1. Heard learned counsel for the petitioner and perused the record.
2. The petitioner filed this writ petition challenging notice dated 14th October, 1999 whereby he was informed of his retirement w.e.f. 31st January, 2000 on attaining the age of 58 years under fundamental rule 56.
3. The contention of the petitioner was that he is Consolidation Lekhpal, which is a Group 'D' post. In view of Government Order dated 28th July, 1987 he is liable to retire on attaining the age of 60 years.
4. However, I find no force in the submission. Fundamental Rule 56(a) and (b) as substituted w.e.f. 1st April, 1975 reads as under:
"(a) Except as otherwise provided in this Rule, every Government servant other than a Government servant in inferior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty eight years. He may be retained in service after the date of compulsory retirement with the sanction of the Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.
(b) A Government servant in inferior service shall retire from service on the after of the last day of the month in which he attains the age of sixty years. He must not be retained in service after that date, except in very special circumstances and with sanction of the Government."
5. A perusal thereof shows that age of retirement for every Government servant other than a Government servant in "inferior service" is 58 year. Only in respect to a Government servant who is in "inferior service", the age of retirement is 60 years. "Inferior service" does not mean the entire Group 'D' employees but amongst Group D employees those who are governed by inferior service constitute a small section.
6. Prior to 1st April, 1965 only those employees of State Government who were getting salary of Rs.22.27, 27.32 and 32.37 were members of "inferior service". Pursuant to the pay scales revised w.e.f. 1st April, 1965 the aforesaid three pay scales were revised to Rs.55.57 or Rs.60.80. Later on w.e.f. 1st August, 1972 and 1st July, 1979 new pay scales were implemented whereby inferior service scales ceased. It is in this context, clarification was made by Government Order dated 5th November, 1985 but it did not result in actual amendment in Fundamental Rule 56 (a) and (b) having the effect of deleting provision of age of retirement for members of inferior service and therefore the result is that these provisions continued. Though some amendment has been made in Fundamental Rule 56 by notification dated 27th June, 2002 but it is a matter of great concern that the said amendment has been made in exercise of power under proviso to Rule 309 ignoring the fact that Fundamental Rule 56 was made by a legislative Act in 1975 and onwards. A legislative Act cannot be amended by exercising Rule framing power.
7. Be that as it may, for the purpose of present case the fact remains that petitioner has nowhere claimed to qualify for "inferior service" and therefore cannot claim to continue beyond the age of 58 years. The decision cited by learned counsel for the petitioner has not considered the relevant statutory provision namely Fundamental Rule 56 and has proceeded on the assumption as if all Group "D" employees are entitled to continue till the age of 60 years and therefore the judgment is apparently per incurium and not binding on this Court.
8. What constitute "per incurium" need not detain my attention, since time and again it has been explained by the Apex Court. A Full Bench of this Court in Farhat Hussain Azad Vs. State of U.P. and others, 2005 (1) UPLBEC 474 after referring to the law with respect to "per incurium" laid down by the Apex Court in catena of decisions, has observed:-
"The concept of "per in curium" has been considered by the Apex Court time and again explaining that the expression means through inadvertence or a point of law is not consciously determined. If an issue is neither raised, nor argued, a decision by the Court after pondering over the issue in depth would not be precedent binding on the Courts. Per incurium are decisions given in ignorance or forgetfulness of some statutory provisions or where the Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where Court presumes something contrary to the facts of the case. (Vide Mamleshwar Prasad & Anr. Vs. Kanahaiya Lal (Dead), (1975) 2 SCC 232; Rajpur Ruda Meha & Ors. Vs. State of Gujrat, AIR 1980 SC 1707; A.R. Antule Vs. R.S. Nayak, AIR 1988 SC 1531; Municipal Corporation of Delhi Vs. Gurnam Kaur, AIR 1989 SC 38; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh & Ors., (1990) 3 SCC 682; State of West Bengal Vs. Synthetics and Chemicals Ltd., (1991) 1 SCC 139; Maharashtra State Cooperative Cotton Growers Marketing Federation Ltd & Anr. Vs. Employees' Union & Anr., 1994 Supp (3) SCC 385; Pawan Alloys & Casting Pvt Ltd, Meerut Vs. U.P. State Electricity Board & Ors., (1997) 7 SCC 251; Ram Gopal Baheti Vs. Girdharilal Soni & Ors., (1999) 3 SCC 112; Sarnam Singh Vs. Dy. Director of Consolidation & Ors., (1999) 5 SCC 638; Govt. of Andhra Pradesh Vs. B. Satyanarayana Rao, AIR 2000 SC 1729; Arnit Das Vs. State of Bihar (2000) 5 SCC 488; M/s. Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd., AIR 2001 SC 2293; A-One Granites Vs. State of U.P. & Ors., (2001) 3 SCC 537; Suganthi Suresh Kumar Vs. Jagdeeshan, AIR 2002 SC 681; Director of Settlements A.P. & Ors. Vs. M.R. Apparao & Anr., (2002) 4 SCC 638; S. Shanmugavel Nadar Vs. State of T.N & Anr.., (2002) 8 SCC 361; State of Bihar Vs. Kalika Kuer Kalika Singh & Ors., AIR 2003 SC 2443; and Manda Jaganath Vs. K.S. Rathnam & Ors., (2004) 7 SCC 492).
In B. Shyama Rao Vs. Union Territory of Pondichery & Ors., AIR 1967 SC 1480, the Constitution Bench of the Supreme Court observed as under:-
"It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein."
In State of U.P. & Anr. Vs. Synthetics & Chemicals Ltd. & Anr. (1991) 4 SCC 139, the Apex Court followed the aforesaid judgment in B. Shyama Rao and held as under:-
"Any declaration or conclusion arrived without application of mind or proceeded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent......A conclusion without reference to relevant provision of law is weaker than even casual observation."
Similar view has been reiterated in Divisional Controller, KSRTC Vs. Mahadeva Shetty & Anr., (2003) 7 SCC 197, observing that casual expressions in a judgment carry no weight at all, nor every passing remark, however eminent, can be treated as an ex-cathedra statement having the weight of authority."
9. In N. Bhargavan Pillai Vs. State of Kerala, AIR 2004 SC 2317 (para 14) the Apex Court said, if a view has been expressed without analysing the statutory provision, it cannot be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. The same law has been reiterated in Faujdar Vs. Deputy Director of Education and others, 2006 (3) AWC 2243.
10. In Civil Misc. Writ Petition No. 47754 of 2005 (M/s J.K. Construction Engineers and others Vs. Union of India and others) decided on 28.02.2006, a Division Bench of this Court held:-
"The doctrine of per incuriam is applicable where by inadvertence a binding precedent or relevant provisions of the Statute have not been noticed by the Court."...(Para 106)
11. Similar view has been taken by another Division Bench in Brahma Prakash Vs. State of U.P. & other- 2006 (2) ESC 1017. In para 40 of the judgment this Court held as under-
"Thus in view of aforesaid discussion, it is clear that while rendering the decision in Radha Krishna Gupta's case earlier Division Bench of this Court with all respect did neither ascertain the ratio of decisions referred in the judgment, nor discussed, as to how the factual situation fits in with the fact and situation of the decision on which reliance was placed. Contrary to it the decision of Hon'ble Apex Court which requires consideration of various factors in this regard, referred herein before in our judgment has been completely ignored by the Division Bench, therefore, being a decision given per incuriam, cannot be held to be binding authority under law."
12. In the judgements referred to above, the aforesaid doctrine of per incuriam has been discussed in detail and it has been held that a judgment per incuriam does not lay down a binding precedent.
13. Learned counsel for the petitioner drew attention of this Court to a decision of Hon'ble Single Judge of Writ Petition No.1507 (S/S) of 2001 connected with writ petition No.3538 (S/S) of 2000 and writ petition No.2557 (S/S) of 2000 decided on 22.8.2008 wherein this Court observed that fundamental rule 56(a) provides that employee belonging to Group D shall retire at the age of 60 years and also that Rule 2 of U.P. Consolidation Lekhpal Service Rules, 1978 provides age of retirement of Consolidation Lekhpal as 60 years and said that in view of the aforesaid decision, the petitioner is entitled to retire on attaining the age of 60 years.
14. I do not go into the question as to whether Consolidation Lekhpal become a Group C employees though earlier it was Group D employees. Even if the petitioner is considered to be a Group D employee, Fundamental Rule 56 (a) and (b) nowhere contemplate that all Group D employees shall retire on attaining the age of 60 years but it talks of "inferior service". Reference has been made to the Government Order dated 28th July 1987 which reads a Group D service for all purposes attracting the provision retiring the person at the age of 60 years. Suffice it to mention that Fundamental Rule 56 has been inserted by U.P. Legislature Enactment i.e. U.P. Act No. 24 of 1975 and therefore cannot be altered, amended or changed by executive order.
15. Fundamental Rule 56 only talks of the age of retirement at 60 years of an "inferior service" and not Group 'D' employee. The petitioner nowhere claim that he was a member of "inferior service". Therefore, he was rightly retired on attaining the age of 58 years.
16. So far as U.P. Consolidation Lekhpal Service Rules, 1978 is concerned the learned counsel could not show any provision therein laying down a particular age of retirement of Consolidation Lekhpal. Rule 2 of 1978 Rules declares Consolidation Lekhpal Service comprising Group D posts. It does not talk of age of retirement. Apparently reference to 1978 Rules for this purpose also is erroneous and is per incurium.
17. So far as Government Order dated 28th July, 1987 is concerned, suffice it to mention that no such amendment as a matter of fact was made under Fundamental Rule 56 since by legislative enactment it came into existence i.e. by U.P. Act No.24 of 1975 and therefore under proviso to Article 309 the same could not have been amended. Moreover, this question has also been considered and decided by Full Bench in Surya Deo Mishra Vs. The State of U.P. & Anr., 2006(5) AWC 5306 and the court in para 21 said:
"learned Additional Advocate General for the State respondent has urged that the two cases of Shubh Nath Dubey and Srikant Shukla (Supra) were not correctly decided. He has urged that the age of superannuation for Government servants is provided under Rule 56(3) of the Fundamental Rules Chapter II part 2 to 4. The age of superannuation of all the Government servants of inferior category was 60 years. .... A perusal of the decisions in Shubh Nath Dubey and Srikant Shukla (Supra) shows that the provision relating to higher pay scale and treating drivers as 'technical employees' were neither brought to the notice of the Court nor were considered. .... In Our opinion, the aforesaid two decisions have not been correctly decided and as such they are hereby over-ruled."
18. In view of the aforesaid, since very foundation of the writ petition is nonest hence no relief can be granted to the petitioner.
19. At this stage, learned counsel for the petitioner submitted that the petitioner ought to have been provided all retiral benefits treating to have retired on attaining the age of 58 years. but the said benefits have not been paid so far.
20. Suffice it to mention that in case retiral benefits have not been paid to the petitioner treating to have retired on attaining the age of 58 years, the same shall be paid to him expeditiously and in any case within three months from the date of production of a certified copy of this order.
21. With the aforesaid direction the writ petition is dismissed.
Order Date :- 22.9.2011 KA