2021 INSC 0304 1 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 2310 of 2021 (Arising out of SLP(C) No 11793 of 2018) New Okhla Industrial Development Authority & Anr. …Appellants Versus B D Singhal & Ors. …Respondents W I T H Civil Appeal No. 2311 of 2021 (Arising out of SLP (C) No.3861 of 2020) J U D G M E N T Dr Dhananjaya Y Chandrachud, J 1 On 30 September 2012, the Government of Uttar Pradesh acceded to a proposal of the Appellan t 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 retros pective effect be given to the Government Order from 29 9 judgement 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 judgement 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 issued by it. This Government Order directs that the increase in the age of retirement from fifty - eight to sixty years "shall come into force with immediate effect (from the date of issue of this Government Order) and there shall not be any retrospective effect". (iii) When the order directing increase in the age of retirement is clear, namely that it shall come into force with immediate effect coupled with the words that the increase shall not have any retrospective effect, then the intention of the maker of the subordinate legislation categorical obviates any possible interpretation giving it retrospective effect. In these circumstances, the Court cannot issue directions giving retrospective effect to the amendment. The golden rule of statutory interpretation is that in the absence of an express provision or a necessary intendment providing retrospectivity, the interpretation must only be prospective. An exception to 10 this rule is only available in matters of procedure. ( P. Mahendran v. State of Karnataka 7; C.Gupta v. Glaxo -Smithkline Pharmaceuticals Ltd. 8); (iv) The observation of the High Court that the Government should have acted instantly "when the resolution was received by it more than 3 years back" is factually incorrect. The Government Order dated 30 September 2012 itself recites that it is issued in reference to the recommendation dated 17 July 2012. Therefore, there was no delay of 3 years in the issuance of the Government Order. The Government Order was issued i n a little more than 2 months. The High Court has erred in directing that the writ petitioners shall be deemed to have worked with NOIDA till the age of sixty years and they be paid salary and other benefits for two years during which they never worked. The first and second respondents were due for retirement with effect from 31 August 2012. They filed the writ petition on or about 27 August 2012, praying that they be permitted to continue on their post s till they attain the age of sixty years and salary be paid to them accordingly. However, while issuing notice on the writ petition or at any time thereafter no interim order was g ranted by the High Court. When the first and second respondents performed no work, they are not entitled to receive salary for such period. The principle of ‘no work no pay’ will applicable in such a s ituation. The inability 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 7 (1990) 1 SCC 411. 8 (2007) 7 SCC 171. 11 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 imp ugned 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 in the impugned judgment has a cascading effect and is unsustainable in law; and (vii) The High Court was under the wrong impression that NOIDA, the authority that is to bear the financial burden consequent to the increase in the age of retirement supported the case of the Respondents/employees that the Government Order issued on 20 September 2012 must have retrospective effect. 12 1 2 Mr Vinod Diwakar, learned AAG for the State of Uttar Pradesh has adopted the submission of Mr Ravindra Kumar, learned Counsel for NOIDA . 13 Ms Tanya Shree, learned Counsel has appeared on behalf of the respondents to oppose the submissions in the appeals. Before elucidating the submissions, it would be necessary to extract a submission from the counter affidavit which has been filed by the respondents in response to the present proceedings. Paragraph 6 of the counter affidavit reads as follows: “Further, it is submitted that the Answering Respondents herein did not seek the benefit of enhancement of age of retirement of the employees of the Petitioner -Authority from the date of its earlier resolution dated June 29, 2002. In fact it was the case of the Answering Respondents before the Hon'ble High Court in Writ Petition being Writ -A No. 4 3780 of 2012 that the age of retirement of the Answering Respondents be enhanced w.e.f the date of resolution dated July 9, 2012 of the Petitioner -Authority and the Answering Respondents are only claiming a limited relief of enhancing the age of retirement of the Answering respondents w.e.f. the date of Resolution of the Petitioner -Authority i.e July 9, 2012.” The above extract from the counter affidavi t has clarified that the relief which the respondent s – employees sought is the enhancement of the age of retirement with effect from 19 July 2012 which is the date on which the Board of NOIDA resolved to increase the age of retirement. In this backdrop, Ms Tanya Shree submitted as follows: (i) The decision of the State government dated 20 September 2011 to enhance the age of superannuation for its employees was circulated inter alia to public sector undertakings and corporations enabling them to determine whether they were in a position to bear the financial burden 13 attendant upon an increase in the age of retirement. Upon examination of the financial impact, if each corporation resolved to accept the financial burden, it could then seek the approval of the State government. All such decisions w ere 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 ha d agreed to bear the financial burden by its resolution dated 9 J uly 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 retirement; (v) Though, the respondents had approached the government of Uttar Pradesh with a representation seeking permission to allow them to work 14 till the age of 60 years, the representation was not allowed. As a consequence of this they are entitled to the payment of their salary and all other consequential benefits occasioned by the extension in the age of retirement since it was the appellant authority that did not permit the respondents to continue in service though they were willing to work. In State of Uttar Pradesh v. Dayayanand Chakrawarthy 9 it was held that if the employer prevents the employee from performing his duties, the employee cannot be blamed for his absence from duty and the principle of ‘no pay no work ’ shall not be applicable to such an employee; and (vi) The Board resolution of 9 July 2012 proposed to increase the age of retirement of the employees with immediate effect. The authority is now estopped from going back on its own resolution and denying the benefit of the enhancement of age from the date of the resolution. III The Analysis 14 The High Court while striking down para 1(ii) of the Government Order dated 30 September 2012 to enhance the age of retirement with prospective effect (para 1(ii) of the government order makes this position clear) has directed that the enhancement of the age of retirement must date back to 29 June 2002. This direction giving retrospective effect to the enhancement in the age of retirement seems to be based on the fact that the original resolution of the Board of NOIDA to enhance the age of retirement was is sued on 29 June 2002. In granting this relief, the High Court has formulated two reasons in its judgment: 9 (2013) 7 SCC 595. 15 firstly , the government order dated 30 September 2012 is arbitrary for having increased the age of retirement with effect from the date of the order without giving the benefit to employees who had retired prior to that date ;and secondly , there was no reason to refuse the benefit of an extension of the age of superannuation retrospectively when the resolution was received by the State government “more than three years back”. 15 The reasons which have weighed with the High Court are based on factually incorrect premises and are founded on a misunderstanding of the legal position. After the Board of NOIDA resolved on 29 June 2002 to enhance the age of su perannuation 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 10 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, t he High Court specifically observed that “it will be open to the State g overnment 10 W.P No. 48162/2010. 16 to consider to give effect to the increase in the age of retirement with effect from the date when NOIDA has resolved to bear the financial burden, or from any such date, which the State Government may find it expedient. ” This order has attained finality since it was not challenged before this Court. 1 7 It was in terms of the order of the High Court that the Board of NOIDA resolved on 9 July 2012 to recommend to the State government that the age of superannuation of its employees should be enhanced with immediate effect, and the additional financial outlay would be met from the resources of the authority without any claim for grants being made to the State government. The State government responded to this proposal by acceding to the request to enhance the age of superannuation, though prospectively from 30 September 2012. 18 NOIDA, as an authority, constituted by the UP Industrial Area Development Act 1976 is bound by the rigour and discipline of the statute. The power to appoint officers and employees is conferred upon the authority by Section 5(i) “subject to such control and restrictions as may be determined by general or special orders of the State government”. Section 19 requires the prior approval of the State government to the regulations framed by the authority. The regulations governing the conditions of service were notified on 14 January 1981 with the previous approval of the State government. Under Regulation 25 of the NOID A Regulations 1981, the age of superannuation was fixed at fifty -eight years. Consequently, any enhancement of the age of superannuation would require an amendment of the service regulations necessitating, in terms of Section 19, the prior approval of the State government. 17 19 Whether the age of superannuation should be enhanced is a matter of policy. If a decision has been taken to enhance the age of superannuation, the date with effect from which the enhancement should be made falls within the realm of policy. The High Court in ordering that the decision of the State government to accept the proposal to enhance the age of superannuation must date back to 29 June 2002 has evidently lost sight of the above factual background, more specifically (i) the rejection of the original proposal on 22 September 2009; and (ii) the judgment of the Division Bench dated 17 January 2012 refusing to set aside the order rejecting the proposal on 22 September 2009 which has attained finality. But there is a more fundamental objection to the basis of the 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, jurisdic tion 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 176 th meeting) was 18 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 observation on the delay of three years in taking a decision on the resolution of NOIDA is in re ference to the 2005 resolution, which was rejected on 22 September 2009. As stated above, the Government resolution of 2012 was impugned before the High Court , and the 2009 rejection order had attained finality in view of the judgment of the division bench of the High Court on 17 January 2012 which was not challenged before this court. 21 Whether the decision to increase the age of superannuation should date b ack to the resolution passed by NOIDA or should be made effective from the date of the approval by the State government was a matter for the State government to decide. Ultimately, in drawing every cut -off, some employees would stand on one side of the line while the others would be positioned otherwise. This element of hardship cannot be a ground for the High Court to hold that the decision was arbitrary. When the State government originally decided to increase the age of superannuation of its own employees from fifty - eight to sixty years on 28 November 2001, it had left the public sector corporations to take a decision based on the financial impact which would result if they were to increase the age of superannuation for their own employees . 22 From tim e to time the authorities of the State took a decision bearing upon the exigencies of service prevailing in each organisation. By an OM dated 16 May 2005, the age of retirement of employees of the Agricultural Produce and Marketing Committee (APMC) was enh anced with immediate effect, without giving retrospective operation. S imilarly , on 15 December 2006 the age of 19 retirement of employees of the UP Power Corporation was enhanced without conferring retrospective effect. On 17 April 2012, the age of superannuation of the employees of UP State Handicrafts Corporation Limited was enhanced with effect from 20 December 2011. On 22 May 2012, the age of superannuation of the employees of the UP State Industrial Development Corporation Limited was enhanced “with immediate effect”. Different corporations of the State are governed by their service rules and regulations , and by the exigencies of service. The State government had evidently determined that it was for each organisation to consider and determine the impact of the financial burden, and based on that the organisation was to submit a proposal for the approval of 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 r etirement 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 retrospecti ve application only if expressly stated or inferred through necessary implication. Therefore, the respondent -employ ees could not have claimed a vested right that the 20 enhancement in the age of retirement should be made effective from the date on which NOIDA had resolved to submit a proposal for the approval of the government. 24 The argument of the respondents that the appellant-authority is estopped from claiming that the government order issued on 30 September 2012 cannot be given retrospective effect from 9 July 2012 since the Board resolution proposed an increase in the retirement age of its employees with ‘immediate effect’ is unsustainable. For the principle of promissory estoppel to apply , one party must have made an unequivoc al promise, intending to c reate or affect a legal relationship between the parties. 11 The recommendation of NOIDA cannot create or alter the legal relationship since it is subject to the approval of the government. Justice H L Gokhale in a concurring opinion in Monnet Ispat and Energy Ltd. v. Union of India 12 clarified that the principle of promissory estoppel will not apply if the communication issued was either a proposal or a recommendation. The learned judge observed: “289. As we have seen earlier, for invoking the principle of promissory estoppel there has to be a promise, and on that basis the party concerned must have acted to its prejudice. In the instant case it was only a proposal, and it was very much made clear t hat it was to be approved by the Central Government, prior whereto it could not be construed as containing a promise. Besides, equity cannot be used against a statutory provision or notification. ” (emphasis supplied) 11 Monnet Ispat & Energy Limited v. Union of India & Ors., (2012) 11 SCC 1. 12 (2012) 11 SCC 1. 21 I n State of Jharkhand v. Brahmputra Metallics Ltd., Ranchi 13, this court speaking through of one us (D Y Chandrachud J) elaborated on the doctrine of legitimate expectation, which is grounded in fairness and reasonableness. Explaining that there is a legitimate expectation that the actions of the State are fair and reasonable, it was observed: “ 45. …The state must discard the colonial notion that it is a sovereign handing out doles at its will. Its policies give rise to legitimate expectations that the state will act according t o what it puts forth in the public realm. In all its actions, the State is bound to act fairly, in a transparent manner. This is an elementary requirement of the guarantee against arbitrary state action which Article 14 of the Constitution adopts.” (emphasis supplied) Since the enhancement 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 r ise to a legitimate expectation since it was a mere recommendation which was subject to the approval of the State G overnment. 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 attain ed the age of sixty years but were not permitted to, and thus the principle of ‘no work no pay’ would not be applicable is mi splaced. In Dayanand Chakrawarthy , the issue before 13 Civil Appeal No. 3860-62 of 2020. 22 the two judge Bench of this court was whether prescription of different ages of retirement based on the mode of recruitment under the UP Jal Nigam (Retirement on attaining age of superannuation) Regulations , 2005 was unconstitutional for violat ing Article 14 of the Constitution. T his court held that the differential superannuating age was discriminatory. However, by virtue of Regulation 31 of the UP Jal Nigam Services of Engineers (Public Health Branch) Regulations, 1978 the service conditions of State government employees is applicable to the UP Jal Nigam employees. Therefore when the Jal Nigam through an Office memorandum had resolved that the age of retirement for its employees shall be fifty eight years, though it was sixty years for State government employees, it was set aside by this court in Harwinder Kumar v. Chief Engineer, Karmik 14. In Harwinder Kumar and the subsequent cases ( U.P Jal Nigam v. Jaswant Singh 15 ; U.P Jal Nigam v. Radhey Shyam Gautam 16) involving the age of retirement of the UP Jal Nigam employees, this court had held that employees who had approached the courts shall be entitled to full salary until the age of sixty years. It was in this context that a two judge bench of this court speaking through Mukhopadhaya J made the following observation in Dayanand Chakrawarthy : “ 48. … 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 t he 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.” 14 (2005) 13 SCC 300. 15 (2006) 11 SCC 464. 16 (2007) 11 SCC 507. 23 In Dayanand Chakrawarthy the court directed payment of arrears deeming the employees to have worked till sixty years in spite of no interim order being issued in that regard because ( i) the Office Memorandum was held ultra vires ; (ii) Harwinder Kumar , Jaswant Singh , and Radhey Shyam Gautam had already held that the age of retirement of the Jal Nigam employees shall be 60 years unless a regulation prescribing a lower retirement age is issued in terms of Regulation 31, and had extended this benefit to all the parties who had filed writ petiti ons. Therefore, the above observation must be read in the context of the distinct factual situation in the case. 26 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 m onth and that they should have the benefit of the enhancement in the age of superannuation has no substance. On 31 August 2012, the respondents moved t he High Court but no interim relief was granted to them and they attained the age of superannuation. T hey have not worked in service thereafter. Since the High Court ‘s judgment dismissing the challenge to the government order dated 30 September 2012 has at tained finality , the submission cannot be accepted. 27 For the above reasons, we allow the appeals and set aside the impugned judgment and order of the Division Bench at Lucknow of the High Court of Judicature at Allahabad dated 25 January 2018 in WA No 43780 of 2012. The 24 Writ Petition shall in consequence stand dismissed. There shall be no order as to costs. 2 8 Pending application(s), if any, stands disposed of. …………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud] …..…..…....…........……………….…........J. [MR Shah] New Delhi; July 15, 2021.