Chandra Prakash vs State of U.P.and others.

Rakesh Sharma, J.

The petitioner is a Desk Officer in NOIDA. The dispute in this case relates to the age of superannuation of an employee of NOIDA. The petitioner has challenged the order dated 5.12.2008 retiring the petitioner with effect from 31.12.2008 when he completes the age of 58 years. Under Section 19 of the Uttar Pradesh Industrial Area Development Act, 1976 the NOIDA may with the approval of the State Government make regulations. The provisions of Section 19 of the Uttar Pradesh Industrial Area Development Act, 1976 are as follows;

"19. Power to make regulations.(1) The Authority may with the previous approval of the State Government, make regulation not inconsistent with the provisions of this Act or the rules made thereunder for the administration of the affairs of the authority.

(2)In particular, and without prejudice to the generality of the foregoing power, such regulation may provide for all or any of the following matters, namely,

(a) the summoning and holding of meetings of the Authority, the time and place where such meetings are to be held, the conduct of business at such meetings, and the number of members necessary to form a quorum thereat;

(b) the powers and duties of the Chief Executive Officer;

(C) the form of register of application for permission to erect a building;

(d) the management of properties of the authority;

(e) fees to be levied in the discharge of its functions;

(f) such other matters as are to be provided for a regulation".

In exercise of the power under Section 19 of the Act Regulations were framed by NOIDA. Regulation 25 provides that the age of superannuation of an employee of NOIDA shall be 58 years. It appears that a resolution dated 26.6.2002 was passed by NOIDA enhancing the age of superannuation from 58 years to 60 years. The contention of the petitioner is that in view of the resolution of NOIDA the age of superannuation of the petitioner has been enhanced to 60 years and consequently the notice issued to the petitioner that he would be superannuated on 31.12.2008 when he completes the age of 58 years is invalid.

We have heard Sri Satish Mandhyan, learned counsel for the petitioner and Sri Ramendra Pratap Singh, learned counsel for the respondents.

Sri Ramendra Pratap Singh, learned counsel for the respondent submits that Section 19 of the Act itself requires the Authority to obtain the previous approval of the State government in making regulations. Regulation 81 of the regulations reads as follows;

""81. The Authority may with the previous approval of the state Government add, amend, very or resend these regulations to such extent as it may consider expedient".

From the reading of the provisions of Section 19 of the of the Uttar Pradesh Industrial Area Development Act, 1976 and Regulation 81 it is quiet clear that the regulations can be amended only with the approval of the State government. In this case it is not in dispute that the resolution passed by NOIDA raising the age of superannuation has not yet been granted approval by the State government. As such the provision of 58 years being the age of superannuation of an employee of NOIDA provided under Regulation 25 would still hold the field.

Sri Satish Mandhyan, learned counsel for the petitioner, however, relied upon Regulation 80, which is as follows:

"80. For the removal of doubt it is hereby declared that these regulations shall be subject to any rules made by the State Government under the Act or and directions issued by the State Government under Section 41 of the U.P. Urban Planning and Development Act, 1973 or to the provisions of any other law made on the subject by an Act of the Legislature of Uttar Pradesh or the Parliament".

He submitted that under Section 41 of the Uttar Pradesh Urban Planning and Development Act, 1973 the State government can issue directions, which will be binding upon NOIDA. He submits that the age of superannuation of government servant has been raised by the notification dated 28.11.2001. By that notification the employees of the State government would retire at the age of 60 years and it is submitted on that basis that the resolution of the NOIDA, which was in keeping with the amendment made by the State government does not require any further approval. He also submitted that the provisions of Regulation 80 would be applicable to the case.

In our opinion the contention raised by the petitioner''s counsel does not have any merit. The mere fact that the age of superannuation of government employees has been raised by the State government by notification dated 28.11.2001 would not mean that the said provision would ipso facto be applicable to the employees of NOIDA also nor can the Notification dated 28.11.2001 be considered a direction by the State government under Section 41 of the U.P. Urban Planning and Development Act, 1973. In our opinion, therefore, the provisions of Regulation 80 do not advance the case of the petitioner. Learned counsel for the petitioner then relied upon a decision of the apex court in Harwindra Kumar Vs. Chief Engineer, Karmik and others (2005) 13 SCC 300 and upon the Chairman, U.P. Jal Nigam and another Vs. Radhey Shyam Gautam and another, 2007 (4) ESC 497 in which the apex court in the matter of employees of the U.P. Jal Nigam held that raising of the age of superannuation of government servant from 58 years to 60 years by amending Rule 56 (a) of the Fundamental Rules would be equally applicable to employees of the Jal Nigam. We have considered the decisions. Section 37 of the U.P. Water Supply and Sewerage Act, 1975 and Regulation 31 of the U.P. Jal Nigam Engineers (Public Health Branch) Service Regulations provide that service conditions of employees of U.P. Jal Nigam would be the same as applicable to State government servants under the rules, regulations or orders applicable to such government servants. In our opinion the decision of the apex court in both these cases, which have been given in context of differently worded rules are distinguishable.

Sri Ramendra Pratap Singh on the other hand relied upon a decision of a Division Bench of this Court in Daya Shanker Singh Vs. State of U.P. and others 2008 (3) ADJ 21. The Division Bench considered the provisions of the Warehouse Corporation Act, 1962 and U.P. State Agro Industrial Corporation Limited (General Service) Regulations, 1984. In paragraph 48 of the said decision the Division Bench held as follows;

"The Regulations would stand amended only when the previous sanction is accorded by the State government and, thereafter, the amendment is published in official Gazette. Therefore, at present, and, according to the existing Regulation 12 of the Staff Regulations, which governs conditions of service of the employee of UPSWC, the ClassI and ClassII employees are liable to retire on attaining the age of 58 years. The petitioners have already attained the said age, and, therefore, even otherwise, no relief can be granted to them. Their claim that in the absence of any sanction by the State government, they should be held to be entitled to continue upto 60 yeas of age based on the resolution of the Board of Directors is clearly misconceived inasmuch as mere resolution of Board of Directors of UPSWC would not result in amending statutory regulations framed under Section 42 of the 1962 Act and, therefore, the relief as sought by the petitioners, being in the teeth of the existing Regulations12 of the Staff Regulations, cannot be granted by this Court."

As yet there being no amendment in the regulations the petitioners ha1ve no case. It is, however, pointed out by the learned counsel for the petitioner and it is also accepted by Sri Ramendra Pratap Singh that the resolution of NOIDA was sent for approval to the State government and the State government has not taken any decision in the matter either granting or refusing the approval. It is stated by Sri Ramendra Pratap Singh that even a reminder dated 22.3.2005 has been sent by the NOIDA to the State government for a decision in the matter.

In the circumstances we dispose of the writ petition with the direction that the State government may take appropriate decision in the matter. In case the State government approves the resolution of NOIDA before 31.12.2008 the petitioner would be entitled to continue on the strength of the said approval but in case the approval is not granted the petitioner would superannuate at the age of 58 years.

Copy of this order be made available to the counsel for the parties within 24 hours on payment of usual charges.