# Bal Krishna Awasthi and another v. Managing Director, U.P.S.R.T.C. and others

- **Citation:** (2012) 1 ILRA 67
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-31
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bal-krishna-awasthi-and-another-v-managing-director-u-p-s-r-t-c-and-others-42255
- **Pages:** 5

## Headnote

Sri R.A. Gaur

U.P.
State
Roadways
Transport
Corporation
Act,
1950-Section
45Retirement Age Group "C" EmployeeNotice to retire on 58 years-challenged
on ground of G.O. Dated 20.12.11-by
which Govt. directed for enhancement of
age
from
58
to
60
years-heldmisconceived-mere
direction
for
consideration without confirmation by
Board of Director and approved by Govt.
-accepting burden of financial expensessuch G.O. Can not over ride the statuteretirement
at
58
years
age-properpetition dismissed.

Held: Para 14

Moreover, the Government order which
is sought to be relied by petitioners also
nowhere talks of any straightway grant
of benefit of extension of age of
retirement
to
employees
of
public
corporations. Para 2 of Government
Order
dated
20.12.2011
says
that
respective corporations shall examine
their matter to find out whether they are
financially capable of bearing the burden
likely to be caused by extension of age of
retirement from 58 to 60 years. If they
find that such a burden can be borne by
them, the matter shall be placed before
the Board of Directors and in case they
pass a resolution to this effect for
extension of age of retirement from 58
to 60 years, such proposal shall be
forwarded
to
the
Administrative
department of the concerned corporation
for
its
examination/
scrutiny
and
approval. It is only after obtaining
approval of respective department of the
concerned
corporation,
order
for
extending age of retirement from 58 to
60
years
can
be
issued
and
not
otherwise. It also says that its procedure
shall be followed by every corporation
separately and extension of age shall be
made applicable only after approval of
Government
for
which
no
financial
burden
shall
be
borne
by
State
Government. Therefore, the Government
order dated 20.12.2011 by itself does not
talk of any suo motu extension of age of
retirement from 58 to 60 years but
provides a procedure to be followed by
respective individual corporation and
after following said procedure when
approval of concerned department is
obtained, only then requisite order can
be issued.
Case law discussed:
1992 (Suppl) 3 SCC 217; JT 2001 (8) SC 171;
1998 (8) SCC 469; 1998 (8) SCC 154; AIR
1936 PC 253; 2001 (4) SCC 9; 2002 (1) SCC
633; 2005 (13) SCC 477; 2005(1) SCC 368;
2008 (2) ESC 1220

## Text

1 All] Bal Krishna Awasthi and another V. Managing Director, U.P.S.R.T.C. and others
67
Legal
Aid
Clinics
and
engaging
paralegals, and Legal Aid 0.79"lawyers as
was directed in the case of Sageer &
others vs State of U.P. (supra) on 5.1.12

8.List on 21.2.2012. for submission
of further compliance reports.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition no. 5272 of 2012

Bal Krishna Awasthi & another

 ...Petitioner
Versus
Managing
Director,
U.P.S.R.T.C.
and
others

 ...Respondents

Counsel for the Petitioner:
Sri Venu Gopal
Sri B.N. Tiwari

Counsel for the Respondent:
Sri R.A. Gaur

U.P.
State
Roadways
Transport
Corporation
Act,
1950-Section
45Retirement Age Group "C" EmployeeNotice to retire on 58 years-challenged
on ground of G.O. Dated 20.12.11-by
which Govt. directed for enhancement of
age
from
58
to
60
years-heldmisconceived-mere
direction
for
consideration without confirmation by
Board of Director and approved by Govt.
-accepting burden of financial expensessuch G.O. Can not over ride the statuteretirement
at
58
years
age-properpetition dismissed.

Held: Para 14

Moreover, the Government order which
is sought to be relied by petitioners also
nowhere talks of any straightway grant
of benefit of extension of age of
retirement
to
employees
of
public
corporations. Para 2 of Government
Order
dated
20.12.2011
says
that
respective corporations shall examine
their matter to find out whether they are
financially capable of bearing the burden
likely to be caused by extension of age of
retirement from 58 to 60 years. If they
find that such a burden can be borne by
them, the matter shall be placed before
the Board of Directors and in case they
pass a resolution to this effect for
extension of age of retirement from 58
to 60 years, such proposal shall be
forwarded
to
the
Administrative
department of the concerned corporation
for
its
examination/
scrutiny
and
approval. It is only after obtaining
approval of respective department of the
concerned
corporation,
order
for
extending age of retirement from 58 to
60
years
can
be
issued
and
not
otherwise. It also says that its procedure
shall be followed by every corporation
separately and extension of age shall be
made applicable only after approval of
Government
for
which
no
financial
burden
shall
be
borne
by
State
Government. Therefore, the Government
order dated 20.12.2011 by itself does not
talk of any suo motu extension of age of
retirement from 58 to 60 years but
provides a procedure to be followed by
respective individual corporation and
after following said procedure when
approval of concerned department is
obtained, only then requisite order can
be issued.
Case law discussed:
1992 (Suppl) 3 SCC 217; JT 2001 (8) SC 171;
1998 (8) SCC 469; 1998 (8) SCC 154; AIR
1936 PC 253; 2001 (4) SCC 9; 2002 (1) SCC
633; 2005 (13) SCC 477; 2005(1) SCC 368;
2008 (2) ESC 1220

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

1. By means of impugned order,
petitioners, who are admittedly Group 'C'
employees, have been retired on attaining
68 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the age of 58 years in accordance with
Regulation 37 of U.P. State Road
Transport Corporation Employees (other
than Officers) Service Regulations, 1981
(hereinafter
referred
to
as
"1981
Regulations").

2.

Learned
counsel
for
the
petitioners
submitted
that
under
Government Order dated 20.12.2011 the
State Government has taken a policy
decision
in
extending
the
age
of
retirement from 58 to 60 years and,
therefore, petitioners are entitled to be
retired at the age of 60 years and cannot
be made to retire at 58 years.

3. The submission is thoroughly
misconceived. It is admitted that statutory
provision has not been amended so far.
Government order, being an executive
order
cannot
override
a
statutory
provision. It is well settled that whenever
Rules or Regulations provide something,
it cannot be overridden by an executive
order. An executive order can be issued
and enforced only where the statutory
provision is silent to fill in the gap but not
to be supplemented. In Indra Sawhney
and others Vs. Union of India and
others, 1992 (Suppl) 3 SCC 217 the
Apex Court held that though the executive
orders can be issued to fill up the gaps in
the rules if the rules are silent on the
subject but the executive orders cannot be
issued which are inconsistent with the
statutory
rules
already
framed.
In
Laxman Dundappa Dhamanekar and
another Vs. Management of Vishwa
Bharata Seva Smithi and another, JT
2001 (8) SC 171 also the same view was
taken. In K. Kuppusamy and another
Vs. State of T.N. and others, 1998 (8)
SCC 469 the Court said that statutory
rules cannot be overridden by executive
orders or executive practice and merely
because the government has taken a
decision to amend the rules does not mean
that the rule stood obligated. So long as
the rules are not amended in accordance
with the procedure prescribed under law
the same would continue to apply and
would have to be observed in words and
spirit. In Chandra Prakash Madhavrao
Dadwa and others Vs. Union of India and
others, 1998(8) SCC 154 also the Apex
Court expressed the same view holding
that the executive orders cannot be
conflicted with the statutory rules of
1977.

4. Moreover, a policy decision even
if taken by Government would not entitle
an employee to enforce such policy
decision ignoring the existing statutory
provision inasmuch as the rights of
employees are governed by existing
statutory provision and not what is likely
to be amended in future unless the
amendment is made with retrospective
effect which is not the case here.

5. The Regulations have been
framed by exercising powers under
Section 45 of U.P. State Road Transport
Corporation Act, 1950. It reads 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."
1 All] Bal Krishna Awasthi and another V. Managing Director, U.P.S.R.T.C. and others
69

6. Admittedly it has not been
amended so far. The mere executive
decision conveyed by State Government
that in principle it is agreeable for
extension of age of retirement of
employees of public corporations from 58
to 60 years by itself would not result in a
deemed or automatic amendment in the
statutory regulations unless it is done in
accordance with procedure prescribed
therefor. The regulations can be amended
in the manner the same were framed and
there is no question of an automatic
amendment of regulations. Atleast to this
extent even learned counsel for the
petitioners has not disputed the exposition
of law. That being so when a particular
procedure is prescribed for amendment of
regulations and said procedure has not
been followed so far, the existing
regulations have to be implemented.

7. The first principle applicable
herein would be when a statute required a
thing to be done in a particular manner,
then it should be done in that manner
alone and not otherwise. The principle
was recognized in Nazir Ahmad Vs.
King-Emperor AIR 1936 PC 253 and,
thereafter it has been reiterated and
followed consistently by the Apex Court
in a catena of judgements, which we do
not propose to refer all but would like to
refer a few recent one.

8. In Dhananjaya Reddy Vs. State
of Karnataka 2001 (4) SCC 9 in para 23
of the judgment the Court held :

"It is a settled principle of law that
where a power is given to do a certain
thing in a certain manner, the thing must
be done in that way or not at all."

9. In Commissioner of Income
Tax,
Mumbai
Vs.
Anjum
M.H.
Ghaswala 2002 (1) SCC 633, it was held
:

"It is a normal rule of construction
that when a statute vests certain power in
an authority to be exercised in a
particular manner then the said authority
has to exercise it only in the manner
provided in the statute itself."

10. The judgments in Anjum M.H.
Ghaswala (supra) and Dhananjaya
Reddy (supra) laying down the aforesaid
principle have been followed in Captain
Sube Singh & others Vs. Lt. Governor
of Delhi & others 2004 (6) SCC 440.

11. In Competent Authority Vs.
Barangore Jute Factory & others 2005
(13) SCC 477, it was held :

"It is settled law that where a statute
requires a particular act to be done in a
particular manner, the act has to be done
in that manner alone. Every word of the
statute has to be given its due meaning."

12. In State of Jharkhand &
others Vs. Ambay Cements & another
2005 (1) SCC 368 in para 26 of the
judgment, the Court held :

"It
is
the
cardinal
rule
of
interpretation
that
where
a
statute
provides that a particular thing should be
done, it should be done in the manner
prescribed and not in any other way."

13. In effect a similar question was
considered by Division Bench of this
Court [in which I was also a member with
Hon'ble S.R. Alam, J., (as His Lordship
then was)] in Daya Shankar Singh Vs.
70 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
State of U.P. and others, 2008(2) ESC
1220 and this Court has observed:

"A modification, amendment etc.,
therefore, is permissible by exercising the
power in the like manner and subject to
like sanction and conditions in which the
main provision was made initially. Since,
Staff Regulations were framed admittedly
with the previous sanction of the State
Government and by publication in the
official Gazette, same can be amended
only following the same procedure and
not
otherwise.
Therefore,
the
proposal/resolution passed by the Board
of Directors, UPSWC by no stretch of
imagination can be said to have the effect
of either amending Regulation 12 of Staff
Regulations or to bind UPSWC and its
employees to be governed by such
resolution/proposal
which
are
inconsistent with the existing provisions
contained in Staff Regulations."

14. Moreover, the Government order
which is sought to be relied by petitioners
also nowhere talks of any straightway
grant of benefit of extension of age of
retirement
to
employees
of
public
corporations. Para 2 of Government Order
dated 20.12.2011 says that respective
corporations shall examine their matter to
find out whether they are financially
capable of bearing the burden likely to be
caused by extension of age of retirement
from 58 to 60 years. If they find that such
a burden can be borne by them, the matter
shall be placed before the Board of
Directors and in case they pass a
resolution to this effect for extension of
age of retirement from 58 to 60 years,
such proposal shall be forwarded to the
Administrative
department
of
the
concerned
corporation
for
its
examination/ scrutiny and approval. It is
only
after
obtaining
approval
of
respective department of the concerned
corporation, order for extending age of
retirement from 58 to 60 years can be
issued and not otherwise. It also says that
its procedure shall be followed by every
corporation separately and extension of
age shall be made applicable only after
approval of Government for which no
financial burden shall be borne by State
Government. Therefore, the Government
order dated 20.12.2011 by itself does not
talk of any suo motu extension of age of
retirement from 58 to 60 years but
provides a procedure to be followed by
respective individual corporation and after
following said procedure when approval
of concerned department is obtained, only
then requisite order can be issued.

15. As already said this very aspect
was also considered by this Court in Daya
Shankar Singh (supra) and in the
penaltimate paragraphs of the judgement,
the Court said:

"Now we come to the writ petition
pertaining to UPSAICL. There also, the
Regulations though not statutory but
being part of the conditions of service of
the employees, it is not disputed by the
petitioners that the same are binding upon
the employees of UPSAICL. That being
so, unless the same are also amended in
accordance with the procedure prescribed
therein, it cannot be said that there is any
different condition of service providing a
higher age of superannuation contrary to
the existing Regulations entitling the
petitioners to continue in service till 60
years of age. Regulation 26 specifically
provides that the age of superannuation
cannot
be
extended
without
prior
approval of the
State
Government.
Therefore, in the absence of any such
1 All] Km. Gyanti V. State of U.P. & others
71
approval under Regulation 26, the age of
superannuation continued to be 58 years,
the petitioners are liable to retire on
attaining the age of 58 years. Moreover,
even
under
Regulation
4,
before
amending the Regulation, a procedure
has been prescribed which has to be
followed by UPSAICL and it is nobody's
case that the said procedure has been
followed having the effect of amending
Regulation 26 in any manner. In view
thereof,
the
petitioners,
who
are
employees of UPSAICL are also not
entitled to continue beyond 58 years
merely on the basis of a resolution passed
by the Board of Directors for increasing
the age of retirement from 58 to 60 years.

However, it is made clear that in
case, any employee has continued beyond
58 years under interim order passed by
this Court and has been paid salary, it
would not be equitable to recover the
same from such employee and, therefore,
respondent shall not make any recovery
from any of the petitioners, but it is also
made clear simultaneously that for all
other purposes, the petitioners shall be
deemed to have been retired on attaining
the age of 58 years and their continuance,
if any, beyond 58 years pursuant to the
interim order of this Court would not
confer any benefit upon them."

16. Since the impugned order of
retirement has been passed strictly in
accordance with statutory Regulations
existing and operating on the date, the
same cannot be faulted, legally or
otherwise, and it warrants no interference.

17. The writ petition lacks merit.
Dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH,J. )

Civil Misc. Writ Petition No. 6551 of 2008

Km. Gyanti

 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Srivastava

Counsel for the Respondents:
C.S.C.

U.P. Recruitment of Dependants of Govt.
Servants) Dying in Harness Rule, 1974Rule-2
(b)-readwith
Section-108
of
Evidence
Act-Compassionate
Appointment-Petitioner's father working
as
Police
Constable-abducted
during
duty hours-F.I.R. Lodged by S.I. On
09.03.1998-claim
for
appointment
although processed but subsequently in
view of G.O. 27.08.2007-refused-heldcase of civil death more bonafide than
natural death-as the deceased family
suffers mental , physical agony apart
from
financial
crisis-entitled
for
appointment.

Held: Para 17

In view of foregoing discussions, I am of
the view that if a dependant of deceased
on
account
of
civil
death
claims
appointment under the provisions of
1974, he/she is entitled to be considered
under the Rules and no distinction can
be drawn in between the civil death or
death otherwise.
Case law discussed:
(1984) 2 SCC 50; 2002 (2) ESC 37; 2005 (1)
ESC 807; 2005 (3) AWC 2724; 2009 (4) ESC
2511