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SUPREME COURT OF INDIA
Dhananjaya Y. Chandrachud, M.R. Shah, JJ.
New Okhla Industrial Development Authority & Anr. – Appellants
Versus
B.D. Singhal & Ors. – Respondents
Civil Appeal No. 2310 of 2021 (Arising out of SLP(C) No 11793 of 2018) with Civil Appeal No. 2311 of 2021 (Arising out of SLP (C) No. 3861 of 2020)
Decided on : 15-07-2021
(A) Constitution of India – Article 226 – Power of Judicial Review – Scope and ambit – Direction by High Court for retrospective operation of decision by State Government enhancing age of retirement of employees of NOIDA from 58 years to 60 years – Reasons which have weighed with High Court are based on factually incorrect premises and are founded on a misunderstanding of legal position – Whether age of superannuation should be enhanced is a matter of policy – If a decision has been taken to enhance age of superannuation, date with effect from which enhancement should be made falls within realm of policy – Infirmity in judgment lies in fact that High Court has trenched upon realm of policy making and has assumed to itself, jurisdiction over a matter which lies in domain of executive – Whether age of superannuation should be increased and if so, date from which this should be effected is a matter of policy into which High Court ought not to have entered – Whether decision to increase age of superannuation should date back to resolution passed by NOIDA or should be made effective from date of approval by State government was a matter for State government to decide – Ultimately, in drawing every cut-off, some employees would stand on one side of line while others would be positioned otherwise – This element of hardship cannot be a ground for High Court to hold that decision was arbitrary – Different Corporations of State are governed by their service rules and regulations and by exigencies of service – State government had evidently determined that it was for each organisation to consider and determine impact of financial burden and based on that organisation was to submit a proposal for approval of government – Since enhancement of age of superannuation is a ‘public function’ channelized by provisions of statute and service regulations, doctrine of promissory estoppel cannot be used to challenge action of NOIDA – Iimpugned judgment and order of Division Bench of High Court set aside. [New Okhla Industrial Development Authority Service Regulations, 1981 – Regulation 25](Paras 15, 19, 20, 21, 22, 23, 24 and 27)
(B) Promissory Estoppel – Applicability – For principle of Promissory Estoppel to apply, one party must have made an unequivocal promise, intending to create or affect a legal relationship between parties – Principle of Promissory Estoppel will not apply if communication issued was either a proposal or a recommendation. (Para 24)
Facts of the case:
On 30 September 2012, the Government of Uttar Pradesh acceded to a proposal of the Appellant to enhance the age of 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 Government Order from 29 September 2002. The appeals by New Okhla Industrial Development Authority1and the State of Uttar Pradesh question the correctness of this determination. Appeals raise the issue as to whether the High Court has transcended the limits of its power of judicial review.
Findings of Court:
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, respondents moved 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.
Result : Writ Petition dismissed.
JUDGMENT
Dr. Dhananjaya Y. Chandrachud, J.
On 30 September 2012, the Government of Uttar Pradesh acceded to a proposal of the Appellant to enhance the age of 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 Okhia 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 Okhia 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 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 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, 1981 ["NOIDA Regulations, 1981"] 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 notification [No. 1098/Pers-1/2001] 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 No
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