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Allahabad High Court · body

2006 DIGILAW 1859 (ALL)

RAM PRAKASH TIWARI v. STATE OF UTTAR PRADESH

2006-08-04

SHISHIR KUMAR

body2006
JUDGMENT Hon’ble Shishir Kumar, J.—Writ Petition No. 25158 of 2002 has been filed for quashing the impugned order/notice dated 21.6.2002, Annexure-2 to the writ petition. Further prayer is for issuing a writ of mandamus directing the respondents to permit the petitioner to continue as lecturer in the institution. 2. Writ Petition No. 26772 of 2002 has been filed by the petitioners for quashing the orders dated 29.6.2002 and for a direction declaring the second proviso of U.P. Fundamental Rules 56 (a) as substituted by Notification dated 26.6.2002 to be ultra vires to Article 14 of the Constitution of India and accordingly inoperative. 3. The facts arising out of the writ petitions are that the petitioner in Writ Petition No. 25158 of 2002 was appointed as Assistant Teacher in the Government Inter College, Fatehpur in 1964. It has been stated that the petitioner is entitled to continue up to the age of 60 years in view of the amendment dated 28.11.2001 in Fundamental Rules in which the age of retirement of government servant has been extended from 58 years to 60 years. As such, the petitioners were also entitled to get the said benefit. But a retirement notice dated 21.6.2002 has been issued to the petitioners retiring the petitioners on 30.6.2002. The petitioner No. 1 in Writ Petition No. 26772 of 2002 was appointed as Assistant Teacher in the L.T. Grade on 25.1.1965 and petitioner No. 2 was appointed in 1971. The date of birth of the petitioners No. 1 and 2 is 2.7.1943. As the age of retirement has been enhanced by a notification dated 28.11.2001 from 58 years to 60 years, as such the petitioners are entitled to get the said benefit. 4. As the common question is involved in both the writ petitions, as such the same is being decided by a common judgment. 5. It has been argued on behalf of the petitioners that according to Fundamental Rules 56 (a) as substituted by notification dated 27.6.2002 under which it provides that a government servant who has attained the age of 58 years on 1.11.2001 or any date earlier thereto but is continuing on extension of service, his services will come to an end upon such extension. The second proviso of U.P. Fundamental Rules 56 (a) is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. The second proviso of U.P. Fundamental Rules 56 (a) is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. It has been submitted that the petitioners have been discriminated because even otherwise all the persons attaining the age of 58 years on or before 27.11.2001 constitute a single class who have second proviso effect artificial classification between the persons having attained 58 years of age on or before 1.11.2001 and persons attaining the age of superannuation between 2.11.2001 to 21.11.2001. As the petitioners were continued in service on 28.11.2001 on account of fact that the extension is available till the end of academic session to persons holding the posts of teachers, the persons who have completed 58 years of age between 2.11.2001 and 27.11.2001 were also on extension of service as on 28.11.2001 on account of stipulation that in case a person attains the age of superannuation in the middle of the month, he will be retired from service at the end of the said month. The petitioner has also challenged the vires of Fundamental Rules 56 (a) as substituted by Notification dated 27.6.2001. Therefore, the question involved in the present writ petition is whether the teachers who have been continuing in sessions benefit, whether the aforesaid service will be counted as service period? Under the Government Order dated 21.3.1984, the State Government provides that those teachers including the Principal and the Head Master who are working in a Government College and a Degree College, if they attain the age of 58 years during the session after 1st of July and before 30th June, they will be granted extension of service on fulfilment of certain conditions till the end of session i.e. 30th of June. In terms of the aforesaid Government Order the petitioners were allowed to continue till 30.6.2002. The Governor of Uttar Pradesh framed the U.P. Fundamental (Amendment) Rules 2002 which was notified by the Notification dated 27.6.2002 amending the Fundamental Rules 56. It was made effective from 28.11.2001. The Amended Fundamental Rule 56 (a) provides that the Government servant shall retire on attaining the age of 60 years. It was further provided that if any government servant who on 1.11.2001 or before the date attains the age of 58 years and is on extension, he will retire on the expiry of the period of extension. As such, the petitioners retire on 30.6.2002. 6. It was further provided that if any government servant who on 1.11.2001 or before the date attains the age of 58 years and is on extension, he will retire on the expiry of the period of extension. As such, the petitioners retire on 30.6.2002. 6. In both the writ petitions the validity of second proviso to Fundamental Rules 56 (a) as amended by the Rules is under challenge. 7. It has been submitted on behalf of the petitioners that the age of retirement has to be fixed taking into consideration certain criteria as enunciated by the Apex Court in various decisions. According to the submissions made by the petitioners seeing the development the age of retirement which was fixed 58 years has been enhanced. The petitioners submit that the increase in the retirement age to 60 years should have been applied to all the government employees who were in service at the time when the Notification dated 28.11.2001 was issued by the State Government. According to the petitioners the notification of the State Government has increased the age of superannuation from 58 to 60 years. Therefore, the second proviso inserted by the amendment denying the benefit of increase in age of retirement to those government employees who are on extension of service on 1.11.2001 is arbitrary, discriminatory and liable to be quashed. It has further been submitted that fixing a cut off date in enforcing the amendment w.e.f. 28.11.2001 is wholly arbitrary. It has further been submitted that the second proviso has no nexus or relation with the object increasing the age of superannuation from 58 years to 60 years and being arbitrary should be quashed. 8. On the other hand counsel for the respondent submitted that prior to the amendment Fundamental Rules 56 (a) provides that every government servant will retire on the last date of month under which he attains the age of 58 years. However, he may be retained in service after the date of compulsory retirement when the sanction of the Government. It has further been submitted that the State Government under the unamended fundamental rules has been empowered to retain a Government servant in service even after the date of compulsory retirement i.e. after the age of 58 years by the said government servant on public grounds. It has further been submitted that the State Government under the unamended fundamental rules has been empowered to retain a Government servant in service even after the date of compulsory retirement i.e. after the age of 58 years by the said government servant on public grounds. In 1984 a general order was issued that the teachers, Head Master and Principals working in the Government Educational Institutions will retire on or after 1st July but before 30th of June but till 30th June. It has been submitted that the age of retirement has not been extended in such cases. Only the teachers have been retained in service and such retention cannot be treated to be in service. It is an extension to be counted for the purpose of calculation of pension increments etc. and no advantage to that effect can be drawn on the said ground. 9. The State Government subsequently has taken a decision to increase the date of retirement from 58 to 60 years and a notification to that effect was issued on 28th of November, 2001 and the said notification itself provides relating to amendment in the Fundamental Rules 56 (a). The State Government was fully justified in not giving the benefit of increase of date of retirement to such government servant who had already retired before 1st of November 2001 and were on extension and cut off date cannot be said to be arbitrary and discriminatory. 10. The counsel for the petitioner relied upon a judgment of the Apex Court reported in (2005) 5 SCC 561 , State of Kerala and another v. P.V. Neelakandan Nair and others and in view of the aforesaid judgment, it has been submitted that the Apex Court while interpreting has given the benefit of increment and promotion during the extended period, therefore, the Apex Court has treated that if a teacher is working on extension period, he is entitled to every benefit including extension of period. 11. As reported in 2005 ADJ 276 (All), Committee of Management v. State of U.P. and others, as it has held that in Madarasa extension cannot be awarded after the retirement. The counsel for the petitioner submits that the said judgment cannot be considered and is per-incurium as the judgment of the Apex Court (supra) has not been considered by this Court. The counsel for the petitioner submits that the said judgment cannot be considered and is per-incurium as the judgment of the Apex Court (supra) has not been considered by this Court. In such a situation the petitioner submits that the petitioner is entitled to benefit of the extension of age for a period of two years. 12. I have heard the learned counsel for the petitioner and the Standing Counsel. The similar controversy took attention of this Court by way of Writ Petition No. 25062 of 2002, Panna Lal Singh and others v. State of U.P. and others, and writ petition No. 48494 of 2002 Smt. Usha Saxena v. State of U.P. and others, decided on 12.11.2003 and this Court after considering all the relevant law and the submissions of the parties has come to the conclusion that in view of the law laid down by the Apex Court and this Court and in view of the present fact and circumstances of the case the Court found that the petitioner had retired on attaining the age of 58 years on the last date of month in which they completed 58 years under the un-amended Fundamental Rules 56 (a), they were retained in service. The age of retirement has not been increased at that time when they had retired. The age of retirement was increased only by issuance of notification on 28.11.2001. The notification was not to give the benefit of the increase in age of the retirement to those persons who have already been retired on or before 1.11.2001 and that is why a proviso was inserted in the Fundamental Rule 56 (a) by way of amendment which came into force w.e.f. 28.11.2001 itself. The complaint of the petitioner that the petitioners have been discriminated, as they form a separate class of themselves, cannot be accepted. The complaint of the petitioner that the petitioners have been discriminated, as they form a separate class of themselves, cannot be accepted. The operative portion of the order of the aforesaid judgment is being reproduced below : “So far as the decision of the Hon’ble Supreme Court in the case of Udai Pratap Singh (supra) is concerned, the Hon’ble Supreme Court has held that by an executive order the statutory rules cannot be whittled down nor can any retrospective effect be given to such executive order so as to disturb any such right which has crystallized by an order passed on 1st April, 1975, whereby the State of Bihar decided to merge the Junior and senior Branch of the Bihar Fire Service. There were specific Rules framed under Article 309 of the Constitution of India which were holding the field prior to merger of these two branches on 1st April, 1975. In this background, the Hon’ble Supreme Court has held that an executive order cannot operate retrospectively from 1st April, 1975 and disturb the right of seniority acquired by the persons by virtue of their appointment to senior branch. The aforesaid decision is of no help to the petitioners as in the present case, I find that the Fundamental Rule 56 (a) has been amended by the Governor of Uttar Pradesh in exercise of his powers under Article 309 of the Constitution of India by framing the Amendment Rules itself. In fact, the petitioners are claiming the benefit of the executive order, i.e., the notification dated 28th November, 2001, which had increased the age of retirement, whereas the Fundamental Rule 56(a) as amended, does not give any benefit to those persons who are on extension of service. In view of the foregoing discussions, I do not find any merit in these writ petitions, they are dismissed.” 13. I have considered the facts of the present case and the arguments raised by the petitioner. I am of opinion that the controversy raised in the present writ petition by the petitioners has already been decided in the aforesaid judgment. 14. In the result, I find no merit in the writ petitions and the writ petitions are dismissed. No order as to costs. Petition Dismissed. ———