# B.S. Chauhan (Bhuri Singh Chauhan) v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-17
- **Case number:** Civil Misc. Writ Petition No. 69356 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/b-s-chauhan-bhuri-singh-chauhan-v-state-of-u-p-and-ors-42914
- **Pages:** 8

## Headnote

Constitution of India, Art.-226-Retirement
age-employees working with Dist. Rural
development agency-whether retire on
achieving age of 60 years-held-no-unless by
adopting procedure contained in G.O.
12.08.13-decision taken by governmentemployees shall be governed by such
amended provision-but in between as per
existing provision retirement on 58 yearsproper-petition dismissed.

Held: Para-16
In view of above and looking to the facts
and circumstances of the case, in my view,
retirement of petitioner on 31.12.2013, on
attaining the age of superannuation of 58
years, according to existing provision, does
not
warrant
any
interference.
The
Government Order dated 12.08.2013 would
come into effect only when the entire
procedure laid down in para 1 to 6 is
completed and, thereafter, a decision is
taken and order is issued having effect of
amending present provision, extending age
of superannuation from 58 to 60 years.
Presently it is not the case in present writ
petition.

Case Law discussed:
W.P. No. 29195 of 2011; 2008(3) ADJ 21(DB);
1998(4) SCC 65; 1998(4) SCC 114; 2005(8)
SCC 394; 2006(3) SCC 620; 2000(10) SCC
153; 2001(5) SCC 482; 2005(5) SCC 598;
2008(1) ADJ 209.

## Text

1 All] B.S. Chauhan (Bhuri Singh Chauhan) Vs. State of U.P. and Ors.
239
under Section 16 (1) of the Act, prospective
allottee has got no say. Neither he can contest
and oppose the release application nor he can
file revision against an order allowing the
release application of the landlord. The Apex
Court also approved the same view in Ram
Narayan Sharma Vs. Shakuntala Gaur AIR
2002 Supreme Court 2204. Similar view has
been taken by the Division Bench of this
Court in Ajay Pal Singh Vs. District Judge,
Meerut and others 2008 (2) ARC 264.

6. In view of foregoing discussion, as
the petitioner's effort challenging the order
declaring the vacancy has failed, his status
would
be
of
an
unauthorized
occupant/prospective allottee, therefore he
has no right to challenge the order of release.

7. The writ petition is dismissed.

8. In the last, Sri Rajesh Mishra,
learned counsel for the petitioner submits
that six months' time may be given to the
petitioner to vacate the premises.

9. Considering the facts of this case, it
is provided that in case the petitioner files an
undertaking within a period of three weeks
from today before the R.C.E.O. that he will
vacate the premises by 31st May, 2014, the
eviction
of
the
petitioner
from
the
accommodation in dispute shall be kept in
abeyance till 31st May, 2014. In case of non
filing of the undertaking within the aforesaid
period, the R.C.E.O. shall be at liberty to
proceed in accordance with law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 69356 of 2013
B.S. Chauhan (Bhuri Singh Chauhan)...
 ...Petitioner
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioner:
Sri Virendra Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Retirement
age-employees working with Dist. Rural
development agency-whether retire on
achieving age of 60 years-held-no-unless by
adopting procedure contained in G.O.
12.08.13-decision taken by governmentemployees shall be governed by such
amended provision-but in between as per
existing provision retirement on 58 yearsproper-petition dismissed.

Held: Para-16
In view of above and looking to the facts
and circumstances of the case, in my view,
retirement of petitioner on 31.12.2013, on
attaining the age of superannuation of 58
years, according to existing provision, does
not
warrant
any
interference.
The
Government Order dated 12.08.2013 would
come into effect only when the entire
procedure laid down in para 1 to 6 is
completed and, thereafter, a decision is
taken and order is issued having effect of
amending present provision, extending age
of superannuation from 58 to 60 years.
Presently it is not the case in present writ
petition.

Case Law discussed:
W.P. No. 29195 of 2011; 2008(3) ADJ 21(DB);
1998(4) SCC 65; 1998(4) SCC 114; 2005(8)
SCC 394; 2006(3) SCC 620; 2000(10) SCC
153; 2001(5) SCC 482; 2005(5) SCC 598;
2008(1) ADJ 209.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The petitioner is an employee in
District
Rural
Development
Agency
(hereinafter referred to as the 'DRDA'), which
240 INDIAN LAW REPORTS ALLAHABAD SERIES
is a society registered under the Societies
Registration Act, 1860 (hereinafter referred to
as the "Act, 1860"). As per the existing
provisions applicable to employees of DRDA
the age of retirement is 58 years and,
therefore, the employees are being retired on
attaining the age of 58 years. In Fundamental
Rules 56 an amendment was made in exercise
of power under proviso to Article 309 of the
Constitution changing age of retirement from
58 to 60 years. The employees of DRDA
claiming that DRDA is a society managed by
State Government officials and, therefore, is
an instrumentality of the State, hence is
covered by Article 12 of the Constitution.
That being so, the employees of DRDA are
holders of civil posts and the Rules, applicable
to government employees, are applicable to
them hence with the enhancement of age of
retirement vide Fundamental Rule 56, they are
also entitled to continue up to the age of 60
years.

2. This issue came to be considered by a
Division Bench of this Court in Special
Appeal No.687 of 2010 (State of U.P. Vs.
Pitamber).
The
Court
formulated
the
following question:

"Whether employees of DRDA are
Government employees and are holding
civil post in the civil service of State to
make applicable Fundamental Rule 56".

3.
Two
more
questions
were
formulated by this Court as under:

"(1) Considering the Bye-laws of the
Society and more specifically Bye-laws 19
and 20 (h) read with Government Notification
dated March 17, 1994, was it open to the
State Government to have issued the
Government Order dated 09.03.2004 fixing
the age of retirement of the employees of
DRDA as 58 years?

(2) Whether the employees of DRDA
are holding civil posts and/or are
Government employees of the State, in
order to make applicable Rule 56 of the
Fundamental Rules and, consequently,
would they be governed by Government
Notification dated 28.11.2001, whereby
the age of retirement of the government
servants has been fixed as 60 years under
Rule 56 of the Fundamental Rules?"

4. Answering the above questions, in
paras 16 and 17, the Division Bench said in
its judgment dated 19.08.2010 as under:

"16. Considering the above referred
judgments and the material on record, it
will be clear that firstly the DRDA is a
Society registered under the Societies
Registration Act. Its funding is 70 percent
from the Central Government and 30
percent from the State Government. The
members of the Society and also the
Working Committee are basically persons
holding the posts in government service,
mostly in the State Government and some
in the Central Government, as the object
is of rural development. Bye-law 20 (h)
recognizes that the staff are to be
appointed by the Governing Body. The
accounts are to be approved by the
Governing Body in its annual general
meeting. Suits are to be filed against the
Society. Thus, though there may be
funding by the Central/State Governments
and control by the State Government,
nonetheless they are employees of the
Society. Some posts are filled up on
transfer by the Governor and in respect of
others, appointments are to be made by
the Chief Executive Officer, who is the
District Magistrate. Considering the tests
laid down in Kanik Chandra Dutta
(supra), we are clearly of the opinion that
the tests laid down in the judgment of the
1 All] B.S. Chauhan (Bhuri Singh Chauhan) Vs. State of U.P. and Ors.
241
Supreme Court are not satisfied. Once it
is held that they are the employees of
DRDA and are not holding civil posts in
the service of State, Rule 56 of the
Fundamental Rule would not apply to
them.

17. In the light of that, we are clearly
of the opinion that the appeal filed by the
State will have to be allowed. The
employees of DRDA after 09.03.2004 will
have to retire at the age of 58 years.
Consequently, we hold that the view taken
by the learned Single Judge in the case of
Kalika Prasad (supra) that Rule 56 of the
Fundamental Rules would apply so far as
the employees of DRDA are concerned,
does not lay down the correct law and,
hence, we overrule the judgment in Kalika
Prasad (supra) and all other judgments,
which have taken a similar view."

5. There are two more writ petitions,
i.e., Writ Petitions No. 51679 of 2009, 29195
of 2011 (Shoeb Ullah Khan Vs. State of U.P.
and others). Both these writ petitions came
up before a Division Bench on 04.07.2011.
Following the decision in State of U.P. and
others Vs. Pitamber (supra), the Court held
that employees of DRDA are entitled to
continue till the age of retirement, i.e., 58
years only and not 60 years, therefore, the
notice issued to them, informing their date of
retirement
on
attaining
the
age
of
superannuation as 58 years were valid.

6. Another Hon'ble Single Judge has
also followed aforesaid Division Bench
decision in Writ Petition No.30920 of 2013
(Lal Ji and Anr. Vs. State of U.P. & 3 Ors.)
decided on 29.5.2013 and myself has also
followed the same in Writ Petition
No.4650 of 2013 (Shiv Lal Vs. State of
U.P. & Ors.) decided on 25.7.2013 and
several other matters.

7. In that view of the matter,
petitioner is not entitled to continue till the
age of 60 years as per the existing
provisions and is liable to retire on
attaining the age of 58 years.

8. There is another aspect of the
matter. I find that even under Fundamental
Rule 56, age of retirement, if strictly
speaking, is still 58 years and there is no
amendment in the eyes of law. Fundamental
Rule 56 was inserted and substituted by
provincial legislation i.e. vide U.P. Act No.
33 of 1976 [U.P. Fundamental Rule 56
(Amendment and Validation) Act, 1976] and
therefore, any amendment therein could have
been made only by principal provincial
legislature and no amendment therein could
have been made in exercise of powers under
Proviso to Article 309 of the Constitution
since legislature has already intervened by
promulgating an enactment containing a
single provision i.e. Fundamental Rule 56,
therefore, even if what has been said by the
petitioner is accepted to the correct, since
there is no amendment by competent
legislature in Fundamental Rule 56, it cannot
be said that age of retirement therein has
extended to 60 years so as to entitle the
petitioner to retire on attaining the age of 60
years. The amendment notification dated
28.11.2001
is
a
formal
amendment
notification by State Government in exercise
of rule framing power and it appears that
State Government completely failed to notice
that Fundamental Rule 56 having been
brought on statute book by a legislative Act,
no amendment can be made therein in
exercise of rule framing power under proviso
to Article 309 of the Constitution.

9. The petitioners in the present case,
however contended that the State Government
has taken a decision to enhance the age of
retiremeent of the employees of Local Self
242 INDIAN LAW REPORTS ALLAHABAD SERIES
Governed
Bodies
as
60
years
vide
Government Order dated 01.08.2013 and,
therefore, petitioner is entitled to continue till
the age of 60 years and the earlier decision
rendered by Division Bench in State of U.P.
and others Vs. Pitamber (supra) would have
no application to the present case. He drew
my attention to Annexure-10 to the writ
petition, which contains a decision taken by
the Cabinet and also the Government Order
dated 12.08.2013 (Annexure-11 to the writ
petition).

10.
From a bare perusal of
Government Order dated 12.08.2013 firstly I
find that it is applicable to Local Self
Government Bodies i.e. Local Bodies, and
not to the societies or companies and
corporations registered under the respective
statutes i.e. Societies Registration Act or the
Companies Act etc.

11. What a Local Self Government
Body is well established and a society
registered under Act, 1860 does not qualify for
the same. Even assuming that DRDA qualify
to be a Local Self Government Body, still the
Government Order dated 12.08.2013 by itself
does not construe an order of the Government
so as to have the effect of changing the existing
provision relating to age of superannuation of
the employees of such bodies.

12. I have carefully read the entire
order and find that it has communicated a
policy decision of State Government that the
age of superannuation of employees and
Officers in Local Self-governed Bodies
would be extended from 58 to 60 years after
following the procedure laid down therein.
The procedure has also been prescribed in
paras 1 to 6 thereof, which read as under:

^^1⁄411⁄2
lEcfU/kr
Lo'kklh
laLFkk
ds
deZpkfj;ksa@vf/kdkfj;ksa dh lsokfuo`fRr dh vk;q 58
o"kZ ls c<+kdj 60 o"kZ fd;s tkus ij fopkj fd;s tkus ds
iwoZ dk;kZRed vko';drk ds ifjizs{; esa laLFkk }kjk ;g
ijh{k.k fd;k tk;sxk fd orZeku esa fdu inksa dh
mi;ksfxrk de vFkok lekIr gks x;h gSA ,sls de
mi;ksxh@vuqi;ksxh inksa dks lekIr fd;s tkus dh
dk;Zokgh laLFkk }kjk loZizFke dh tk;sxhA

1⁄421⁄2 rnksijkUr laLFkk ds Lrj ij ;g ijh{k.k
fd;k tk;sxk fd vf/ko"kZrk vk;q 58 o"kZ ls c<+kdj
60 o"kZ djus esa fdruk vfrfjDr O;;Hkkj vk;sxkA

1⁄431⁄2 foRrh; Hkkj ds vkadyu ds i'pkr~ mls
ogu djus ds lEcU/k esa Li"V O;oLFkk ds lkFk
laLFkk }kjk izLrko xofuZax ckMh ds le{k izLrqr dj
xofuZx ckMh dk vuqeksnu izkIr fd;k tk;sxkA
xofuZax ckMh ds vuqeksnuksijkUr laLFkk }kjk mDr
izLrko vius iz'kkldh; foHkkx dks miyC/k djk;k
tk;sxkA

1⁄441⁄2 iz'kkldh; foHkkx }kjk izLrko dk ijh{k.k
djrs gq, ;g lqfuf'pr fd;k tk;sxk fd &

1⁄4i1⁄2 ,slh laLFkk;sa tks 'kr&izfr'kr jktdh;
vuqnku ls lapkfyr gS] muds fy;s mijksDrkuqlkj
izkIr izLrko esa fufgr O;;Hkkj rFkk vuqi;ksxh inksa
dks lekIr djus ds QyLo:i gksus okyh cpr dks
n`f"Vxr j[krs gq, laLrqfr dh x;h gS vFkok ugha\

1⁄4ii1⁄2 ,slh laLFkk;sa tks vkaf'kd :i ls jktdh;
vuqnku ls lapkfyr gSa] muds fy;s ftruh izfr'kr
dh /kujkf'k jkT; ljdkj }kjk vuqnku ds :i esa nh
tk jgh gS] izLrko esa fufgr vfrfjDr O;;Hkkj ds
mrus izfr'kr dh /kujkf'k ctVh; O;oLFkk ls
vuqnku ds :i esa vuqeU; djk;h tk;sxh rFkk 'ks"k
O;; Hkkj dk ogu djus gsrq laLFkk ds ikl I;kZIr
lalk/ku miyC/k gSa vFkok ugha\ mDr ijh{k.k esa
vuqi;ksxh inksa dks lekIr djus ds QyLo:i gksus
okyh cpr dks Hkh laKku esa fy;k tk;sxkA

1⁄4iii1⁄2 ,slh laLFkk;sa tks Lo;a ds lzksrksa ls
lapkfyr gSa] muds fy;s mi;qZDr izLrko esa fufgr
O;;Hkkj dks ogu djus gsrq laLFkk ds ikl I;kZIr
lalk/ku miyC/k gSa vFkok ugha\

1⁄451⁄2 mijksDrkuqlkj O;oLFkk lqfuf'pr djus ds
i'pkr izLrko dks viuh laLrqfr ds lkFk lEcfU/kr
foRr 1⁄4O;; fu;U=.k1⁄2 vuqHkkx dh lgefr gsrq lanfHkZr
dj foRr foHkkx dh lgefr izkIr dh tk;sxhA
1 All] B.S. Chauhan (Bhuri Singh Chauhan) Vs. State of U.P. and Ors.
243

1⁄461⁄2 mijksDrkuqlkj izLrko ij foRr 1⁄4O;;
fu;U=.k1⁄2 foHkkx dh lgefr izkIr gksus ij lEcfU/kr
iz'kkldh; foHkkx }kjk laLFkk ds deZpkfj;ksa@
vf/kdkfj;ksa dh vf/ko"kZrk vk;q 58 o"kZ ls c<+kdj 60
o"kZ fd;s tkus ij ek0 eaf= ifj"kn dk vuqeksnu
izkIr fd;k tk;sxk ,oa rn~uqlkj vkns'k foRr foHkkx
dh lgefr ls fuxZr fd;s tk;saxsA**

English Translation by the Court:

"(1) Before considering enhancement
of age limit from 58 years to 60 years for
retirement of employees/officers of the
concerned autonomous body, functional
requirement shall be ascertained to see
which posts have gone short of or out of
utility as of now. The process of scrapping
of such less useful/useless posts shall be
initiated by the body.

(2) It shall, thereafter, be seen at the
level of the body how much additional
burden of expenditure shall arise if the
age of superannuation is enhanced from
58 years to 60 years.

(3) After assessment of the financial
burden, approval of the governing body
shall be obtained on presentation of a
proposal by the body to the governing
body specifying clear provisions for
affording such financial burden. After
getting approval from the governing body,
the said proposal shall be made available
by
the
body
to
its Administrative
Department.

(4) The Administrative Department,
while looking into the proposal, shall
ensure:

(i) Whether or not recommendation
has been made for the bodies operated
with 100% government grant after
keeping in view the burden of expenditure
as contained in the aforesaid proposal
and the savings accruing from the
scrapping of useless posts.

(ii) The bodies run partly with the
government grant shall be allowed as
grant, from the budgetary provision, so
much percentage of amount from the
burden of additional expenses, contained
in the proposal, as much percentage of
amount that is being allowed by the state
government as grant to such bodies and
in order to examine whether the said body
has sufficient resources or not to bear the
remaining burden of expenses, the savings
accruing from the scraping of non-useful
posts
shall
also
be
taken
into
consideration.

(iii) Whether or not the bodies
running with their own means have
sufficient resources to bear the burden of
expenses as contained in the aforesaid
proposal.

(5) After ensuring the aforesaid
arrangement the proposal along with the
recommendation shall be referred to the
concerned Finance (Expenditure Control)
Section for their consent and approval
from the Finance Department shall be
obtained.

(6) On receipt of approval from the
Finance
(Expenditure
Control)
Department on the aforesaid proposal,
consent from the Cabinet shall be
obtained by the concerned Administrative
Department for enhancement of age of
superannuation of the employees/officers
of the body from 58 years to 60 years and
accordingly an order shall be issued with
consent from the Finance Department."

13. It is, thus, evident that until the
aforesaid procedure is completed and
244 INDIAN LAW REPORTS ALLAHABAD SERIES
pursuant thereto a decision is taken by
Council of Ministers and approval of Finance
Department is obtained and then an order is
issued, till that date, the said Government
Order would not have any effect of change in
the age of superannuation and it would
continue to be governed by the existing
provisions. As and when new provision
comes into existence, it will operate
prospectively,
unless
made
operative
retrospectively.

14. In the present case, it is not the
case of the petitioner that the aforesaid
procedure has been followed and the
decision has been taken by the Council of
Ministers with the concurrence of Finance
Department, as contemplated in para 6 of
the aforesaid Government Order. So far as
the employees, who are attaining age of
superannuation in presenti, i.e., according
to existing provision, they will continue to
be governed by existing provision and are
bound to retire accordingly. Whenever,
decision will be taken and an order is
issued, having the effect of change of
present provision, subsequent retirements
would be governed accordingly.

15. The question, whether, in case such
a decision though taken, but not executed,
lacking some procedure flaw, would confer
any
right
to
claim
higher
age
of
superannuation was considered in detail by a
Division Bench of this Court (in which I was
also a member) in Daya Shankar Singh Vs.
State of U.P. and others 2008 (3) ADJ 21
(DB)
wherein,
in
somewhat
similar
circumstances, it was held as under:

"A draft Regulation cannot be acted
upon when the statutory Regulations
made in accordance with the Act are
already operative and holding the field. In
Abraham Jacob Vs. Union of India 1998
(4) SCC 65 and Vimal Kumari Vs. State of
Haryana 1998 (4) SCC 114, it was held
that draft rules may be acted upon to meet
urgent situations when no rule is
operative.

In Union of India & another Vs. V.
Ramakrishnan & others 2005 (8) SCC
394, the Apex Court considering almost a
similar situation held :

"A rule validly made even if it has
become unworkable unless repealed or
replaced by another rule of amended,
continues to be in force."

In Mahabir Vegetable Oils (P) Ltd.
& another Vs. State of Haryana & others
2006 (3) SCC 620, the Apex Court in
para-37 of the judgment observed :

"It is now well-settled principle of
law that the draft rules can be invoked
only when no rule is operative in the
field."

The logical inference is that if a valid
rule is already operative, a draft rule
would have no application at all.

An interesting situation occurred in
Alphonse Cazilingarayar & others Vs.
Inspector General of Police & others
2000 (10) SCC 153 where the Central
Administrative Tribunal (Madras Bench)
declared
Draft
Recruitment
Rules
pertaining to the post of Radio Supervisor
(Operations)
Grade-I
illegal
and
unconstitutional. In appeal, the Apex
Court held that the judgment of the
Tribunal setting aside Draft Rules as
unconstitutional was totally uncalled for
being premature since the Draft Rules
were not approved by the State and
remained only draft rules. It was open to
1 All] B.S. Chauhan (Bhuri Singh Chauhan) Vs. State of U.P. and Ors.
245
the Government/Appropriate Authority to
consider either to approve draft rules or not
or to frame fresh rules and, therefore, there
was no cause of action available to anyone
to challenge the draft rules. The same could
not have the effect of affecting any right of
the employees. Till the rules are amended
as per the procedure prescribed, any order
or decision taken by the authorities for
amending or changing Regulations is only
an administrative/executive order, which
would not confer any right upon either of
the parties contrary to the statutory
provisions.

In Rajinder Singh Vs. State of Punjab
2001 (5) SCC 482 dealing with a similar
situation, the Court held :

"The settled position of law is that no
government order, notification or circular
can be a substitute of the statutory rules
framed with the authority of law.
Following any other course would be
disastrous inasmuch as it would deprive
the security of tenure and right of equality
conferred upon the civil servants under
the constitutional scheme. It would be
negating the so far accepted service
jurisprudence."

In Ashok Lanka & another Vs. Rishi
Dixit & others 2005 (5) SCC 598 the
Court held :

"We are not oblivious of the fact that
framing of rules is not an executive act but a
legislative act; but there cannot be any doubt
whatsoever that such subordinate legislation
must be framed strictly in consonance with
the legislative intent as reflected in the rulemaking power contained in Section 62 of the
Act. (para- 57)

Very recently, a similar controversy
with respect to the appointment of Heads
of Department in State University came up
for consideration before a Division Bench in
which one of us (Hon'ble Sudhir Agarwal, J.)
was also a member in Prof. Kalawati Shukla
(Smt.) & others Vs. State of U.P. & others
2008 (1) ADJ 209. There statute 2.20 of
Gorakhpur University framed in exercise of
power under Section 50 of U.P. State
Universities Act, 1973 provided that the
senior most teacher in each department in
the University shall be the Head of
Department. State Government issued a G.O.
dated 24.07.2007 providing that the Head of
Departments in the University shall be by
rotation and for the said purpose required
Universities to take steps for amendment of
the concerned Statutes. The statute, in fact,
were not amended. The University acting as
per the decision of the Government
contained in the G.O. dated 24.7.2007 issued
orders appointing Head of Departments by
roaster instead of senior most teacher. This
Court, following an earlier Division Bench
decision in Ankur Yadav Vs. State of U.P. &
others 2007 (10) ADJ 10 held that unless the
statute is amended, no action could have
been taken according to the Government
Order dated 24.7.2007. The Court quoted
the following observation of the Division
Bench in Ankur Yadav (supra):

"...........the Statutes of the University
framed under the Act would govern the
field and so long as the Statutes are not
amended, no person can be appointed in
the University governed by the act and the
Statutes framed thereunder by ignoring
the qualification prescribed thereunder.
No amount of proposal, acceptance,
waiver, acquiescence etc. either by the
University or the State Government would
have the effect of amending the Statutes
unless the Statute as such is amended in
accordance with the procedure prescribed
under Section 50 of the Act........
246 INDIAN LAW REPORTS ALLAHABAD SERIES

It is not disputed that the First
Statute of the University was not amended
in the manner provided under Section 50
of the Act till the date the petitioner was
appointed and thus principle of estoppel,
waiver or acquiescence would not apply
against law ........"

If the contention of the learned
Counsel for the petitioner is accepted that
once the resolution has been passed by
the Board of Directors, UPSWC for
making amendment in the Regulations,
the petitioners are entitled for the benefit
as per the said resolution irrespective of
the fact whether the said resolution is
sanctioned by the State Government for
the purpose of making amendment in the
Regulations as it would amount to making
the procedure prescribed under Section
42 redundant."

16. In view of above and looking to
the facts and circumstances of the case, in
my view, retirement of petitioner on
31.12.2013, on attaining the age of
superannuation of 58 years, according to
existing provision, does not warrant any
interference. The Government Order
dated 12.08.2013 would come into effect
only when the entire procedure laid down
in para 1 to 6 is completed and, thereafter,
a decision is taken and order is issued
having
effect
of
amending
present
provision,
extending
age
of
superannuation from 58 to 60 years.
Presently it is not the case in present writ
petition.

17. The writ petition, therefore,
lacks merit. Dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2014
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE ANIL KUMAR SHARMA, J.

Civil Misc. Writ Petition No. 69581 of 2010

Laxman Prasad... Petitioner
Versus
Union of India and Ors.........Respondents

Counsel for the Petitioner:
Sri S.K. Tyagi

Counsel for the Respondents:
Sri Vivek Singh, S.C.

Constitution of India, Art.-226-Renewal of
license to run stall on railway platformpetitioner being scheduled caste-under
reserve category license given-application
for renewal remained pending for long
period-in
between
by
circular
dated
20.05.2009 the board clarified that with
provision of renewal of old license and
sc/st category-rejection on ground of
dismissal of earlier petition-challenging
procedure by inviting tender for fresh
allotment-being different cause of actioncan not come in way of considerationpetition allowed with direction.

Held: Para-9
Consequently,
for
the
reasons
stated
aforesaid, the court is of the opinion that
the action of the respondents in rejecting
the petitioner's application for renewal of
his licence was wholly arbitrary and based
on non-existing grounds. The impugned
order cannot be sustained and is quashed.
Writ petition is allowed and a writ of
mandamus is issued commanding the
authority to pass appropriate orders for
renewing the licence of the petitioner
within
six
weeks
from
the
date
of
production of a certified copy of this order.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri S.K.Tyagi, learned
counsel for the petitioner and Sri Vivek