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VIJAY SINGH versus U.P.S.R.T.C. THRU' BOARD OF DIRECTORS AND OTHERS

High Court of Judicature at Allahabad

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Vijay Singh v. U.P.S.R.T.C. Thru' Board Of Directors And Others - WRIT - A No. 66777 of 2005 [2005] RD-AH 4541 (20 October 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J.

Heard learned counsel for the parties and perused the record.

The controversy involved in this writ petition relates to the age of superannuation of Class ''C' employees of U.P. State Road Transport Corporation (U.P.S.R.T.C.) as to whether they should be superannuated on attaining the age of 58 years or 60 years.

The terms and conditions of service of the employees of U.P.S.R.T.C. are governed by "THE UTTAR PRADESH STATE ROAD TRANSPORT CORPORATION EMPLOYEES (OTHER THAN OFFICERS) SERVICE REGULATIONS, 1981 (hereinafter referred to as 1981 Regulations)

The age of superannuation of Group ''C' and Group ''D' employees in the U.P. State Road Transport Corporation under Regulation 37 of 1981 Regulations is 58 years and 60 years respectively.

Vide Office Order dated 6.10.2004 issued by the Managing Director of the Corporation the petitioner was informed that he would retire from service on attaining 58 years of age on 31.10.2005 as per Regulation 37 of 1981 Regulations along with other employees whose name is mentioned therein.  

The petitioner has come up in this writ petition with the prayer for quashing of the Office Order dated 6.10.2004 in respect of the petitioner and for a direction in the nature of mandamus commanding the respondents to retire the Group ''C' employees at the age of 60 years by exercising powers under Regulation 6 of 1981 Regulations.

The prayer of the petitioner is based on a notification issued by the State Government of Uttaranchal dated 12.7.2005 wherein it is stated that the Hon'ble Governor is pleased to enhance the age of superannuation of the employees of the Public Corporations and Undertakings from 58 to 60 years. The notification is as under: -

                      ^^mRrjkapy 'kklu

                  vkS|ksfxd fodkl vuqHkkx&1

  la[;k %&2413@lkr &vkS0fo0 @ 05 @ 182&m|ksx @04

              nsgjknwu fnukad %& 12 tqykbZ 2005

                        &%%vf/klwpuk%%&

lkoZZtfud fuxeksa @ midzeksa esa dk;Zjr dkfeZdks dh vf/ko"kZrk vk;q yksdfgr esa 58 o"kZ ds LFkku ij 60 o"kZ djus dh jkT;iky egksn; lg"kZ Lohdf`fr iznku djrs gSaA

2- ;g vkns'k rkRdkfyd izHkko ls ykxw gksxsaA

3- mi;qZDr ls lEcfU/kr vko';d micU/kksa ds ckjs esa foLr`r fn'kk funsZ'k i`Fkd ls tkjh fd;s tk;sxsaA

                                             g0 %& vLi"V

                                             ¼latho pksiM+k½ lfpo

                                               12-07-05**"

It further appears from Annexure 5 to the writ petition which has been issued by the Managing Director, Uttaranchal Transport Corporation Headquarters, Dehradun as under: -

               ^^mRrjkapy ifjogu fuxe eq[;ky;]

                   117] bfUnjk uxj nsgjknwu

i=kad %& 708@,p ] D;w@bZ ,l0 Vh0@vf/ko"kZrk 2005 fnukad 29-07-2005

                     &%% dk;kZy; vkns'k %%&

mRrjkapy 'kklu }kjk mRrjkapy ifjogu fuxe esa dk;Zjr dkfeZdks dh vf/ko"kZrk vk;q 59 o"kZ ls 60 o"kZ fd;s tkus ls lEcfU/kr 'kklukns'k dh izR;k'kk esa ;g funsZ'k fn;s tkrs gSa fd ekg tqykbZ] 2005 esa tks deZpkjh ¼izfrfu;qfDr ij dk;Zjr dkfeZdks dks NksM+rs gq;s½ lsokfuo`Rr gks jgs gS mUgsa vfxze vkns'kksa rd lsokfuo`Rr u fd;k tk;sA

fuxe esa dk;Zjr ftu deZpkfj;ksa dh vf/ko"kZrk vk;q iwoZ ls gh 60 o"kZ gS og O;oLFkk iwoZor ykxw jgsxhA

                                         ¼ds0ds0iUr½

                                        izcU/k funs'kdA"

""

The contention of the learned counsel for the petitioner is two fold- Firstly, that the State of Uttaranchal has adopted the U.P. Ministerial Service Rules, 1980 framed by the U.P. State Road Transport Corporation and as such the terms and conditions of the employees of the Uttaranchal Road Transport Corporation are also governed by the U.P State Road Transport Corporation Employees (Other Than Officers) Service Regulations, 1981, hence the terms and conditions of service of the employees of the U.P.S.R.T.C. may be accordingly altered as per notification dated 12.7.2005 issued by the State Government of Uttaranchal.

The second contention of the learned counsel for the petitioner is that Regulation 37 of the U.P State Road Transport Corporation Employees (Other Than Officers) Service Regulations, 1981 provides that an employee of Group ''C' shall retire on attaining the age of 58 years and an employee of Group ''D' shall retire on attaining the age of 60 years which is self-contradictory. Regulation 37 is as under: -

 "37. Retirement on attaining the age of superannuation. - An employee of Group "C" shall retire on attaining the age of 58 years and that of Group "D" shall retire on attaining the age of 60 years:

Provided that if the date of retirement falls on or after the second day of the month, the date of retirement shall be the last day of the month."

The next contention raised by the learned counsel is that under Regulation 6 of the U.P State Road Transport Corporation Employees (Other Than Officers) Service Regulations, 1981 the Board has power to relax the requirements of the regulation in just and equitable manner or in the interest of the Corporation. He submits that relaxation in age of Group ''C' employees of the U.P. State Road Transport Corporation can be made in a particular case subject to satisfaction of the Board that the superannuation at the age of 58 years causes undue hardship to the superannuating employee. Regulation 6 is as under: -

"6. Power to relax regulations. - Where the Board is satisfied that the operation of any regulation relating to the conditions of service causes undue hardship in any particular case, it may notwithstanding anything contained in these regulations but with the previous sanction of the Government, dispense with or relax the requirements of that regulation to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner or in the interest of the Corporation."  

It is lastly submitted that vide G.O. dated 28th November, 2001 the State Government of Uttar Pradesh has itself enhanced the age of superannuation from 58 years to 60 years to State Government employees, as such, there is no justification for the U.P. Government for not granting relaxation to the employees of the State Corporations and Undertakings.

The learned Standing Counsel has relied upon a judgment of the Division Bench of this Court reported in Harwindra Kumar Vs. Chief Engineer, Karmik, U.P. Jal Nigam, Lucknow and others, (2002) 2 U.P.L.B.E.C. 1511, where the similar controversy was raised and it has been held that unless there was amendment in Rules/Regulations, employees cannot get benefit of extension of age of superannuation from 58 years to 60 years.

Reliance has also been placed by the learned Standing Counsel upon the judgments given in W.P. No. 6804 of 2002, Ram Naresh Nigam Vs. Mandi Nideshak, U.P. and others, W.P. No. 34555 of 2002, Lal Bahadur Vs. Krishi Utpadan Mandi Samiti Roora, Kanpur Dehat and another connected with W.P. No. 41524 of 1999 and W.P. No. 619 (S/S) of 2004, Abdul Hakeem Khan Vs. State of U.P. and others, and has urged that similar petitions challenging the age of retirement on the basis of the same ground as in the present case have been dismissed.

The matter involved in the instant writ petition has also been considered by this Court in several petitions earlier and has been rejected. The question whether the age of retirement would be 58 years or 60 years was directly and substantially in issue in writ petitions between Krishi Utapadan Mandi Samiti and its employees. The matter, which might and ought to have been made ground of defence or attack in such former writ petitions, is directly and substantially in issue in the present writ petitions. Accordingly any relief claimed in this petition on the basis of same facts would be deemed to have been refused in the former writ petitions. Since this position of law is well entrenched by a catena of decision and already stands decided in former writ petition, subsequent writ petition is not maintainable. The matter having been raised and decided earlier in former writ petitions is also barred by principle of constructive res-judicata. Reference may be made to (1993) 3 SCC 259 D.K.Yadav Vs. J.M.A. Industries Ltd, in which the Apex Court relying upon Ambika Prasad Mishra Vs. State of U.P. (1980) 3 SCC 719 held that:-

"Once an authoritative law is laid after considering all the relevant provisions and the previous precedent, it is no longer open to be recanvassed the same on new grounds or reasons that may be put forth in its support unless the Court deemed appropriate to refer to a larger bench in the large public interest to advance the cause of justice. Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. It does not lose its authority merely because it was badly argued, inadequately considered and fallaciously reasoned."

The petitioner has not agitated his case before the Board under Regulation 6 of the 1981 Regulations which provides for satisfaction of the Board to be recorded relating to any condition of service which may have caused undue hardship in a particular case. In that event the Board may with the previous sanction of the Government dispense with or relax the requirements of that regulation to the extent and subject to such conditions as it may consider necessary for mitigating the hardships of the particular employee or employees. Regulation 6 would not be attracted as in the circumstances of this case for redressal of an employee's grievance the whole policy requires change and amendment is required in the Statute. Regulation 6 is meant only for mitigation of hardships of an employee and for exempting him from the rigors of hardships in exceptional circumstances.    

The contention of the learned counsel that Regulation 37 is contradictory as it provides different age of retirement of Group ''C' and ''D' employees is also misconceived and unsustainable as Group ''D' employees of the U.P. State Road Transport Corporation are different classes and therefore different ages of superannuation can be provided for Group ''C' and Group ''D' employees separately. The virus of Regulation 37 has not been challenged; hence there is no question of relaxation, which cannot be granted in an isolated case as that of the petitioner. It is rather a question of policy decision and amendment of the regulations by the State Government.

It appears from the notification dated 12.7.2005 appended as Annexure 4 to the writ petition that the State of Uttaranchal has enhanced the age of superannuation of all its employees in public sectors and undertakings from 58 years to 60 years.

Admittedly, no notification has been issued by the State of U.P. enhancing the age of superannuation of the employees of U.P. State Road Transport Corporation from 58 years to 60 years; hence, the employees of U.P. State Road Transport Corporation cannot take the benefits of a notification issued by another State in respect of its employees. Provisions of Regulation 7 may also be noticed here which provides that power to interpret these Regulations vests in the Corporation and in case of doubt or dispute, the matter is to be referred to the Government whose decision thereon shall be final.

The contention of the learned counsel that he has been meted out with hostile discrimination in view of age of retirement provided in Regulation 37 of 1981 Regulations cannot therefore be sustained.

Law is well settled that courts can neither legislate nor can issue any direction for the State Government to legislate a law in a particular manner. This position has been settled by the Hon'ble Supreme Court in Union of India Vs Deoki Nandan Aggarwal, A.I.R. 1992 S.C. 96, wherein it has been observed:

"It is not the duty of the Court either to enlarge the scope of legislation or the intention of the legislature when the nature of the provision is plain and unambiguous. The Court cannot re-write, re-cast or re-frame the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts."

The Court cannot also give any direction to the State Government to amend or modify the aforesaid regulation so as to bring the age of superannuation of Group ''C' and Group ''D' at par in view of the decision rendered in Mullikarjuna Rao & Others Vs State of Andhra Pradesh & Others, A.I.R. 1990 S.C. 1251, as this would amount to interference with the law making powers of the legislature or which the executive exercise under Article 309 of the Constitution. The judiciary being one of the pillars of the Constitution must work within the self-imposed limits and refrain from exercising any powers exercised by the Legislature and the Executive who are supposed to work in harmony with the judiciary while working in own separate spheres of jurisdiction. It has been observed by the Hon'ble Supreme Court in Asif Hamid Vs State of Jammu & Kashmir, A.I.R. 1989 S.C. 1899 has held that the Constitution does not permit the Court to direct or advise the Executive in matter of policy or to sermonize qua any matter which under the Constitution lies within the sphere of Legislature or Executive.    

For these reasons no direction can be issued to the respondents to alter the age of retirement of Grade ''C' employees to 60 years at par with Group ''D' employees of the Corporation.

The writ petition is misconceived and not maintainable. It is accordingly dismissed. No order as to costs.  

Dated: 20.10.2005

Rpk/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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