TaxTMI 
TaxTMI 
2021 (7) TMI 1443
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....r from 29 September 2002. The appeals by New Okhla Industrial Development Authority["NOIDA"] 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 1976["the Act"]. The object was to constitute an authority for the development of certain areas of the State notified 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 thei....
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....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. 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 Allahabad [Writ Petition No. 48162/2010] 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 1....
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.... 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 ....
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....State Government on 22 September 2009. The Writ Petition [WP No. 48162 of 2010] which had been filed challenging the State government's rejection order dated 22 September 2009 was decided on 17 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 judgment 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 judgment 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 and a Government Order dated 30 September 2012 was is....
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....bility 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; (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 i....
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...., 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 ret....
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....erannuation from 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 proceedings [W.P No. 48162/2010] 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 ....
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....e decision of the High Court. The infirmity in the judgment lies in the fact that the 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. 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 observati....
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....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 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 ....
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....ncement 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 ....