ORDER This application under Article 226 of the Constitution of India is directed against a superannuation notice dated July 8, 1991 of the Superintendent of Excise, Burdwan (East Area), which is Annexure “B” to the writ petition requiring, inter alia, the petitioner to retire on January 31, 1992 on attaining 58 years of age. 2. Mr. Behani, learned Advocate appearing for the petitioner submits that in terms of Rule 76, Note 2 to the West Bengal Service Rules, Part I, those group D employees, who became group C employees consequent upon the introduction of the West Bengal Services (Revision of Pay and Allowances) Rules, 1981 although prior to such revision of pay scale they were in group D, may be treated as belonging to group D government employee for the purpose of age of retirement and they may, accordingly, be retained in service up to the age of 65 or 62 years, in accordance with the provisions of sub-rule (a) or sub-rule (b) of the said rule. Mr Behani has annexed a copy of an order passed by the Hon'ble Mr. Justice Shyamal Kumar Sen on October 31, 1990 in Matter No. 1875 of 1988, which is Annexure “C” to the writ petition in which his Lordship ordered that an employee should retire on reaching the age of superannuation at the age of 60 years and not 58 years on production of the materials placed before the learned Judge. 3. Mr. Dutta, learned Advocate appearing for the State submitted that Note 2 to Rule 76 of the West Bengal Service Rules, Part I is not applicable to the case of the petitioner, inter alia, inasmuch as the petitioner was not converted from group D to group C consequent upon the introduction of the West Bengal Services (Revision of Pay and Allowances) Rules, 1981; that the petitioner was already in group C consequent upon the introduction of the West Bengal Services (Revision of Pay and Allowances) Rules, 1981 and as such the petitioner should be governed by the notification of the Finance Department, Audit Branch dated September 25, 1979, which is Annexure “P” to the affidavit-in-opposition. From the aforesaid notification, it appears that all government employees drawing a pay or a scale of pay with a maximum of Rs 500/- and below but above Rs. 230/- are to be treated as group C employees. Mr. From the aforesaid notification, it appears that all government employees drawing a pay or a scale of pay with a maximum of Rs 500/- and below but above Rs. 230/- are to be treated as group C employees. Mr. Dutta submits that in 1971, the petitioner was already in the scale of Rs. 160-3-250/- and as such he was already in Group C. It, however, appears from the attested duplicate copy of the service book of the petitioner that as an April 1, 1971 the pay of the petitioner was 163/-. The notification referred to by Mr. Dutta provides that all government employees drawing “a pay or a scale of pay”, and not “pay in the scale of pay”. This distinction becomes material for the reason that although a person may be in a prosperous scale of pay, yet he may not be getting that pay at, a particular point of time which becomes material for the purpose of deciding the group in which he is to be treated. In 1971, the petitioner drawing a Pay of Rs, 163/-, was still in group D. But he came to group C only after the notification of the West Bengal Services (Revision of Pay and Allowances) Rules, 1981. If that be so, Note 2 to Rule 76 of the West Bengal Service Rules, Part I become directly applicable to him and his age of retirement would, in that case, be 60 years. Mr Dutta further submits that before Mr. Shyamal Kumar Sen J, this aspect of the matter was not brought to the notice of the Court. I have taken note of that fact as submitted by Mr. Datta and I have expressed my opinion on the basis of the notification In the instant case, I have come to the conclusion on the basis of the submissions made by Mr. Datta, and has not relied on the judgment of Shyamal Kumar Sen J for the reasons stated above, but I agree with the judgment of Shyamal Kumar Sen J as stated by me. 4. In the circumstances, this application succeeds and is allowed. The impugned order is quashed and set aside. The respondents are directed to treat the petitioner, for the purpose of the age of retirement, as belonging to group D. 5. There will be no order as to costs. 6. After the judgment was delivered Mr. 4. In the circumstances, this application succeeds and is allowed. The impugned order is quashed and set aside. The respondents are directed to treat the petitioner, for the purpose of the age of retirement, as belonging to group D. 5. There will be no order as to costs. 6. After the judgment was delivered Mr. Datta prayed for stay of operation of this order. The prayer is refused as no complicated question of law is involved in this matter. 7. This judgment will also govern C.O. 11127(W) of 1991 In re : Dulal Kumar Mitra v. State of West Bengal & Ors. Application allowed; impugned order quashed.