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CASE NO.: Appeal (civil)  1701 of 2007

PETITIONER: Chairman, U.P. Jal Nigam and Anr

RESPONDENT: Radhey Shyam Gautam & Anr

DATE OF JUDGMENT: 30/03/2007

BENCH: Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T (Arising out of SLP (Civil) No. 18579 of 2005)

Dr. ARIJIT PASAYAT, J.

       Leave granted.  

       Challenge in this appeal is to the judgment rendered  by a Division Bench of the Allahabad High Court  questioning correctness of the order passed by a Division  Bench in the Special Appeal filed by the appellant against  an interim order passed by a learned Single Judge  permitting the respondent No.1 to continue in service of  the appellant No.1 till attaining the age of 60 years. The  case of the appellant before both learned Single Judge and  the Division Bench was that the standard age of  retirement of its employees is 58 years and the writ  petitioner i.e. respondent No.1 was no exception.  The  Special Appeal was filed stating that the interim order was  contrary to the view taken by a Division Bench in  Harwindra Kumar v. Chief Engineer Karmik, UP Jal,  Nigam, Lakhnow and Ors. [2002 (2) UPLBEC 1511].  The  Division Bench dismissed the appeal.

       In support of the appeal learned counsel for the  appellant submitted that the interim order was contrary to  the view expressed by the Division Bench which was  binding on a subsequent Division Bench and in any event  on all learned Single Judges.   

Learned counsel for respondent No.1 on the other  hand stated that the controversy as to whether the age of  the retirement of employees is 58 or 60 has already been  settled by this Court.

In Harwindra Kumar v. Chief Engineer Karmik &  Ors. [2005 (13) SCC 300) the question raised was whether  the retirement age in terms of the Uttar Pradesh  Fundamental Rules was applicable to the employees of the  Jal Nigam.

Various provisions of Uttar Pradesh Water Supply  and Sewerage Act, 1975 (in short the ’Act’) and Uttar  Pradesh Jal Nigam Engineers (Public Health Branch)  Service Regulations, 1978 (in short the "Regulations")  need to be noted.

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To appreciate the point in issue, it would be  necessary to refer to the relevant provisions of Sections  15, 31(1), 37, 89 and 97 of the Act and Regulation 31 of  the Regulations which read thus:

"15. Powers of the Jal Nigam.\027(l) The Nigam shall,  subject to the provisions of this Act have power to do  anything which may be necessary or expedient for  carrying out its functions under this Act. (2) Without prejudice to the generality of the  foregoing provision, such power shall include the power\027 (i) to inspect all water supply and sewerage facilities  in the State by whomsoever they are operated; (ii) to obtain such periodic or specific information  from any local body and operating agency as it may deem  necessary; (iii) to provide training for its own personnel as well  as employees of the local bodies; (iv) to prepare and carry out schemes for water  supply and sewerage; (v) to lay down the schedule of fees for all services  rendered by the Nigam to the State Government, local  bodies, institutions or individuals; (vi) to enter into contract or agreement with any  person, firm or institution, as the Nigam may deem  necessary, for performing its functions under this Act; (vii) to adopt its own budget annually;  (viii) to approve tariffs for water supply and sewerage  services applicable to respective local areas comprised  within the jurisdiction of Jal Sansthans and such local  bodies as have entered into an agreement a with the  Nigam under Section 46; (ix) to borrow money, issue debentures to obtain  subventions and grants and manage its own funds; (x) to disburse loans to local bodies for their water  supply and sewerage schemes; (xi) to incur expenditure and to grant loans and  advances to such b persons or authorities as the Nigam  may deem necessary for performing the functions under  this Act. xx                      xx                              xx 31. Vesting and transfer of property to Nigam.\027(1)  As from June 18,1975, the date of establishment of the  Nigam hereinafter in this Chapter referred to as ’the  appointed date’,\027 (a) all properties and assets (including waterworks,  buildings, laboratories, stores, vehicles, furnitures and  other furnishing) which immediately before the appointed  date were vested in the State Government for the purposes  of the Local Self-Government Engineering Department  shall vest in and stand transferred to the Nigam; and (b) all the rights, liabilities and obligations of the  State Government whether arising out of any contract or  otherwise pertaining to the said departments shall be the  rights, liabilities and obligations of the Nigam. xx                              xxx                             xx 37. Transfer of employees to Nigam.\027(l) Save as  otherwise provided in this section every person, who was  employed in the Local Self-Government Engineering  Department of the State Government shall on and from  the appointed date become employee of the Nigam and  shall hold his office or service therein by the same tenure,  at the same remuneration and upon same other terms and  conditions, and with the same rights and privileges as to

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pension, gratuity and other matters as he would have held  the same on the appointed date if this Act had not come  into force, and shall continue to do so until his  employment in the Nigam is terminated or until his  remuneration or other terms and conditions of services  are revised or altered by the Nigam under or in pursuance  of any law or in accordance with any provision which for  the time being governs his service: xx                              xxx                             xx 89. Directions to the Nigam on questions of policy.\027 (I) In the discharge of its functions, the Nigam shall be  guided by such directions on questions of policy as may be  given to it by the State Government. (2) If any question arises whether any matter is or is  not a matter as respects which the State Government may  issue a direction under sub section (1), the decision of the  State Government shall be final. xx                              xxx                             xx 97. Regulations.\027(1) The Nigam and a Jal Sansthan  may, with the previous approval of the State Government,  make regulations, not inconsistent with this Act and the  rules made thereunder, for the administration of the  affairs of the Nigam or a Jal Sansthan. (2) In particular, and without prejudice to the  generality of the foregoing power, such regulations may  provide for all or any of the following matters, namely -  (a)\027(b)      *       * (c) the salaries and allowances and other conditions  of service of employees of the Nigam or a Jal Sansthan  other than employees employed on contract basis;" Regulation 31 "31. Besides the provision made under these  Regulations, the pay and allowances, pension, leave,  imposition of penalty and other terms and conditions of  service shall be governed by such rules, regulations and  orders which are equally applicable to other serving  government servants concerned functioning in the State."

From the aforesaid provisions, it would be clear that  the appointed date for the purposes of the Act was 18-6- 1975 when the Nigam was established and under Section  37 of the Act, conditions of service of the appellant- petitioners who were employed in the Local Self- Government Engineering Department of the Government  of Uttar Pradesh before the appointed date, were  continued to remain the same as they were before the  appointed date unless and until the same are altered by  the Nigam under the provisions of the Act. Section 97  confers power upon the Nigam with the previous approval  of the State Government to frame regulations in relation to  service conditions of employees of the Nigam and, acting  thereunder, the Regulations were framed by the Nigam in  the year 1978, Regulation 31 whereof provides that service  conditions of the employees of the Nigam shall be  governed by such rules, regulations and orders which are  applicable to other serving government servants  functioning in the State of Uttar Pradesh. Thus, from a  bare reading of Section 37 and Regulation 31, it would be  clear that the service conditions of the employees of the  Nigam would be the same as are applicable to the  employees of the State Government under the rules,  regulations and orders applicable to such government  servants so long as the same are not altered by the Nigam  in accordance with the provisions of the Act. If the  regulations have not been framed, the Nigam had

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residuary power under Section 15(1) of the Act whereby  under general power it could change the service conditions  and the same could remain operative so long as  regulations were not framed but in the present case,  regulations were already framed in the year 1978  specifically providing in Regulation 31 that the conditions  of service of the employees of the Nigam shall be governed  by the rules, regulations and orders governing the  conditions of service of government servants which would  not only mean then in existence but any amendment  made therein as neither in Section 37 nor in Regulation  31, has it been mentioned that the Rules then in existence  shall only apply. 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 a 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.

In Harwindra Kumar’s case (supra) 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 tile 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 tile 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.  It appears that the High Court placed reliance on the  decision in Harwindra Kumar’s case (supra). Additionally,  in Chairman, U.P.Jal Nigam & Anr.  v. Jaswant Singh &  Anr. (JT 2006(10) SC 500) the decision was reiterated in  the following terms:

"The benefits shall only be confined to  above mentioned 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."

In view of what has been stated above the inevitable  conclusion is that the appeal is sans merit, deserves  dismissal, which we direct.