Mohd. Umer v. State of U. P. — 1995 DIGILAW 1173 (ALL)

JUDGMENT K. C. Bhargava, J. 1. Aggrieved against the order dated 13.8.93 passed by a learned Single Judge of this court in Writ Petition No. 4932 (S/S) of 1993. the petitioner has come up in appeal. 2. The facts leading to this appeal are that the petitioner has been made to retire with effect from 30.4.1993 at his attaining the age of superannuation at 58 years. This notice was received by the petitioner on 28.4.1993, a copy of which has been filed along with petition. The petitioner was appointed in the Government Printing Press as Machine Sahayak. The date of birth of the petitioner is noted as 12.4.1935 and the post of Machine Sahayak belongs to category 'D', i.e., class IV. In this way, the petitioner's age of retirement was 60 years and he should have been retired on 30.4.95. According to Fundamental Rule 56 (a) of the Financial Hand Book. Vol. II, Parts II to IV, the petitioner should have been retired at the age of 60 years. The other employee Mohd. Yamin, who was also Machine Sahayak was retired after attaining the age of 60 years. The defence of the respondent State of U. P. is that the post of Machine Sahayak belongs to group 'C, i.e., Class III and the age of retirement of the petitioner is 58 years. 3. In the supplementary affidavit filed by the petitioner, it has been stated that the petitioner inspite of the revision of pay scales and drawing basic pay of Rs. 1,320, still continues to have the status of class IV employee and should have been retired at the age of 60 years. 4. The learned Single Judge after considering the relevant provisions of the Financial Hand Book, came to the conclusion that the age of retirement of the petitioner will be 58 years as he belongs to group 'C after the revision of the pay scales. The present appeal is directed against this order. We have heard learned counsel for the petitioner as well as learned standing counsel. 5. The only question which arises for determination in this appeal is as to whether the age of retirement of the petitioner is 58 years or 60. If the petitioner belongs to group 'C, then his age of retirement will be 58 years and if the petitioner belongs to group 'D', his age of retirement will be 60 years. 5. The only question which arises for determination in this appeal is as to whether the age of retirement of the petitioner is 58 years or 60. If the petitioner belongs to group 'C, then his age of retirement will be 58 years and if the petitioner belongs to group 'D', his age of retirement will be 60 years. This will depend upon the interpretation of Fundamental Rule 56 (a) of the Financial Hand Book Vol. II, Parts II to IV. 6. According to the learned counsel for the petitioner. Rule 56 mentioned above, provides for the status of a post and the report of the Pay Committee which has been enforced from 1.1.1986 does not change the status of the petitioner from group 'D' to group 'C, he, therefore, continues to belong to group 'D', i.e., class IV. For the sake of convenience. Fundamental Rule 56 may be reproduced as under:- "56. (a) Except as otherwise provided in other clauses of this rule, every Government servant 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 retirement on superannuation, 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 : Provided that a Government servant, recruited before November 5, 1985 and holding the group 'D' post shall retire from service on the afternoon of the last day of the month in which he attains the age of 60 years. Explanation.- The above proviso shall not be applicable in those cases where the status of a post/posts referred to in the above proviso, has been changed after February 27. 1982 and categorised in higher group of post/posts." A perusal of this rule, which has been amended, goes to show that every Government servant shall retire from service on the last day of the month in which he attains the age of 58 years if not otherwise provided in other clauses of this rule. A proviso attached to Rule 56 shows that a person belonging to group 'D' post shall retire on his attaining the age of 60 years if he was recruited before November 5, 1985. A proviso attached to Rule 56 shows that a person belonging to group 'D' post shall retire on his attaining the age of 60 years if he was recruited before November 5, 1985. An Explanation has also been attached to this proviso, which shows that in case the status of a post referred to in the above said proviso, has been changed after February 27, 1982 and categorised in the higher group of post, then that proviso shall not be applicable. It means that after implementation of the report of the Pay Committee categorization is done by the State Government, which changes the status of a post after 27th February, 1982, then the categorization provided by the Government shall be made applicable and the person, who was previously in group 'D' may be placed in group 'C', shall be retired on his attaining the age of 58 years. 7. Now we have to see as to whether the status of the petitioner has been changed or not after implementation of the recommendation of the Pay Committee from 1.1.1986. Learned counsel for the petitioner has argued that Karmik department of the State Government has not issued any Government Order for categorization of the services after coming into force of the report of the Pay Committee, which has been implemented from 1.1.86. This fact has not been disputed by the learned standing counsel. Learned counsel for the petitioner has argued that in the past whenever Pay Committee report was received and it was implemented by the State Government, categorization of the services was done. 8. Annexure 7 to the appeal is a Government order issued by Karmik department on 27th February, 1982, which categorised the employee according to the pay scales. This categorization of services was made on the basis of the recommendations of the Pay Committee report of 1971-73. It provides for four types of services which have been grouped as A, B, C and D. Different pay scales have been provided with respect to all these groups. It is provided that all those non-gazetted posts, whose minimum pay scale is Rs. 354 or above but maximum is not above Rs. 1,720 will be placed in group 'C and other employees have been placed in group 'D'. Thus, in the case of non-gazetted employees, two groups have been provided, namely, group 'C and group 'D'. It is provided that all those non-gazetted posts, whose minimum pay scale is Rs. 354 or above but maximum is not above Rs. 1,720 will be placed in group 'C and other employees have been placed in group 'D'. Thus, in the case of non-gazetted employees, two groups have been provided, namely, group 'C and group 'D'. In group 'C the employees who are commonly known as class III and in group D' the employees who are commonly known as class IV are placed. Prior to this, there was another Pay Commission report of 1964-65 and on the basis of the recommendations of the Pay Committee, Karmik department of the Government of U. P. Issued a Government order on September 4, 1976 categorizing the employees into four groups as A, B, C and D. In this case, all non-gazetted employees whose minimum pay scale was Rs. 200 or above, was placed in group 'C provided that the maximum scale was upto Rs. 1,200. All other employees whose pay scale was less than Rs. 200 have been placed in group 'D'. 9. Thus, we find that after the submission of the report of the Pay Committee, categorization of the Government servants are being done by the State Government. But in the present case after implementation of the report of the Pay Committee with effect from 1.1.1986, no categorization of the employees has been done. The argument of the learned standing counsel is that if no categorization has been done after 1.1.1986 then the categorization which was done by the Government order dated 27.2.1982 should be applied in the present case, according to which the pay scale of Machine Sahayak has been categorised as group 'C 10. Annexure 1 to the counter-affidavit in appeal is a chart showing the pay scales. The pay scale of Machine Sahayak is mentioned as 950-1,400. Thus, according to the learned standing counsel as the maximum scale of the Machine Sahayak is now Rs. 1,400, therefore, the petitioner will belong to group C. On the other hand, learned counsel for the petitioner has argued that only the pay scale has been changed and not the status of the post as was done in previous Government orders, referred to above, which were issued after implementation of the Pay Committee report. As has been seen above. Fundamental Rule 56 speaks of status and not of pay scales. As has been seen above. Fundamental Rule 56 speaks of status and not of pay scales. It clearly provides that where the status of a post or posts referred to in the proviso has been categorised after February 27, 1982 and categorised in higher group of post, only then the status of an employee will be changed. Thus, what is necessary to be seen is that the status of the post from group 'D' should have been changed from group 'C and the persons working in group 'D' must have been categorised in group 'C on the basis of the pay scales recommended by the Pay Committee. Unless status of the post is changed and categorization of the Government servant is done by the State Government, it cannot be said that the post of Machine Sahayak, which was previously in group 'D' will now automatically be converted in group 'C. It appears that the State Government did not consider it necessary to issue any Government order categorising the posts after the receipt of the recommendations of the Pay Committee and placing some of the posts of group D' in group C on the basis of the pay scales recommended by the Pay Committee. 11. Therefore, on the basis of the evidence on record, it is clear that the status of Machine Sahayak has not been changed by the State Government after receipt of the recommendations of the Pay Committee, which has been implemented with effect from 1.1.1986 and that the post of Machine Sahayak has not been categorised in higher group of posts. On the basis of these facts and reasoning, it can only be concluded that the post of Machine Sahayak still continues to be a post in group 'D' popularly known as class IV post. 12. Learned counsel for the State has argued that the appointing authority is competent to decide as to which category the petitioner belongs. According to him, the appointing authority in the case of the petitioner has taken a decision that the petitioner will retire at the age of 58 years as he belongs to group C. This contention of the learned standing counsel cannot be accepted and is rejected straightway. According to him, the appointing authority in the case of the petitioner has taken a decision that the petitioner will retire at the age of 58 years as he belongs to group C. This contention of the learned standing counsel cannot be accepted and is rejected straightway. The matter of fixing the age of retirement cannot be left to the discretion of the appointment authority, otherwise chaotic situation will prevail in various departments of the Government because it may lead that one appointing authority may take a view that a particular post falls in group 'C and that the employee will retire at the age of 58 years and another employee in another department may be made to retire at the age of 60 years. In order to make this petition clear, it would not be out of place to mention that an order was issued by the Director, Directorate of Pension, Lucknow to Joint Director of Government Printing Press, Lucknow on 10.8.1992, which shows that the post of Machine Sahayak comes in class III and the date of birth of Aziz Masi is 15.3.1932, according to which Aziz Masi should have been retired on 31.3.1990, but he has been retired on 31.3.1992 and in this way, he has been allowed two more years to continue in Government service. In para 2, it is mentioned that no change in the post has been done. 13. In the same way Annexure 4 to the counter-affidavit filed in appeal is another letter written by Dy. Secretary, State Government of Uttar Pradesh to Joint Secretary, Government Printing Press on 18.8.1993. This letter deals with the age of retirement with respect to the employees working In the Government Printing Press. It mentions that in view of the Pay Commission Report, no categorization, has been done, therefore, on the basis of old categorization, the post of Machine Sahayak in the pay scale of Rs. 950-1,400 will be deemed to be a post of group 'C. 14. Annexure 8 to the appeal filed by the petitioner is a letter written by Joint Secretary, U. P. Government to Chief Engineer, Irrigation Department on 30.1.1993. It deals with the determination of the age of retirement of employees working in the Irrigation Department. 950-1,400 will be deemed to be a post of group 'C. 14. Annexure 8 to the appeal filed by the petitioner is a letter written by Joint Secretary, U. P. Government to Chief Engineer, Irrigation Department on 30.1.1993. It deals with the determination of the age of retirement of employees working in the Irrigation Department. It refers to a G.O. dated 28.7.87 issued by the Finance Department in which it has been clearly mentioned that the employees who were recruited before 5th of November, 1985 and were placed in group 'D'. will retire at the end of the month after attaining the age of 60 years. In para 2, it is mentioned that on the basis of new pay scales fresh orders of categorization has not been issued by the State Government, therefore, the post which were previously placed in a particular group shall be deemed to be placed in the same group and accordingly the age of retirement shall be determined. It further mentions that according to pay scales in view of the old categorization, the status of the post/posts shall be changed. Thus, different views were prevailing in various departments about the age of retirement of persons who were previously placed in group 'D'. Some officers were of the opinion that after categorization, some of the posts of group 'D' will now belong to group C according to revised pay scales, while some of the officers were holding the view that the group will not be changed as categorization of employees has not been done by the State Government. In view of what has been stated above, it is clear that the age of retirement of the petitioner, who was working as Machine Sahayak was 60 years and not 58 years and he has been wrongly retired at the age of 58 years. His date of superannuation on attaining the age of 60 years was 30.4.1995. Thus, the petitioner has been retired two years before his actual date of retirement. As the petitioner stood retired on 30.4.1995, there is no question of ordering the State Government to take back the petitioner in service. The petitioner is only entitled to claim arrears of pay including all other benefits of these two years, i.e., from 1.5.1993 to 30.4.1995. 15. The appeal is allowed. The order of the learned Single Judge dated 13.8.1993 is set aside. The petitioner is only entitled to claim arrears of pay including all other benefits of these two years, i.e., from 1.5.1993 to 30.4.1995. 15. The appeal is allowed. The order of the learned Single Judge dated 13.8.1993 is set aside. It is directed that the opposite parties shall pay to the petitioner all emoluments within one month from today as directed above w.e.f. 1.5.1993 to 30.4.1995 and the petitioner will be entitled to the pension and other retirement benefits accordingly. The petitioner shall get costs throughout.