# Ravindra Kumar v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-27
- **Case number:** Civil Misc. Writ Petition No. 43770 of 2005
- **Bench:** V.M. Sahai, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-kumar-v-state-of-u-p-and-others-40468
- **Pages:** 7

## Headnote

Sri M.M.D. Agarwal
S.C.

A. U.P. Jal Nigam Engineers of (Public
Health
Branch
Services)
Regulation
1978-Reg-31- Age of Superannuation as
Junior
Engineer
with
Local
Self
Government Engineering Department-on
18.6.75 the services stood transferred
with
Nigam
on
the
same
terms
conditions-unless other conditions are
revised by Nigam-by efflux of time
working as Asstt. Engineer by impugned
Notice-petitioner made to retire at the
age of 58 yrs.-under regulation 31regulation and government orders meant
for
government
employees-made
applicable-hence entitled to continue till
attains the age of 60 yrs.

Held: Para 8

Thus, the Fundamental Rule 56-A of U.P.
Financial Hand Book applicable to the
Government servant in respect of age of
superannuation as amended from time
to time would automatically apply to the
employees of the Nigam including the
petitioner who is covered by Regulations

## Text

2 All] Ravindra Kumar V. State of U.P. and others

 433
7. In view of the aforesaid, the writ
petition is devoid of any merit and is
dismissed summarily.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2005

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

Civil Misc. Writ Petition No. 43770 of 2005

Vijai Bahadur Rai

...Petitioner
Versus
State of U.P. through Secretary, Nagar
Vikas Mantralaya, Lucknow and others

 ...Respondents

Counsel for the Petitioner:
Sri Yogesh Kumar Singh

Counsel for the Respondents:
Sri M.M.D. Agarwal
S.C.

A. U.P. Jal Nigam Engineers of (Public
Health
Branch
Services)
Regulation
1978-Reg-31- Age of Superannuation as
Junior
Engineer
with
Local
Self
Government Engineering Department-on
18.6.75 the services stood transferred
with
Nigam
on
the
same
terms
conditions-unless other conditions are
revised by Nigam-by efflux of time
working as Asstt. Engineer by impugned
Notice-petitioner made to retire at the
age of 58 yrs.-under regulation 31regulation and government orders meant
for
government
employees-made
applicable-hence entitled to continue till
attains the age of 60 yrs.

Held: Para 8

Thus, the Fundamental Rule 56-A of U.P.
Financial Hand Book applicable to the
Government servant in respect of age of
superannuation as amended from time
to time would automatically apply to the
employees of the Nigam including the
petitioner who is covered by Regulations
1978. Thus in view of the aforesaid legal
position, we are prima facie of the
opinion that the aforesaid amended
provisions
of
fundamental
rules
providing
for
age
of
retirement/superannuation of 60 years
applicable to the Government employee
are also applicable to the petitioner and
the petitioner would be entitled to
continue in service till he attains his age
of superannuation i.e. 60 years instead
of 58 years.

B. Constitution of India Article 226Practice of Procedure-grant of Interim
Order-prior
stage
of
counter
and
rejoinder
affidavit-in
cases
of
termination,
renewal,
dismissal,
suspension,
reduction
in
rank,
and
compulsory retirement interim relief in
the nature of final relief should not be
granted-but in case superannuationholding of office enjoying the facilitiesattached
to
the
office-channel
of
promotion on higher post can not be
compensated held-distinction should be
drawn between the cases in which
conduct of employer is subject matter of
dispute and the controversy rest on
operation of law-hence interim order
granted.

Held: Para 11

Although this Court is conscious about
the scope of interim order to be passed
in the writ petition at admission stage,
prior
to
exchange
of
counter
and
rejoinder affidavits between the parties.
Normally where the fact can be disputed
by the counter affidavit to be filed in the
writ petition, the interim relief in the
nature of final and main relief is not
granted in such situation. Not only this
but this Court is also slow in granting
any interim order of such a nature in
cases of termination, removal, dismissal,
suspension,
reduction
in
rank
and
compulsory retirement of employee etc.
434 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
where the grant of interim relief would
restore the petitioner in a position of
status quo ante on the date of such order
passed against him/her but the case in
hand is on quite distinct and different
footing.

Besides this privilege of holding of office,
enjoying facilities, amenities attached to
the office, chances of promotion on
higher
posts
cannot
always
be
compensated in the terms of money.
Thus a distinction should also be drawn
from those cases where very conduct of
employee is subject matter of dispute
and where the controversy rests on
operation of law alone. The case in
question falls in later category.
Case law discussed:
AIR 1962 SC 316
AIR 1971 SC-454
AIR 1976 SC-2403
AIR 1978 SC-793
AIR 1989 SC-516
AIR 1991 SCW-3009
AIR 1994 SC-169
AIR 1995 SC-2181
Spl. Appeal No.559 of 05 decided on 10.5.05

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

1. We have heard Sri Yogesh Kumar
Singh, learned counsel for the petitioner
and Standing counsel for respondent no. 1
as well as Sri M.M.D. Agarwal for
respondents no.2 and 3.

2. Counter affidavit on behalf of
respondents may be filed within one
month. Rejoinder affidavit may be filed
within another three weeks.

3. The facts of the case in brief are
that the petitioner was initially appointed
as Junior Engineer on 10.8.1972 in the
Local Self Government, Engineering
Department (L.S.G.E.D.) of Government
of Uttar Pradesh. While he was serving as
Junior
Engineer
in
the
aforesaid
department,
U.P.
Jal
Nigam
was
established and constituted under sections
3 and 4 of U.P. Water Supply and
Sewerage Act, 1975 (hereinafter referred
to as Act). Thereupon the services of
employees of the Local Self Government,
Engineering Department of the State
Government were transferred in the U.P.
Jal Nigam (hereinafter referred to as
Nigam) under section 37 of the Act from
appointed
date
i.e.
18.6.1975.
Consequently the petitioner's services
were also transferred in the Nigam, since
then he became employee of Nigam and
is continuing as such. The services of
employees of erstwhile L.S.G.E.D. of
State Government were transferred in the
Nigam with the condition that the
employees so transferred shall hold his
office or service therein by the same
tenure at the same remuneration and upon
same other terms and conditions and with
same rights and privilege 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 until his employment in the
Nigam is terminated or until his other
terms and conditions of the service are
revised or altered by the Nigam under or
in pursuance of any law or in accordance
with any provision which for time being
governs his service. In due course of time
the petitioner was promoted on the post of
Assistant Engineer. While working as
Assistant Engineer in Nigam an office
order
was
issued
on
17.3.2005
communicating to the petitioner that on
31.6.2005 he would attain the age of
superannuation 58 years and would be
retired from service afternoon on that
date. Feeling aggrieved by the aforesaid
office order the petitioner has filed above
noted writ petition inter alia on the
grounds mentioned in the writ petition.
2 All] Vijai Bahadur Rai V. State of U.P. and others

 435

4. A bare reading of the relevant
provisions of Section 37 of the Act
demonstrate that on such transfer of
employees of erstwhile L.S.G.E.D. of
State
Government
in
the
Nigam
established under the Act, the terms and
conditions of the services of such
employees, whose services were not
terminated, can be altered by Nigam
under or in pursuance of any law or in
accordance with any provision which for
time being governs his service.

5. Although the Nigam is wholly
owned and controlled by the State
Government but it is still independent
separate legal entity distinct from the
Government. The Nigam in exercise of
power vested under section 97 (1) (2) (c)
of the Act with the previous approval of
the
State
Government
has
made
Regulations for governing the terms and
conditions of the services of engineers
namely; U.P. Jal Nigam Engineers (Public
Health Branch Services) Regulations,
1978. It cannot be disputed that while
working on the post of Assistant Engineer
in the Nigam, the terms and conditions of
service of the petitioner are also governed
by the aforesaid Regulation, 1978. The
Regulations deals almost various matters
in respect of recruitment, promotion,
seniority and other conditions of service
but does not specifically deals with the
condition
of
age
of
superannuation/retirement
by
incorporating any specific word in respect
of age of retirement which is also an
essential incident and condition of the
service of engineers. However, under
Regulation
31
of
the
aforesaid
Regulations, it has been specifically
provided that except as provided in these
Regulations the pay, allowances, pension,
leave, imposition of penalties and other
conditions of service of the members of
service shall be regulated by Rules,
Regulations
or
Orders
applicable
generally to the Government servants
serving in connection with the affairs of
state. Thus by virtue of Regulation No.
31, the provisions of Fundamental Rule
56-A contained in U.P. Financial Hand
Book Vol. 2 Parts II to IV, which is
applicable to the government servant in
respect
of
age
of
retirement/superannuation is deemed to be
adopted by way of reference. The
aforesaid Fundamental Rule 56-A as it
stood
earlier
provides
age
of
superannuation of Government employees
as 58 years. The aforesaid Fundamental
Rule 56-A was amended by Uttar Pradesh
Fundamental (Amendment) Rules, 2002
with retrospective effect commencing
from 28th November, 2001. By this
amendment in Fundamental Rule 56-A
the age of superannuation of Government
servant has been enhanced from 58 years
to 60 years from the date of its
commencement.

6. Learned counsel for the petitioner
has submitted that since the provisions of
Fundamental Rules 56-A, which are
applicable to the Government employees
in respect of their age of retirement, by
virtue of Regulation 31 of the aforesaid
Regulations, stood adopted by reference,
as such become applicable to the
petitioner also by necessary implication of
adoption of the rules applicable to the
government servants, therefore, every
amendment made in Fundamental Rules
56-A automatically apply to the petitioner
also on its own force. The submission
made by learned counsel for the petitioner
prima facie appears to have some
substance.
436 INDIAN LAW REPORTS ALLAHABAD SERIES [2005

7. Now a moot question arises for
consideration in this case as to whether
the amendment made in Fundamental
Rules 56-A would automatically apply to
the petitioner by virtue of Regulation 31
of
Regulations,
1978
as
adopted
legislation by reference or not? The
aforesaid
question
of
adoption
of
legislation by reference is not res integra
rather in catena of decisions the question
has received consideration of Hon'ble
Apex Court. While taking note of earlier
decisions
rendered
in
Collector
of
Customs,
Madras
Vs.
Nathella
Sampathu Chetty AIR 1962 S.C. 316,
New Central Jute Mills Co. Ltd. Vs.
Asstt. Collector of Central Excise,
Allahabad AIR 1971 S.C. 454, Land
Acquisition Officer, City Improvement
Trust Board Vs. H. Narayanajah AIR
1976 S.C. 2403, Bajya Vs. Gopikabai
AIR 1978 S.C. 793, Ujagar Prints Vs.
Union of India AIR 1989 S.C. 516,
Barnagoze
Jute
Factory
Co.
Vs.
Inspector of Central Excise AIR 1991
S.C.W. 3009= (1992) 1 S.C.C. 401 in para
31 and 32 of decision rendered in Gauri
Shankar Gaur Vs. State of U.P. & others
AIR 1994 S.C. 169, Hon'ble Apex Court
has held that in case of legislation by
incorporation the former Act becomes an
integral part and parcel of the later Act, as
if it was written with ink and printed in
the later Act. Its validity including the
provisions incorporated thereunder would
be judged with reference to the power of
legislature enacting the later Act. It is not
by
reference.
Logically
when
the
provisions in former Act were repealed or
amended, they do not, unless expressly
made applicable to the subsequent Act, be
deemed to be incorporated in it. The later
Act
is
totally
unaffected
by
any
amendment or repeal subject to certain
exceptions. If a later Act merely makes a
reference to the earlier Act or existing
law, it is only by way of reference and all
amendments,
repeals,
new
law
subsequently made will have effect unless
its operation is saved by Section 8(1) of
General Clauses Act or void under Article
254 of the Constitution. The aforesaid
observation made by Hon'ble Apex Court
in Gauri Shankar's case (supra) has been
reiterated again by the Hon'ble Apex
Court in subsequent decision rendered in
State of Maharashtra and another Vs.
Sant Joginder Singh Kishan Singh and
others AIR 1995 S.C. 2181, wherein in
para 10 and 11 of the decision while
drawing distinction between adoption of
legislation by incorporation and adoption
by reference it has been held that since the
Legislature had incorporated specific
provisions of Central Act, the necessary
conclusion is that the Legislature did not
intend to apply unspecified provisions of
the Central Act to the exercise of power
under the Act. In this behalf it is to be
remembered that there is distinction
between incorporation and adoption by
reference. If the Legislature would have
merely
adopted
the
Central
Act,
subsequent amendments to that Act made
under Act 68 of 1984 would have become
applicable per force.

8.

Thus
from
the
aforesaid
consistent view of the Hon'ble Apex
Court on the question in issue, it leaves no
room for doubt for taking different view
in the matter. It appears that by necessary
implication Regulation 31 of the aforesaid
Regulations
1978
has
adopted
the
provisions of Fundamental Rules 56-A,
which are applicable to the Government
employee generally in respect of their age
of
retirement.
The
age
of
superannuation/retirement has not been
specifically dealt with by the aforesaid
2 All] Vijai Bahadur Rai V. State of U.P. and others

 437
Regulations, 1978. This adoption of
Legislation cannot be said to be adoption
by incorporation of any rules/regulation
or Government Order by incorporating
actual text of the rules or government
order existing at any point of time as if it
was written with ink and printed in
Regulation 31 by making it integral part
and parcel of Regulation 31 of the
aforesaid Regulation. Rather it has merely
made
reference
of
rules/regulations,
Government Orders applicable generally
to
government
servants,
serving
in
connection of affairs of state government.
It is clear-cut case of adoption of
legislation by reference as held by the
Hon'ble Apex Court and it is not a case of
adoption of legislation by incorporation.
In the aforesaid regulation 31 of the
Regulations, 1978 only reference of
provisions
of
rules,
regulation
or
government orders generally applicable to
the government employees have been
made in the aforesaid regulation. Thus,
the Fundamental Rule 56-A of U.P.
Financial Hand Book applicable to the
Government servant in respect of age of
superannuation as amended from time to
time would automatically apply to the
employees of the Nigam including the
petitioner who is covered by Regulations
1978. Thus in view of the aforesaid legal
position, we are prima facie of the opinion
that the aforesaid amended provisions of
fundamental rules providing for age of
retirement/superannuation of 60 years
applicable to the Government employee
are also applicable to the petitioner and
the petitioner would be entitled to
continue in service till he attains his age
of superannuation i.e. 60 years instead of
58 years.

9. The view taken by us also finds
support from a recent decision of a
Division Bench (comprising of Hon'ble
Mr. Chief Justice Ajoy Nath Ray and Mr.
Justice Ashok Bhushan) of this Court
rendered in Chairman, Uttar Pradesh Jal
Nigam Vs. State of U.P. & another
(Radhey Shyam Gautam) in Special
Appeal No. 559 of 2005 decided on
10.5.2005 (Annexure No. VI of the writ
petition), wherein a Division Bench of
this Court has considered the effect and
scope of aforesaid Regulation 31 of
Regulations 1978 and also earlier decision
of another Division Bench of this Court
rendered in Harwindra Kumar Vs. Chief
Engineer, Karmik, U.P. Jal Nigam,
Lucknow and others reported in (2002) 2
UPLBEC 1511 and categorically held
that the Division Bench of this Court in
Harwindra Kumar's case did not take
notice of Regulation 31 of the aforesaid
Regulations, 1978, therefore, the decision
rendered by aforesaid Division Bench is
treated to be per incuriam, we are also of
the same opinion. Besides this the
decision rendered by earlier Division
Bench of this Court in Harwindra
Kumar's case (supra) has also not
considered the binding precedent as
referred herein before on the question of
adoption of legislation by reference,
therefore, on both the counts the aforesaid
decision of Division Bench appears to be
a decision in per incuriam, as held
subsequently by another Division Bench
of this Court.

10. Since we are prima facie of
opinion that Fundamental Rule 56-A as
amended from time to time applicable to
the employees serving in connection of
affairs of state and in view of the
amended provision of the aforesaid
fundamental rules the petitioner being
employee of the Nigam is also entitled to
continue in service until he attains the age
438 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
of superannuation/retirement of 60 years,
therefore, office order dated 15.1.2002
(Annexure-4 of the writ petition) issued
by Nigam in respect of clarification or
application of the aforesaid amended
provisions of fundamental rules contained
in notification dated 28.11.2001 is ultra
vires to the provisions of Act and
Regulation 31 of the Regulations, 1978
and beyond the scope of authority under
law as such void ab initio. The aforesaid
office
order
of
Nigam
and
any
government order issued in respect
thereof cannot be permitted to run
contrary to the express provisions of Act
and Regulations framed thereunder, as
indicated herein before. Thus, we are
prima facie of opinion that office order
dated 15.1.2002 and impugned office
order dated 17.3.2005 (Annexure-1 of the
writ
petition)
is
wholly
without
jurisdiction and beyond the scope of
authority under law, therefore, nullity and
void ab initio and liable to be ignored.

11. Although this Court is conscious
about the scope of interim order to be
passed in the writ petition at admission
stage, prior to exchange of counter and
rejoinder affidavits between the parties.
Normally where the fact can be disputed
by the counter affidavit to be filed in the
writ petition, the interim relief in the
nature of final and main relief is not
granted in such situation. Not only this
but this Court is also slow in granting any
interim order of such a nature in cases of
termination,
removal,
dismissal,
suspension,
reduction
in
rank
and
compulsory retirement of employee etc.
where the grant of interim relief would
restore the petitioner in a position of
status quo ante on the date of such order
passed against him/her but the case in
hand is on quite distinct and different
footing. It is not a case of such a nature
referred
above
where
very
conduct/suitability
of
suspended/dismissed/terminated
or
reverted employee is involved and by
granting interim relief he would be
restored back in the service without
finally adjudicating his case on merits,
which could be done only on exchange of
affidavits
between
the
parties
after
adjudicating his case on merits. But it is
not a case where any personal conduct of
the petitioner, which led to impugned
action taken against him, is subject in
issue. Contrary to it, it is a case of simple
interpretation of statute/Rules/Regulations
on undisputed or indisputable facts
involved in it. Besides this privilege of
holding of office, enjoying facilities,
amenities attached to the office, chances
of promotion on higher posts cannot
always be compensated in the terms of
money. Thus a distinction should also be
drawn from those cases where very
conduct of employee is subject matter of
dispute and where the controversy rests
on operation of law alone. The case in
question falls in later category.

12. Thus in view of aforesaid
discussions in the interest of justice as
interim measure, until further order of this
Court the respondent no.2 and 3 are
directed not to retire the petitioner from
service before attaining his age of 60
years and treat the petitioner to continue
in service till he attains the age of 60
years and pay him salary month to month
as and when it falls due, unless his
services are otherwise dispensed with by
disciplinary measures in accordance with
law.

List the petition in the last week of
July, 2005.
---------
2 All] Vijai Bahadur Rai V. State of U.P. and others

 439
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 13.06.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 38990 of 2005

M/s Dilip Oil Company
...Petitioner
Versus
State of Uttar Pradesh and others

...Respondents

Counsel for the Petitioner:
Sri Ashish Kumar Singh
Sri Ajay Kumar Singh
Sri R.N. Singh

Counsel for the Respondents:
Sri Navin Sinha
Sri Arvind Srivastava
S.C. `

U.P.
Kerosene
Control
Order-1962Petitioner was appointed as whole sale
distributors
for
super
kerosene
by
corporation oil/light diesel oil- under
G.O. 19.5.90-by another G.O. 1.12.01 the
District
Magistrate
can
permit
to
continue the earlier distributor provided
such block distributor has obtained
explosive licence and establish under
ground
storage tank-despite of the
appointment of whole sale dealer by the
Indian Oil Corporation-the Respondent 6
obtained licence after 8.3.02-held-not
entitled to continue-matter remitted
back
to
the
commissioner
of
any
requirement of block distributor- even
after the appointment of whole sale
dealer.

Held- Para 14 and 19

A reading of the Government Order
dated 08.03.2002 would establish that it
permits a block distributor to continue
provided he fulfills the aforesaid two
conditions meaning thereby that the
block distributor has to be granted some
reasonable time to fulfill the aforesaid
two conditions and then the District
Magistrate
can
permit
the
block
distributor to continue as such. Since in
the facts of the present case the
respondent no. 6 had installed the
underground tank and had obtained
explosive licence he fulfilled all the
requirements of the Government Order
dated 08.03.2002 before the date the
District Magistrate has cancelled his
appointment as block distributor, it
cannot be said that the respondent no.6
was not entitled to the benefits of the
Government Order dated 8th March,
2002. The Commissioner has correctly
interpreted the Government Order dated
08.03.2002 and has rightly held that the
conditions
imposed
under
the
Government Order dated 08.03.2002 can
be complied with prospectively only.

In such circumstances the order dated
05.05.2005 passed by the Commissioner
to the extent it permits respondent no. 6
to continue as the block distributor is
hereby quashed. The findings recorded
by the Commissioner in respect of
underground tank and explosive licence
are hereby affirmed. The Commissioner
is directed to record his finding on the
issue
as
to
whether
in
view
of
Government Orders dated 01.12.2001
and dated 08.03.2002 and from the
material
on
record,
there
is
a
requirement of block distributor being
continued in Block Chanewa, district
Mirzapur even after appointment of
wholesale dealer by the oil company for
distribution of kerosene oil in rural
areas.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri R. N. Singh Senior
Advocate assisted by Sri A. K. Singh
Advocate on behalf of the petitioner, Sri
Navin Sinha Senior Advocate assisted by
Sri Arvind Srivastava Advocate on behalf