JUDGMENT R. H. Zaidi, J.
1. Heard learned counsel for the petitioner, learned standing counsel and also perused the record.
2. By means of this petition under Article 226 of the Constitution of India, petitioner prays for Issuance of a writ, order or direction In the, nature of certiorari quashing the notice/order of retirement dated 14.2.1997, whereby the petitioner was sought to be retired with effect from 31.7.1997 on attaining the age of 58 years.
3. Learned counsel for the petitioner has vehemently urged that the petitioner was a member of Lower Subordinate Forest Service (Group-D post). He, therefore, in view of the provisions of Rule 56 of the Fundamental Rules, as amended up to date, cannot be retired before he attains the age of 60 years. It was urged that the petitioner before he attained the age of 60 years, was sought to be retired illegally on attaining the age of 58 years by means of impugned notice. Learned counsel for the petitioner submitted that the impugned notice was, therefore, liable to be quashed the respondents were liable to be directed to permit the petitioner to continue to hold the post in question and discharge his duties till he attains the age of 60 years.
4. On the other hand, learned standing counsel, appearing for the respondents submitted that the post of Forest Guard is a superior post and cannot be said to be Group-D post. Therefore, the petitioner was rightly retired on attaining the age of 58 years.
5. I have considered the submissions made by learned counsel for the parties.
6. Service conditions of Forest Guard are governed by the Lower Subordinate Forest Service Rules, 1980 (for short the 'Rules'). The relevant rules are quoted below :
2. Status of the Service.--The Lower Subordinate Forest Service Comprises Group-D posts.
3. Definitions.--In these Rules, unless there is anything repugnant in the subject or context :
(a) .....
(f) 'Guard' includes Forest Guards, Grazing Guards, Cattle Guards. Plantation Guards. Wire Guards, Game Guards. Wild Life Guards, Fishing Guard.
(g) ... ... ...
(h) 'Member of the service' means a person appointed in a substantive capacity under the provisions of these Rules, or rules and orders in force before the commencement of these Rules, to a post in the cadre of the service."
4. Cadre of Service.-- (1) There shall be divislonwise cadres in various categories of the posts in the service.
(2) The strength of the service and of each category of posts therein shall be such as may be determined by the Governor from time to time.
(3) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under sub-rules (1), be as given in Appendix 'A'.
Provided (a) .....
(b) ... . .. ...
26. Regulation of other matters.--In regard to the matters not specifically covered by these rules, or special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State.
In Appendix 'A', names of the posts, sanctioned strength of post of various categories, permanent and temporary, have been specified. Forest Guard has been mentioned at Serial No. 10 in the said appendix.
7. A reading of the aforesaid rules, reveals that the Lower Subordinate Forest Service comprises only Group-D posts. A person who claims to be a member of the service, should have been appointed in substantive capacity in accordance with the provisions of the rules on a post in the cadre of service. There are divisionwlse cadres of service consisting of various Group 'D' posts. Strength of cadre has been specified in Appendix 'A' to the Rules. It has also been provided that any matter which is not specifically covered by the said rules or special orders, persons appointed to the service, shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the been specified. Therefore, I will have to look into the Fundamental Rules, 56, as the same becomes applicable as provided in Rule 26 of the Rules. Rule 56 of the U. P. Fundamental Rules is quoted below :
^^56- d bl fu;e ds vU; [kaMksa esa vU;Fkk mifpUgksa ds flok; izR;sd ljdkj lsod ml ekl ds ftlesa og vB~Bkou o"kZ dh vk;q izkIr djsa] vafre fnu vijkUg esa lsok&fuo`k gksxk A mls vf/kok ij lsokfuo`r ds fnukad ds i'pkr~ ljdkj dks iwoZ Lohfr esa yksd vk/kkj ij] ftls vfHkfyf[kr fd;k tk;sxk] lsok esa j[kk tk ldrk gS fdUrq vfr fo'ks"k ifjfLFkfr;ksa ds flok; mls vkB o"kZ dh vk;q ds i'pkr~ lsok esa ugha j[kk tkuk pkfg;s% ijUrq 5 uoEcj] 1985 ds iwoZ HkrhZ fd;k x;k vkSj lewg ^?k* in dks /kkj.k djus okyk dksbZ ljdkjh lsod ml ekg ds ftlesa og lkB o"kZ dh vk;q izkIr djsa ds vafre fnu vijkUg esa lsok ls fuo`k gksxk A Li"Vhdj.k&&mi;qZ ijurq mu ekeyksa ij ykxw ugha gksxk tgk m ijUrq esa fufo"V [email protected] dks izfLFkfr esa 2 Qjojh] 1982 ds i'pkr~ ifjorZu fd;k x;k gks vkSj mP;rj lewg ds [email protected] esa oxhZr fd;k x;k gks A The aforesaid rule provides that the age of retirement of a Government servant shall be 58 years, but the Government servants belonging to Group-D, if appointed before 5.11.1985, shall be retired on attaining the age of 60 years.
8. In the present case, petitioner, it is not denied was appointed on 6.11.1967, i.e. much before 5.11.1985. Therefore, the age of retirement of the petitioner was 60 years in view of the provisions of Rule 56, he could not be retired on attaining the age of 58 years. Learned standing counsel has failed to show that either the status of the post held by the petitioner was changed, in any manner, or the post of Forest Guard was made or recognised as superior post.
9. In view of the aforesaid discussions, there can be no escape from the conclusion that the age of retirement of the petitioner, who is holding the post of Forest Guard, which is Group-D post, is 60 years. Therefore, the impugned order/notice is liable to be quashed.
10. Writ petition succeeds and is allowed with costs. Impugned order/notice dated 14.2.1997 is hereby quashed. Respondents are directed to permit the petitioner to continue to hold the post till he attains the age of 60 years. The petitioner will also be entitled to his salary till he retires from service.