Court No. - 38 Case :- WRIT - A No. - 70788 of 2009 Petitioner :- Heera Lal Yadava Respondent :- State Of U.P. & Others Petitioner Counsel :- Arvind Kumar,Vijay Kumar Rai Respondent Counsel :- C. S. C.,Amit Dubey Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioner and Shri Amit
Dubey, learned counsel for the respondent nos. 2 to 4-Jal
Nigam and the learned standing counsel.
The petitioner is a Class-III employee. He claims that in view
of the law laid down in the case of Harwindra Kumar Vs.
Chief Engineer, Karmik and others reported in 2006(1)
UPLBEC 20 and the subsequent decisions on this score, the
petitioner is entitled to continue up to the age of 60 years.
Learned counsel for the Jal Nigam opposes the prayer on
the ground that the petitioner is a Class-III employee and
therefore he is covered by the U.P. Jal Nigam Employees
(retirement on attaining age of superannuation) Regulations
of 2005 and as such he cannot continue beyond the period
of 58 years. Shri Dubey contends that in similar matters this
Court has refused to grant interim relief.
I have perused the orders that have been placed before me.
On the other hand a Division Bench of this Court has in the
case of Mahesh Chandra Gupta Vs. State of U.P. and others
passed the following order on 28.10.2009:
“Heard learned counsel for the petitioner as well as learned standing counsel
for respondent No.1 and learned counsel for U.P. Jal Nigam and its
authorities, respondents No.2 to 4.
The question involved in this writ petition is regarding age of retirement of Jal
Nigam employees; whether it is 58 years or 60 years? Learned counsel for the
petitioner has placed reliance upon two authorities of the Supreme Court. One
is reported in Harwindra Kumar Vs. Chief Engineer, Karmik and others, 2006
(1) UPLBEC 20 and the other is reported in Chairman, U.P. Jal Nigam and
another Vs. Radhey Shyam Gautam and another, 2007 (2) UPLBEC 1500. In
these authorities, it has been held that by virtue of Regulation-37 of the
Regulations of 1978 framed under Section 97 of U.P. Water Supply and
Sewerage Act, 1975, service conditions of U.P. Government Employees are
applicable to the employees of Jal Nigam also. It has further been held that as
subsequently U.P. Government increased the age of retirement of its
employees from 58 years to 60 years, hence in the absence of any specific
regulation prescribing age of retirement, age of retirement of Jal Nigam
employees would also be 60 years.
Learned counsel for the respondents has vehemently placed reliance upon
Regulations of 2005, which have been annexed as Annexure-6 to the writ
petition prescribing age of retirement as 58 years.
On enquiry from the Court and after seeking instruction from the department,
learned counsel for the Jal Nigam states that the said U.P. Jal Nigam
Employees (retirement on attaining age of superannuation) Regulations of
2005 have not been published in the Gazette. It has not been indicated that in
what manner, the said Regulations have been published or circulated. Learned
counsel further states that the Regulations were framed after judgment of
special appeal dated 10.05.2005 (Special Appeal No.559 of 2005). The
Regulations were framed on 08.12.2005.
It is extremely strange that these Regulations were not placed before the
Supreme Court in the case of Radhey Shyam (supra) because in the aforesaid
judgment delivered on 30.03.2007, there is a clear mention that no specific
regulation prescribing age of retirement had been framed by the Jal Nigam.
We are tentatively of the opinion that framing regulations and keeping the
same in the file may not serve the purpose.
In any case in several other writ petitions, stay orders have been granted and
all other matters are reported to be likely to be listed for hearing shortly. We
are also of the opinion that all such cases particularly those cases which are
cognizable by Division Bench require very early disposal.
In view of the above, as an interim measure, it is directed that unless this
order is modified or vacated earlier, petitioner shall be permitted to work and
paid salary until he attains the age of 60 years. ”
A learned Single Judge of this Court on 30.10.2009 following
the same in the matter of Class-III employees has passed an
order reciting therein that the Regulations of 2005 framed on
08.12.2005 have not been published in the gazette as yet.
It is stated at the bar that no special appeal has been filed
against the order dated 30.10.2009.
Following the aforesaid two orders, it is directed that until
this order is modified or vacated the petitioner shall be
permitted to work and be paid salary till he attains the age of
60 years.
Shri Amit Dubey has accepted notice on behalf of the
respondent nos. 2 to 4 and the learned standing counsel has
accepted notice on behalf of the respondent no. 1 who may
file a counter affidavit within a period of three weeks.
Rejoinder affidavit may be filed within a week thereafter.
List thereafter.
Order Date :- 5.1.2010
Akv