Court No. - 34
Case :- WRIT - A No. - 34741 of 2014 Petitioner :- State Of U.P. And 2 Others Respondent :- U.P. State Service Tribunal And Another Counsel for Petitioner :- P.K. Pandey,C.S.C.
Counsel for Respondent :- S.C.,Abhijit Mishra,Siddharth Varma
Hon'ble Sudhir Agarwal,J. Hon'ble Ifaqat Ali Khan,J.
1. Learned Addl. Chief Standing Counsel appeared for petitioners. None appeared on behalf of respondent, hence we proceed to decide the matter after hearing learned counsel for petitioners.
2. This writ petition is directed against judgment and order dated 26.8.2013 passed by State Service Tribunal, Lucknow (hereinafter referred to as 'Tribunal') in Claim Petition No. 1366 of 2008, Udal Singh Vs. Principal Secretary, Irrigation Department, UP and others (Anenexure-1 to writ petition) holding that claimant-respondent was entitled to retire after attaining age of 60-years and shall be deemed to have retired at the age of 60-years considering him as Group-D employee is entitled for all retiral benefits.
3. It is evident from record that claimant-respondent (Udal Singh) was working as Tubewell Operator. Initially he was appointed as 'Meth' on 19.11.1963 (Class IV employee) in Irrigation Department, Tubewell Division. Subsequently, was made permanent on the post of Tubewell Operator in the pay scale of Rs. 60-01-80 on 23.8.1967. His date of birth is 20.5.1942, therefore, he attained the age of 58-years on 19.5.2000 and was to retire on 31.12.2000. However, he is claiming his retirement after attaining age of 60-years on the basis of provision Fundamental Rule 56.
4. Claimant-respondent filed Claim Petition No. 1366 of 2000, which has been allowed by Tribunal vide judgment and order dated 26.8.2013, impugned in this writ petition.
5. Tribunal has relied on Government Order dated 5.11.1985 in order to justify that claimant-respondent is a Group – D employee and entitled to retire at the age of 60-years. However, we find that the judgment of Tribunal is totally unsustainable. Fundamental Rule 56 before its amendment in 2001 provided the age of retirement as 58-years for all Government servants except those in inferior service and provided retirement age 60-years to employees who are in inferior service. All Group-D employees are not in inferior service. Group-D employees according to pay scale are treated in superior and inferior service. Tubewell operators subsequently were classified Group-C employees and are not inferior in service. Tribunal has not recorded any finding that claimant-respondent was in inferior service. This aspect has been considered by a Full Bench of this Court in Surya Deo Mishra Vs. State of UP and others; 2006 (5) AWC 5306 (FB) and otherwise judgment of this Court taking a different view holding that all Group-D employees will retire on attaining the age of 60-years has been overruled. This court has also held that Government Orders or Executive Orders will not have the effect of modifying statutory provision of Fundamental Rule – 56 which is not a mere Rule enacted under proviso to Article 309 of the constitution but has been inserted by provincial legislation. According to the Rule, those employees who are inferior in service are liable to retire at the age of 60-years and for superior employees the age of retirement has been defined as 58-years.
6. In view of above judgment the otherwise view taken by Tribunal cannot be held correct and sustainable in the eyes of law. Writ Petition is allowed. Judgment and order dated 26.8.2013 passed by Tribunal in Claim Petition No. 1366 of 2008 is set aside and claim petition of the claimant- respondent is dismissed.
Order Date :- 25.4.2018 SKS