGED'} which was converted from PHED.
F All the engineering works of Local Self Government were
entrusted to the said newly created department.
4. By Notification dated 18th June, 1975 issued under
Section 3 of the Uttar Pradesh Water Supply and Sewerage
Act, 1975 (hereinafter referred to as the "Act, 1975), the State
G Government constituted Uttar Pradesh Jal Nigam (hereinafter
referred to as the "Nigam"). Section 37(1) of the Act, 1975
provided that the services of the employees and engineers of
the Local Self-Government Engineering Department (LSGED)
will be transferred and merged into the newly created Nigam
H
STATE OF UTTAR PRADESH v. DAYANAND 1031
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.)
on the same terms and conditions, which were governing their A
services prior to such absorption, till the said service conditions
are altered/changed by the Rules or Regulations framed in
accordance with law.
5. In its second meeting dated 4th April, 1977 vide Agenda B
Item No.2.21 the Board of Nigam resolved that all the provisions
of Financial Handbook, Manual of Government Order, Civil
Services Regulations, Government Servant Rules and other
Government orders shall be applicable to the employees of the
Nigam, provided the Nigam has not passed any other order.
c
Initially, in exercise of powers conferred under sub-section
(1) and clause (c) of sub-section (2) of Section 97 of Act, 1975
and with the previous approval of the State Government, the
Nigam made regulations for regulating the recruitment to the
posts and the conditions of service of persons appointed to the D
Uttar Pradesh Jal Nigam Service of Engineers (Public Health
Branch) known as the Uttar Pradesh Service of Engineers
(Public Health Branch) Regulations, 1977.
6. Subsequently, in exercise of powers conferred under E
sub-section (1) and clause (c) of sub-section (2) of Section 97
of the Act, 1975, and with the previous approval of the State
Government, Nigam made the "Uttar Pradesh Jal Nigam
Services of Engineers (Public Health Branch) Regulations,
1978" (hereinafter referred to as the "Regulations, 1978") for
regulating the recruitment to the posts and the conditions of
F
service of persons appointed to the Jal Nigam Engineers
(Public Health Branch). The said Regulations, 1978 were made
equally applicable to the employees transferred and merged
from the erstwhile LSGED and the employees directly recruited
by the Nigam and it came into force w.e.f. 27th April, 1978. G
Regulation 31 relates to pay, allowance, pension, leave and
other conditions of service which reads as follows:
"Regulation 31.- Except as provided in these regulations
the pay, allowance, pension, leave, imposition of H
1032 SUPREME COURT REPORTS [2013] 10 S.C.R.
A penalties and other conditions of service of the members
of the service shall be regulated by rules, regulations or
orders applicable generally to the Government Service
in connection with the affairs of the state."
7. There is no separate provision for age of
8
superannuation of employees of the Nigam prescribed under
Regulations, 1978. As per Regulation, 31, the terms and
conditions of service of the employees of the Nigam shall be
governed by the same rules, regulations and orders generally
applicable to the employees of the State Government and
C hence the retirement and superannuation age of employees of
the Nigam shall stand governed by the provisions of Rule 56(a)
of the Uttar Pradesh Fundamental Rules contained in the
Financial Handbook, Volume II, Part II-IV, which reads as
follows:
D
"Rule 56(a).Except as otherwise provided in other
clauses of this rule every Government servant shall retire
from service on the afternoon of the last day of the month
in which he attains the age of fifty-eight years. He may
E be retained in service after the date of retirement on
superannuation with the sanction of the government on
public grounds which must be recorded in writing but he
must not be retained after the age of sixty years except
in very special circumstances."
F The age of retirement of the State Government employees
as per Rule 56(a) of Uttar Pradesh Fundamental Rules was 58
years. In the year 2001, the State Government vide its Official
Order No.1098/A-1/2001dated28th November, 2001 informed
of its intention to amend clause (a) of Rule 56. Consequently,
G Rule 56(a) was amended by "The Uttar Pradesh Fundamental
(Amendment) Rules, 2002" vide Notification dated 27th June,
2002, which came into force on 28th November, 2001. As per
the amended clause (c) of Rule 56, the age of superannuation
ofthe State Government employees was enhanced from 58
H years to 60 years, which reads as follows:
STATE OF UTTAR PRADESH v. DAYANAND 1033
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
"Rule 56(a).Except as otherwise provided in this rule, A
every government servant shall retire from service on the
afternoon of the last day of the month in which he attains
the age of sixty years.
Provided that a Government servant whose date of birth
B
is the first day of a month shall retire from service on the
afternoon of the last day of the preceding month on
attaining the age of sixty years.
Provided further that a Government servant who has
attained the age of fifty eight years on or before the first C
day of November, 2001 and is on extension in service
shall retire from service on expiry of his extended period
of service. n
8. In the meantime, after issuance of Government's order 0
expressing its intention to amend clause (a) of Rule 56 by
Notification dated 28th November, 2001, the Nigam by its letter
dated 31st December, 2001 enquired from the State
Government as to whether the benefit of enhancement in the
age of superannuation from 58 years to 60 years would be
E
applicable to the employees of the Nigam or not. In reply thereto
just before the Amendment Rules, 2002, the special Secretary
to the State Government from its Department of Local Self
Government by his letter dated 22nd January, 2002, conveyed
that the employees of the Nigam shall not be entitled to the
enhancement of age of superannuation from 58 years to 60 F
years as the same would be applicable only to the State
Government employees. On receipt of the said letter, on 11th
July, 2002 the Nigam resolved that enhancement in the age of
superannuation from 58 years to 60 years would not be
applicable to the employees of the Nigam. G
Against the decision of the State Government dated 22nd
January, 2002 and the decision of the Nigam vide Office
Memorand.um dated 11th July, 2002 a number of writ petitions
were preferred by the employees of the Nigam who were being H
1034 SUPREME COURT REPORTS [2013] 10 S.C.R.
A sought to retire on completing the age of 58 years. Some of
the employees directly filed writ petitions before this Court
challenging the orders issued by the Nigam against them to the
effect that they would superannuate upon completion of 58
years. This Court by its judgment in Harwindra Kumar vs. Chief
B Engineer, Karrnik and others, 2005 (13) SCC 300 directed the
Nigam to continue the petitioners of those cases in service till
they attain the age of 60 years and the orders directing their
retirement at the age of 58 years were set aside with the
following observation:
c "9. In the present case, as the Regulations have been
framed by the Nigam specifically enumerating ·in
Regulation 31 thereof that the Rules governing the
service conditions of government servants shall equally
apply to the employees of the Nigam, it was not possible
D for the Nigam to take an administrative decision acting
under Section 15(1) of the Act pursuant to the direction
of the State Government in the matter of policy issued
under Section 89 of the Act and directing that the
enhanced age of superannuation of 60 years applicable
E to the government servants shall not apply to the
employees of the Nigam. In our view, the only option for
the Nigam was to make suitable amendment in
Regulation 31 with the previous approval of the State
Government providing thereunder the age of
F superannuation of its employees to be 58 years, in case
it intended that 60 years which was the enhanced age of
superannuation of the State Government employees
should not be made applicable to the employees of the
Nigam. It was also not possible for the State Government
G to give a direction purporting to act under Section 89 of
the Act to the effect that the enhanced age of 60 years
would not be applicable to the employees of the Nigam
treating the same to be a matter of policy nor was it
permissible for the Nigam on the basis of such a direction
of the State Government in the policy matter of the
H
STATE OF UTTAR PRADESH v. DAYANAND 1035
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Nigam to take an administrative decision acting under A
Section 15(1) of the Act as the same would be
inconsistent with Regulation 31 which was framed by the
Nigam in the exercise of powers conferred upon it under
Section 97(2)(c) of the Act.
B
10. For the foregoing reasons, we are of the view that so
long as 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 C
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 the
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. D
11. For the foregoing reasons, the appeals as well as writ
petitions are allowed, orders passed by the High Court
dismissing the writ petitions as well as those by the
Nigam directing that the appellants of the civil appeals E
and the petitioners of the writ petitions would
superannuate upon completion of the age of 58 years
are set aside and it is directed that in case the employees
have-been allowed to continue up to the age of 60 years
by virtue of some interim order, no recovery shall be F
made from them but in case, however, they have not
been allowed to continue after completing the age of 58
years by virtue of effoneous decision taken by the Nigam
for no fault of theirs, they would be entitled to payment of
salary for the remaining period up to the age of 60 years G
which must be paid to them within a period of three
months from the date of receipt of copy of this order by
the Nigam. There shall be no order as to costs."
9. After the decision in Harwindra Kumar(supra), the
Nigam in exercise of its powers conferred under sub-sections H
1036 SUPREME COURT REPORTS [2013] 10 S.C.R.
A (1) and (2) of Section 97 of the Act, 1975, framed Uttar Pradesh
Jal Nigam Employees (Retirement on the age of
Superannuation) Regulations, 2005 (hereinafter referred to as
the 'Regulations, 2005'). It was issued by Office Order dated
8th December, 2005 and made effective from 30th August,
B 2005. By Regulation 3 the retirement age of 60 years was
provided but for employees and Engineers who were employed
in erstwhile LSGED and who were transferred and merged in
the Nigam. In Regulation 4, a separate age of superannuation
at the age of 58 years was prescribed for all other employees
c and Engineers, who were not covered under Regulation 3 i.e.
those who were directly appointed in the Nigam. Regulation 3
and 4 reads as follows:
• Retirement on attaining age of superannuation:
D 3. Age of superannuation of every employee who was
employed in the Engineering Deparlment of the Local
Self Government under Section 37(1) of the Act, and has
been transferred to the Corporation and is employed in
the Corporation, will be 60 years.
E
4. The age of superannuation of the employees different
from those under Rule 3 above, will be 58 years. But the
age of superannuation of the Group 'D' employee who
have been employed prior to 5. 11. 1985, will be 60 years. n
F After framing the aforesaid Regulation, 2005, the Nigam
filed a review petition before this Court being Review Petition
No.24 of 2006, seeking review of decision in Harwindra
Kumar(supra). The review petition was dismissed by this Court
on 29th August, 2006.
G
10. A number of employees challenged Regulation 4 by
filing Writ Petition No.45800 of 2006, etc. The Allahabad High
Court by its common judgment dated 21st May, 2007 allowed
the writ petitions and held that Regulation 4 to the extent it
H provides superannuation age of 58 years for those employees
STATE OF UTTAR PRADESH v. DAYANAND 1037
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.)
directly recruited is arbitrary and declared it non-est. The writ A
petitioners were allowed to continue in service till the age of
60 years.
11. As against the aforesaid judgment, the Nigam filed a
special appeal before the Division Bench of the Allahabad High B
Court which by order dated 1st August, 2007 stayed the
declaration given by the learned Single Judge. However, so far
as the writ petitioners were concerned, no interim orders were
passed in the said special appeal and as such, they were
allowed to discharge their duties upto the age of 60 years.
c
12. The Nigam being not satisfied with the order passed
by the Division Bench moved before this Court in Chairman,
Uttar Pradesh Jal Nigam & another vs. Radhey Shyam
Gautam and another, 2007 (11) sec 507. In the said case,
taking into consideration the earlier decision rendered in D
Harwindra Kumar(supra) and Jaswant Singh(supra) this Court
dismissed the appeal with following observation:
"10. After the amendment made in Rule 56(a) of the
Rules by the State Government and thereby enhancing E
the age of superannuation of government servants from
58 years to 60 years, the same would equally apply to
the employees of the Nigam and in case the State
Government as well as the Nigam intended that the same
would not be applicable, the only option with it was to
make suitable amendment in Regulation 31 of the
F
Regulations after taking previous approval of the State
Government and by simply issuing direction by the State
Government purporting to act under Section 89 of the Act
and thereupon taking administrative decision by the
Nigam under Section 15 of the Act in relation to the age G
of the employees would not tantamount Jo amending
Regulation 31 of the Regulations.
11. In Harwindra Kumar case the Division Bench decision
on which the appellant places reliance was challenged. H
1038 SUPREME COURT REPORTS [2013) 10 S.C.R.
A Orders passed by the High Court dismissing the writ
petitions as well as those by the Nigam directing that the
appellants of the civil appeals and the petitioners of the
writ petitions would superannuate upon completion of the
age of 58 years were set aside and it was directed that in
B case the employees have been allowed to continue up
to the age of 60 years by virtue of some interim order,
no recovery shall be made from them but in case,
however, they have not been allowed to continue after
completing the age of 58 years by virtue of effoneous
c decision taken by the Nigam for no fault of theirs. They
would be entitled to payment of salary for the remaining
period up to the age of 60 years which was to be paid to
them within a period of three months from the date of
receipt of copy of this Court's order by the Nigam."
I
D 13. In the meantime, a large number of employees of the
Nigam, who were forced to retire on attaining the age of 58
years, preferred writ petitions and sought benefit of the
directions given by this Court in Harwindra Kumar (supra). The
matter ultimately, moved before this Court in Chairman, Uttar
E Pradesh Jal Nigam vs. Jaswant Singh & others, 2006 (11)
SCC 464. While dismissing the appeal this Court observed:
"16. Therefore, in case at this belated stage if similar
relief is to be given to the persons who have not
F approached the court that will unnecessarily overburden
the Nigam and the Nigam will completely collapse with
the liability of payment to these persons in terms of two
years' salary and increased benefit of pension and other
consequential benefits. Therefore, we are not inclined to
grant any relief to the persons who have approached the
G
court after their retirement. Only those persons who have
filed the writ petitions when they were in service or who
have obtained interim order for their retirement, those
persons should be allowed to stand (o benefit and not
others. We have been given a chart of those nine
H
STATE OF UTTAR PRADESH v. DAYANAND 1039
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
persons, who filed writ petitions and obtained stay and are A
continuing in service. They are as follows:
1. Shri Bhawani Sewak Shukla
2. Shri Vijay Bahadur Rai
B
3. Shri Girija Shanker
4. Shri Yogendra Prakash Kulshresht
5. Shri Vinod Kumar Bansal
c
6. Shri Pradumn Prashad Mishra
7. Shri Banke Bihari Pandey
8. Shri Yashwant Singh
D
9. Shri Chandra Shekhar
And the following persons filed writ petitions before
retirement but no stay order was granted:
1. Shri Gopal Singh Dangwal (WP No. 35384 of 2005 E
vide order dated 5-5-2005)
2. Shri R.R. Gautam (WP·No. 45495 of 2005 vide order
dated 15-6-2005)
F
17. The benefits shall only· be confined to
abovementioned persons who have filed writ petitions
before their retirement or they have obtained interim order
before their retirement. The appeals filed against these
persons by the Nigam shall fail and the same are
dismissed. Rest of the appeals are allowed and orders G
passed by the High Court are set aside. There would be
no order as to costs. n
14. In Harwindra Kumar(supra) this Court held that as long
as Regulation 31 is not amended, 60 years which is the age H
1040 SUPREME COURT REPORTS [2013] 10 S.C.R.
A of superannuation of government servants employed under the
State of Uttar Pradesh shall be applicable to the employees of
the Nigam. However, liberty was given to the Nigam to make
suitable amendment in Regulation 31 with the previous approval
of the State Government to alter the service conditions of
B employees of the Nigam, including their age of superannuation.
It was also made clear that if the same is done, it shall be
prospective. It appears that in view of observation of this Court,
the Nigam framed Regulations, 2005 but prescribed separate
age of superannuation, one for employees and engineers who
c were employed in erstwhile LSGED and another for those who
were directly appointed in the Nigam. Regulations 2005 were
so framed without repealing or amending Regulation 31.
It appears that in view of the subsequent decisions of this
Court, the Nigam vide its Resolution dated 13th April, 2008,
D resolved to enhance the age of the superannuation of the
employees, irrespective of their source of entry, to 60 years and
forwarded the same to the· State Government for its approval.
The resolution aforesaid reads as follows:
Agenda Item No. Description of Agenda Decision taken
E by the Board of
Directors
147.07 Regarding Proposal
enhancement of age approved by
of superannuation the Board of
F from 58 years to 60 Directors and it
years, of the officers "is decided to
and officials working refer to the
in Uttar Pradesh Jal Government for
Nigam , similar to the obtaining the
G working Government approval of the
employees. Government.
15. But the State Government provided a uniform age for
superannuation as 58 years for all employees working in
Government Companies and Government Corporations by its
H order dated 29th June, 2009. For the said reason, by its order
STATE OF UTTAR PRADESH v. DAYANAND 1041
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
dated 3rd July, 2009, the State Government refused to accord A
approval to the recommendations of the Nigam dated 13th
April, 2008.
16. On being aggrieved. by the said action of the State
Government the employees of the Nigam preferred the writ B
petitions in question before the Allahabad High Court. A
number of writ petitions were heard together and disposed of
by the common impugned judgment dated 29th July, 2010. The
other writ petitions which were taken up or filed subsequently
. were disposed of by the impugned separate orders in terms C
with common judgment dated 29th July, 2010.
17. By the impugned common judgment dated 29th July,
2010 the Division Bench of the Allahabad High Court, Lucknow
Bench, Lucknow in Writ Petition (C) No.1595(S/B) of 2009
etc.etc. declared "Uttar Pradesh Jal Nigam Employees D
(Retirement on attaining age of Superannuation) Regulations",
2005 unconstitutional as it created two classes of employees
in determining two separate retirement age with observation
as noticed above.
E
18. Learned counsel for the appellant-State and the Nigam
assailed the judgment mainly on the following grounds:
(i) The High Court cannot equate the employees of the
public undertakings/corporations with the employees of the
State Government for determination of age of F
superannuation.
(ii) The High Court was not justified in declaring that all the
employees of the Nigam shall retire on attaining the age
of 60 years like State Government employees, by pre- G
empting the Nigam from exercising its power under
Section 97 of the Act, 1975.
(iii) The classification between the employees of Local
Self-Government Engineering Department transferred to
the Nigam and the employees directly recruited by the H
1042 SUPREME COURT REPORTS [2013] 10 S.C.R.
A Nigam, in prescribing different age of superannuation is
valid and reasonable.
(iv) The High Court was not justified in setting aside the
Jal Nigam Employees (Retirement on attaining age of
Superannuation) Regulations, 2005 in absence of any
B
challenge to the power of the Nigam to frame the
regulations particularly when the petitioners only challenged
the Regulation
(v) The High Court committed an error of law in not
c considering Section 37(1) of the Act, 1975, which protects
the terms and conditions of service of the employees of
erstwhile Local Self-Government Engineering Department
who were transferred to the Nigam on its creation.
D (vi) The question of determination of age of superannuation
is a matter of policy of the State Government or the
competitive authority of a Corporation, and the High Court
under Article 226 cannot determine the age of
superannuation.
E 19. Thus, from a detailed analysis and close examination
of facts relating to condition of service of employees of the
Nigam starting from its constitution till today, the following facts
emerges:
F (a) The question relating to age of superannuation of
employees of the Nigam stood finally concluded on 18th
November, 2005 when this Court rendered decision in
Harwindra Kumar (supra).
(b) After judgment in Harwindra Kumar (supra) based on
G liberty given by this Court, the Nigam framed Regulations,
2005 prescribing two separate age of superannuation for
the employees of the Nigam, without amending Regulation
31. The Nigam subsequently by Resolution dated 13th
April, 2008 proposed to amend Regulations 2005
H
STATE OF UTTAR PRADESH v. DAYANAND 1043
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
prescribing common age of 60 years for superannuation A
for all employees of the Nigam. The State Government by
its order dated 29th June, 2009 prescribed uniform age
of superannuation as 58 years for all the employees
, working in the Government Undertakings i.e. Government
Companies and Government Corporations and then in B
view of such decision, the State Government refused to
accord approval to the recommendations of the Nigam
dated 13th April, 2008 by its letter dated 3rd July, 2009.
20. In view of the subsequent development after decision
rendered in Harwindra Kumar (supra) case, again the question C
of age of superannuation of employees of the Nigam has been
reopened keeping in view of such fact, the question required
to be determined as raised in these cases.
21. This Court in Haiwindra Kumar (supra) held that so D
long as Regulation 31 is not amended, 60 years which is the
age of superannuation of the government servants shall be
applicable to the employees of the Nigam. However, in
contravention of finding of this Court without amending
Regulation 31, new Regulation 3 and 4 of Regulations, 2005 E
has been framed by the Nigam prescribing two separate age
of superannuation for similarly situated employees.
22. In Prem Chand Somchand Shah v. Union of India
(1991) 2 SCC 48 this Court held:
F
"8. As regards the right to equality guaranteed under
Article 14 the position is well settled that the said right
ensures equality amongst equals and its aim is to protect
persons similarly- placed against discriminatory
treatment. It means that all persons similarly G
circumstanced shall be treated alike both in privileges
conferred and liabilities imposed. Conversely
discrimination may result if persons dissimilarly situate
are treated equally. Even amongst persons similarly
situate differential treatment would be permissible H
1044 SUPREME COURT REPORTS [2013] 10 S.C.R.
A between one class and the other. In that event it is
necessary that the differential treatment should be
founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others
left out of the group and that differentia must have a
B rational relation to the object sought to be achieved by
the statute in question."
23. Since creation of the Nigam, irrespective of source of
recruitment, the· employees of the Nigam were treated alike for
the purpose of superannuation and were allowed to
C superannuate at the age of 58 years as is evident from
Regulation 31.
24. As per decision of this Court in Prem Chand
Somchand Shah (supra) even amongst persons similarly
D situated differential treatment would be permissible between
one class and the other. In that event it is necessary that the
differential treatment should be founded on an intelligible
differentia which distinguishes persons or things that are
grouped together from others left out of the group and that
E differentia must have a rational relation to the object sought to
be achieved by the statute. The appellants, the Nigam as well
as the State of Uttar Pradesh failed to place on record the
reasons for differential treatment which distinguishes
employees of erstwhile LSGED and those who were appointed
F directly in the Nigam. ' ..
Further, as employees appointed from different source,
after their appointment were treated alike for the purpose of
superannuation under Regulation 31, subsequently solely on the
basis of source of recruitment no discrimination can be made
G and differential treatment would not be permissible in the matter
of condition of service, including age of superannuation, in
absence of an intelligible differentia distinguishing them from
each other. We therefore hold that the High Court by impugned
judgment rightly declared Regulations, 2005 unconstitutional and
H ultra wires of Article 14 of the Constitution of India.
STATE OF UTTAR PRADESH v. DAYANAND 1045
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
25. Regulation 31 of the 'Uttar Pradesh Jal Nigam Services A
of Engineers (Public Health Branch) Regulations, 1978'
Special Regulation; it will not be affected by later Regulation 4
of the Uttar Pradesh Jal Nigam (Retirement on attaining age
of Superannuation) Regulations, 2005, in absence of express
repeal of Special Regulation. By implication it cannot be B
inferred that the Regulation 31 stands repealed in view of
subsequent Regulations, 2005.
26. Even if it is treated that both the General Regulation 4
of Regulations, 2005 and Special Regulation 31 of Regulations,
1978 co,.exist, one which is advantageous i.e. Regulation 31
c
shall be applicable to the members of the same service.
27. The State Government's order dated 29th June, 2009
prescribing a uniform age of superannuation at 58 years for the
employees working in the Government Companies and D
Government Corporations cannot prevail over statutory
Regulation 31 framed by the Nigam under Section 97 (2) (C)
of the Act, 1975 with the previous approval of the State
Government. Therefore, the employees of the Nigam shall not
be guided by the State Government's order dated 29th June, E
2009 but will continue in the services up to the age of 60 years,
in view of Regulation 31, having not yet amended or repealed.
28. In Harwindra Kumar (supra) case this Court already
held that it is not possible for the Nigam to take an
administrative decision pursuant to the direction of the State F
Government in the matter of policy issued under Section 89 of
the Act and directing that the age of superannuation of 60 years
applicable to the Government servants shall .. not be applicable
to the employees of the Nigam. In view of such finding of this
Court, the Nigam cannot act on the basis of the State G
Government's order dated 29th June, 2009 providing uniform
age of superannuation at 58 years.
29. During the pendency of these appeals further
development has taken place. The Government of Uttar H
1046 SUPREME COURT REPORTS [2013] 10 S.C.R.
A Pradesh by its letter No.3199/9-3-11-113C/2011 dated 23rd
December, 2011 informed the Chairman, Uttar Pradesh Jal
Nigam its approval to increase the age of superannuation of
full time regular officers/employees of the Nigam from 58 years
to 60 years. The State Government directed to make
8 appropriate amendments in the Regulations framed by the
Nigam, which reads as follows:
"No.3199/9-3-11-113C/2011
From: Vijay Bahadur Singh,
c Special Secretary,
Government of Uttar Pradesh.
To: The Chairman,
Uttar Pradesh Jal Nigam .
D Lucknow.
Urban Developmetn Section 3Lucknow dt. 23.12.2011
Sub: For increasing the age of retirement of full time
regular employees of Uttar Pradesh Jal Nigam
E from 58 years to 60 years.
Sir,
This is in reference to your letter no. 86/P-112005-
002111 dated 23.12.2011 and Government order
F no. 160144-1-20911-9012008 dated 20. 12. 2011 of
the Public Enterprises Bureau Section, on the
above subject.
2. In this regard I have been directed to say that a
G meeting of the Board of Directors of Jal Nigam was
held on 23.12.2011 and it was decided in the said
meeting that age of retirement of full time regular
officers/employees of Uttar Pradesh Jal Nigam be
increased from 58 years to 60 years. The
aforesaid decision of Board was considered by the
H
STATE OF UTTAR PRADESH v. DAYANAND 1047
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Government and Government has decided that A
age of full time regular officers/employees of Uttar
Pradesh Jal Nigam be increased from 58 years
to 60 years.
3. However, the aforesaid increase in the age of 8
retirement will be subject to the condition that all
the additional financial burden which will be
incurred due to aforesaid increase in the age of
retirement, will be borne by Uttar Pradesh Jal
Nigam from its own resources and no financial C
assistance whatsoever wi/I be given by the
Government in this regard.
4. I have been further directed to say that appropriate
amendments in the rules/regulations/standing
orders of the Uttar Pradesh Jal Nigam pertaining D
to fixation of the age of retirement of the personnel
of the Jal Nigam will be made by the Jal Nigam
on its own.
Yours E
SDI- Illegible
Vijay Bahadu Singh
Special Secretary."
30. In view of the finding as recorded above and the State
Government's letter dated 23rd December, 2011 no F
interference is called for in the impugned judgment, whereby
the High Court held Regulations, 2005 unconstitutional, violative
of Article 14 and set aside the orders of retirements.
31. An Interlocutory Application dated 20th March, 2013 G
has been filed by the counsel for the respondent in Civil Appeal
No.5528 of 2012 intimating that 1st respondent-Dayanand
Chakrawarty expired on 17th February, 2013, during the
pendency of the case, leaving behind their legal heirs, Mrs.
Pramila Chakrawarty (widow), Ms. Manisha Chakrawarty H
1048 SUPREME COURT REPORTS (2013] 10 S.C.R.
A (daughter), Mr. Vivekanand Chakrawarty (son), Ms. Utpana
Chakrawarty (daughter) and Mr. Sampurna Nand Chakrawarty
(son).
32. In view of the observation made in the preceding
paragraphs as the employees including the respondents are
8
entitled to get consequential benefits, we allow the petition for
substitution to enable the heirs to derive the benefit of the
decision of this Court.
33. Now the question arises as to what consequential
C benefits to which the respondents and other employees who
have not moved before any court of law shall be entitled.
By impugned judgment the High Court observed:
"Similar benefit is already available to the employees
D who are continuing in service by virtue of interim order
passed by the competent court. They should continue till
the age of 60 years.
The law helps those who are vigilant and not to those who
E go to sleep as per maxim VIGILANT/BUS, ET NON
DORM/NT/BUS, JURA SUB VENIUNT. So, this benefit
will not be given to the employees who peacefully retired
on attaining the age of 58 years and never came before
the Court. But there may be another class of the
F employees who came before this Court and could not get
the interim order but writ petitions were admitted.
Admittedly, these employees have not worked. So, on
the basis of no pay no work, they will not be entitied for
arrears. However, their back wages will be restricted
G @20% of the basic salary as per the ratio laid down in
the case of Mis Gvalli v. Andhra Education Society 2010
AIR 1105 SC. Lastly, it is clarified that the extended
service will be counted for all the purpose to the above
' mentioned employees. The petitions are allowed. No
cost."
H
STATE OF UTTAR PRADESH v. DAYANAND 1049
CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
34. In Harwindra Kumar vs. Chief Engineer, Karmik and A
others (Supra), this Court while allowing the employees of
Nigam to continue till the age of 60 years in view of Regulation
31, ordered that no recovery shall be made from those who
continued up to the age of 60 years. This Court further observed
that the employees who have not been allowed to continue after B
completing the age of 58 years by virtue of erroneous decision
taken by the Nigam for no fault of theirs, would also be entitled
to payment of salary for the remaining period up to the age of
60 years.
35. In Chairman, U.P. Jal Nigam vs. Radhey Shyam C
Gautam, 2007 (11) SCC 507, following the decision in
Harwindra Kumar (supra) case, this Court held that the
employees of the Nigam shall be entitled for full salary for the
remaining period up to the age of 60 years.
D
36. However, in U. P. Jal Nigam vs. Jaswant Singh, 2006
(11) sec 464 this Court allowed the benefits of arrears of
salary only to those employees of the Nigam who had filed writ
petitions and denied the same to others who have not moved
before a court of law. E
37. In view of the orders passed by this Court in Harwindra
Kumar(supra), Radhey Shyam Gautam(supra) and Jaswant
Singh(supra), it was not open to the High Court to rely on some
other decision of this Court, ratio of which is not applicable in
F
the present case for determining back wages of respondents
restricting it to be 20% of the basic salary. We observe that
the principle of 'no pay no work' is not applicable to the
employees who were guided by specific rules like Leave Rules
etc. relating to absence from duty. Such principle can be
applied to only those employees who were not guided by any G
specific rule relating to absence from duty. If an employee is
prevented by the employer from performing his duties, the
employee cannot be blamed for having not worked; and the
principle of 'no pay no work' shall not be applicable to such
employee. H
1050 SUPREME COURT REPORTS [2013] 10 S.C.R.
A 38. In these cases as we have already held that Regulation
31 shall be applicable and the age of superannuation of
employees of the Nigam shall be 60 years; we are of the view
that following consequential and pecuniary benefits should be
allowed to different sets of employees who were ordered to
B retire at the age of 58 years:
(a) The employees including respondents who moved
before a court of law irrespective of fact whether interim
order was passed in their favour or not, shall be entitled
for full salary up to the age of 60 years. The arrears of
c salary shall be paid to them after adjusting the amount if
any paid.
(b) The employees, who never moved before any court of
law and had to retire on attaining the age of
D superannuation, they shall not be entitled for arrears of
salary. However, in view of Regulation 31 they will deem
to have continued in service up to the age of 60 years. In
their case, the appellants shall treat the age of
superannuation at 60 years, fix the pay accordingly and re-
E fix the retirement benefits like pension, gratuity etc. On such
calculation, they shall be entitled for arrears of retirement
benefits after adjusting the amount already paid.
(c) The arrears of salary and arrears of retirement benefits
should be paid to such employees within four months from
F the date of receipt of copy of this judgment.
39. The judgment passed by the Division Bench of the
Allahabad High Court, Lucknow Bench dated 29th July, 2010
and other impugned judgments stand modified to the extent
G above. The appeals are disposed of with aforesaid observation
and directions. There shall be no order as to costs.
K.K.T. Appeals disposed of.
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