NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY & ANR. versus B D SINGHAL & ORS.
[2021] 6 S.C.R. 978, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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SUPREME COURT REPORTS
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NEW OKHLA INDUSTRIAL DEVELOPMENT
AUTHORITY & ANR.
v.
B D SINGHAL & ORS.
(Civil Appeal No. 2310 of 2021)
JULY 15, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Service Law – Superannuation – Enhancement of
Superannuation age – New Okhla Industrial Development Authority
(NOIDA) constituted under provisions of the Act of 1976 – On 30
September 2012, Government of Uttar Pradesh acceded to a
proposal of the Appellant-NOIDA to enhance the age of
superannuation of its employees from fifty-eight to sixty years,
prospectively – High Court set aside the decision of the State
government to give prospective effect and in exercise of its power
of judicial review u/Art.226 of the Constitution directed that
retrospective effect be given to the Government Order from 29
September 2002 – Whether High Court transcended the limits of its
power of judicial review – Held: High Court trenched upon the
realm of policy making and assumed to itself, jurisdiction over a
matter which lies in the domain of the executive – Whether the age
of superannuation should be increased and if so, the date from
which this should be effected is a matter of policy into which the
High Court ought not to have entered – Whether the decision to
increase the age of superannuation should date back to the
resolution passed by NOIDA or should be made effective from the
date of the approval by the State government was a matter for the
State government to
decide – Ultimately, in drawing every cut-off,
some employees would stand on one side of the line while the others
would be positioned otherwise – This element of hardship cannot
be a ground for the High Court to hold that the decision was
arbitrary – The proposal of NOIDA could not have given rise to a
legitimate expectation since it was a mere recommendation which
was subject to the approval of the State Government – Respondent-
employees could not have claimed a vested right that the
enhancement in the age of retirement should be made effective from
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the date on which NOIDA had resolved to submit a proposal for the
approval of the government – U.P. Industrial Area Development
Act, 1976 – s.19 – New Okhla Industrial Development Authority
Service Regulations, 1981 – Regn.25 – Doctrine of legitimate
expectation – Inapplicability of – Constitution of India – Art.226 –
Judicial Review.
Doctrines/Principles: Principle of promissory estoppel – When
applicable and when not applicable – Held: For the principle of
promissory estoppel to apply, one party must have made an
unequivocal promise, intending to create or affect a legal relationship
between the parties – The principle of promissory estoppel will not
apply if the communication issued was either a proposal or a
recommendation.
Doctrines/Principles: Doctrine of legitimate expectation –
Held: The doctrine of legitimate expectation is grounded in fairness
and reasonableness – There is a legitimate expectation that the
actions of the State are fair and reasonable.
Government Orders/Notifications/Circulars: Government
order – When retrospectively applicable – Held: Government order
can be given retrospective application only if expressly stated or
inferred through necessary implication.
Allowing the appeals, the Court
HELD: 1. Whether the age of superannuation should be
enhanced is a matter of policy. If a decision has been taken to
enhance the age of superannuation, the date with effect from which
the enhancement should be made falls within the realm of
policy.
The High Court in ordering that the decision of the State
government to accept the proposal to enhance the age of
superannuation must date back to 29 June 2002 evidently lost
sight of the factual background, more specifically (i) the rejection
of the original proposal on 22 September 2009; and (ii) the
judgment of the Division Bench of the High Court dated 17
January 2012 refusing to set aside the order rejecting the proposal
on 22 September 2009 which has attained finality. But there is a
more fundamental objection to the basis of the decision of the
High Court. The infirmity in the judgment lies in the fact that the
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High Court has trenched upon the realm of policy making and
has assumed to itself, jurisdiction over a matter which lies in the
domain of the executive. Whether the age of superannuation
should be increased and if so, the date from which this should be
effected is a matter of policy into which the High Court ought not
to have entered. [Para 19][995-B-D]
2. The factual reasons which the High Court has indicated
are specious. The High Court has termed the decision to give
prospective effect to the enhancement of the age of
superannuation from 30 September 2012 as arbitrary on the
ground that the government should have “acted instantly” when
the resolution was received from NOIDA, and that there was no
justification not to grant retrospective effect when the resolution
had been received “more than three years back”. Both these
factors are erroneous. As a matter of fact, the resolution of the
Board of NOIDA dated 9 July 2012 (at its 176th meeting) was
forwarded to the State government on 17 July 2012 and a decision
was taken in about two months from the date of receipt of the
proposal. The High Court’s observation on the delay of three
years in taking a decision on the resolution of NOIDA is in
reference to the 2005 resolution, which was rejected on 22
September 2009. The Government resolution of 2012 was
impugned before the High Court, and the 2009 rejection order
had attained finality in view of the judgment of the
division bench
of the High Court on 17 January 2012 which was not challenged
before this court. [Para 20][995-E-H]
3. Whether the decision to increase the age of
superannuation should date back to the resolution passed by
NOIDA or should be made effective from the date of the approval
by the State government was a matter for the State government
to decide. Ultimately, in drawing every cut-off, some employees
would stand on one side of the line while the others would be
positioned otherwise. This element of hardship cannot be a ground
for the High Court to hold that the decision was arbitrary. When
the State government originally decided to increase the age of
superannuation of its own employees from fifty-eight to sixty years
on 28 November 2001, it had left the public sector corporations
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to take a decision based on the financial impact which would result
if they were to increase the age of superannuation for their own
employees. [Para 21][996-A-C]
4. From time to time the authorities of the State took a
decision bearing upon the exigencies of service prevailing in each
organisation. Different corporations of the State are governed by
their service rules and regulations, and by the exigencies of
service. The State government had evidently determined that it
was for each organisation to consider and determine the impact
of the financial burden, and based on that the organisation was
to submit a proposal for the approval of the government.
[Para 22][996-C, E-F]
5. The High Court’s observation that the Government order
on 30 September 2012 increasing the age of superannuation
prospectively is arbitrary seems to be based on the premise that
the respondent-employees have a vested right to the increase in
the age of retirement on the passage of the resolution by NOIDA.
However, Section 19 of the UP Industrial Area Development Act
1976 stipulates that regulations – which would include
amendments as in this case – will require the previous approval
of the State Government. The employees will have a vested right
to the increased age of superannuation only after the service
regulations are modified upon approval of the State Government,
and from such date as maybe prescribed by the Government.
Para 1(ii) of the government order issued on 30
September 2012
clearly and in unambiguous terms states that the order shall come
into force prospectively. The government order can be given
retrospective application only if expressly stated or inferred
through necessary implication. Therefore, the respondent-
employees could not have claimed a vested right that the
enhancement in the age of retirement should be made effective
from the date on which NOIDA had resolved to submit a proposal
for the approval of the government. [Para 23][996-G-H;
997-A-B]
6. The argument of the respondents that the appellant-
authority is estopped from claiming that the government order
issued on 30 September 2012 cannot be given retrospective
effect from 9 July 2012 since the Board resolution proposed an
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increase in the retirement age of its employees with ‘immediate
effect’ is unsustainable. For the principle of promissory estoppel
to apply, one party must have made an unequivocal promise,
intending to create or affect a legal relationship between the
parties. The recommendation of NOIDA cannot create or alter
the legal relationship since it is subject to the approval of the
government. The principle of promissory estoppel will not apply
if the communication issued was either a proposal or a
recommendation. Since the enhancement of the age of
superannuation is a ‘public function’ channelised by the
provisions of the statute and the service regulations, the doctrine
of promissory estoppel cannot be used. Though NOIDA sought
the approval of the State government for the enhancement with
‘immediate effect’, it never intended or portrayed to have
intended to give retrospective effect to the prospectively
applicable Government order. The representation of NOIDA
could not have given rise to a legitimate expectation since it was
a mere recommendation which was subject to the approval of the
State Government. Hence, the doctrine of legitimate expectation
also finds no application to the facts of the present case.
[Para 24][997-C-E; 998-C-D]
7. The argument of the employees that since they had
moved the Chief Minister with a representation in August 2012
before their date of superannuation which was to fall at the end of
the
month and that they should have the benefit of the
enhancement in the age of superannuation has no substance. On
31 August 2012, the respondents moved the High Court but no
interim relief was granted to them and they attained the age of
superannuation. They have not worked in service thereafter.
Since the High Court‘s judgment dismissing the challenge to the
government order dated 30 September 2012 has attained finality,
the submission cannot be accepted. [Para 26][999-F-G]
State of Uttar Pradesh v. Dayayanand Chakrawarthy
(2013) 7 SCC 595 – distinguished.
Monnet Ispat and Energy Ltd. v. Union of India (2012)
11 SCC 1:[2012] 7 SCR 644 and State of Jharkhand v.
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Brahmputra Metallics Ltd., Ranchi, [Decision of
Supreme Court in Civil Appeal No. 3860-62 of 2020]
– relied on.
P.Mahendran v. State of Karnataka (1990) 1 SCC 411:
[1989] 2 Suppl. SCR 385; C.Gupta v. Glaxo-Smithkline
Pharmaceuticals Ltd. (2007) 7 SCC 171: [2007] 7 SCR
800; Harwinder Kumar v. Chief Engineer,Karmik (2005)
13 SCC 300: [2005] 5 Suppl. SCR 317; U.P Jal Nigam
v. Jaswant Singh (2006) 11 SCC 464: [2006] 8 Suppl.
SCR 916; and U.P Jal Nigam v. Radhey Shyam Gautam
(2007) 11 SCC 507: [2007] 4 SCR 583 – referred to.
Case Law Reference
[1989] 2 Suppl. SCR 385
referred to
Para 11 (iii)
[2007] 7 SCR 800
referred to
Para 11 (iii)
(2013) 7 SCC 595
distinguished
Para 13 (v)
[2012] 7 SCR 644
relied on
Para 24
[2005] 5 Suppl. SCR 317
referred to
Para 25
[2006] 8 Suppl. SCR 916
referred to
Para 25
[2007] 4 SCR 583
referred to
Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2310
of 2021.
From the Judgment and Order dated 25.01.2018 of the High Court
of Judicature at Allahabad in Writ C-No. 43780 of 2012.
With
Civil Appeal No. 2311 of 2021.
Vinod Diwakar, AAG, Ravindra Kumar, Anuvrat Sharma, Antariksh
Singh, Ms. Alka Sinha, Ms. Tanya Shree, Ejaz Maqbool, Ms. Akriti
Chaubey, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. On 30 September 2012, the Government of Uttar Pradesh
acceded to a proposal of the Appellant to enhance the age of
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superannuation of its employees from fifty-eight to sixty years,
prospectively. A Division Bench of the High Court of Judicature at
Allahabad set aside the decision of the State government to give
prospective effect to the enhancement in the age of superannuation and
in the exercise of its power of judicial review under Article 226 of the
Constitution directed that retrospective effect be given to the Government
Order from 29 September 2002. The appeals by New Okhla Industrial
Development Authority1 and the State of Uttar Pradesh question the
correctness of this determination. Simply put, the appeals raise the issue
as to whether the High Court has transcended the limits of its power of
judicial review.
I The Facts
2. The New Okhla Industrial Development Authority is constituted
under the provisions of the UP Industrial Area Development Act 19762.
The object was to constitute an authority for the development of certain
areas of the Statenotified under Section 3 of the Act, into industrial and
urban townships. The legislation provides for the constitution of the
authority, its functions, powers, and for the appointment of the staff
members. While the administrative head is appointed by the State
government, Section 5 of the Act provides for the appointment of the
staff:
“5. Staff of the Authority. - (1) Subject to such control and
restrictions as may be determined by general or special orders of
the State Government,
the Authority may appoint such number of
officers and employees, as may be necessary for the performance
of its functions, and may determine their grades and designations.
(2) Subject as aforesaid the officers and other employees of the
Authority shall be entitled to receive from the funds of the Authority,
such salaries and allowances and shall be governed by such other
conditions of service as may be agreed upon with the Authority.”
Section 19 enables the authority, with the previous approval of the
State government to frame regulations for the administration of the affairs
of the authority. Section 19 reads as follows:
“19. Power to make regulations. - (1) The Authority may, with
the previous approval of the State Government, make regulation
1 “NOIDA”.
2 “the Act”.
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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 in regulation.”
In pursuance of its power under Section 9 of the Act, the Authority
framed the New Okhla Industrial Development Authority Service
Regulations, 19813 governing recruitment, appointment, pay, and other
service conditions of the staff. Regulation 25 of the Noida Regulations,
1981 states that the age of superannuation of the employees is fifty
eight. It reads as follows:
“Retirement 25. An employee shall retire at the age of fifty-eight
years.”
3. On 28 November 2001, the State government issued a
notification4 enhancing the age of retirement of ‘Government servants’
from fifty-eight to sixty years. Pursuant to this, Fundamental Rule 56A
was amended on
27 June 2002 enhancing the age of superannuation of
government servants to sixty years with effect from 28 November 2001.
4. On 29 June 2002, the Board of NOIDA resolved to recommend
that the age of superannuation of its employees should be increased
from fifty-eight to sixty years. A recommendation to that effect was
submitted to the State government on 22 March 2005, since an
amendment of the NOIDA regulations,1981 would require the previous
approval of the State government in terms of Section 19 of the Act.
3 “NOIDA Regulations, 1981".
4 No. 1098/Pers-1/2001
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5. On 2 September 2005, the State government informed NOIDA
that the decision on its proposal was deferred. Eventually, on 22
September 2009, the State government rejected the proposal to enhance
the age of retirement of NOIDA employees. Challenging the decision of
the State government, proceedings were initiated under Article 226 of
the Constitution before the High Court of Judicature at Allahabad5 by
certain employees seeking:
(i)
A Writ of certiorari to quash the government order dated
22 September 2009; and
(ii)
A Writ directing the respondents to those proceedings not
to retire the employees at the age of fifty-eight and to allow
them to continue till they attain the age of sixty years.
6. A Division Bench of the High Court rendered judgment in the
writ proceeding on 17 January 2012 by which it directed NOIDA to
consider the issue in its next Board meeting after taking into account the
financial burden that may be occasioned to the authority by an increase
in the age of retirement. The High Court specifically left it open to the
government to consider whether to give effect to the increase in the age
of retirement from the date on which NOIDA resolved to bear the
financial burden or from such other date as the government may find
expedient. As para 13 of the operative directions indicates:
“13. Having regard to facts and circumstances, we dispose of the
writ petition with directions that NOIDA may consider the
matter
in its next Board meeting, taking into account its earlier resolution
made in the year 2002, to bear the financial burden, after financial
assessment of such burden, and the effect of increase of retirement
age on other employees. It may thereafter refer the matter to the
concerned Administrative Department of the State Government
for its evaluation and recommendation, and for forwarding the
same to the State Government for its approval. We also direct
that if such a decision is taken by the State Government, it will be
open to the State Government to consider to give effect to· the
increase in the age of retirement with effect from the date when
the NOIDA had resolved to bear the financial burden, or from
any such date, which the State Government may find it expedient.”
7. On 9 July 2012, the Board of NOIDA at its 176th meeting
resolved to recommend to the State government to increase the age of
5 Writ Petition No. 48162/2010.
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retirement for its employees from fifty-eight to sixty years “with immediate
effect”. The resolution was communicated to the State government by
a letter dated 17 July 2012 which, in its material segment reads as follows:
“…the Board in its 176th Meeting held on 9.7.2012 has passed a
resolution proposing to increase the age of superannuation from
58 to 60 years (attested copies of the agenda and the Minutes of
the Board resolution are enclosed), wherein it is clearly stated
that the financial burden on account of increasing the age of
retirement from 58 to 60 years would be borne by the Authority
from its own resources and no financial aid of any kind would be
taken from the State Government either at present or in the future.
Therefore, it is requested that the increase in the age of retirement
of the officers I employees of the Authority be increased from 58
to 60 years with immediate effect.”
8. On 27 August 2012, a writ petition was instituted by the first
and second respondents to (i) challenge the order of the State government
dated 22 September 2009 rejecting the original proposal for enhancement
of the age of retirement; and (ii) for a direction not to retire the first and
second respondents at the age of fifty-eight and to allow them to continue
until the age of sixty. Now, at this stage it is material to take note of
certain facts pertaining to the first and second respondents. The second
respondent was appointed in service on 21 March 1977 (his
date of birth
being 18 August 1954). The first respondent was appointed on 6 March
1980 (his date of birth being 15 August 1954). Both the employees were
due to retire on 31 August 2012 on attaining the then prevailing age of
superannuation. On 31 August 2012, notice was issued on the writ petition
but no interim order was passed resulting in both of them superannuating
on 31 August 2012.
9. On 30 September 2012, the Government of Uttar Pradesh
acceded to NOIDA’s proposal for enhancing the age of retirement to
sixty years. However, this was expressly made prospective in terms of
the paragraph 1 (ii), which reads as follows:
“(ii) This provision shall come into force in the NOIDA with
immediate effect (from the date of issue of this Govt. order) and
there shall not for any retrospective effect.”
10. The petition before the High Court was amended to incorporate
a relief seeking to quash paragraph 1(ii) of the order of the State
government dated 30 September 2012. A Division Bench of the High
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Court at Lucknow allowed the writ petition and struck down the provisions
of para 1(ii). While doing so the High Court directed that the increase in
the age of superannuation to sixty years shall have retrospective effect
from 29 June 2002, and the first and second respondents would be
deemed to have worked until the extended age of retirement. Their
benefits were directed to be computed accordingly. This led to the filing
of Special Leave Petitions before this court under Article 136. Assailing
the judgment of the High Court, a companion petition has been filed by
the Government of Uttar Pradesh. While issuing notice on 19 November
2018 on NOIDA’s Special Leave Petition, this Court granted an ad
interim stay of the judgment of the High Court.
II The Contentions
11. Challenging the judgment of the High Court, Mr Ravindra
Kumar, learned Counsel appearing on behalf of NOIDA has urged the
following submissions:
(i)
The Service Regulations and consequently amendments to
them are in the nature of subordinate legislation. No part of
the amended Regulations could have been struck down –
para 1(ii) in this case – unless they were declared to be
ultra vires the provisions of the Constitution or the parent
Statute. There is no such declaration by the High Court
while delivering the impugned judgement;
(ii)
The High Court has committed a manifest error while
directing that the revision in the age of the retirement shall
apply
retrospectively with effect from the date of the
Resolution dated 29 June 2002. While issuing such a
direction, the High Court failed to consider the following:
(a)
The Government Order dated 30 September 2012
was issued approving the recommendation of NOIDA
dated 17 July 2012 and not in the context of the earlier
recommendation dated 29 June 2002;
(b)
The earlier recommendation dated 29 June 2002 had
been rejected by the State Government on 22
September 2009. The Writ Petition6 which had been
filed challenging the State government’s rejection
order dated 22 September 2009 was decided on 17
6 WP No. 48162 of 2010.
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January 2012, much before the filing of the writ
petition by first and second respondents on 27 August
2012 in which the impugned judgment was delivered;
(c)
In the above Writ Petition though a prayer was made
to quash the Government Order dated 22 September
2009, yet no such relief as prayed was granted. On
the contrary, the only direction was that NOIDA may
consider the matter again in its next Board Meeting
and thereafter refer the matter to the State
government for its approval. It was observed in the
judgement dated 17 January 2012 that if any decision
approving the recommendation is taken by the State
Government, it will be open to it to decide the date
from which it may find it expedient to increase the
age of retirement; and
(d)
After the judgement dated 17 January 2012, NOIDA
sent a fresh recommendation to the State
Government on 17 July 2012. This recommendation
was ultimately accepted by the State Government
anda Government Order dated 30 September 2012
was issued by it. This Government Order directs that
the increase in the age of retirement from fifty-eight
to sixty years “shall come into force with immediate
effect (from the date of issue of this Government
Order) and there shall not be any retrospective
effect”.
(iii)
When the order directing increase in the age of retirement
is clear, namely that it shall come into force with immediate
effect coupled with the words that the increase shall not
have any retrospective effect, then the
intention of the
maker of the subordinate legislation categorical obviates
any possible interpretation giving it retrospective effect. In
these circumstances, the Court cannot issue directions giving
retrospective effect to the amendment. The golden rule of
statutory interpretation is that in the absence of an express
provision or a necessary intendment providing
retrospectivity, the interpretation must only be prospective.
An exception to this rule is only available in matters of
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procedure. (P. Mahendran v. State of Karnataka7;
C.Gupta v. Glaxo-Smithkline Pharmaceuticals Ltd.8);
(iv)
The observation of the High Court that the Government
should have acted instantly “when the resolution was
received by it more than 3 years back” is factually incorrect.
The Government Order dated 30 September 2012 itself
recites that it is issued in reference to the recommendation
dated 17 July 2012. Therefore, there was no delay of 3
years in the issuance of the Government Order. The
Government Order was issued in a little more than 2 months.
The High Court has erred in directing that the writ petitioners
shall be deemed to have worked with NOIDA till the age
of sixty years and they be paid salary and other benefits for
two years during which they never worked. The first and
second respondents were due for retirement with effect
from 31 August 2012. They filed the writ petition on or
about 27 August 2012, praying that they be permitted to
continue on their posts till they attain the age of sixty years
and salary be paid to them accordingly. However, while
issuing notice on the writ petition or at any time thereafter
no interim order was granted by the High Court. When the
first and second respondents performed no work, they are
not entitled to receive salary for such period. The principle
of ‘no work no pay’ will applicable in such a situation.The
inability of the writ petitioners to persuade the High Court
to
grant interim orders cannot act to the advantage of the
respondents. This is not a case of termination of services
which is later set aside by an order of the court thereby
directing payment of salary as arrears;
(v)
The High Court has granted relief which was not prayed.
It has ordered that the increase in the age of retirement
would be effective from 29 June 2002. The first and second
respondents in their counter affidavit (at page 146 and 155),
have admitted that relief was prayed with effect from 9
July 2012. Thus, the direction contained in the impugned
judgment that the increase in the age of retirement would
be effective from 29 June 2002 is unsustainable;
7 (1990) 1 SCC 411.
8 (2007) 7 SCC 171.
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(vi)
The effect of the impugned judgment runs contrary to the
earlier Division Bench’s judgment dated 17 January 2012,
and is beyond the prayers made in the writ petition. It has
resulted in demands from dozens of employees of NOIDA,
who had retired decades ago. For example, in September,
2004, employees made demands seeking arrears of pay and
allowances considering the retirement age as sixty years
for them as well. The interpretation / direction given in the
impugned judgment has a cascading effect and is
unsustainable in law; and
(vii)
The High Court was under the wrong impression that
NOIDA, the authority that is to bear the financial burden
consequent to the increase in the age of retirement supported
the case of the Respondents/employees that the
Government Order issued on 20 September 2012 must have
retrospective effect.
12. Mr Vinod Diwakar, learned AAG for the State of Uttar Pradesh
has adopted the submission of Mr Ravindra Kumar, learned Counsel for
NOIDA.
13. Ms Tanya Shree, learned Counsel has appeared on behalf of
the respondents to oppose the submissions in the appeals. Before
elucidating the submissions, it would be necessary to extract a submission
from the counter affidavit which has been filed by the respondents in
response to the present proceedings. Paragraph 6 of the counter affidavit
reads as follows:
“Further, it is submitted that the Answering Respondents herein
did not seek the benefit of enhancement of age of retirement of
the
employees of the Petitioner-Authority from the date of its
earlier resolution dated June 29, 2002. In fact it was the case of
the Answering Respondents before the Hon’ble High Court in
Writ Petition being Writ-A No. 43780 of 2012 that the age of
retirement of the Answering Respondents be enhanced w.e.f the
date of resolution dated July 9, 2012 of the Petitioner-Authority
and the Answering Respondents are only claiming a limited relief
of enhancing the age of retirement of the Answering respondents
w.e.f. the date of Resolution of the Petitioner-Authority i.e July 9,
2012.”
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The above extract from the counter affidavit has clarified that the
relief which the respondents – employees sought is the enhancement of
the age of retirement with effect from 19 July 2012 which is the date on
which the Board of NOIDA resolved to increase the age of retirement.
In this backdrop, Ms Tanya Shree submitted as follows:
(i)
The decision of the State government dated 20 September
2011 to enhance the age of superannuation for its employees
was circulated inter alia to public sector undertakings and
corporations enabling them to determine whether they were
in a position to bear the financial burden attendant upon an
increase in the age of retirement. Upon examination of the
financial impact, if each corporation resolved to accept the
financial burden, it could then seek the approval of the State
government. All such decisions were to be implemented
only after the approval of the State government, though it
was made clear that no financial grants would be provided
to meet the additional cost outlay;
(ii)
In the case of several other public sector corporations, the
State government resolved to increase the age of retirement.
In certain cases it resolved to give retrospective effect; for
instance in the case of the Uttar Pradesh State Handicrafts
Corporation Ltd., the government by its decision dated 17
April 2012 resolved to increase the age of retirement with
effect from 20 December 2011;
(iii)
On 16 August
2012, a letter was addressed by the
respondents to the Chief Minister requesting for an
enhancement in the age of retirement since NOIDA had
agreed to bear the financial burden by its resolution dated 9
July 2012 and adverting to the fact that several employees
would be retiring by the end of August 2012;
(iv)
The State government did not provide any reasons why it
did not make its decision operative with effect from 9 July
2012, the date when the resolution was passed by the Board
of NOIDA to enhance the age of retirement;
(v)
Though, the respondents had approached the government
of Uttar Pradesh with a representation seeking permission
to allow them to work till the age of 60 years, the
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representation was not allowed.As a consequence of this
they are entitled to the payment of their salary and all other
consequential benefits occasioned by the extension in the
age of retirement since it was the appellant authority that
did not permit the respondents to continue in service though
they were willing to work. In State of Uttar Pradesh v.
Dayayanand Chakrawarthy9 it was held that if the
employer prevents the employee from performing his duties,
the employee cannot be blamed for his absence from duty
and the principle of ‘no pay no work’ shall not be applicable
to such an employee; and
(vi)
The Board resolution of 9 July 2012 proposed to increase
the age of retirement of the employees with immediate
effect. The authority is now estopped from going back on
its own resolution and denying the benefit of the
enhancement of age from the date of the resolution.
III The Analysis
14. The High Court while striking down para 1(ii) of the
Government Orderdated 30 September 2012 to enhance the age of
retirement with prospective effect (para 1(ii) of the government order
makes this position clear) has directed that the enhancement of the age
of retirement must date back to 29 June 2002. This direction giving
retrospective effect to the enhancement in the age of retirement seems
to be based on the fact that the original resolution of the Board of NOIDA
to enhance the age of retirement wasissued on 29 June 2002. In granting
this relief, the High Court has
formulated two reasons in its judgment:
firstly, the government order dated 30 September 2012 is arbitrary for
having increased the age of retirement with effect from the date of the
order without giving the benefit to employees who had retired prior to
that date ;and secondly, there was no reason to refuse the benefit of an
extension of the age of superannuation retrospectively when the resolution
was received by the State government “more than three years back”.
15. The reasons which have weighed with the High Court are
based on factually incorrect premises and are founded on a
misunderstanding of the legal position. After the Board of NOIDA
resolved on 29 June 2002 to enhance the age of superannuation from
9 (2013) 7 SCC 595.
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fifty-eight to sixty years, its recommendation was forwarded to the State
government on 22 March 2005. On 2 September 2005, the State
government deferred a decision on the recommendation. Subsequently,
the proposal was rejected on 22 September 2009.
16. The order of rejection was challenged in writ proceedings10
which culminated in the judgment of the Division Bench rendered on 17
January 2012. The Division Bench refused to quash the order of rejection.
Evidently, at that stage, the basic issue was in regard to whether the
financial burden could be borne by an authority such as NOIDA. This is
evident from the fact that the High Court while deciding upon the merits
of the proceedings under Article 226 held that it was for the Board of
NOIDA to consider whether it could bear the financial burden occasioned
by an increase in the age of retirement, and to thereafter move the State
government for its approval. While disposing of the Writ Petition, the
High Court specifically observed that “it will be open to the State
government to consider to give effect to the increase in the age of
retirement with effect from the date when NOIDA has resolved to bear
the financial burden, or from any such date, which the State Government
may find it expedient.”This order has attained finality since it was not
challenged before this Court.
17. It was in terms of the order of the High Court that the Board
of NOIDA resolved on 9 July 2012
to recommend to the State
government that the age of superannuation of its employees should be
enhanced with immediate effect, and the additional financial outlay would
be met from the resources of the authority without any claim for grants
being made to the State government. The State government responded
to this proposal by acceding to the request to enhance the age of
superannuation, though prospectively from 30 September 2012.
18. NOIDA, as an authority, constituted by the UP Industrial Area
Development Act 1976 is bound by the rigour and discipline of the statute.
The power to appoint officers and employees is conferred upon the
authority by Section 5(i) “subject to such control and restrictions as may
be determined by general or special orders of the State government”.
Section 19 requires the prior approval of the State government to the
regulations framed by the authority. The regulations governing the
conditions of service were notified on 14 January 1981with the previous
approval of the State government. Under Regulation 25 of the NOIDA
10 W.P No. 48162/2010.
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Regulations 1981, the age of superannuation was fixed at fifty-eight
years. Consequently, any enhancement of the age of superannuation
would require an amendment of the service regulations necessitating, in
terms of Section 19, the prior approval of the State government.
19. Whether the age of superannuation should be enhanced is a
matter of policy. If a decision has been taken to enhance the age of
superannuation, the date with effect from which the enhancement should
be made falls within the realm of policy. The High Court in ordering that
the decision of the State government to accept the proposal to enhance
the age of superannuation must date back to 29 June 2002 has evidently
lost sight of the above factual background, more specifically (i) the
rejection of the original proposal on 22 September 2009; and (ii) the
judgment of the Division Bench dated 17 January 2012 refusing to set
aside the order rejecting the proposal on 22 September 2009 which
hasattained finality. But there is a more fundamental objection to the
basis of the decision of the High Court. The infirmity in the judgment lies
in the fact that the High Court has trenched upon therealm of policy
making and has assumed to itself, jurisdiction over a matter which lies in
the domain of the executive. Whether the age of superannuation should
be increased and if so, the date from which this should be effected is a
matter of policy into which the High Court ought not to have entered.
20. The
factual reasons which the High Court has indicated are
specious. The High Court has termed the decision to give prospective
effect to the enhancement of the age of superannuation from 30
September 2012 as arbitrary on the ground that the government should
have “acted instantly” when the resolution was received from NOIDA,
and that there was no justification not to grant retrospective effect when
the resolution had been received “more than three years back”.Both
these factors are erroneous. As a matter of fact, the resolution of the
Board of NOIDA dated 9 July 2012 (at its 176th meeting) was forwarded
to the State government on 17 July 2012 and a decision was taken in
about two months from the date of receipt of the proposal. The High
Court’s observation on the delay of three years in taking a decision on
the resolution of NOIDA is in reference to the 2005 resolution, which
was rejected on 22 September 2009. As stated above, the Government
resolution of 2012 was impugned before the High Court, and the 2009
rejection order had attained finality in view of the judgment of the division
bench of the High Court on 17 January 2012 which was not challenged
before this court.
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21. Whether the decision to increase the age of superannuation
should date back to the resolution passed by NOIDA or should be made
effective from the date of the approval by the State government was a
matter for the State government to decide.Ultimately, in drawing every
cut-off, some employees would stand on one side of the line while the
others would be positioned otherwise. This element of hardship cannot
be a ground for the High Court to hold that the decision was arbitrary.
When the State government originally decided to increase the age of
superannuation of its own employees from fifty-eight to sixty years on
28 November 2001, it had left the public sector corporations to take a
decision based on the financial impact which would result if they were
to increase the age of superannuation for their own employees.
22. From time to time the authorities of the State took a decision
bearing upon the exigencies of service prevailing in each organisation.
By an OM dated 16 May 2005, the age of retirement of employees of
the Agricultural Produce and Marketing Committee (APMC) was
enhanced with immediate effect, without giving retrospective
operation.Similarly, on 15 December 2006 the age of retirement of
employees of the UP Power Corporation was enhanced without
conferring retrospective effect. On 17 April 2012, the age of
superannuation of the employees of UP State Handicrafts Corporation
Limited was enhanced with
effect from 20 December 2011. On 22 May
2012, the age of superannuation of the employees of the UP State Industrial
Development Corporation Limited was enhanced “with immediate
effect”. Different corporations of the State are governed by their service
rules and regulations, and by the exigencies of service. The State
government had evidently determined that it was for each organisation
to consider and determine the impact of the financial burden, and based
on that the organisation was to submit a proposal for the approval of the
government.
23. The High Court’s observation that the Government order on
30 September 2012 increasing the age of superannuation prospectively
is arbitrary seems to be based on the premise that the respondent-
employees have a vested right to the increase in the age of retirement
on the passage of the resolution by NOIDA. However, Section 19 of the
Act stipulates that regulations – which would include amendments as in
this case – will require the previous approval of the State Government.
The employees will have a vested right to the increased age of
superannuation only after the service regulations are modified upon
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approval of the State Government, and from such date as maybe
prescribed by the Government. Para 1(ii) of the government order issued
on 30 September 2012 clearly and in unambiguous terms states that the
order shall come into force prospectively. The government order can be
given retrospective application only if expressly stated or inferred through
necessary implication. Therefore, the respondent-employees could not
have claimed a vested right that the enhancement in the age of retirement
should be made effective from the date on which NOIDA had resolved
to submit a proposal for the approval of the government.
24. The argument of the respondents that the appellant-authority
is estopped from claiming that the government order issued on 30
September 2012 cannot be given retrospective effect from 9 July 2012
since the Board resolution proposed an increase in the retirement age of
its employees with ‘immediate effect’ is unsustainable. For the principle
of promissory estoppel to apply, one party must have made an
unequivocal promise, intending to create or affect a legal relationship
between the parties.11 The recommendation of NOIDA cannot create
or alter the legal relationship since it is subject to the approval of the
government. Justice H L Gokhale in a concurring opinion in Monnet
Ispat and Energy Ltd. v. Union of India12 clarified that the principle
of promissory estoppel will not apply if the communication issued was
either a proposal or a
recommendation. The learned judge observed:
“289. As we have seen earlier, for invoking the principle of
promissory estoppel there has to be a promise, and on that basis
the party concerned must have acted to its prejudice. In the instant
case it was only a proposal, and it was very much made clear that
it was to be approved by the Central Government, prior whereto
it could not be construed as containing a promise. Besides, equity
cannot be used against a statutory provision or notification.”
(emphasis supplied)
In State of Jharkhand v. Brahmputra Metallics Ltd., Ranchi13,
this court speaking through of one us (DY Chandrachud J) elaborated
on the doctrine of legitimate expectation, which is grounded in fairness
and reasonableness.Explaining that there is a legitimate expectation that
the actions of the State are fair and reasonable, it was observed:
11 Monnet Ispat & Energy Limited v. Union of India & Ors., (2012) 11 SCC 1.
12 (2012) 11 SCC 1.
13 Civil Appeal No. 3860-62 of 2020.
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“45. …The state must discard the colonial notion that it is a
sovereign handing out doles at its will. Its policies give rise to
legitimate expectations that the state will act according to what it
puts forth in the public realm. In all its actions, the State is bound
to act fairly, in a transparent manner. This is an elementary
requirement of the guarantee against arbitrary state action which
Article 14 of the Constitution adopts.”
(emphasis supplied)
Since the enhancement of the age of superannuation is a ‘public
function’channelised by the provisions of the statute and the service
regulations, the doctrine of promissory estoppel cannot be used to
challenge the action of NOIDA. Though NOIDA sought the approval
of the State government for the enhancement with ‘immediate effect’, it
never intended or portrayed to have intended to give retrospective effect
to the prospectively applicable Government order. The representation of
NOIDA could not have given rise to a legitimate expectation since it
was a mere recommendation which was subject to the approval of the
State Government.Hence, the doctrine of legitimate expectation also
finds no application to the facts of the present case.
25. The reliance placed by the respondents on Dayanand
Chakrawarthy (supra) to argue that they were willing to work till they
attained the age of sixty years but were not permitted to, and thus the
principle of ‘no work no pay’ would not be
applicable is misplaced. In
Dayanand Chakrawarthy, the issue before the two judge Bench of this
court was whether prescription of different ages of retirement based on
the mode of recruitment under the UP Jal Nigam (Retirement on attaining
age of superannuation) Regulations, 2005 was unconstitutional for
violating Article 14 of the Constitution. This court held that the differential
superannuating agewas discriminatory. However, by virtue of Regulation
31 of the UP Jal Nigam Services of Engineers (Public Health Branch)
Regulations, 1978 the service conditions of State government employees
is applicable to the UP Jal Nigam employees. Therefore when the Jal
Nigam through an Office memorandum had resolved that the age of
retirement for its employees shall be fifty eight years, though it was sixty
years for State government employees, it was set aside by this court in
Harwinder Kumar v. Chief Engineer, Karmik14. In Harwinder
14 (2005) 13 SCC 300.
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Kumar and the subsequent cases (U.P Jal Nigam v. Jaswant Singh15;
U.P Jal Nigam v. Radhey Shyam Gautam16) involving the age of
retirement of the UP Jal Nigam employees, this court had held that
employees who had approached the courts shall be entitled to full salary
until the age of sixty years. It was in this context that a two judge bench
of this court speaking through Mukhopadhaya J made the following
observation in Dayanand Chakrawarthy:
“48. …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 be blamed for having not worked, and the principle
of “no pay no work” shall not be applicable to such employee.”
In Dayanand Chakrawarthy the court directed payment of
arrears deeming the employees to have worked till sixty years inspite of
no interim order being issued in that regard because (i) the Office
Memorandum was held ultra vires ; (ii) Harwinder Kumar, Jaswant
Singh,and Radhey Shyam Gautam had already held that the age of
retirement of the Jal Nigam employees shall be 60 years unless a
regulation prescribing a lower retirement age is issued in terms of
Regulation 31, and had extended this benefit to all the parties
who had
filed writ petitions. Therefore, the above observation must be read in the
context of the distinct factual situation in the case.
26. The argument of the employees that since they had moved
the Chief Minister with a representation in August 2012 before their
date of superannuation which was to fall at the end of the month and
that they should have the benefit of the enhancement in the age of
superannuation has no substance. On 31 August 2012, the respondents
moved the High Court but no interim relief was granted to them and
they attained the age of superannuation. They have not worked in service
thereafter. Since the High Court‘s judgment dismissing the challenge to
the government order dated 30 September 2012 has attained finality, the
submission cannot be accepted.
15 (2006) 11 SCC 464.
16 (2007) 11 SCC 507.
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27. For the above reasons, we allow the appeals and set aside the
impugned judgment and order of the Division Bench at Lucknow of the
High Court of Judicature at Allahabad dated 25 January 2018 in WA No
43780 of 2012. The Writ Petition shall in consequence stand dismissed.
There shall be no order as to costs.
28. Pending application(s), if any, stands disposed of.
Devika Gujral
Appeals allowed.