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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5527 OF 2012 (arising out of SLP (c) No. 31279 of 2010)

STATE OF UTTAR PRADESH         … APPELLANT Versus

DAYANAND CHAKRAWARTY & ORS.              … RESPONDENTS

With

C.A.No.5528 of 2012  (Arising Out of SLP(C) No.35579 of  2010) C.A.No.5617­5659 of 2012  (Arising Out of SLP(C) No.5218­ 5260 of 2011) C.A.No. 5529 of 2012  (Arising Out of SLP(C) No.14880 of  2011)    C.A.No. 5530 of 2012     (Arising Out of SLP(C) No.19119 of  2011) C.A.No. 5531 of 2012  (Arising Out of SLP(C) No.16519 of  2011) C.A.No. 5532 of 2012(Arising Out of SLP(C) No.26336 of  2011) C.A.No. 5533 of 2012(Arising Out of SLP(C) No.22838 of  2011) C.A.No. 5534 of 2012(Arising Out of SLP(C) No.22839 of  2011) C.A.No. 5535 of 2012(Arising Out of SLP(C) No.22840 of  2011)

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

These appeals Nos. 5527 of 2012, 5528 of 2012 and 5617­

5659 of 2012 (arising out of SLP(C) Nos.31279 of 2010,  

35579 of 2010, 5218­60 of 2011) have been preferred by the  

State of Uttar Pradesh and others against the common  

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judgment dated 29th July, 2010 passed by the Division Bench  

of the High Court of Judicature at Allahabad, Lucknow  

Bench, Lucknow in Writ Petition (C) No.1595(S/B) of 2009  

etc.etc.  whereby the High Court declared Uttar Pradesh Jal  

Nigam Employees (Retirement on attaining age of  

superannuation) Rules, 2005 which have created two separate  

age of retirement amongst same classes of employees  

discriminatory and unconstitutional and held that the  

employees of the Jal Nigam are entitled to continue in  

service upto the age of 60 years with further directions to  

pay 20%  of back wages to those writ petitioners who in the  

meantime were forced to retire on attaining the age of 58  

years in absence of any  interim order in their cases.

The benefit of enhancement of age was confined to the  

persons who had filed the writ petitions before their  

retirement and was not granted to those who in the meantime  

retired at the age of 58 years and had not moved before the  

High Court.

The other appeals have been preferred against the  

judgments subsequently passed on 29th  April, 2010, 17th  

August, 2010, 16th  September, 2010, 28th  October, 2010, 3rd  

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December, 2010 which were disposed of in terms of the  

aforesaid judgment dated 29th July, 2010.

Before the High Court Writ Petition No.1191(SB) of  

2009 was filed by the U.P. Engineers Association Jal Nigam,  

praying therein to declare U.P. Jal Nigam Karamchari  

(Adhivarshita Par Seva Nivarti) Viniyamawali, 2005 [U.P.  

Jal Nigam Employees (Retirement   on attaining age of  

Superannuation) Regulations, 2005] (hereinafter referred to  

as the “Regulations, 2005”) unconstitutional and ultra  

vires to the provisions of the Constitution of India and  

further to quash the orders dated 3rd  July, 2009 and 29th  

June, 2009 passed by the respondents 1 and 2 to the writ  

petition, respectively.  The other prayers were to restrain  

the respondents from causing retirement of the members of  

the writ petitioners’ association at the age of 58 years as  

well as to allow them to continue to work  till they attain  

the age of 60 years.  

Except the aforesaid writ petition, in all other writ  

petitions, writ petitioners have challenged their  

respective order (s) whereby they had been asked to retire  

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on attaining the age of 58 years as per the provisions of  

Regulations, 2005.

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.

3. The factual matrix of the case are as follows:

 A department, known as Public Health Engineering  

(hereinafter referred to as the 'PHED') was created during  

the British period for performing all the works related to  

public health engineering including sewerage and water  

supply. Just before the independence, the State of United  

Province created a Local Self Government Engineering  

Department (hereinafter referred to as the 'LSGED') which  

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was converted from PHED.   All the engineering works of  

Local Self Government were entrusted to the said newly  

created department.  

4. By Notification dated 18th  June, 1975 issued under  

Section 3 of the Uttar Pradesh Water Supply and Sewerage  

Act, 1975 (hereinafter referred to as the “Act, 1975), the  

State Government constituted Uttar Pradesh Jal Nigam  

(hereinafter referred to as the “Nigam”). Section 37(1) of  

the Act, 1975 provided that the services of the employees  

and engineers of the Local Self­Government Engineering  

Department (LSGED) will be transferred and merged into the  

newly created Nigam on the same terms and conditions, which  

were governing their services prior to such absorption,  

till the said service conditions are altered/changed by the  

Rules or Regulations framed in accordance with law.  

5. In its second meeting dated 4th April, 1977 vide Agenda  

Item No.2.21  the Board of   Nigam resolved that  all the  

provisions of Financial Handbook, Manual of Government  

Order, Civil Services Regulations, Government Servant Rules  

and other Government orders shall be applicable to the  

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employees of the Nigam, provided the Nigam has not passed  

any other order.   

Initially, in exercise of powers conferred under sub­

section (1) and clause (c) of sub­section (2) of Section 97  

of Act, 1975 and with the previous approval of the State  

Government, the Nigam made regulations for regulating the  

recruitment to the posts and the conditions of service of  

persons appointed to the Uttar Pradesh Jal Nigam Service of  

Engineers (Public Health Branch) known as the Uttar Pradesh  

Service of Engineers (Public Health Branch) Regulations,  

1977.

6. Subsequently, in exercise of powers conferred under  

sub­section (1) and clause (c)   of sub­section (2) of  

Section 97 of the Act, 1975, and with the previous approval  

of the State Government, Nigam  made the “Uttar Pradesh Jal  

Nigam Services of Engineers (Public Health Branch)  

Regulations, 1978” (hereinafter referred to as the  

“Regulations, 1978”) for regulating the recruitment to the  

posts and the conditions of service of persons appointed to  

the Jal Nigam Engineers (Public Health Branch). The said  

Regulations, 1978 were made equally applicable to the  

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employees transferred and merged from the erstwhile LSGED  

and the employees directly recruited by the Nigam and it  

came into force w.e.f. 27th  April, 1978.   Regulation 31  

relates to pay, allowance, pension, leave and other  

conditions of service which reads as follows:

“Regulation 31.­ Except as provided in  these regulations the pay, allowance,  pension, leave, imposition of penalties and  other conditions of service of the members  of the service shall be regulated by rules,  regulations or orders applicable generally  to the Government Service in connection  with the affairs of the state.”

7. There is no separate provision for age of  

superannuation of employees of the Nigam prescribed under  

Regulations, 1978. As per Regulation, 31, the terms  and  

conditions of service of the employees of the Nigam shall  

be governed by the same rules, regulations and orders  

generally applicable to the employees of the State  

Government  and hence the retirement and superannuation age  

of employees of the Nigam shall stand governed by the  

provisions of Rule 56(a) of the Uttar Pradesh Fundamental  

Rules contained in the Financial Handbook, Volume II, Part  

II­IV, which reads as follows:

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“Rule 56(a).Except as otherwise provided in  other clauses of 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 fifty­eight  years. He may be retained in service after  the date of retirement on superannuation  with the sanction of the government on  public grounds which must be recorded in  writing but he must not be retained after  the age of sixty years except in very  special circumstances.”

The age of retirement of the State Government employees  

as per Rule 56(a) of Uttar Pradesh Fundamental Rules was 58  

years.   In the year 2001, the State Government vide its  

Official Order No.1098/A­1/2001 dated 28th  November, 2001  

informed of its intention to amend clause (a) of Rule 56.  

Consequently, Rule 56(a) was amended by “The Uttar Pradesh  

Fundamental (Amendment) Rules, 2002” vide Notification  

dated 27th  June, 2002, which came into force on 28th  

November, 2001.  As per the amended  clause (c) of Rule 56,  

the age of superannuation of the State Government employees  

was enhanced  from 58  years  to 60 years, which reads as  

follows:  

“Rule 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.

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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 preceding month on  attaining the age of sixty years.  

Provided further that a Government servant  who has attained the age of fifty eight  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.”

8. In the meantime, after issuance of Government’s order  

expressing its intention to amend clause (a) of Rule 56 by  

Notification dated 28th  November, 2001, the  Nigam  by its  

letter  dated  31st  December,  2001 enquired from the State  

Government as to whether the benefit of enhancement in the  

age of superannuation from 58 years to 60 years would be  

applicable to the employees of the Nigam or not. In reply  

thereto just before the Amendment Rules, 2002, the special  

Secretary to the State Government from its Department of  

Local Self Government by his letter dated 22nd  January,  

2002, conveyed that the employees of the Nigam shall not be  

entitled to the enhancement of age of superannuation from  

58 years to 60 years as the same would be applicable only  

to the State Government employees. On receipt of the said  

letter, on 11th  July, 2002 the   Nigam   resolved that  

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enhancement in the age of superannuation from 58 years to  

60 years would not be applicable to the employees of the  

Nigam.   

Against the decision of the State Government dated 22nd  

January, 2002 and the decision of the Nigam vide Office  

Memorandum dated 11th July, 2002   a number of writ  

petitions were preferred by the employees of the Nigam who  

were being sought to retire on completing the age of 58  

years. Some of the employees directly filed writ petitions  

before this Court challenging the orders issued by the  

Nigam   against them to the effect that they would  

superannuate upon completion of 58 years.   This Court by  

its judgment in Harwindra Kumar vs. Chief Engineer, Karmik  

and others, 2005 (13) SCC 300  directed the Nigam   to  

continue the petitioners of  those cases  in service till  

they attain the age of 60 years and the orders directing  

their retirement at the age of 58 years were set aside with  

the following observation:

“9. In the present case, as the 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  

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the Nigam to take an administrative decision  acting under Section 15(1) of the Act pursuant  to the 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 the 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 the 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  was it permissible for the Nigam on the basis of  such a direction of the State Government in the  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.

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

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11.  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 the petitioners of the writ  petitions would 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 up to 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 up to  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.”

9. After the decision in Harwindra Kumar(supra), the Nigam  

in exercise of its powers conferred under sub­sections (1)  

and (2) of Section 97 of the Act, 1975, framed Uttar  

Pradesh Jal Nigam Employees (Retirement on the age of  

Superannuation) Regulations, 2005 (hereinafter referred to  

as the ‘Regulations, 2005’). It was issued by Office Order  

dated 8th December, 2005 and made effective from 30th August,  

2005. By Regulation 3 the retirement age of 60 years was  

provided but for employees and Engineers who were employed  

in erstwhile LSGED and who were transferred and merged in  

the Nigam. In Regulation 4, a separate age of  

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superannuation at the age of 58 years was prescribed for  

all  other employees  and  Engineers, who were  not  covered  

under Regulation 3 i.e. those who were directly appointed  

in the Nigam.   Regulation 3 and 4 reads as follows:

“  Retirement on attaining age of  superannuation:

3. Age of superannuation of every  employee who was employed in the  Engineering Department of the Local Self  Government under Section 37(1) of the  Act, and has been transferred to the  Corporation and is employed in the  Corporation, will be 60 years.

4. The age of superannuation of the  employees different from those under Rule  3 above, will be 58 years. But the age of  superannuation of the Group ‘D’ employee  who have been employed prior to  5.11.1985, will be 60 years.”

After framing the aforesaid Regulation, 2005, the Nigam  

filed a review petition before this Court being Review  

Petition No.24 of 2006, seeking review of decision in  

Harwindra Kumar(supra).  The review petition was dismissed  

by this Court on 29th August, 2006.

10. A number of employees challenged Regulation 4 by filing  

Writ Petition No.45800 of 2006,  etc. The Allahabad High  

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Court by its common judgment dated 21st  May, 2007 allowed  

the writ petitions and held that Regulation 4 to the extent  

it provides superannuation age of 58 years for those  

employees directly recruited is arbitrary and  declared it  

non­est. The writ petitioners were allowed to continue in  

service till the age of 60 years.

11. As against the aforesaid judgment, the Nigam filed a  

special appeal before the Division Bench of the Allahabad  

High Court which by order dated 1st August, 2007 stayed the  

declaration given by the learned Single Judge.  However, so  

far as the writ petitioners were concerned, no interim  

orders were passed in the said special appeal and as such,  

they were allowed to discharge their duties upto the age of  

60 years.  

12. The Nigam being not satisfied with the order passed by  

the Division Bench moved before this Court   in  Chairman,  

Uttar Pradesh Jal Nigam  & another vs. Radhey Shyam Gautam  

and another, 2007 (11) SCC 507.   In the said case, taking  

into consideration the earlier decision rendered in  

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Harwindra Kumar(supra)  and  Jaswant Singh(supra)  this Court  

dismissed the appeal with following observation:  

“10.  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 the  age of the employees would not tantamount to  amending Regulation 31 of the Regulations.

11.  In  Harwindra Kumar case  the Division Bench  decision on which the appellant places reliance  was challenged. 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 the petitioners of the  writ petitions would superannuate upon  completion of the age of 58 years were set aside  and it was directed that in case the employees  have been allowed to continue up to 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 up to  the age of 60 years which was to be paid to them  within a period of three months from the date of  receipt of  copy of  this Court's order  by  the  Nigam.”

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13. In the meantime, a large number of employees of the  

Nigam, who were forced to retire on attaining the age of 58  

years, preferred writ petitions and sought benefit of the  

directions given by this Court in  Harwindra Kumar(supra).  

The matter ultimately, moved before this Court in  

Chairman, Uttar Pradesh Jal Nigam   vs. Jaswant Singh &  

others, 2006 (11) SCC 464.    While dismissing the appeal  

this Court observed:

“16.  Therefore, in case at this belated  stage if similar relief is to be given to  the persons who have not approached the  court that will unnecessarily overburden the  Nigam and the Nigam will completely collapse  with the liability of payment to these  persons in terms of two years' salary and  increased benefit of pension and other  consequential benefits. Therefore, we are  not inclined to grant any relief to the  persons who have approached the court after  their retirement. Only those persons who  have filed the writ petitions when they were  in service or who have obtained interim  order for their retirement, those persons  should be allowed to stand to benefit and  not others. We have been given a chart of  those nine persons, who filed writ petitions  and obtained stay and are continuing in  service. They are as follows:

1. Shri Bhawani Sewak Shukla 2. Shri Vijay Bahadur Rai 3. Shri Girija Shanker 4. Shri Yogendra Prakash Kulshresht 5. Shri Vinod Kumar Bansal 6. Shri Pradumn Prashad Mishra

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7. Shri Banke Bihari Pandey 8. Shri Yashwant Singh 9. Shri Chandra Shekhar

And the following persons filed writ  petitions before retirement but no stay  order was granted:

1. Shri Gopal Singh Dangwal (WP No. 35384  of 2005 vide order dated 5­5­2005) 2. Shri R.R. Gautam (WP No. 45495 of 2005  vide order dated 15­6­2005)

17.  The benefits shall only be confined to  abovementioned persons who have filed writ  petitions before their retirement or they  have obtained interim order before their  retirement. The appeals filed against these  persons by the Nigam shall fail and the same  are dismissed. Rest of the appeals are  allowed and orders passed by the High Court  are set aside. There would be no order as to  costs.”

14. In Harwindra Kumar(supra) this Court held that as long  

as Regulation 31 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, liberty was given to the Nigam to  

make suitable amendment in Regulation 31 with the previous  

approval of the State Government to alter the service  

conditions of employees of the Nigam, including their age  

of superannuation.  It was also made clear that if the same  

is done, it shall be prospective.  It appears that in view  

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of observation of this Court, the Nigam framed Regulations,  

2005 but prescribed separate age of superannuation, one for  

employees and engineers who were employed in erstwhile  

LSGED and another for those who were directly appointed in  

the Nigam.   Regulations 2005 were so framed without  

repealing or amending Regulation 31.

It appears that in view of the subsequent decisions of  

this Court, the Nigam vide its Resolution dated 13th April,  

2008,  resolved to enhance the age of the superannuation of  

the employees, irrespective of their source of entry, to 60  

years and forwarded the same to the State Government for  

its approval.  The resolution aforesaid reads as follows:

Agenda Item No. Description of  Agenda

Decision taken by  the Board of  Directors

147.07 Regarding  enhancement of age  of superannuation  from 58 years to  60 years, of the  officers and  officials working  in Uttar Pradesh  Jal Nigam ,  similar to the  working Government  employees.

Proposal approved  by the Board of  Directors and it  is decided to  refer to the  Government for  obtaining the  approval of the  Government.  

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15. But the State Government provided a uniform age for  

superannuation as 58 years for all employees working in  

Government Companies and Government Corporations by its  

order dated 29th  June, 2009.   For the said reason, by its  

order dated 3rd July, 2009, the State Government refused to  

accord approval to the recommendations of the Nigam   dated  

13th April, 2008.  

16. On being aggrieved by the said action of the State  

Government the employees of the Nigam preferred the writ  

petitions in question before the Allahabad High Court. A  

number of writ petitions were heard together and disposed  

of by the common impugned judgment dated 29th  July, 2010.  

The other writ petitions which were taken up or filed  

subsequently were disposed of by the impugned separate  

orders in terms with common judgment dated 29th July, 2010.  

17. By the impugned common judgment dated 29th  July, 2010  

the  Division Bench of the Allahabad  High Court,  Lucknow  

Bench, Lucknow in Writ Petition (C) No.1595(S/B) of 2009  

etc.etc. declared   “Uttar Pradesh Jal Nigam Employees  

(Retirement on attaining age of Superannuation)  

Regulations”, 2005 unconstitutional as it created two  

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classes of employees in determining two separate retirement  

age with observation as noticed above.

18. Learned counsel for the appellant­State and the Nigam  

assailed the judgment mainly on the following grounds:

(i) The  High  Court  cannot  equate  the  employees  of  the  public  

undertakings/corporations with the employees of the State Government for  

determination of age of superannuation.

(ii) The High Court was not justified in declaring that all the employees  

of  the  Nigam  shall  retire  on  attaining  the  age  of  60  years  like  State  

Government  employees,  by  pre-empting  the  Nigam  from  exercising  its  

power under Section 97 of the Act, 1975.

(iii) The classification between the employees of Local Self-Government  

Engineering  Department  transferred  to  the  Nigam  and  the  employees  

directly  recruited  by  the  Nigam,  in  prescribing  different  age  of  

superannuation is valid and reasonable.  

(iv) The  High Court  was  not  justified  in  setting  aside  the  Jal  Nigam  

Employees (Retirement on attaining age of Superannuation) Regulations,  

2005 in absence of any challenge to the power of the Nigam to frame the  

regulations particularly when the petitioners only challenged the Regulation  

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(v) The  High  Court  committed  an  error  of  law  in  not  considering  

Section 37(1) of the Act, 1975, which protects the terms and conditions of  

service of the employees of erstwhile Local Self-Government Engineering  

Department who were transferred to the Nigam   on its creation.

(vi) The question of determination of age of superannuation is a matter  

of  policy  of  the  State  Government  or  the  competitive  authority  of  a  

Corporation, and the High Court under Article 226 cannot determine the  

age of superannuation.  

19. Thus, from a detailed analysis and close examination of  

facts relating to condition of service of employees of the  

Nigam starting from its constitution till today, the  

following facts emerges:

(a) The question relating to age of superannuation of employees of the Nigam  

stood  finally  concluded  on  18th November,  2005  when  this  Court  rendered  

decision in Harwindra Kumar (supra).

(b) After judgment in Harwindra Kumar (supra) based on liberty given by this  

Court,  the  Nigam  framed  Regulations,  2005  prescribing  two  separate  age  of  

superannuation for the employees of the Nigam, without amending Regulation 31.  

The Nigam subsequently by Resolution dated 13th April, 2008 proposed to amend  

Regulations 2005 prescribing common age of 60 years for superannuation for all  

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employees of the Nigam.  The State Government by its order dated 29 th June, 2009  

prescribed  uniform  age  of  superannuation  as  58  years  for  all  the  employees  

working  in  the  Government  Undertakings  i.e.  Government  Companies  and  

Government  Corporations  and  then  in  view  of  such  decision,  the  State  

Government  refused to accord approval to the recommendations of the Nigam  

dated 13th April, 2008 by its letter dated 3rd July, 2009.

20. In view of the subsequent development after decision  

rendered in  Harwindra Kumar (supra)  case, again the  

question of age of superannuation of employees of the Nigam  

has been reopened keeping in view of such fact, the  

question required to be determined as raised in these  

cases.   

21. This Court in Harwindra Kumar (supra) held that so long  

as Regulation 31 is not amended, 60 years which is the age  

of superannuation of the government servants shall be  

applicable to the employees of the Nigam.   However, in  

contravention of finding of this Court without amending  

Regulation 31, new Regulation 3 and 4 of Regulations, 2005  

has been framed by the Nigam prescribing two separate age  

of superannuation for similarly situated employees.  

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22. In Prem Chand Somchand Shah v. Union of India (1991) 2  

SCC 48 this Court held:

“8. As regards the right to equality guaranteed under  Article 14 the position is well settled that the said  right ensures equality amongst equals and its aim is  to protect persons similarly placed against  discriminatory  treatment.  It  means  that all persons  similarly circumstanced shall be treated alike both in  privileges conferred and liabilities imposed.  Conversely discrimination may result if persons  dissimilarly situate are treated equally. Even amongst  persons similarly situate differential treatment would  be permissible between one class and the other. In  that event it is necessary that the differential  treatment should be founded on an intelligible  differentia which distinguishes persons or things that  are grouped together from others left out of the group  and that differentia must have a rational relation to  the object sought to be achieved by the statute in  question.”

23. Since creation of the Nigam, irrespective of source of  

recruitment, the employees of the Nigam were treated alike  

for the purpose of superannuation and were allowed to  

superannuate at the age of  58 years as is evident from  

Regulation 31.    

24. As per decision of this Court in  Prem Chand Somchand  

Shah (supra)  even  amongst persons similarly situated  

differential treatment would be permissible between one  

class and the other.   In that event it is necessary that  

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the differential treatment should be founded on an  

intelligible differentia which distinguishes persons or  

things that are grouped together from others left out of  

the group and that differentia must have a rational  

relation to the object sought to be achieved by the  

statute.   The appellants, the Nigam as well as the State  

of Uttar Pradesh failed to place on record the reasons for  

differential treatment which distinguishes employees of  

erstwhile LSGED and those who were appointed directly in  

the Nigam.   

Further, as employees appointed from different source,  

after their appointment were treated alike for the purpose  

of superannuation under Regulation 31, subsequently solely  

on the basis of source of recruitment no discrimination can  

be made and differential treatment would not be permissible  

in the matter of condition of service, including age of  

superannuation, in absence of an intelligible differentia  

distinguishing them from each other. We therefore hold that  

the High Court by impugned judgment rightly declared  

Regulations, 2005 unconstitutional and ultra wires of  

Article 14 of the Constitution of India.  

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25. Regulation 31 of  the ‘Uttar Pradesh Jal Nigam Services  

of Engineers (Public Health Branch) Regulations, 1978’  

Special Regulation; it will not be affected by later  

Regulation 4 of  the Uttar Pradesh Jal Nigam (Retirement on  

attaining age of Superannuation) Regulations, 2005, in  

absence of express repeal of Special Regulation. By  

implication it cannot be inferred that the Regulation 31  

stands repealed in view of subsequent Regulations, 2005.  

26. Even if it is treated that both the General Regulation  

4 of Regulations, 2005 and Special Regulation 31 of  

Regulations, 1978 co­exist, one which is advantageous i.e.  

Regulation 31 shall be applicable to the members of the  

same service.  

27. The State Government’s order   dated 29th  June, 2009  

prescribing   a uniform age of superannuation at 58 years  

for the employees working in the Government Companies and  

Government Corporations cannot prevail over statutory  

Regulation 31 framed by the Nigam under Section 97 (2) (C)  

of the Act, 1975 with the previous approval of the State  

Government.   Therefore, the employees of the Nigam shall  

not be guided by the State Government’s order dated 29th  

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June, 2009 but will continue in the services up to the age  

of 60 years, in view of Regulation 31, having not yet  

amended or repealed.    

28. In Harwindra Kumar (supra) case this Court already held  

that it is not possible for the Nigam to take  an  

administrative decision pursuant to the direction of the  

State Government in the matter of policy issued under  

Section 89 of the Act and directing that the age of  

superannuation of 60 years applicable to the Government  

servants shall not be applicable to the employees of the  

Nigam.   In view of such finding of this Court, the Nigam  

cannot act on the basis of the State Government’s order  

dated 29th  June, 2009 providing uniform age of  

superannuation at 58 years.    

29. During the pendency of these appeals further  

development has taken place. The Government of Uttar  

Pradesh by its letter No.3199/9­3­11­113C/2011 dated 23rd  

December, 2011 informed the Chairman, Uttar Pradesh Jal  

Nigam its approval to increase the age of superannuation of  

full time regular officers/employees of the Nigam from 58  

years to 60 years.  The State Government directed to make  

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appropriate amendments in the Regulations framed by the  

Nigam, which reads as follows:

“No.3199/9­3­11­113C/2011 From: Vijay Bahadur Singh,

Special Secretary, Government of Uttar Pradesh.

To: The Chairman,  Uttar Pradesh Jal Nigam , Lucknow.

Urban Developmetn Section 3 Lucknow dt.  23.12.2011

Sub: For increasing the age of retirement of full  time regular employees of Uttar Pradesh Jal  Nigam  from 58 years to 60 years.

Sir,

This is in reference to your letter no.  86/P­1/2005­002/11 dated 23.12.2011 and  Government order no.160/44­1­20911­90/2008  dated 20.12.2011 of the Public Enterprises  Bureau Section, on the above subject.

2. In this regard I have been directed to say  that a meeting of the Board of Directors of  Jal Nigam was held on 23.12.2011 and it was  decided in the said meeting that age of  retirement of full time regular  officers/employees of Uttar Pradesh Jal  Nigam   be increased from 58 years to 60  years.  The aforesaid decision of Board was  considered by the Government and Government  has decided that age of full time regular  officers/employees of Uttar Pradesh Jal  Nigam   be increased from 58 years to 60  years.  

3. However, the aforesaid increase in the age  of retirement will be subject to the  

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condition that all the additional financial  burden which will be incurred due to  aforesaid increase in the age of retirement,  will be borne by Uttar Pradesh Jal Nigam  from its own resources and no financial  assistance whatsoever will be given by the  Government in this regard.

4. I have been further directed to say that  appropriate amendments in the  rules/regulations/standing orders of the  Uttar Pradesh Jal Nigam   pertaining to  fixation of the age of retirement of the  personnel of the Jal Nigam will be made by  the Jal Nigam on its own.

Yours SD/­ Illegible

Vijay Bahadu Singh Special Secretary.”

30. In view of the finding as recorded above and the State  

Government’s letter dated 23rd  December, 2011 no  

interference is called for in the impugned judgment,  

whereby the High Court held Regulations, 2005  

unconstitutional, violative of Article 14 and set aside the  

orders of retirements.  

31. An Interlocutory Application dated 20th March, 2013 has  

been filed by the counsel for the respondent in Civil  

Appeal No.5528 of 2012 intimating that 1st  respondent­

Dayanand Chakrawarty expired on 17th February, 2013, during  

the pendency of the case, leaving behind their legal heirs,  

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Mrs. Pramila Chakrawarty (widow), Ms. Manisha Chakrawarty  

(daughter), Mr. Vivekanand Chakrawarty (son), Ms. Utpana  

Chakrawarty (daughter) and Mr. Sampurna Nand Chakrawarty  

(son).   

32. In view of the observation made in the preceding  

paragraphs as the employees including the respondents are  

entitled to get consequential benefits, we allow the  

petition for substitution to enable the heirs to derive the  

benefit of the decision of this Court.   

33. Now the question arises as to what consequential  

benefits to which the respondents and other employees who  

have not moved before any court of law shall be entitled.  

By impugned judgment the High Court observed:

“Similar benefit is already available to the  employees who are continuing in service by virtue  of interim order passed by the competent court.  They should continue till the age of 60 years.

The law helps those who are vigilant and not to  those who go to sleep as per maxim VIGILANTIBUS,  ET NON DORMINTIBUS, JURA SUB VENIUNT.   So, this  benefit will  not be given to  the employees who  peacefully retired on attaining the age of 58  years and never came before the Court.  But there  may be another  class  of the employees who came  before this Court and could not get the interim  order but writ petitions were admitted.  

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Admittedly, these employees have not worked.  So,  on the basis of no pay no work, they will not be  entitled for arrears.   However, their back wages  will be restricted @20% of the basic salary as per  the ratio laid down in the case of M/s Gvalli v.  Andhra Education Society 2010 AIR 1105 SC.  Lastly, it is clarified that the extended service  will be counted for all the purpose to the above  mentioned employees.   The petitions are allowed.  No cost.”

34. In  Harwindra Kumar vs. Chief Engineer, Karmik and  

others (Supra), this Court while allowing the employees of  

Nigam to continue till the age of 60 years in view of  

Regulation 31, ordered that no  recovery shall be made from  

those who continued up to the age of 60 years.  This Court  

further observed that the employees who 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, would also be entitled to payment of  

salary for the remaining period up to the age of 60 years.

35. In Chairman, U.P. Jal Nigam  vs. Radhey Shyam Gautam,  

2007 (11) SCC 507,  following the decision in  Harwindra  

Kumar (supra)  case,  this Court held that  the employees of  

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the Nigam shall be entitled for full salary for the  

remaining period up to the age of 60 years.  

36. However, in    U.P. Jal Nigam  vs. Jaswant Singh, 2006  

(11) SCC 464 this Court allowed the benefits of arrears of  

salary only to those employees of the Nigam who had filed  

writ petitions and denied the same to others who have not  

moved before a court of law.  

37. In view of the orders passed by this Court in Harwindra  

Kumar(supra), Radhey Shyam Gautam(supra) and Jaswant  

Singh(supra), it was not open to the High Court to rely on  

some other decision of this Court,  ratio of which is not  

applicable in the present case for determining back wages  

of respondents   restricting it to be 20%   of the basic  

salary. We observe that the principle of ‘no pay no work’  

is not applicable to the employees who were guided by  

specific rules like Leave Rules etc. relating to absence  

from duty.   Such principle can be applied to only those  

employees who were not guided by any specific rule relating  

to absence from duty.  If an employee is prevented by the  

employer from performing his duties,   the employee cannot  

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be blamed for  having not worked, and the principle of  ‘no  

pay no work’  shall not be applicable to such employee.   

38. In these cases as we have already held that Regulation  

31 shall be applicable and the age of superannuation of  

employees of the Nigam shall be 60 years; we are of the  

view that following consequential and pecuniary benefits  

should be allowed to different sets of employees who were  

ordered to retire at the age of 58 years:

(a) The employees including respondents who moved before a court  of law  

irrespective of fact whether interim order was passed in their favour or not, shall  

be entitled for full salary up to the age of 60 years.  The arrears of salary shall be   

paid to them after adjusting the amount if any paid.

(b) The employees, who never moved before any court of law and had to retire  

on attaining the age of superannuation, they shall not be entitled for arrears of  

salary.  However, in view of Regulation 31 they will deem to have continued in  

service up to the age of 60 years.  In their case, the appellants shall treat the age of  

superannuation  at  60  years,  fix  the  pay  accordingly  and  re-fix  the  retirement  

benefits like pension, gratuity etc. On such calculation, they shall be entitled for  

arrears of retirement benefits after adjusting the amount already paid.  

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(c) The arrears of salary and arrears of retirement benefits should be paid to  

such  employees  within  four  months  from  the  date  of  receipt  of  copy  of  this  

judgment.

39. The judgment passed by the Division Bench of the  

Allahabad High Court, Lucknow Bench dated 29th  July, 2010  

and other impugned judgments stand modified to the extent  

above. The appeals are disposed of with aforesaid  

observation and directions.  There shall be no order as to  

costs.  

………..……………………………………………..J. (G.S. SINGHVI)

........……………………………………………………….J.                      (SUDHANSU JYOTI MUKHOPADHAYA) NEW DELHI, JULY 2,  2013.

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