V.M. Sahai and Sabhajeet Yadav, JJ.
1. I have heard Sri Yogesh Kumar Singh, learned counsel for the petitioner and Standing counsel for respondent No. 1 as well as Sri M.M.D. Agarwal for respondents No. 2 and 3.
2. Counter affidavit on behalf of respondents may be filed within one month. Rejoinder affidavit may be filed within another three weeks.
3. The facts of the case in brief are that the petitioner was initially appointed as Junior Engineer on 10.8.1972 in the Local Self Government, Engineering Department (L.S.G.E.D.) of Government of Uttar Pradesh. While he was serving as Junior Engineer in the aforesaid department, U.P. Jal Nigam was established and constituted under Sections 3 and 4 of U.P. Water Supply and Sewerage Act, 1975 (hereinafter referred to as Act). Thereupon the services of employees of the Local Self Government, Engineering Department of the State Government were transferred in the U.P. Jal Nigam (hereinafter referred to as Nigam) under Section 37 of the Act from appointed date i.e. 18.6.1975. Consequently the petitioner's services were also transferred in the Nigam, since then he became employee of Nigam and is continuing as such. The services of employees of erstwhile L.S.G.E.D. of State Government were transferred in the Nigam with the condition that the employees so transferred shall hold his office or service therein by the same tenure at the same remuneration and upon same other terms and conditions and with same rights and privilege as to pension, gratuity and other matters as he would have held the same on the appointed date if this Act has not come into force and shall continue until his employment in the Nigam is terminated or until his other terms and conditions of the service are revised or altered by the Nigam under or in pursuance of any law or in accordance with any provision which for time being governs . In due course of time the petitioner was promoted on the post of Assistant Engineer. While working as Assistant Engineer in Nigam an office order was issued on 17.3.2005 communicating to the petitioner that on 31.6.2005 he would attain the age of superannuation 58 years and would be retired from service afternoon on that date. Feeling aggrieved by the aforesaid office order the petitioner has filed above noted writ petition inter alia on the grounds mentioned in the writ petition.
4. A bare reading of the relevant provisions of Section 37 of the Act demonstrate that on such transfer of employees of erstwhile L.S.G.E.D. of State Government in the Nigam established under the Act the terms and conditions of the services of such employees, whose services were not terminated, can be altered by Nigam under or in pursuance of any law or in accordance with any provision which for time being governs his service.
5. Although the Nigam is wholly owned and controlled by the State Government but it is still independent separate legal entity distinct from the Government. The Nigam in exercise of power vested under Section 97 (1) (2) (c) of the Act with the previous approval of the State Government has made Regulations for governing the terms and conditions of the services of engineers namely; U.P. Jal Nigam Engineers (Public Health Branch Services) Regulations, 1978. It cannot be disputed that while working on the post of Assistant Engineer in the Nigam, the terms and conditions of service of the petitioner are also governed by the aforesaid Regulation, 1978. The Regulations deals almost various matters in respect of recruitment, promotion, seniority and other conditions of service but does not specifically deals with the condition of age of superannuation/retirement by incorporating any specific word in respect of age of retirement which is also an essential incident and condition of the service of engineers. However, under Regulation 31 of the aforesaid Regulations, it has been specifically provided that except as provided in these Regulations the pay, allowances, pension, leave, imposition of penalties and other conditions of service of the members of service shall be regulated by Rules, Regulations or Orders applicable generally to the Government servants serving in connection With the affairs of state. Thus by virtue of Regulation No. 31, the provisions of Fundamental Rule 56-A contained in U.P. Financial Hand Book Vol. 2 Parts II to IV, which is applicable to the government servant in respect of age of retirement/superannuation is deemed to be adopted by way of reference. The aforesaid Fundamental Rule 56-A as it stood earlier provides age of superannuation of Government employees as 58 years. The aforesaid Fundamental Rule 56-A was amended by Uttar Pradesh Fundamental (Amendment) Rules, 2002 with retrospective effect commencing from 28th November, 2001. By this amendment in Fundamental Rule 56-A the age of superannuation of Government servant has been enhanced from 58 years to 60 years from the date of its commencement.
6. Learned counsel for the petitioner has submitted that since the provisions of Fundamental Rules 56-A, which are applicable to the Government employees in respect of their age of retirement, by virtue of Regulation 31 of the aforesaid Regulations, stood adopted by reference, as such become applicable to the petitioner also by necessary implication of adoption of the rules applicable to the government servants, therefore, every amendment made in Fundamental Rules 56-A automatically apply to the petitioner also on its own force. The submission made by learned counsel for the petitioner prima facie appears to have some substance.
7. Now a moot question arises for consideration in this case as to whether the amendment made in Fundamental Rules 56-A would automatically apply to the petitioner by virtue of Regulation 31 of Regulations, 1978 as adopted legislation by reference or not? The aforesaid question of adoption of legislation by reference is not res integra rather in catena of decisions the question has received consideration of Hon'ble Apex Court. While taking note of earlier decisions rendered in Collector of Customs, Madras v. Nathella Sampathu Chetty AIR 1962 S.C, 316, New Central Jute Mills Co. Ltd. v. Asstt. Collector of Central Excise, Allahabad AIR 1971 S.C. 454, Land Acquisition Officer, City Improvement Trust Board v. H. Narayanajah AIR 1976 S.C. 2403, Bajya v. Gopikabai AIR 1978 S.C. 793, Ujagar Prints v. Union of India AIR 1989 S.C. 516, Barnagoze Jute Factory Co. v. Inspector of Central Excise AIR 1991 S.C.W. 3009 = (1992) 1 S.C.C. 401 in para 31 and 32 of decision rendered in Gauri Shankar Gaur v. State of U.P. and Ors. AIR 1994 S.C. 169, Hon'ble Apex Court has held that in case of legislation by incorporation the former Act becomes an integral part and parcel of the later Act, as if it was written with ink and printed in the later Act. Its validity including the provisions incorporated thereunder would be judged with reference to the power of legislature enacting the later Act. It is not by reference. Logically when the provisions in former Act were repealed or amended, they do not, unless expressly made applicable to the subsequent Act, be deemed to be incorporated in it. The later Act is totally unaffected by any amendment or repeal subject to certain exceptions. If a later Act merely makes a reference to the earlier Act or existing, law, it is only by way of reference and all amendments, repeals, new law subsequently made will have effect unless its operation is saved by Section 8(1) of General Clauses Act or void under Article 254 of the Constitution. The aforesaid observation made by Hon'ble Apex Court in Gauri Shankar's case (supra) has been reiterated again by the Hon'ble Apex Court in subsequent decision rendered in State of Maharashtra and Anr. v. Sant Joginder Singh Kishan Singh and Ors. AIR 1995 S.C. 2181, wherein in para 10 and 11 of the decision while drawing distinction between adoption of legislation by incorporation and adoption by reference it has been held that since the Legislature had incorporated specific provisions of Central Act, the necessary conclusion is that the Legislature did not intend to apply unspecified provisions of the Central Act to the exercise of power under the Act. In this behalf it is to be remembered that there is distinction between incorporation and adoption by reference. If the Legislature would have merely adopted the Central Act, subsequent amendments to that Act made under Act 68 of 1984 would have become applicable per force.
8. Thus from the aforesaid consistent view of the Hon'ble Apex Court on the question in issue, it leaves no room for doubt for taking different view in the matter. It appears that by necessary implication Regulation 31 of the aforesaid Regulations 1978 has adopted the provisions of Fundamental Rules 56-A, which are applicable to the Government employee generally in respect of their age of retirement. The age of superannuation/retirement has not been specifically dealt with by the aforesaid Regulations, 1978. This adoption of Legislation cannot be said to be adoption by incorporation of any rules/regulation or Government Order by incorporating actual text of the rules or government order existing at any point of time as if it was written with ink and printed in Regulation 31 by making it integral part and parcel of Regulation 31 of the aforesaid Regulation. Rather it has merely made reference of rules/regulations, Government Orders applicable generally to government servants, serving in connection of affairs of state government. It is clear-cut case of adoption of legislation by reference as held by the Hon'ble Apex Court and it is not a case of adoption of legislation by incorporation. In the aforesaid regulation 31 of the Regulations, 1978 only reference of provisions of rules, regulation or government orders generally applicable to the government employees have been made in the aforesaid regulation. Thus, the Fundamental Rule 56-A of U.P. Financial Hand book applicable to the Government servant in respect of age. of superannuation as amended from lime to time would automatically apply to the employees of the Nigam including the petitioner who is covered by Regulations 1978. Thus in view of the aforesaid legal position, we are prima facie of the opinion that the aforesaid amended provisions of fundamental rules providing for age of retirement/superannuation of 60 years applicable to the Government employee are also applicable to the petitioner and the petitioner would be entitled to continue in service till he attains his age of superannuation i.e. 60 years instead of 58 years.
9. The view taken by us also finds support from a recent decision of a Division Bench (comprising of Hon'ble Mr. Chief Justice Ajoy Nath Kay and Mr. Justice Ashok Bhushan) of this Court rendered in Chairman, Uttar Pradesh Jal Nigam v. State of U.P. and Anr.(Kadhey Shyam Gautam) in Special Appeal No. 559 of 2005 decided on 10.5.2005 (Annexure No. VI of the writ petition), wherein a Division bench of this Court has considered the effect and scope of aforesaid Regulation 31 of Regulations 1978 and also earlier decision of another Division Bench of this Court rendered in Harwindra Kumar v. Chief Engineer, Karmik, U.P. Jal Nigam, Lucknow and Ors. reported in (2002) 2 UFLBEC 1511 and categorically held that the Division Bench of this Court in Harwindra Kumar's case did not take notice of Regulation 31 of the aforesaid Regulations, 1978, therefore, the decision rendered by aforesaid Division bench is treated to be per incuriam, we are also of the same opinion. Besides this the decision rendered by aforesaid Division Bench of this Court in Harwindra Kumar s case (supra) has also not considered the binding precedent as referred herein before on the question of adoption of legislation by reference, therefore, on both the counts the aforesaid decision of Division bench appears to be a decision in per incuriam, as held subsequently by another Division bench of this Court.
10. Since we are prima facie of opinion that Fundamental Rule 56-A as amended from time to time applicable to the employees serving in connection of affairs of state and in view of the amended provision of the aforesaid fundamental rules the petitioner being employee of the Nigam is also entitled to continue in service until he attains the age of superannuation/retirement of 60 years, theretore, office order dated 15.1.2002 (Annexure-4 of the writ petition) issued by Nigam in respect of clarification or application of the aforesaid amended provisions of fundamental rules contained in notification dated 28.11.2001 is ultra vires to the provisions of Act and Regulation 31 of the Regulations, 1978 and beyond the scope of authority under law as such void ab initio. The aforesaid office order of Nigam and any government order issued in respect thereof cannot be permitted to run contrary to the express provisions of Act and Regulations framed thereunder, as indicated herein before. Thus, we are prima facie of opinion that office order dated 15.1.2002 and impugned office order dated 17.3.2005 (Annexure-1 of the writ petition) is wholly without jurisdiction and beyond the scope of authority under law, therefore, nullity and void ab initio and liable to be ignored.
11. Although this Court is conscious about the scope of interim order to be passed in the writ petition at admission stage, prior to exchange of counter and rejoinder affidavits between the parties. Normally where the fact can be disputed by the counter affidavit to be filed in the writ petition, the interim relief in the nature of final and main relief is not granted in such situation. Not only this but this Court is also slow in granting any interim order of such a nature in cases of termination, removal, dismissal, suspension, reduction in rank and compulsory retirement of employee etc. where the grant of interim relief would restore the petitioner in a position of status quo ante on the date of such order passed against him/her but the case in hand is on quite distinct and different footing. It is not a case of such a nature referred above where very conduct/suitability of suspended/dismissed/terminated or reverted employee is involved and by granting interim relief he would be restored back in the service without finally adjudicating his case on merits, which could be done only on exchange of affidavits between the parties after adjudicating his case on merits. But it is not a case where any personal conduct of the petitioner, which led to impugned action taken against him, is subject in issue. Contrary to it, it is a case of simple interpretation of statute/Rules/Regulations on undisputed or indisputable facts involved in it. Besides this privilege of holding of office, enjoying facilities, amenities attached to the office, chances of promotion on higher posts cannot always be compensated in the terms of money. Thus a distinction should also be drawn from those cases where very conduct of employee is subject matter of dispute and where the controversy rests on operation of law alone. The case in question falls in later category.
12. Thus in view of aforesaid discussions in the interest of justice as interim measure, until further order of this Court the respondent No. 2 and 3 are directed not to retire the petitioner from service before attaining his age of 60 years and treat the petitioner to continue in service till he attains the age of 60 years and pay him salary month to month as and when it falls due, unless his services are otherwise dispensed with by disciplinary measures in accordance with law.
13. List the petition in the last week of July, 2005.