State of Uttar Pradesh v. Dayanand Chakrawarty & Ors.) decided on
Case Details
Court No. - 37 Case :- WRIT - A No. - 21634 of 2022 Petitioner :- Suresh Singh Respondent :- U.P. Power Corporation Ltd. And 2 Others Counsel for Petitioner :- Suparn Samadariya,Agnihotri Kumar Tripathi Counsel for Respondent :- Abhishek Srivastava Hon'ble Mrs. Sangeeta Chandra,J.
Legal Reasoning
1. Heard learned counsel for the petitioner and Shri Abhishek Srivastava, learned counsel for the respondent Corporation. 2. This petition has been filed seeking the following main prayer:- "Issue a writ, order or direction in the nature of mandamus directing the respondents to re-fixed the retiral benefit like Pension, Gratuity, etc. treating the petitioner to retired on 60 years age on 30.06.2005 in place of 30.06.2003." 3. It is the case of the petitioner that he was working as a routine Grade Clerk since 1970 with the respondents Power Corporation in District Gorakhpur and thereafter he was promoted as Assistant Store Keeper in the year 1985 and he retired on 30.06.2003, but before his retirement the State Government has enhanced the age of retirement of his employees from 58 years of age to 60 years w.e.f. 28.11.2001. It amended the Rule 56 of Fundamental Rules by adding the Rule 56 (a) vide its notification dated 27.06.2002. Since the State Government has amended the Fundamental Rules and increased the age of retirement of its employees the Corporation was duty bound to increase the age of retirement of the petitioner as well and he ought to have retired in the year 2005. However, the Corporation did not amend its Regulations and implemented the decision of the State Government taken in the year 2001 only on 20.12.2006. 4. The petitioner having retired is entitled for re-fixation of his pension and other retiral dues on the basis of judgment rendered by the Supreme Court in Civil Appeal No. 5527 of 2012 (State of Uttar Pradesh versus Dayanand Chakrawarty & Ors.) decided on 02.07.2013. He has made a representation in this regard to the respondents. No heed has been paid. Hence, this petition. 5. This Court has carefully perused the judgment cited by the learned counsel for the petitioner in Dayanand Chakrawarty (supra) and finds that a Division Bench of this Court had allowed the writ petition of the respondents holding that the U.P. Jal Nigam Employees (Retirement on attaining the age of superannuation) Rules 2005 had created two separate age of retirements amongst the same classes of employees and held such action to be discriminatory and unconstitutional and also directed that the employees of the U.P. Jal Nigam should be treated as belonging to the same class and are entitled to continue in service up to the age of 60 years and with a further direction to pay back wages @20% of the basic salary to writ petitioners who in the meantime were caused to retire in 58 years in the absence of any interim orders passed in case. 6. Moreover, the Hon'ble High Court had granted benefit of enhancement of age only to those persons who had filed writ petitions before their retirement and such benefits were denied who retired at the age of 58 years and had not filed writ petition before a court of law. 7. The Supreme Court has mentioned in paragraph no. 2 of the judgment the questions that were to be decided. It is quoted hereinbelow:- "2. The questions involved in these appeals are: (i) Whether two different age of superannuation of 58 and 60 years can be prescribed for the employees similarly situated, including members of the same service, solely on the basis of their source of entry in the service. (ii) Whether 'the Uttar Pradesh Jal Nigam (Retirement on attaining age of Superannuation) Regulations, 2005' fixing two different age of superannuation for similarly situated employees of Jal Nigam are discriminatory and ultra vires under Article 14 of the Constitution of India" 8. It is apparent from the perusal of the Supreme Court judgement that it related to employees of U.P. Jal Nigam who were earlier working in Local Self Government Engineering Department in the State of U.P. After U.P. Jal Nigam was created, the employees who were actually U.P. Government Servants were transferred to U.P. Jal Nigam a statutory Corporation with the rider that the terms and conditions of the services shall remain unchanged and any Regulation made by the Jal Nigam after their absorption which causes prejudice to them shall not be applicable and they shall be continued to be governed by terms and conditions of service at the time they were working as government servants in U.P. Local Self Government Engineering Departments. 9. The judgment rendered in Dayanand Chakrawarty is not applicable in the case of the petitioner. 10. Shri Abhishek Srivastava, learned counsel for the respondent Corporation on the other hand has placed reliance upon the judgment rendered in Civil Appeal No. 7329 of 2013 decided on 23.08.2013 wherein the Supreme Court was considering different terms and conditions of service of certain employees who had been transferred from the State of U.P. to State of Uttarakhand. The promulgation of U.P. Reorganization Act was observed in the State of Uttaranchal(presently state of Uttarakhand). The employees in the State of Uttarakhand were aggrieved by their non promotion whereas the promotions had taken place in the State of U.P. The Supreme Court was considering the arguments raised by the counsel for the employees that they had been representing their grievance since 1984 which had fell on deaf ears. The Supreme Court observed that every representation to the Government for relief will not be replied on merits. Representations relating to matters which have become stale or barred by limitation can be rejected on that ground alone, without examining the merits of the claim. The representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim. 11. The Supreme Court in paragraph no. 14 of the above cited judgment had observed as follows:- "14. In Union of India and others v. M.K. Sarkar[2], this Court, after referring to C. Jacob (supra) has ruled that when a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches". 12. It has been argued by the learned counsel for the respondents that the petitioner had retired in the year 2003 and he did not think it appropriate to approach this Court earlier and has come after 20 years. Hence, this petition be dismissed on the ground of laches alone. 13. This Court finds the writ petition to be entirely misconceived and it is accordingly, dismissed. Order Date :- 21.12.2022 SY Digitally signed by SWETA YADAV Date: 2022.12.22 16:35:36 IST Reason: Location: High Court of Judicature at Allahabad