R.R.K.Trivedi - (1.) IN this petition Shri S. P. Mehrotra has accepted notice for respondents. As only a short question of law is involved in this f)efition and there is no controversy with regard to the facts of the case, earned counsel for parties have agreed that the petition may be decided finally at this stage.
(2.) PETITIONER has challenged the order - dated 28-12-93 passed by General Manager of Kanpur Electricity Supply Administration (hereinafter referred to as KESA), approving retirement of 38 employees on various dates on account of their attaining the age of superannuation. This list includes name of petitioner also at Serial no. 4 and 31-1-1994 is mentioned as the date on which he shall retire from service from the post of Technical Staff Grade I. The supply of electricity in Kanpur city was being done up to 15-9-1947 by Cawnpore Electric Supply Corporation Ltd. which was owned and managed by M/s, Eegg Sutherland and Company Ltd. on termination of its licence on the aforesaid date, the State Government took over the Company with effect from 16-9-1947 and it was given the present name Kanpur Electricity Supply Administration. It was run and managed by the State Government as one of its department until 1-4-1959 when the U. P. State Electricity Board (hereinafter referred to as the Board) was constituted under Section 5 of the Electricity (Supply) Act, 1948. Petitioner was appointed on 12-11-1956 in KESA, It is stated that the terms and conditions of service were governed by the Certified Standing Orders and at the time when petitioner was appointed, there was no provision for retirement and this position was continuing from the time of erstwhile licensee from whom the Company was taken over by the State Government. The employees of KESA were entitled to serve on their posts so long as they were physically fit and capable of discharging their duties. This position was reiterated from time to time by the authorities and in this connection the petitioner has placed reliance on various letters and notifications which have been filed as Annexures 2 to 6 to the writ petition. After the constitution of Board on 1-4-1959, services of the petitioner and all the employees of KESA were transferred to the Board on deputation on existing terms and conditions of service. This service of depution continued till 1-7-1971 when the same was absorbed by the Board. The State Government Notification no. 367-E/71-23- P.B. by which the services were absorbed has been filed as Annexure 5 to the writ petition. This notification prescribes the modalities for absorbing those government servants who were serving the Board on deputation including the employees serving in KESA. Para. 2 of this Notification provides as under ; 'Ukt sanvilion ki aek anivarya purti yeh hogi ki parishad ke adhin inki sewa sharte kisi bhi dasha me sharton se heya nahi hogi jo inhen sanvilion fee thik purv sarkar ke adhin uplabdh ho tatha inka sarkari sewa kal paiishad ke adhin inki variyata, pronnati, vetan nirdharan, avakash sambandhi hak tatha nivrittik labhoon ke liye usi prakar vicharya hoga jaisa ki wah sarkari sewa me hi unke rahane par hota." Relying on the aforesaid condition, petitioner's case is that as there was no date of retirement for petitioner and other employees similarly situated, at the time of absorption and it was a necessary condition, the Board cannot how retire the petitioner at the age of 58 years. The contention on behalf of petitioner is that the U. P State Electricity Board (Employees' Retirement) Regulations, 1975 fixing the age of superannuation of the Board's employees will not be applicable to the petitioner and he is entitled to continue in service until he is physically fit and capable of discharging his duties. Thus the sole legal question for determination in this writ petition is as to whether Regulation 2 of the aforesaid Regulations of 1975 shall be applicable to the petitioner or not. The relevant Regulation is being reproduced below : "2. Date of Compulsory Retirement : (a) Notwithstanding any rule or order or practice hitherto followed and except as provided otherwise in other clauses of this Regulation, the date of compulsory retirement of a Board's employee other than a Board's employee in inferior service, is the date on which he attains the age of years. He may be retained in service after the age of compulsory retirement with the previous sanction of the Board in writing, but he must not be retained after the age of 60 years except in very special circumstances."
(3.) I have heard learned counsel for parties. Learned counsel for petitioner has submitted that in view of the irrevocable conditions mentioned in para. 2 of the Notification dated 1-7-1971, the petitioner was absorbed in service of the Board under the same terms and conditions which were applicable while he was serving as government servant in KESA and the terms and conditions of the service cannot be changed which may be disadvantageous to him. As there was no date of retirement now under the aforesaid Regulation, petitioner cannot be retired at the age of 58 years about which there is no doubt that it prescribes a condition which is disadvantageous as it reduces the tenure of service. Learned counsel for petitioner has placed reliance on the various letters in this regard as already mentioned above and has submitted that the respondents are estopped and they cannot be allowed to change the assurance which was given to the petitioner and other employees by various letters. Reliance has been placed by learned counsel for petitioner in cases of S. P. Dubey v. M.P.S.R.T.C., AIR 1991 SC 276, Life Insurance Corporation of India v. S. S. Srivastava, AIR 1987 SC 1527, B. S. Yadav v. General Manager, Central Bank of India, AIR 1987 SC 1706. Learned counsel for petitioner has also submitted that judgments of this Court and Honourable Supreme Court dealing with identical controversy cannot be used against the petitioner under the doctrine of sub- silention. Reliance has been placed in case of Municipal Corporation, Delhi v. Gurnam Kaur, AIR 1989 SC 38. Learned counsel for respondents, on the other hand, has submitted that the controversy with regard to retirement of such employees of KESA who were earlier Government servants and were subsequently absorbed as employees of the Board under the notification of 1-7-1971 has already been decided by Division Bench of this Court in case of Bhai Lal v. Superintending Engineer, Allahabad, 1978 (37) FLR 421 (DB) and by Honourable Supreme Court in cases of U. P. State Electricity Board v. Hari Shankar Jain, AIR 1979 SC 65 and U. P. State Electricity Board v. Labour Court I, U. P. Kanpur, AIR 1984 SC 1450.;