# Adhikari/Karmchari Samagra Vikas Samiti (U.P.) & another v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 497
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-16
- **Case number:** Civil Misc. Writ Petition No. 39797 of 2007
- **Bench:** Sunil Ambwani, K.N. Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/adhikari-karmchari-samagra-vikas-samiti-u-p-another-v-state-of-u-p-and-others-41613
- **Pages:** 5

## Headnote

Constitution of India Art.-226- read with
Art-75(15) of Article of Association of
company-Petitioner working as officer in
corporation-claiming Parity of retirement
age of State Govt. employees who retire
at the age of 60 yrs and the Professor
working in university up to the age of 65
yrs. In pursuance of interim order
worked
up-to
the
age
of
60
yrspetitioners purposely concealed this fact
regarding decision of Board of director
by which proposal for extension of age of
superannuation was turn down in view
of provision of Art. 75(15)-cannot be
allowed to work beyond 50 yrs-request
for non refund of salary drawn in
pursuance of interim order-also refused
considering the conduct of petitioner.

Held: Para 9 & 11

The age of retirement of its employees is
a policy matter to be decided by its
Board of Directors having the authority
to frame the service regulations. The
policy has to be based upon the financial
condition, recruitment policy and other
498 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
considerations.
The
Court
does
not
ordinarily
interfere
in
such
policy
matters unless the policy is shown to be
violative of any statutory provisions of
law, arbitrary or capricious.

Learned
counsel
for
the
petitioner
submitted that those petitioners, who
have worked upto the age of 60 years
under the interim orders passed by the
Court, and those, who are working after
58 years, taking advantage of the
interim orders should not be subjected
to recovery of the pay and that their
retirement dues should be paid as if they
have retired at the age of 60 years. We
are not inclined to accept the submission
on the ground that the petitioners did
not come to the Court with clean hands.
The interim orders were granted in the
year
2007,
whereas
the
Board
of
Directors of the Corporation in its 127th
meeting held on 27.9.2006 had turned
down the proposal for increasing the age
of retirement to 60 years. The petitioners
did not disclose this fact in the writ
petition. It is difficult to believe that this
fact was not within the knowledge of
Adhikari/
Karmchari
Samagra
Vikas
Samiti of the Corporation. Further the
State Government and the Bureau of
Public
Enterprises
have
consistently
taken a decision not to increase the age
of retirement of the employees of the
Public Sector Corporations in U.P. The
petitioners were fully aware of the
decision of the State Government and
have
not
denied
that
they
had
knowledge of the Government Orders
dated
5.2.1986,
25.7.2002
and
thereafter 30.7.2007 passed by the State
Government declining the request of the
Corporations to increase the age of
retirement. The petitioners misled the
Court in obtaining the interim order and
have taken advantage of their own
wrong. The petitioners are, therefore,
not
entitled
to
any
equitable
consideration and are not entitled to
keep the benefits drawn under the
interim orders of the Court.

## Text

2 All] Adhikari/Karamchari Samagra Vikas Samiti and another V. State of U.P. and others
497
(a) house;

(b) setting up business;

(c) Setting up of special recreation
centres;
(d) establishment of special schools;

(e)
establishment
of
research
centres;

(f) establishment of factories by
entrepreneurs with disabilities."

11. A direction has been issued in
Prajwala's case to the State Government
or local authorities for allotment of land,
for various purposes indicated in Section
43 of the Act and various items indicated
in it, for giving preferential treatment to
the disabled persons for allotment of land
at concessional rates.

12. The physically disabled persons
are a class by themselves. The provision
for
reservation
of
distribution
of
scheduled
commodities
under
a
Government grant as a largesses, to the
physically disabled persons is both a
social welfare measure and an affirmative
action in consonance with Section 43 of
the Act of 1995 to rehabilitate physically
disabled (differently abled) persons in
life. The reservation conforms both to the
constitutional scheme and the provisions
of the Act of 1995 for disabled persons.

13. Clause 26 of the Order of 2004,
prohibits sub-agency or transfer of the
agency. It does not prohibit taking help of
a family member, friend, or employing a
person to help the disabled person to run
the agency.

14. The writ petition is dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE K.N. PANDEY, J.

Civil Misc. Writ Petition No. 39797 of 2007

Adhikari/Karmchari
Samagra
Vikas
Samiti (U.P.) & another ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Awadhesh Mishra

Counsel for the Respondent:
Sri S.K. Shukla
Sri Chandra Shekhar Singh
C.S.C.

Constitution of India Art.-226- read with
Art-75(15) of Article of Association of
company-Petitioner working as officer in
corporation-claiming Parity of retirement
age of State Govt. employees who retire
at the age of 60 yrs and the Professor
working in university up to the age of 65
yrs. In pursuance of interim order
worked
up-to
the
age
of
60
yrspetitioners purposely concealed this fact
regarding decision of Board of director
by which proposal for extension of age of
superannuation was turn down in view
of provision of Art. 75(15)-cannot be
allowed to work beyond 50 yrs-request
for non refund of salary drawn in
pursuance of interim order-also refused
considering the conduct of petitioner.

Held: Para 9 & 11

The age of retirement of its employees is
a policy matter to be decided by its
Board of Directors having the authority
to frame the service regulations. The
policy has to be based upon the financial
condition, recruitment policy and other
498 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
considerations.
The
Court
does
not
ordinarily
interfere
in
such
policy
matters unless the policy is shown to be
violative of any statutory provisions of
law, arbitrary or capricious.

Learned
counsel
for
the
petitioner
submitted that those petitioners, who
have worked upto the age of 60 years
under the interim orders passed by the
Court, and those, who are working after
58 years, taking advantage of the
interim orders should not be subjected
to recovery of the pay and that their
retirement dues should be paid as if they
have retired at the age of 60 years. We
are not inclined to accept the submission
on the ground that the petitioners did
not come to the Court with clean hands.
The interim orders were granted in the
year
2007,
whereas
the
Board
of
Directors of the Corporation in its 127th
meeting held on 27.9.2006 had turned
down the proposal for increasing the age
of retirement to 60 years. The petitioners
did not disclose this fact in the writ
petition. It is difficult to believe that this
fact was not within the knowledge of
Adhikari/
Karmchari
Samagra
Vikas
Samiti of the Corporation. Further the
State Government and the Bureau of
Public
Enterprises
have
consistently
taken a decision not to increase the age
of retirement of the employees of the
Public Sector Corporations in U.P. The
petitioners were fully aware of the
decision of the State Government and
have
not
denied
that
they
had
knowledge of the Government Orders
dated
5.2.1986,
25.7.2002
and
thereafter 30.7.2007 passed by the State
Government declining the request of the
Corporations to increase the age of
retirement. The petitioners misled the
Court in obtaining the interim order and
have taken advantage of their own
wrong. The petitioners are, therefore,
not
entitled
to
any
equitable
consideration and are not entitled to
keep the benefits drawn under the
interim orders of the Court.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. In these three connected writ
petitions the association of officers and
employees of the U.P. State Food and
Essential Commodities Corporation Ltd.
(in short the Corporation) represented by
Shri Rajendra Kumar Verma in Writ
Petition No.39797 of 2007; Shri Jagvir
Singh
serving
as
Incharge
District
Accounts Officer, Badaun in Writ Petition
No.33859 of 2007, and Shri Awadhesh
Narayan Mishra serving as District
Incharge,
Allahabad
with
additional
charge of District Incharge, Bahraich,
have prayed for directions to quash the
Government Order dated 30.7.2007 by
which the State Government has in
pursuance to the Government Order dated
25th July, 2002 issued by Public Sector
Enterprises
communicated
to
the
Managing Director of the Corporation
that his proposal for increasing the age of
retirement
of
employees
of
the
Corporation from 58 to 60 years was not
found acceptable.

2. The petitioners have prayed for
directing the respondents not to retire
them, until they attain the age of 60 years,
on the ground that the State Government
has amended Fundamental Rule 56 of the
Financial Handbook Vol.2 para II to IV
vide notification dated 27th June, 2002, in
exercise of its powers under the proviso to
Art.309 of the Constitution of India
increasing the age of superannuation of all
the State Government servants from 58 to
60 years. In the 20th adjourned meeting of
the Board of Director of the Corporation
held on 10.1.1979 at 17 Gokhale Marg,
Lucknow it was decided at Item No.16
that the orders of the Public Enterprise
Bureau of the Government and the
recommendations
made
by
it
will
2 All] Adhikari/Karamchari Samagra Vikas Samiti and another V. State of U.P. and others
499
automatically apply to the Corporation.
The
petitioners
have
also
claimed
discrimination in retiring them at the age
of 58 years, whereas the employees of the
State Government have been extended the
benefit of superannuation at 60 years.

3. In all these three writ petitions the
Court granted interim orders directing that
since the State Government has not taken
any decision on the letter of the
Chairman, there is no reason as to why
the
age
of
superannuation
in
the
Corporation should continue to remain 58
years, whereas the age of superannuation
in the State Government is 60 years and in
the Universities 65 years. The Court was
of the prima facie opinion that for the
laxity on the part of the State Government
the petitioners/ members should not suffer
and directed that the respondents to
continue the petitioner in service till they
attain the age of 60 years and to pay their
salary.

4. The Corporation failed in
persuading the Court to vacate the interim
order filed Special Leave to Appeal
(Civil) No.4004-4005 of 2008. The appeal
was dismissed by the Apex Court as
having become infructuous on 31.7.2009,
with a request to the High Court to
expedite the main matter.

5. The writ petitions were adjourned
in the absence and on the illness slip of
the
counsel
of
the
petitioners
on
4.12.2009, 11.12.2009 and 18.1.2009. The
matter was finally heard and the judgment
was reserved on 16.2.2010.

6. Shri Chandra Shekhar Singh
representing the Corporation has filed
counter affidavit of Shri Syed Ahmad,
Manager (Establishment), U.P. State Food
& Essential Commodities Corporation
Ltd. It is stated by him that the
Corporation
is
duly
incorporated
Corporation
and
is
an
autonomous
organisation having its own legal entity. It
is a company incorporated under the
Companies Act having its own Board of
Directors, which is entitled to exercise all
the powers and do all such acts and things
as the company is authorised to do so.
Under Art.79 (15) of the Articles of
Association, the service regulations were
framed, after they were duly approved in
the Board of Directors in its Meeting
dated
29.6.1987,
and
as
per
the
Regulation 45 all employees are public
servant within the meaning of Indian
Penal Code. The Regulations provide for
retirement age at 58 years. In paragraph
10 of the counter affidavit it is stated that
neither
the
Board
nor
the
State
Government has accorded any approval
for increasing the age of retirement. On
5.2.1986 the Government Order was
issued, whereby the State Government
communicated to all the Corporation that
he age of retirement should not be
increased by the Corporations without
taking prior approval of the Government.
By another Government Order dated
25.7.2002 the State Government again
communicated that the age of retirement
of the officer will not be increased and
that the Government has taken a decision
that there will not be any increase in the
age of retirement of the employees of the
corporation. The recommendations of the
Managing Director of the Corporation
were rejected by the State government on
30.7.2007 after which the matter was
taken up in the 127th meeting of the
Board of Directors of the Company. At
Item No.9 with regard to increasing the
age of retirement to 60 years, the Board of
Directors rejected the proposal.
500 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

7. The averments in the counter
affidavit that the State Government has
decided in its orders dated 5.2.1986,
25.7.2002 and 30.7.2007 not to increase
the
age
of
superannuation
of
the
employees of the Corporation and that
Board of Directors in its 127th meeting at
resolution No.9 did not accept the
proposal to increase the age of retirement
have not been denied.

8. The State Government has deep
and
pervasive
control
over
the
administration and financial affairs of the
Corporation. It is government company
under Section 617 of the Companies act,
1956, and is an instrumentality of the
State. For the purposes of conditions of
service of its employees unless the
Corporation decides, with the approval of
the State Government, the retirement age
of its employees will continue to be
governed by the regulations framed by the
Board of Directors of the Corporation.
The amendment to U.P. Fundamental
Rules
vide
U.P.
Fundamental
(Amendment) Rules, 2002 dated 27th
June,
2002
is
applicable
only
to
government servant. The employees of
the Corporation are not government
servants and are not regulated by
Fundamental
Rules.
Unless
the
Regulations are amended by the Board of
Directors, the petitioners do not have any
right
of
increase
in
the
age
of
superannuation.

9. The age of retirement of its
employees is a policy matter to be
decided by its Board of Directors having
the authority to frame the service
regulations. The policy has to be based
upon the financial condition, recruitment
policy and other considerations. The
Court does not ordinarily interfere in such
policy matters unless the policy is shown
to be violative of any statutory provisions
of law, arbitrary or capricious.

10. Regulation 26 of Service
Regulations of the Corporations made
under Art.75 (15) of the Articles of
Association of the Company, clearly
provides that until the Board with the
prior approval of the State Government
increases the period of employment,
which shall not exceed the age of 60
years, every employee shall ordinarily
retire at the age of 58 years.

All the writ petitions are accordingly
dismissed.

11. Learned counsel for the
petitioner submitted that those petitioners,
who have worked upto the age of 60 years
under the interim orders passed by the
Court, and those, who are working after
58 years, taking advantage of the interim
orders should not be subjected to recovery
of the pay and that their retirement dues
should be paid as if they have retired at
the age of 60 years. We are not inclined to
accept the submission on the ground that
the petitioners did not come to the Court
with clean hands. The interim orders were
granted in the year 2007, whereas the
Board of Directors of the Corporation in
its 127th meeting held on 27.9.2006 had
turned down the proposal for increasing
the age of retirement to 60 years. The
petitioners did not disclose this fact in the
writ petition. It is difficult to believe that
this fact was not within the knowledge of
Adhikari/ Karmchari Samagra Vikas
Samiti of the Corporation. Further the
State Government and the Bureau of
Public Enterprises have consistently taken
a decision not to increase the age of
retirement of the employees of the Public
2 All] Dr. Anurag Kumar Tiwari and others V. Union of India and others
501
Sector
Corporations
in
U.P.
The
petitioners were fully aware of the
decision of the State Government and
have not denied that they had knowledge
of the Government Orders dated 5.2.1986,
25.7.2002 and thereafter 30.7.2007 passed
by the State Government declining the
request of the Corporations to increase the
age of retirement. The petitioners misled
the Court in obtaining the interim order
and have taken advantage of their own
wrong. The petitioners are, therefore, not
entitled to any equitable consideration and
are not entitled to keep the benefits drawn
under the interim orders of the Court.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2010

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 23997 of 2010

Dr. Anurag Kumar Tiwari and others

 ...Petitioners
Versus
Union of India and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri P.N. Saxena
Sri Girijesh Kumar Tripathi
Sri Kamal Kumar Singh

Counsel for Respondents:
Sri V.K. Singh
Sri K.S. Chauhan
Sri Hem Pratap Singh
Sri S.S. Tiwari
A.S.G.I.

Constitution
of
India,
Art-226Cancellation
of
whole
entrance
examination for MD/MS screening testText held on 18.02.2010-result declared
on 19.02.2010 on certain complaints two
members
committee
found
certain
irregularities in marking the answer
sheets-canceled
result
declares
on
1.4.10-even five members committee
found the re-evaluation marking as same
of scanner cancellation of entire exam by
Vice Chancellor.Without application of
mind would meant penalizing successful
candidates for no fault of theirs held Vice
Chancellor Committed great error of lawas such decision not only arbitrary but
unjustified
impugned
order
and
consequential
Notification
Quashednecessary direction issued.

Held Para 36

Thus,
the
Vice-Chancellor
of
the
University failed to address himself to
the correct issue that was required to be
decided. He not only committed an error
of fact touching the merit of the decision
but also committed an error of law as the
decision taken by him is not only
arbitrary and unjustified but has been
taken without application of mind to any
of the relevant consideration. He could
not have taken such a drastic action as
cancellation of the entire examination
and even according to the Five Member
Committee
this
would
have
meant
penalizing the candidates for no fault of
theirs.
Case law discussed:
AIR 2006 SC 2571, 2009 (3) ADJ 166, (2007)
6 SCC 382, (2003) 2 SCC 673, (2009) 1 SCC
59, (2005) 13 SCC 744, (2009) 9 SCC 599,
(2005) 3 SCC 241, (2006) 3 SCC 208, 2007
AIR SCW 4884, AIR 2009 SC 2975, (2006) 11
SCC 67, 2009 (6) SCC 171, 2008 AIR SCW
8194, (2003) 2 SCC 673, 2006 (3) ESC 2041.

(Delivered by Hon'ble Dilip Gupta, J.)

1. Thirty six out of the fifty
candidates who had appeared at the
MD/MS Merit Screening Test-2010 for
Institutional candidates conducted by the
Institute of Medical Sciences, Banaras
Hindu University, Varanasi (hereinafter
referred to as the 'Institute') have sought