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Dakaur Nath Tiwari v. State Of U.P. Thru' Secretary & Others - WRIT - A No. 10770 of 2007  RD-AH 3497 (1 March 2007)
Court No. 1
Civil Misc. Writ Petition No. 10770 of 2007
Dakaur Nath Tiwari
State of U.P. & Others
Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the parties and perused the record.
The petitioner claims to be an employee of the U.P. Jal Nigam on the post of Work Agent, a Group ''D' post, in the pay scale of Rs. 140 - 280 being appointed on 1.2.1980 and regularized on 1.1.1989. The service conditions of Jal Nigam employees are governed by the U.P. Jal Nigam Engineers (Public Health Branch) Services Regulations, 1978 (hereinafter referred to as the Regulations) framed under Section 31 (1) and (2) of Clause (C) of the U.P. Water Supply and Sewerage Act, 1975 (U.P. Act No. 43 of 1975) with previous approval of the State Government. The Regulations came into force w.e.f. 27.4.1978.
In Regulation 31 it has been specifically provided that except for certain categories of employees who have been specifically dealt with therein terms and conditions of the remaining categories of Jal Nigam employees will be governed by the rules, regulations and orders applicable to the State Government servants mutatis mutandis.
There is no specific reference to the date of retirement of an employee of the U.P. Jal Nigam in the Regulations and in this regard the service conditions applicable to the State Government servants are applied in view of Regulation 31.
The retirement age of the Government servants had been enhanced to 60 years from 58 years vide G.O. dated 28.11.2001 and the consequential amendment in Rule 56 of the Financial Hand-book Vol. II Parts 2 to 4 in 2002.
The dispute involved in this writ petition is with regard to age of retirement of the petitioner in pursuance of order/notice dated 14.2.2007 issued by the Chief Engineer, Head Office, U.P. Jal Nigam, 6-Rana Pratap Marg, Lucknow under which he is directed to be retired from service w.e.f. 28.2.2007 on account of attaining the age of 58 years.
It appears that a bunch of writ petitions (Writ Petition No. 8402 of 2005,Harwindra Kumar VS Chief Engineer Karmik, U.P. Jal Nigam & others was the leading case) was filed by the Junior Engineers of Jal Nigam. The High Court vide its judgment and order dated 18.11.2005 while deciding the aforesaid bunch of writ petitions held that those employees were to be superannuated on the attaining the age of 58 years and not 60 years as G.O. dated 28.11.2001 by which age was enhanced to 60 years was applicable to the U.P. Government servants only and not to the employees of Nigam which is a corporate body.
The petitioner having been unsuccessful before the High Court went in appeal before the Hon'ble Supreme Court in Civil Appeal No. 7840 of 2002 which was decided by the Hon'ble Supreme Court vide judgment dated 18.11.2005 (2005) 13 S.C.C. 300, along with a bunch of similar other civil appeals filed before the Hon'ble Supreme Court holding that the employees of Nigam are entitled to continue up to 60 years. The operative part of the aforesaid judgment of the Hon'ble Supreme Court reads as under: -
"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 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.
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 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 made from them but in case, however, they have not been allowed to continue after completing the age of 58 years by virtue of erroneous 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 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."
By the aforesaid judgment the Hon'ble Supreme Court held that Regulation 31 specifically provided that the rules governing the service conditions of the U.P. Government servants shall equally apply to the employees of the Jal Nigam.in in view of the fundamental rule 56 (a) as amended by U.P. Fundamental (Amendment) Rules, 2002 under notification dated 27.6.2002 read with U.P. Water Supply and Sewerage Act, 1975 (U.P. Act No. 43 of 1975) and U.P. Jal Nigam Engineers (Public Health Branch) Services Regulations, 1978 the employees of Jal Nigam would superannuate on attaining the age of 60 years.
It appears that by judgment rendered in Harwindra Kumar (supra) as well as the judgment rendered in Civil Appeal No. 4790 of 2006, Chairman, U.P. Jal Nigam & another Vs Jaswant Singh & another, decided on 10.11.2006, the apex court further directed the Jal Nigam to frame fundamental rules for the purposes of superannuation of its employees. Consequently, the U.P. Jal Nigam framed U.P. Jal Nigam Karmchari (Adhiwarshta Par Seva Nivriti) Viniyamawali, 2005 (hereinafter referred to as the Viniyamawali, 2005).
The aforesaid Viniyamawali, 2005 provides for age of superannuation of Groups A, B and C employees of U.P. Jal Nigam on attaining the age of 58 years. In so far as Group ''D' employees are concerned, the Viniyamawali, 2005 provides that the age of superannuation of those grade ''D' employees who have been appointed on or before 5.11.1985 will retire at the age of 60 years and those of them who have been appointed after 5.11.1985 will retire at the age of 58 years.
The contention of the learned counsel for the petitioner is that being appointed prior to 5.11.1985 he is entitled to continue up to the age of 60 years.
Per contra, the contention of Sri Q.H.Siddiqui, learned counsel for the respondents, is that the petitioner does not fall within Viniyamawali, 2005 as he is a work charged employee and that even otherwise being regularized after 5.11.1985 his age of superannuation is 58 years. He further submits that vide office memo dated 17.5.2006 also the age of retirement of work charged employee has been fixed at 58 years.
Sri A.K.Saxena who is also appearing on behalf of the respondents along with Sri Q.H.Siddiqui submits that by Office Memo dated 20.5.2006 the Head Office of the U.P. Jal Nigam, Lucknow clarified that the work charged employees do not fall in any of the Groups A, B, C and D of Viniyamawali, 2005, hence they will retire on attaining the age of 58 years in pursuance of Office Memo dated 17.5.2006.
He further submits that in similar circumstances Writ Petition No. 14874 of 2005, Ram Narain Pathak Vs State of U.P. and others, was filed which was allowed vide judgment and order dated 31.3.2005 against which the Special Appeal No. 590 of 2005 filed by the Managing Director of the U.P. Jal Nigam was admitted and the order of the learned Single Judge was stayed vide order dated 23.5.2005.
From the aforesaid arguments advanced by the learned counsel for the parties the admitted position which emerges is that the work charged employees do not come within any of the Groups A, B, C and D which are covered by the Viniyamawali, 2005. It is also admitted that the office memo is not a rule and in any case the rules framed in exercise of powers under Section 97 of the U.P. Water Supply and Sewerage Act, 1975 (U.P. Act No. 43 of 1975) cannot be amended by an office memo.
The apex court has given a clear direction in the Civil Appeal No. 4790/06 to the U.P. Jal Nigam to frame its rules in regard to age of superannuation of its employees and that in the mean time the age of superannuation of the employees of U.P. Jal Nigam would be 60 years as there were no specific rule framed by the Jal Nigam in this regard and the rules applicable to U.P. Government servants were applicable to them mutatis mutandis prior to Viniyamawali, 2005.
If the contention of Sri Q. H. Siddiqui is accepted that the Viniyamawali 2005 is not applicable to the petitioner as it does not apply to the work charged employees then in that case the case of the petitioner would be governed by the judgment rendered in Civil Appeal No. 4790/06 on which it has been held that in absence of rules the age of superannuation of the employees of Jal Nigam would be 60 years as stated above.
Sri Q.H.Siddiqui at this stage submitted that the matter may be heard again when the Court opens after Holi vacation.
In this view of the matter Rejoinder Affidavit may be filed within a period of one week from today as prayed by the learned counsel for the petitioner.
With the consent of the learned counsel for the parties, list this case for final hearing on 9.3.2007.
Till 9.3.2007 the petitioner may not be retired from service.
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