Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 Haiwindra 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.
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 G 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 C 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 D situated 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 E 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 G 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 H ultra wires of Article 14 of the Constitution of India. STATE OF UTTAR PRADESH v. DAYANAND CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
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 co,.exist, 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 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 c 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 A Pradesh by its letter No.3199/9-3-11-113C/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 appropriate amendments in the Regulations framed by the Nigam, which reads as follows: c From: "No.3199/9-3-11-113C/2011 Vijay Bahadur Singh, Special Secretary, Government of Uttar Pradesh. To: The Chairman, Uttar Pradesh Jal Nigam . Lucknow. Urban Developmetn Section 3Lucknow 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/P-112005- 002111 dated 23.12.2011 and Government order no. 160144-1-20911-9012008 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 STATE OF UTTAR PRADESH v. DAYANAND CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.] 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 8 retirement will be subject to the 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 wi/I 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 SDI- 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, Mrs. Pramila Chakrawarty (widow), Ms. Manisha Chakrawarty (2013] 10 S.C.R. A (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 8 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 C 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 VIGILANT/BUS, ET NON DORM/NT/BUS, 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. Admittedly, these employees have not worked. So, on the basis of no pay no work, they will not be entitied for arrears. However, their back wages will be restricted @20% of the basic salary as per the ratio laid down in the case of Mis 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." STATE OF UTTAR PRADESH v. DAYANAND CHAKRAWARTY [SUDHANSU JYOTI MUKHOPADHAYA, J.]
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 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) sec 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 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 B retire at the age of 58 years: c (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. (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 G above. The appeals are disposed of with aforesaid observation and directions. There shall be no order as to costs. K.K.T. Appeals disposed of.