# Sharad Chandra Tiwari & Ors v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1585
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-11-11
- **Case number:** Service Single No.1993 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharad-chandra-tiwari-ors-v-state-of-u-p-and-ors-42806
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Service
Law-Retirement
age-logging
officerworking in forest department-retired in
the year 2012 on 58 years age-although
Board
of
director
already
by
its
resolution
dated
12.2011-decided
to
enhanced the age as 60 years-state
government-granted approval only by
G.O.
dated
08.03.2013
having
no
retrospective effect-held-retirement on
58 years-in the years 2012-as per law
prevailing at that time-proper-warrant
no interference.

Held: Para-6
In view of above and looking to the facts
and circumstances of the case, in my
view, retirement of petitioners in 2012,
on attaining the age of superannuation
of 58 years, according to the then
existing provision, cannot be said to be
bad and it does not warrant interference.
The change in age of retirement in
1586 INDIAN LAW REPORTS ALLAHABAD SERIES
respect to employees of U.P. Forest
Corporation,
pursuant
to
State
Government's
order
dated
8.3.2013,
would be prospective, and, shall be
applicable to the employees who would
be retiring thereafter.

Case Law discussed:
AIR 1963 SC 395; 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

3 All] Sharad Chandra Tiwari & Ors. Vs. State of U.P. and Ors.
1585
has been sustained by the Government. The
power to pass an order under regulation 351A of the Regulations, in the event of a
pecuniary loss being found to have been
sustained by the Government, is independent
of the power which can be exercised under
the regulation where the employee is guilty
of grave misconduct as established in the
departmental or judicial proceeding.

5. At this stage, it may also be noted
that before its amendment on 6 January
1961, regulation 351-A reserved to the
Provincial Government the right to order
recovery from the pension 'of any amount
on account of loss found in judicial or
departmental proceeding to have been
caused to Government by the negligence
or fraud of such officer during his
service'.The earlier provision insofar as is
material reads as follows:-

"351-A. The Provincial Government
reserve to themselves the right to order
the recovery from the pension of an
officer who entered service on or after 7th
August, 1940 of any amount on account
of losses found in judicial or departmental
proceeding to have been caused to
Government by the negligence or fraud of
such officer during his service."

6. After the amendment, the
provision has now been modified so as to
allow the exercise of power under
regulation 351-A of the Regulations even
in a situation where an employee is found
to have been guilty of grave misconduct in
departmental or judicial proceeding. Hence,
both the legislative history as well as the
plain and literal meaning of regulation 351A of the Regulations do not support the
submission which has been urged on behalf
of the appellant. In the circumstances, the
extent of penalty which has been imposed
in the present case cannot be regarded as
unconscionable. No case for interference is
made out.

7. The special appeal is dismissed.
There shall be no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.11.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Service Single No.1993 of 2013

Sharad Chandra Tiwari & Ors.
 Petitioners
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioners:
Sri A.P. Singh

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

Constitution of India, Art.-226-Service
Law-Retirement
age-logging
officerworking in forest department-retired in
the year 2012 on 58 years age-although
Board
of
director
already
by
its
resolution
dated
12.2011-decided
to
enhanced the age as 60 years-state
government-granted approval only by
G.O.
dated
08.03.2013
having
no
retrospective effect-held-retirement on
58 years-in the years 2012-as per law
prevailing at that time-proper-warrant
no interference.

Held: Para-6
In view of above and looking to the facts
and circumstances of the case, in my
view, retirement of petitioners in 2012,
on attaining the age of superannuation
of 58 years, according to the then
existing provision, cannot be said to be
bad and it does not warrant interference.
The change in age of retirement in
1586 INDIAN LAW REPORTS ALLAHABAD SERIES
respect to employees of U.P. Forest
Corporation,
pursuant
to
State
Government's
order
dated
8.3.2013,
would be prospective, and, shall be
applicable to the employees who would
be retiring thereafter.

Case Law discussed:
AIR 1963 SC 395; 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. This case has been taken on the
mention made by learned counsel for
petitioners.

2. Heard Sri A.P. Singh, learned
counsel for petitioners and learned
Standing Counsel for respondents.

3. Petitioners are working on different
posts like Accountant, Logging Assistants,
Deputy Logging Officers in U.P. Forest
Corporation. The age of retirement in U.P.
Forest Corporation was 58 years. All these
petitioners attained the age of 58 years on
various dates in the year 2012 and retired
accordingly. The case set up by petitioners is
that the Board of Directors of U.P. Forest
Corporation
passed
a
resolution
and
communicated it to Principal Secretary,
Forest vide Managing Director's letter dated
23.12.2011 about enhancement of age of
retirement of employees from 58 years to 60
years. It sought approval of the State
Government for change of age of retirement
which has now been granted by order dated
8.3.2013 (Annexure 1 to the writ petition). It
is not the case of petitioners that the
Corporation itself possess absolute power
with regard to change of conditions of
service of its employees and there was no
requirement of approval of the State
Government. That being so, the approval
having been granted by order dated 8.3.2013,
it cannot be said that it will have a
retrospective effect. The employees who
have already retired on attaining the age of
58 years cannot claim to have a right to
continue till the age of 60 years, since
decision has partaken shape of an order only
after issuance of Government Order dated
8.3.2013. It is well settled that a mere
decision by itself is not executable unless it
partakes the status of an order, i.e., by
communication or publication so as to make
it known to all concerned. In the present
case, the Board of Directors passed a
resolution and thereafter sought approval of
the State Government. It is not the case of
petitioners that before issuance of order dated
8.3.2013 by State Government, at any point
of time, the decision of Board of Directors
became an order by its publication so as to
get implemented having the effect of
changing the earlier existing provision.

4. In Bachhittar Singh Vs. State of
Punjab AIR 1963 SC 395, the Court held
that a decision on file does not confer any
right unless it partakes the nature of an
order by communication to the person
concerned. Similarly, a proposed or draft
regulation is not to have effect of
changing existing provision unless the
procedure followed earlier is observed.

5. A similar question up for
consideration before a Division Bench 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
3 All] Sharad Chandra Tiwari & Ors. Vs. State of U.P. and Ors.
1587
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
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 rule-making
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
1588 INDIAN LAW REPORTS ALLAHABAD SERIES
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
24.7.2007 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.............................

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."

6. In view of above and looking to
the facts and circumstances of the case, in
my view, retirement of petitioners in
2012,
on
attaining
the
age
of
superannuation of 58 years, according to
the then existing provision, cannot be said
to be bad and it does not warrant
interference. The change in age of
retirement in respect to employees of U.P.
Forest Corporation, pursuant to State
Government's
order
dated
8.3.2013,
would be prospective, and, shall be
applicable to the employees who would
be retiring thereafter.

7. In view above, the writ petition is
devoid of merit and is, accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.12.2013

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No. 2707(M/S) of 2006