- 1 - Neutral Citation No.2025:AHC-LKO:2894-DB Reserved Chief Justice's Court Case :- SPECIAL APPEAL No. - 221 of 2019 Appellant :- State Of U.P. Thru. Prin. Secy. Ayush Deptt. and others. Respondent :- Dharmraj Shukla Counsel for Appellant :- C.S.C., Tushar Verma, Standing Counsel, Krishna Kumar Singh Counsel for Respondent :- Sharad Pathak Hon'ble Arun Bhansali, Chief Justice Hon'ble Jaspreet Singh,J. [Per Jaspreet Singh, J.] 1. Heard Shri Tushar Verma, learned Additional Chief Standing Counsel for the State-appellant and Shri Sharad Pathak, learned counsel appearing for the respondent. 2. Under challenge is the judgment and order dated 13.05.2019 passed by the learned Single Judge in Writ Petition No.9739 (S/S) of 2018 whereby the writ petition preferred by the respondent has been allowed directing the authorities to permit the respondent (writ petitioner) to discharge his duties with the department till attaining the age of retirement at 60 years. 3. Brief facts giving rise to the instant intra court appeal are that the respondent (writ petitioner) was appointed on the post of Typist- cum-Routine Clerk in the U.P. Homeopathic Medicine Board (hereinafter referred to as the Board) on 11.07.1984. He was confirmed on the said post on 24.07.1986 and later on 01.12.1994 he was promoted on the post of Senior Clerk. 4. The State of U.P. issued a Government Order dated 12.08.2013 - 2 - whereby the retirement age of the employee was extended from 58 years to 60 years. The writ petitioner claimed that since the Board was governed by the State Government, hence the Government Order dated 12.08.2013 enhancing the age of the retirement was also applicable to the employees of the Board. It was also stated that the controller of the Homeopathic Medicine Board took up the issue on 31.03.2015 and a resolution was passed that the employees of the Board would also be entitled to the extended age of retirement of 60 years. 5. Despite the said resolution which was followed by another resolution dated 17.06.2015 and thereafter it was forwarded to the State Government for necessary approval yet no decision was taken by the State Government. 6. The writ petitioner alongwith some other employees made a representation to the competent authority for implementing the aforesaid resolution dated 17.06.2015 but there was no positive response from the State or the competent authority. 7. The writ petitioner being aggrieved by the aforesaid inaction instituted a writ petition bearing No.9739 (S/S) of 2018 raising his grievances and a mandamus was sought, commanding the respondents of the writ petition, to issue a formal government order accepting the recommendation relating to the extension of the age of retirement of the employees of the Board and a further relief was claimed that the - 3 - writ petitioner may not be compelled to retire at the age of 58 years rather he should be permitted to continue to serve till completing the age of 60 years. 8. The record reveals that the learned Single Judge had passed an order requiring the State Government to seek instructions in regard to the extension of the age of retirement of the employees of the Board. As per the instructions, it was informed to the learned Single Judge that the matter was under consideration of the State Government and a decision would be taken shortly. 9. Learned Single Judge taking note of the aforesaid stand of the State Government and also noticing that the writ petitioner was to retire on 30.06.2018 (on attaining the age of 58 years), hence in order to protect the rights of the writ petitioner an interim order dated 23.05.2018 was passed that in case if no decision is taken within the stipulated time and the writ petitioner retires from service, then his retirement would be subject to the further orders of the Court passed in the writ petition. 10. In the meantime, the State Government issued a Government Order dated 09.03.2019 whereby the retirement age of the employees of the Board was extended from 58 to 60 years. As this event occurred during pendency of the writ petition, hence the learned Single Judge taking note of the facts and circumstances including the interim protection granted vide order dated 23.05.2018, allowed the writ - 4 - petition directing the State Government to permit the writ petitioner to discharge his duties till the age of 60 years by means of judgment and order dated 13.05.2019. 11. Being aggrieved the State has come up in appeal assailing the aforesaid judgment and order dated 13.05.2019 primarily on the ground that admittedly the government order was issued on 09.03.2019 and the writ petitioner had already retired on attaining the age of superannuation on 30.06.2018 and since the government order can have only a prospective operation, hence the learned Single Judge erred in allowing the writ petitioner and ignoring the fact that once the writ petitioner had retired on 30.06.2018, he could not have been granted the benefit of the Government Order dated 09.03.2019 with retrospective effect and to that extent the writ petition should have been dismissed. 12. Per contra, Shri Sharad Pathak, learned counsel for the respondent (writ petitioner) has submitted that in so far as the Board is concerned, it had already accepted in principal the fact that its employees be given the same benefit of enhancment in the age of retirement as was available to all the other government employees in terms of the Government Order dated 12.08.2013. 13. It is further submitted that the State had already taken a decision to enhance the age of retirement of all its employees and the Board which is otherwise controlled by the government, the enhanced - 5 - retirement age benefit ought to have been made applicable to the employees of the Board. The Board as per its own resolution had held a meeting and accepted the government order and forwarded its resolution to the government for extending the age of superannuation and give a formal approval to it. 14. It is further urged that even otherwise the writ petitioner had already approached the Court while he was in service and even as per the instructions of the State Government placed before the learned Single Judge, it was accepted that a formal decision would be taken soon. However, the decision came at a later date but in the meantime the Court had already protected the writ petitioner by means of its order dated 23.05.2018, hence it cannot be said that the learned Single Judge had overstepped its jurisdiction to grant the benefit of enhanced age of retirement to the writ petitioner. 15. It is urged that the writ petition of the respondent has been allowed in terms of the interim order and therefore once the interim order was not challenged, it cannot be urged by the State that the writ petitioner has been granted a benefit to which he was not entitled and thus for all the said reason the judgment passed by the learned Single Judge does not require any interference and the appeal be dismissed. 16. The Court has heard the learned counsel for the parties and also perused the material on record. 17. Facts in between the parties is not in dispute; inasmuch as it is - 6 - an admitted case of both parties that the State by its Government Order dated 12.08.2013 had enhanced the age of retirement of its employees from 58 years to 60 years. It is also not disputed that the Board also passed a resolution adopting the enhanced age of retirement for its employees in terms of the Government Order dated 12.08.2013 and it was forwarded to the State Government for taking a decision. 18. It is also not disputed that employees of the Board are identically placed with employees of U.P. Ayurvedic Evam Unani Tibbi Systems of Medicines Board and in the said Ayurvedic Evam Unani Tibbi Board the age of retirement of the employees had been enhanced and therefore only a formal decision was required to be taken by the State in so far as the employees of the Board are concerned which otherwise had been principally agreed both by the State as well as the Board. 19. It is also not disputed that the writ petitioner alongwith certain other employees had moved a representation to the State/competent authority to take a decision at an early date. However, since the same was pending at the behest of the State Government, hence the writ petitioner, while he was in service, instituted writ bearing No.9739 (S/S) of 2018 wherein he sought the following reliefs which are reproduced hereinafter for ready reference:- (i) Issue a writ, order or direction in the nature of mandamus commanding the opposite party no.1 to issue - 7 - formal Government order on the basis of the recommendation so given by opposite party no.2 and 3 vide their letter dated 22.03.2018 (Annexure No.16 to this writ petition), as soon as possible, if possible within 15 days. (ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to not to retire the petitioner before the completion of age of 60 years i.e. on 31.07.2020. 20. It is not in dispute that the State was called upon to give its response to the prayer made by the writ petitioner and in pursuance thereof the learned State Counsel informed the learned Single Judge that the matter was under active consideration and a decision would be taken soon. For the sake of convenience the order dated 23.05.2018 passed by the learned Single Judge is being reproduced hereinafter for ready reference:- "In compliance of earlier order dated 17.05.2018, the learned Additional Chief Standing Counsel has produced the letter dated 18.05.2018 of the Controller U.P. Homeopathy Medicine Board, Lucknow, which has been sent to the Secretary, Anysh Department, Anubhag-2 for proposal that the employees of the board be also given the benefit of age of retirement. The letter dated 18.05.2018 is taken on record. It has also been submitted that the matter is pending before the Finance Department, Government of U.P. and after getting approval from the Finance Department, the matter would be placed before the Cabinet and only thereafter the necessary decision may be taken. Learned Additional Chief Standing has also submitted that minimum one month time may be consumed in passing the final order on account of the formalities indicated here-in-above. Since the petitioner is going to retire on 30.06.2018, therefore, it is expected that the Competent Authority to take any suitable decision, strictly in accordance with - 8 - law, by 25.06.2018 so that the petitioner culd know the fate of his matter before his retirement. However, if no decision is taken the stipulated time and the petitioner retires from service, his retirement shall be subject to further order of this Court. List this case on 03.07.2018 as fresh." 21. It is also not disputed that the said order as quoted above was passed in presence of the counsel for the parties and the State did not assail the said order. 22. The interim order dated 23.05.2018 clearly protected the rights of the writ petitioner and his retirement was made the subject to the outcome of the writ petition. It is also not disputed that the State issued the Government Order dated 09.03.2019 granting the benefit of extension of age of retirement to the employees of the Board. 23. In the aforesaid admitted factual backdrop, the issue to be considered is as to whether the writ court had exceeded its jurisdiction to grant the benefit to the writ petitioner by giving retrospective operation to the Government Order dated 09.03.2019. 24. Submission of the learned Additional Chief Standing Counsel for the State that retrospective operation has been given to the Government Order dated 09.03.2019 by the learned Single Judge may not be a fair assessment of the matter especially in light of the facts and circumstances of the instant case. 25. Needless to say that the rights of the parties are crystalized on the date when they approach the court of law. In this regard, the - 9 - observations of the Apex Court in Beg Raj Singh vs. State of U.P. & others (2003) 1 SCC 726: 2002 SCC OnLine SC 1239 are relevant and are being reproduced hereinafter for the ease of reference:- "Having heard the learned counsel for the appellant as also the learned counsel for the State and the private respondent, we are satisfied that the appeal deserves to be allowed. The ordinary rule of litigation is that the rights of the parties stand crystallized on the date of commencement of litigation and right to relief should be decided by reference to the date on which the petitioner entered the portals of the Court. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events, i.e., the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgments. Third party interests may have been created or allowing relief to the claimant may result in unjust enrichment on account of events happening in between. Else the relief may not be denied solely on account of time lost in prosecuting proceedings in judicial or quasi- judicial forum and for no fault of the petitioner. A plaintiff or petitioner having been found entitled to a right to relief, the Court would as an ordinary rule try to place the successful party in the same position in which he would have been if the wrong complained against would not have been done to him. The present one is such a case. The delay in final decision cannot, in any manner, be attributed to the appellant. No auction has taken place. No third party interest has been created. The sand mine has remained un-operated for the period for which the period of operation falls short of three years. The operation had to be stopped because of the order of the State Government intervening which order has been found unsustainable in accordance with stipulations contained in the mining lease consistently with the G.O. issued by the State of Uttar Pradesh. Merely because a little higher revenue can be earned by the State - 10 - Government that cannot be a ground for not enforcing the obligation of the State Government which it has incurred in accordance with its own policy decision." 26. Once the rights of the writ petitioner crystallized and the stand of the State was also recorded in the order dated 23.05.2018 that a decision would be taken soon especially in the context with the observations of the learned Single Judge that since the writ petitioner would be retiring on 30.06.2018, hence his right was specifically protected by the interim order dated 23.05.2018. 27. The impact of an interim order is that it is binding on the authority unless it is specifically set aside. No authority has the power to ignore the interim order even if it feels that the interim order is beyond jurisdiction. Moreso when such interim orders are passed by superior courts including the court of record. In Ravi S. Naik Vs. Union of India & others, 1994 Supp (2) SCC 641, the Apex Court has observed as under:- "40. .... It is settled law that an order, even though interim in nature, is binding till it is set aside by a competent court and it cannot be ignored on the ground that the court which passed the order had no jurisdiction to pass the same. Moreover the stay order was passed by the High Court which is a superior Court of Record and "in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not." "42. In Mulraj v. Murti Raghonathji Maharaj (1967) 3 SCR 84: AIR 1967 SC 1386, this Court has dealt with effect of a stay order passed by a court and has laid down:- - 11 - "In effect therefore a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well-settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well-settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a court." 28. In the given backdrop where the right of the writ petitioner was protected in terms of the interim order and ultimately the Government Order came to be passed on 09.03.2019 granting the benefits to the employees of the Board, hence taking note of the aforesaid aspect of the matter the learned Single Judge has granted the benefit to the writ petitioner which cannot be faulted. 29. There is another way to look at the facts and circumstances of this case. Here, it was not in dispute that the State had taken a decision for enhancement of the age of retirement of its employees in the year 2013. The Board had also accepted the same and passed a resolution to that effect and it was this resolution alone which had to be accepted/approved by the State. Mere delay at the behest of the State - 12 - in taking a decision may not be a cogent reason to deprive a person such as the writ petitioner who had already approached the court of law for seeking the redressal of his grievance. 30. It is also to be noticed that even while the State had preferred the instant appeal but there was no interim order staying the operation of the order passed by the learned Single Judge and in such circumstances, the writ petitioner who was 59 years of age at that point of time, it was always open for the State to have taken work from the writ petitioner but they chose not to adhere to the order passed by the learned Single Judge and for their own non compliance it cannot be a consideration for the State to deprive the benefit of the order to the writ petitioner. 31. Regarding the submission of the learned Additional Chief Standing Counsel that retrospective operation has been given to the Govt. Order dated 09.03.2019 by the learned Single Judge also does not impresses the government. In this context it will be worthwhile to refer to the decision of the Apex Court in SEBI vs. Rajkumar Nagpal (2023) 8 SCC 274 wherein the Apex Court has explained the concept of retrospective and retro active operations of circular and it has been held as under:- "99. We are of the opinion that the SEBI Circular has retroactive application. In Principles of Statutory Interpretation by Justice G.P. Singh (14th edition, 2016 at page 583), it is stated that: The rule against retrospective construction is not applicable to a statute merely because “a part of - 13 - the requisites for its action is drawn from a time antecedent to its passing . If that were not so, ͺ⏜ every statute will be presumed to apply only to persons born and things which come into existence after its operation and the rule may well result in virtual nullification of most of the statutes." (emphasis supplied) 100. In Vineeta Sharma v. Rakesh Sharma, 2020 (9) SCC 1 this Court described the nature of prospective, retrospective, and retroactive laws: (SCC p.53 para 61) "61. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backwards and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events." 101. The terms "retrospective‘ and "retroactive‘ are often used interchangeably. However, their meanings are distinct. This Court succinctly appreciated the difference between these concepts in State Bank's Staff Union (Madras Circle) v. Union of India (2005) 7 SCC 584: " "Retroactivity" is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called 'true retroactivity', consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as 'quasi-retroactivity', occurs when a new rule of law is applied to an act or transaction in the process of completion....The foundation of these concepts is the distinction between completed and pending transactions...." (T.C. Hartley, The Foundations of European Community Law 129 (1981)" 102. Many decisions of this Court define "retroactivity‘ to mean laws which destroy or impair vested rights. In real terms, this is the definition of "retrospectivity‘ or "true retroactivity". "Quasi-retroactivity‘ or simply "retroactivity‘ on the other hand is a law which is applicable to an act or transaction that is still underway. Such an act or transaction has not been completed and is in the process of completion. Retroactive laws also apply where the status or character of a thing or situation arose prior to the passage of the law. Merely because - 14 - a law operates on certain circumstances which are antecedent to its passing does not mean that it is retrospective." 32. In light of the aforesaid, this Court is absolutely certain that the writ petitioner could not be deprived of the benefit as his rights stood protected in terms of the interim order and later the learned Single Judge allowed the writ petition and granted the benefit of the Government Order dated 09.03.2018 to the writ petitioner. 33. For all the aforesaid reasons, this Court finds that there is no merit in the appeal which is, accordingly, dismissed. The judgment and order dated 13.05.2019 passed by the writ court in Writ Petition No.9739 (S/S) of 2018 is affirmed. It is noticed that during the pendency of the intra court appeal the writ petitioner has attained the age of 60 years and retired hence he is entitled to all the necessary financial and post retiral benefits treating him to have retired at age of 60 years. Consequences to follow. However, it is made clear that since the writ petitioner did not work beyond 30.06.2018, hence he shall not be entitled for any salary for the period 30.06.2018 to 30.06.2020. Subject to the aforesaid, all dues of the writ petitioner be paid to him within a period of two months from the date of this order. Costs are made easy. (Jaspreet Singh, J.) (Arun Bhansali, CJ.) Order Date :- January 17, 2025 ank Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench