# Bihangesh Nandan Sharan v. State of U.P. and others

- **Citation:** (2006) 1 ILRA 564
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-09
- **Case number:** Civil Misc. Writ Petition No. 57044 of 2005
- **Bench:** V.M. Sahai, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bihangesh-nandan-sharan-v-state-of-u-p-and-others-40797
- **Pages:** 10

## Headnote

Sri Q.H. Siddiqui
S.C.

U.P. Jal Nigam Engineers (Public Health
Branch)
Service
Regulation
1978
Regulation
31-readwith
Fundamental
Rules-Rule 56 (a)-age of Superannation
of Assistant Engineers and the executive
Engineer-decision
of
the
Jal
Nigam
retiring the petitioner ate the age of 58
years-held-not
sustainable-They
shall
retire
at
the
age
of
60
years.
Consequential directions issued by the
court.

Held: Para 12 and 14

Amendment made in Rule 56 (a) of
Fundamental
Rules
referred
herein
before
shall
equally
apply
to
the
employees
of
Nigam
covered
by
aforesaid
Regulations
by
virtue
of
Regulation 31, and the petitioners would
be entitled to be superannuated on
attaining their age of 60 years.

In the result, the petitioners are entitled
to be continued in service on their
respective posts till attaining 60 years
age of their superannuation. In case the
petitioners were permitted to continue in
service after attaining their age of 58
years at the strength of any interim
order passed by this Court and they have
also
been
paid
their
salary,
the
respondents are directed to continue
them in service till attaining their age of
60 years and pay their salary admissible
to their respective posts by treating their
age of retirement 60 years. If any of the
petitioner has not been permitted to
continue in service in absence of any
interim order and has not been paid his
salary without his fault, the Nigam is
directed to reinstate him on his post for
remaining period till attaining his age of
60 years and pay his salary alongwith
arrears of remaining period within a
period of three months from the date of
production of certified copy of the order
passed by this Court before the Nigam.
The Nigam is further directed to finalize
post retiral benefits of the petitioners by
treating their age of retirement 60 years.
With the aforesaid directions, the writ
petition succeeds and allowed.
Case law discussed:
AIR 1982 SC 917
1 All] Bihangesh Nandan Sharan V. State of U.P. and others
565
J.T. 2005 (10) SC-32

## Text

564 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
appointment was temporary which was
terminable without notice and thus in
accordance
with
the
condition
of
appointment letter, the order has been
passed and in this particular case the
petitioner was not entitled to any
opportunity as the order cannot be termed
as stigmatic. It is also well settled that a
temporary employee does not have any
right to the post and that too one whose
appointment itself is hit by the principles
enshrined in Articles 14 and 16 of the
Constitution. Therefore, the contention of
the learned counsel for the petitioner
cannot be accepted.

No other point has been urged.

5. For the reasons given above, I do
not find that this is a fit case for
interference under Article 226 of the
Constitution of India. Rejected.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2006

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 57044 of 2005

Bihangesh Nandan Sharan
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
V.M. Zaidi

Counsel for the Respondents:
Sri Q.H. Siddiqui
S.C.

U.P. Jal Nigam Engineers (Public Health
Branch)
Service
Regulation
1978
Regulation
31-readwith
Fundamental
Rules-Rule 56 (a)-age of Superannation
of Assistant Engineers and the executive
Engineer-decision
of
the
Jal
Nigam
retiring the petitioner ate the age of 58
years-held-not
sustainable-They
shall
retire
at
the
age
of
60
years.
Consequential directions issued by the
court.

Held: Para 12 and 14

Amendment made in Rule 56 (a) of
Fundamental
Rules
referred
herein
before
shall
equally
apply
to
the
employees
of
Nigam
covered
by
aforesaid
Regulations
by
virtue
of
Regulation 31, and the petitioners would
be entitled to be superannuated on
attaining their age of 60 years.

In the result, the petitioners are entitled
to be continued in service on their
respective posts till attaining 60 years
age of their superannuation. In case the
petitioners were permitted to continue in
service after attaining their age of 58
years at the strength of any interim
order passed by this Court and they have
also
been
paid
their
salary,
the
respondents are directed to continue
them in service till attaining their age of
60 years and pay their salary admissible
to their respective posts by treating their
age of retirement 60 years. If any of the
petitioner has not been permitted to
continue in service in absence of any
interim order and has not been paid his
salary without his fault, the Nigam is
directed to reinstate him on his post for
remaining period till attaining his age of
60 years and pay his salary alongwith
arrears of remaining period within a
period of three months from the date of
production of certified copy of the order
passed by this Court before the Nigam.
The Nigam is further directed to finalize
post retiral benefits of the petitioners by
treating their age of retirement 60 years.
With the aforesaid directions, the writ
petition succeeds and allowed.
Case law discussed:
AIR 1982 SC 917
1 All] Bihangesh Nandan Sharan V. State of U.P. and others
565
J.T. 2005 (10) SC-32

(Delivered by Hon'ble V.M. Sahai, J.)

1. The only question that arises for
our consideration in these batch of cases
is as to whether amendment made in Rule
56 (a) of Uttar Pradesh Fundamental
Rules
(in
short
''the
Rules')
by
Notification
dated
June
27,
2002
enhancing age of superannuation of
government servants from 58 years to 60
years
would
be
applicable
to
the
employees of Uttar Pradesh Jal Nigam
(hereinafter referred to as ''the Nigam').

2. The petitioners of these batch of
writ petitions while working on the posts
of
Assistant
Engineers/Executive
Engineers in the Nigam have been retired
from service on attaining 58 years of their
age of superannuation. Since identical
question in controversy based on similar
facts are involved in this batch of writ
petitions, therefore, the writ petitions are
taken up together for hearing and
disposal.

3. The brief facts having material
bearing with the question in controversy
involved in the case are that the
petitioners were initially employed in the
Local Self Government, Engineering
Department of Government of Uttar
Pradesh. In the year 1975, the State
Legislature enacted an Act, viz., Uttar
Pradesh Water Supply & Sewerage Act,
1975 (hereinafter referred to as ''the Act'),
under Section 3 whereof, the State
Government was empowered to issue
notification to constitute a corporation by
the name of the Uttar Pradesh Jal Nigam
pursuant to which a notification was
issued establishing the same with effect
from 18th June, 1975. From the date of
the establishment of the Nigam, which is
the appointed date as enumerated in
Section 31 of the Act, all properties and
assets which immediately before the
appointed date were vested in the State
Government for the purposes of Local
Self Government Engineering Department
were vested in and stood transferred to the
Nigam and all rights, liabilities and
obligations of the state Government
pertaining to the said Department became
the rights, liabilities and obligations of the
Nigam. Under Section 37 of the Act,
every person who was employed in the
Local
Self
Government
Engineering
Department of the State of Uttar Pradesh
shall on and from the appointed date, i.e.,
18th June, 1975 would become employee
of the Nigam and shall hold his office or
service therein by the same tenure, at the
same remuneration and upon same other
terms and conditions and with the same
rights and privileges as to pension,
gratuity and other matters as he would
have held the same on the appointed date
if this Act had not come into force and
shall continue to do so until his
remuneration
or
other
terms
and
conditions of service are revised or altered
by the Nigam under or in pursuance of
any law or in accordance with any
provision which for the time being
governed
his
service.
Before
the
appointed date i.e. 18th June, 1975, the
age of superannuation of these employees
under Rule 56(a) of the rules was 58 years
which could be extended in exceptional
circumstances up to the age of 60 years.
Thereafter, the State Government issued
order to the Nigam under its letter dated
October 31, 1975 wherein it was clearly
stated that in accordance with Section 37
of the Act the service conditions of such
employees of the Nigam would continue
to remain the same so long the same are
566 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
not altered by the Nigam in accordance
with law. Thereupon, Nigam took a
decision on 4th April, 1977 in conformity
with the provisions of Section 37 of the
Act wherein specifically it was mentioned
that the rights and responsibilities as were
enjoyed by the officers of the then Local
Self Government Engineering Department
under the Financial Hand Book, PWD
Manuals, Manual of Government Orders,
Civil Services Regulations, Government
Conduct Rules and other Manuals of
Government Orders that have been passed
or shall be passed by the Government
from time to time shall be deemed to be
applicable to the officers of the Nigam
provided any other order in this regard is
not passed by the Nigam.

4. Section 97 (2) ( c) confers power
upon the Nigam to make regulations with
the previous approval of the State
Government on matters, inter alia, the
salaries
and
allowances
and
other
conditions of service of employees of the
Nigam. In exercise of the aforesaid
powers under Section 97 of the Act,
regulations were framed by the Nigam on
1st September, 1978 as Uttar Pradesh Jal
Nigam Engineers (Public Health Branch)
Service Regulations, 1978 (hereinafter
referred to as ''the Regulations') which
came into force with immediate effect and
Regulation 31 thereof laid down that the
pay,
allowances,
pension,
leave,
imposition of penalty and other terms and
conditions of service of the employees of
the Nigam shall be governed by such
rules, regulations and orders which are
equally
applicable
to
other
serving
government servants functioning in the
State. On 17th July, 1985, the State
Government issued a general order under
its Memo No. 665/44-1/85 directing
thereunder
that
the
public
sector
undertakings should not give the benefit
of extension of age as provided to the
government servants under Rule 56 (a) of
the Rules without the permission of the
State Government.

5. On 28th November, 2001, the
State Government issued a notification
notifying thereunder approval of the
Governor for increasing the age of
superannuation of government servants
from 58 years to 60 years in public
interest and steps were required to be
taken for making suitable amendment in
Rule 56(a) of the Rules, pursuant to which
rules were amended by Uttar Pradesh
Fundamental (Amendment) Rules, 2002
by notification dated 27th June, 2002
which came into force with effect from
28th November, 2001 and thereunder the
age of retirement of government servants
was enhanced from 58 years to 60 years.
In the meantime, after the issuance of
notification dated 28th November, 2001,
on behalf of Nigam a letter was written to
the State Government on 31st December,
2001 making inquiry thereunder as to
whether enhancement in the age of
superannuation from 58 years to 60 years
would be applicable to the employees of
Nigam and in reply thereto, on 22nd
January, 2002, Special Secretary to the
Government in the Department of Local
Self Government communicated that the
employees of the Nigam shall not be
entitled to enhancement of superannuation
age from 58 years to 60 years as the same
would
be
applicable
only
to
the
government servants. On receipt of the
said order, the Nigam resolved on 11th
July, 2002 that enhancement in the age of
superannuation from 58 years to 60 years
would not be applicable to the employees
of the Nigam. Thereupon orders were
issued to the petitioners in the writ
1 All] Bihangesh Nandan Sharan V. State of U.P. and others
567
petitions to the effect that they would
retire upon completing the age of 58
years.

6. Counter and rejoinder affidavits
have been exchanged between the parties
and the case is ripped for final disposal,
therefore, with the consent of learned
counsel for the parties the petitions were
heard for final disposal.

7. We have heard learned counsel
for the petitioners and Sri Q.H. Siddiqui
appearing for the Nigam as well as
learned Standing Counsel for the State
Government and also perused the records.

8. It is necessary to point out that it
is not in dispute that the petitioners were
initially employed in the Local Self
Government, Engineering Department of
the
Government
of
U.P..
On
establishment of Nigam their services
stood transferred from the aforesaid
department of Government to the Nigam
by virtue of section 37 of the Act from the
appointed date, consequently they became
employee of the Nigam and since then
they were continuously working on the
posts of Assistant Engineers and/or
Executive Engineers. It is also not in
dispute that the petitioners were working
on their respective posts on the date of
commencement
of
the
amended
Fundamental Rules 56 (a), which came
into force on 28th November 2001 but
they were retired from service after the
aforesaid cut of date on attaining 58 years
of their age, without permitting them to
continue in service till attaining 60 years
age of superannuation.

9. To appreciate the point in issue, it
would be necessary to refer to the relevant
provisions of Sections 15, 31(1), 37, 89
and 97 of the Act and Regulation 31 of
the Regulations which read thus:-

"15. Powers of the Jal Nigam. (1)

The Nigam shall, subject to the
provisions of this Act have power to do
anything which may be necessary or
expedient for carrying out its functions
under this Act.
(2) Without
prejudice
to
the
generality of the foregoing provision,
such power shall include the power:
(i) to inspect all water supply and
sewerage facilities in the State by
whomsoever they are operated;
(ii) to obtain such periodic or
specific information from any local body
and operating agency as it may deem
necessary;
(iii) to provide training for its own
personnel as well as employees of the
local bodies;
(iv) to
prepare
and
carry
out
schemes for water supply and sewerage;
(v) to lay down the schedule of fees
for all services rendered by the Nigam to
the State Government, local bodies,
institutions or individuals;
(vi) to
enter
into
contract
or
agreement with any person, firm or
institution, as the Nigam may deem
necessary, for performing its functions
under this Act;
(vii) to adopt its own budget
annually;
(viii) to approve tariffs for water
supply and sewerage services applicable
to respective local areas comprised within
the jurisdiction of Jal Sansthans and such
local bodies as have entered into an
agreement with the Nigam under Section
46;
(ix) to
borrow
money,
issue
debentures to obtain subventions and
grants and manage its own funds;
568 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(x) to disburse loans to local bodies
for their water supply and sewerage
schemes;
(xi) to incur expenditure and to grant
loans and advances to such persons or
authorities as the Nigam may deem
necessary for performing the functions
under this Act.

31. Vesting and transfer of property
to Nigam. (1) As from June, 18, 1975, the
date of establishment of the Nigam
hereinafter in this Chapter referred to as
"the appointed date",
(a) all
properties
and
assets
(including
water,
work,
building,
laboratories, stores, vehicles, furnitures
and other furnishing) which immediately
before the appointed date were vested in
the State Government for the purposes of
the Local Self Government Engineering
Department shall vest in and stand
transferred to the Nigam; and
(b) all the rights, liabilities and
obligations of the State Government
whether arising out of any contract or
otherwise
pertaining
to
the
said
departments shall be the rights, liabilities
and obligations of the Nigam.

37. Transfer of employees to Nigam.
(1) Save as otherwise provided in this
section every person, who was employed
in the Local Self Government Engineering
Department of the State Government shall
on and from the appointed date become
employee of the Nigam and shall hold his
office or service therein by the same
tenure, at the same remuneration and
upon same other terms and conditions,
and with the same rights and privileges as
to pension, gratuity and other matters as
he would have held the same on the
appointed date if this Act has not come
into force, and shall continue to do so
until his employment in the Nigam is
terminated or until his remuneration or
other terms and conditions of services are
revised or altered by the Nigam under or
in pursuance of any law or in accordance
with any provision which for the time
being governs his service.

89. Directions to the Nigam on
questions of policy. (1) In the discharge
of its functions, the Nigam shall be guided
by such directions on questions of policy
as may be given it by the State
Government.
(2) If any question arises whether
any matter is or is not a matter as
respects which the State Government may
issue a direction under sub-section (1),
the decision of the State Government shall
be final.

97. Regulations. (1) The Nigam and
a jal Sansthan may, with the previous
approval of the State Government, make
regulations, not inconsistent with this Act
and the rules made thereunder, for the
administration of the affairs of the Nigam
or a Jal Sansthan.
(2) In particular, and without prejudice to
the generality of the foregoing power,
such regulations may provide for all or
any of the following matters, namely;

a)
xxxx xxxx xxxx xxxx
b) xxxx xxxx xxxx xxxx
c) the salaries and allowances and
other conditions of service of employees
of the Nigam or a Jal Sansthan other than
employees employed on contract basis.

Regulation 31. Besides the provision
made under these regulations, the pay
and
allowances,
pension,
leave,
imposition of penalty and other terms and
conditions of service shall be governed by
1 All] Bihangesh Nandan Sharan V. State of U.P. and others
569
such rules, regulations and orders which
are equally applicable to other serving
government
servants
concerned
functioning in the State".

10. At this juncture it would also be
useful to extract the text of Notification
dated 27th June 2002 whereby the
amendment in Uttar Pradesh Fundamental
Rules have been enforced as under:-

1. Short title and commencement.- (1)
These rules may be called the Uttar
Pradesh
Fundamental
(Amendment)
Rules, 2002.
(2) They shall be deemed to have
come into force on November 28, 2001.
2. Amendment of Fundamental Rule 56.-
In the Uttar Pradesh Fundamental Rules,
contained in the Financial Handbook,
Volume-II, Parts II-IV in Rule 56.-
(a) For clause (a) the following clauses
shall be substituted, namely:-
"56.(a) Except as otherwise provided
in this rule, every Government servant
shall retire from service on the afternoon
of the last day of the month in which he
attains the age of sixty years:
Provided that a Government servant,
whose date of birth is the first day of a
month, shall retire from service on the
afternoon of the last day of the month in
which he attains the age of sixty years:
Provided further that a Government
servant, who has attained the age of fiftyeight years on or before the first day of
November, 2001 and is on extension in
service, shall retire from service on expiry
of his extended period of service.
(a-1) No Government servant shall
be granted extension in service beyond
the age of retirement of sixty years:
Provided that a Government servant
dealing with budget work or working as a
full time member of a committee which is
to be wound up within a short period of
time may be granted, by the Government,
extension of service for a period not
exceeding three months in public interest:
Provided
further
that
the
Government shall have the right to
terminate the extension of service before
the expiry of such extension by giving a
notice in writing of not less than three
months in the case of a permanent or, of
one month in the case of a temporary
Government
servant,
or
pay
and
allowances in lieu of such notice."
(b) Note 3 shall be omitted."

11. At this juncture it is necessary to
point out that the aforesaid provision of
Act inasmuch as Regulations have been
considered by Hon'ble Apex Court in a
decision rendered in Harwindra Kumar
Vs. Chief Engineer, Karmik & others,
JT 2005 (10) SC 32, wherein Hon'ble
Apex Court while dealing with the
aforesaid provisions of the Act of
Regulations referred herein before has
held that so long as regulation 31 of the
Regulations is not amended, 60 years,
which is age of superannuation of
Government Servant employed under
State of Uttar Pradesh shall be applicable
to
the
employees
of
Nigam.
The
observations of Hon'ble Apex Court made
in para 8 to 12 of the decision are as
under:

8. From the aforesaid provisions,
it would be clear that the appointed date
for the purposes of the Act was 18th June,
1975 when the Nigam was established
and under Section 37 of the Act,
conditions
of
service
of
the
appellants/petitioners who were employed
in the Local Self Engineering Department
of the Government of Uttar Pradesh
before the appointed date, were continued
570 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
to remain the same as they were before
the appointed date unless and until the
same are altered by the Nigam under the
provisions of the Act. Section 97 confers
power upon the Nigam with the previous
approval of the State Government to
frame regulations in relation to service
conditions of employees of the Nigam and
acting
thereunder,
Regulations
were
framed by the Nigam in the year 1978,
Regulation 31 whereof provides that
service conditions of the employees of the
Nigam shall be governed by such rules,
regulations
and
orders
which
are
applicable to other serving government
servants functioning in the State of Uttar
Pradesh. Thus, from a bare reading of
Section 37 and Regulation 31, it would be
clear that the service conditions of the
employees of the Nigam would be the
same as are applicable to the employees
of the State Government under the Rules,
Regulations and Orders applicable to
such government servants so long the
same are not altered by the Nigam in
accordance with the provisions of the Act.
If Regulations, would not have been
framed, the Nigam had residuary power
under Section 15(1) of the Act whereby
under general power it could change the
service conditions and the same could
remain operative so long regulations
were not framed but in the present case,
regulations were already framed in the
year 1978 specifically providing in
Regulation 31 that the conditions of
service of the employees of the Nigam
shall
be
governed
by
the
Rules,
Regulations and Orders governing the
conditions of service of government
servants which would not only mean
Rules
then
in
existence
but
any
amendment made therein as neither in
Section 37 nor in Regulation 31, it has
been mentioned that the Rules then in
existence shall only apply. After the
amendment made in Rule 56 (a) of the
Rules by the State Government and
thereby
enhancing
the
age
of
superannuation of government servants
from 58 years to 60 years, the same would
equally apply to the employees of the
Nigam and in case the State Government
as well as the Nigam intended that the
same would not be applicable, the only
option with it was to make suitable
amendment in Regulation 31 of the
Regulations
after
taking
previous
approval of the State Government and by
simply issuing direction by the State
Government purporting to act under
Section 89 of the Act and thereupon
taking administrative decision by the
Nigam under Section 15 of the Act in
relation to age of the employees which
would not tantamount to amending
Regulation 31 of the Regulations.

9. Reference in this connection
may be made to a decision of this Court in
the case of V.K. Khanzode and others Vs.
Reserve Bank of India and another, AIR
1982 S.C. 917. In that case, under Section
58(1) of the Reserve Bank of India Act,
powers were conferred upon the Central
Board of Directors of the bank to make
regulations in order to provide for all
matters
for
which
provision
was
necessary or convenient for the purpose
of giving effect to the provisions of the Act
which section in the opinion of their
Lordships included the power to frame
regulation
in
relation
to
service
conditions of the bank staff. In that case,
instead of framing regulations, the bank
issued administrative circulars in relation
to service conditions of the staff acting
under Section 7(2) of the Reserve Bank of
India Act which was a general power
conferred upon the bank like Section 15
1 All] Bihangesh Nandan Sharan V. State of U.P. and others
571
(1) of the present Act. It was laid down
that "there is no doubt that a statutory
corporation can do only such acts as are
authorized by the statute creating it and
that, the powers of such a corporation
cannot extend beyond what the statute
provides expressly or by necessary
implication." It was further laid down that
"so long as staff regulations are not
framed under Section 58(1), it is open to
the Central Board to issue administrative
circulars regulating the service conditions
of the staff, in the exercise of power
conferred by Section 7(2) of the Act." As
in the said case, no regulation was at all
framed under Section 58 of the Reserve
Bank
of
India
Act,
as
such, the
administrative circulars issued by the
Central Board of Directors of the Bank
under Section 7(2) of the Reserve Bank of
India Act in relation to service conditions
were held to be in consonance with law
and not invalid.

10. In
the
present
case,
as
Regulations have been framed by the
Nigam
specifically
enumerating
in
Regulation 31 thereof that the Rules
governing the service conditions of
government servants shall equally apply
to the employees of the Nigam, it was not
possible for the Nigam to take an
administrative decision acting under
Section 15(1) of the Act pursuant to
direction of the State Government in the
matter of policy issued under Section 89
of the Act and directing that the enhanced
age of superannuation of 60 years
applicable to the government servants
shall not apply to the employees of the
Nigam. In our view, the only option for
the
Nigam
was
to
make
suitable
amendment in Regulation 31 with the
previous
approval
of
the
State
Government providing thereunder age of
superannuation of its employees to be 58
years, in case, it intended that 60 years
which
was
the
enhanced
age
of
superannuation of the State Government
employees should not be made applicable
to employees of the Nigam. It was also not
possible for the State Government to give
a direction purporting to act under
Section 89 of the Act to the effect that the
enhanced age of 60 years would not be
applicable to the employees of the Nigam
treating the same to be a matter of policy
nor it was permissible for the Nigam on
the basis of such a direction of the State
Government in policy matter of the Nigam
to take an administrative decision acting
under Section 15(1) of the Act as the same
would be inconsistent with Regulation 31
which was framed by the Nigam in the
exercise of powers conferred upon it
under Section 97 (2) ( c) of the Act.

11. For the foregoing reasons, we
are of the view that so long 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 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.

12. 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
petitioners of the writ petitions would
572 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 upto 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 upto 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.

12. Thus in given facts and
circumstances of the case, we are of the
considered opinion that the law laid down
by the Hon'ble Apex Court is fully
applicable and squarely covers the case of
petitioners,
therefore,
we
have
no
hesitation to hold that the amendment
made in Rule 56 (a) of Fundamental
Rules referred herein before shall equally
apply to the employees of Nigam covered
by aforesaid Regulations by virtue of
Regulation 31, and the petitioners would
be entitled to be superannuated on
attaining their age of 60 years. The
decision of Nigam dated 11.7.2002
resolving not to apply 60 years enhanced
age of superannuation to the petitioners
and pursuant impugned order passed by
Nigam retiring the petitioners earlier to
attaining the age of 60 years i.e. on
attaining the age of 58 years only are not
sustainable being contrary to law and
decision rendered by Hon'ble Apex Court.
Accordingly, the decision of Nigam dated
11.7.2002 and orders passed by Nigam
retiring the petitioners from service on
attaining their age 58 years are hereby
quashed.

13. However, it is made clear that
since we have interpreted the provisions
of Regulation 31 of Regulations in
context of provisions of Act and in
connection of applicability of amendment
made in Rule-56 (a) of U.P. Fundamental
Rules by Notification dated 27.6.2002,
which have retrospective operation with
effect
from
28th
November
2001,
therefore, the observations made in our
decision should be understood in context
of only those provisions meaning thereby
it shall apply to only those employees of
the
Nigam
who
are
governed
by
Regulations referred herein before and
were in service of the Nigam till the date
of commencement of amended provisions
of aforesaid Fundamental Rules and have
been superannuated on or after 28th
November 2001 but in view of the
proviso second of amended Rule-56(a) if
a Government servant who has attained
the age of 58 years on or before the first
day of November 2001 and is on
extension in service shall be retired from
service on expiry of his extended period
of service. Thus he would not be entitled
to take benefits of amended fundamental
Rules.

14. In the result, the petitioners are
entitled to be continued in service on their
respective posts till attaining 60 years age
of their superannuation. In case the
petitioners were permitted to continue in
service after attaining their age of 58
years at the strength of any interim order
passed by this Court and they have also
been paid their salary, the respondents are
directed to continue them in service till
attaining their age of 60 years and pay
their salary admissible to their respective
1 All] Dr. Vinay Kumar V. The Director of Education (Higher) and others
573
posts by treating their age of retirement
60 years. If any of the petitioner has not
been permitted to continue in service in
absence of any interim order and has not
been paid his salary without his fault, the
Nigam is directed to reinstate him on his
post for remaining period till attaining his
age of 60 years and pay his salary
alongwith arrears of remaining period
within a period of three months from the
date of production of certified copy of the
order passed by this Court before the
Nigam. The Nigam is further directed to
finalize post retiral benefits of the
petitioners by treating their age of
retirement 60 years. With the aforesaid
directions, the writ petition succeeds and
allowed.

There shall be no order as to costs.

Let a copy of this order be placed on
the
records
of
writ
petition
nos.
58576/2005, 58580/2005, 58578/2005,
45495/2005, 44813/2005, 63752/2005,
61031/2005,
60374/2005,
58584/2005
and 58582/2005.
Petition Allowed.
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 3538 of 2004

Dr. Vinay Kumar

...Petitioner
Versus
The Director of Education (Higher),
Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri P.S. Baghel

Counsel for the Respondents:
Sri S.M.A. Kazmi, Addl. A.G.
S.C.

U.P.
Higher
Education
Service
Commission (Procedure for Selection of
Teachers) Regulation, 1983 as amended
by U.P. Act No. 2 of 1992-Section 13 (3)
Power of direction-whether the ad-hoc
continuance of principal or Teacher in a
particular college to be given some
weightage?
Held-
'No'-except
merit
position of the candidate u/s 13 (1)-and
the preference of given-discretion can
not be exercised.

Held: Para 34,37, 39

We are of the opinion that the Director
cannot give any weight at all to the
preference of the management in the
selection of a particular candidate as
their Principal or their Teacher.

In our opinion, the Director at the time
of making intimation is to take into
account only two things, in regard to
every candidate, namely, the candidate's
merit position as determined under
Section 13(1), and the preferential list of
colleges or institutions given by the
candidate himself.

In our opinion the Director does not use
a
discretionary
power
in
making
intimations under sub-section (3) of
Section 13. Instead of the Director, any
other person with an equally logical
mind as the Director will also be able to
perform the same act but the Director
has been given the authority, so as to
carry conviction and to make it safe for
the
colleges
to
follow
the
recommendations
and
intimations
coming under his signature.
2003 (2) ESC 944, 2003 (1) AWC-142, 1978
(2) SCC-213, 1978 (1) SCC-405,
1991 (3) SCC-67, AIR 1992 SC-2219, AIR 1991
SC-672, AIR 1965 SC-834,
1981 (Supply) SCC-87, 1990 (2) SCC-378,
2001 (7) SCC-71, 2005 J.T. (6) 160, 1949 (2)