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Allahabad High Court · body

2007 DIGILAW 1452 (ALL)

BEHARI LAL v. STATE OF U P

2007-05-14

DEVI PRASAD SINGH

body2007
DEVI PRASAD SINGH, J. Since, common question of law and facts are involved in both the writ petitions, with the consent of parties Counsel, I proceed to decide both the writ petitions finally by a present common judgment. 2. Petitioner of Writ Petition No. 4216 (SS) of 2005 was initially appointed on the post of Junior Clerk/typist and thereafter he was promoted to the post of Assistant Grade II in the U. P. Scheduled Caste Finance and Development Corporation Limited and petitioner of Writ Petition No. 4711 (SS) of 2005 has been working as Assistant Manager in the U. P. Scheduled Caste Finance and Development Corporation Limited, have approached this Court under Article 226 of the Constitution of India with the grievance that they are entitled to continue in service up to the age of 60 years. 3. The submission of learned Counsel for the petitioner is that for Government employees, in pursuance to provision contained in the Financial Handbook, the age of superannuation is 60 years. 4. Learned Standing Counsel does not dispute that in Para 56 of the amended Financial Handbook, the age of superannuation of Government employees has been enhanced to 60 years. 5. Learned Counsel for the petitioner further proceeded to submits that under Rule framed for the employees of the U. P. Schedule Caste Finance and Development Corporation Ltd. (in short hereinafter referred as Corporation) namely; Service Rules for Employees of U. P. Scheduled Caste Finance and Development Corporation Ltd. , Lucknow 1983-84 (in short hereinafter referred as the Rule), the age of superannuation has been made at par with the U. P. State Government employees. For convenience Rule 25 of the Rule is reproduced as under : "discharge on superannuation.- The age of superannuation will be the same as is prescribed by the U. P. State Government for its employees from time to time. An employee of the Corporation shall be allowed the discretion to retire voluntarily after completing 20 years of continuous service or attaining the age of 50 years whichever is later. " 6. On the other hand, learned Counsel for the respondents submits that Rule referred hereinabove lacks statutory force and it has not been framed under Article 309 of the Constitution of India. However, it has been admitted that service rule has been framed and approved by the Board of the Corporation in question. " 6. On the other hand, learned Counsel for the respondents submits that Rule referred hereinabove lacks statutory force and it has not been framed under Article 309 of the Constitution of India. However, it has been admitted that service rule has been framed and approved by the Board of the Corporation in question. Once it has been admitted that the age of superannuation of Government employees is 60 years under Rule 25 referred hereinabove the age of superannuation of the employees of the corporation in question shall be at par with the Government employees then there is no justification on the part of respondents to retire the petitioner at the age of 58 years. The Government order dated 25- 7-2002 provides that age of superannuation of the employees of the Corporation shall be same as well as existing prior to enhancement of age of superannuation of the Government employees. The Government order dated 25-7-2002 seems to be in contravention of provisions contained in the Financial Handbook. 7. Learned Counsel for the petitioner has rightly invited the attention of this Court towards a judgment of this Court reported in 2004 (22) LCD 1164, Afsar Shahin v. Basic Shiksha Parishad & Ors. , where after considering the Apex Court judgements it has been held that statutory provisions can not be diluted or modified or overridden by the Government orders or circulars. The provisions contained in the Financial Handbook are made in pursuance to power conferred by Article 309 of the Constitution of India, which has got statutory force. Since, Government employees are working up to the age of 60 years then obviously in view of Rule 25 of the Rule referred hereinabove of the petitioner shall also be entitled to continue up to the age of 60 years. 8. It has not been disputed by Shri Rajan Roy learned Counsel for the respondents that the service rule framed of the corporation has been duly approved f by its Board. It has also been admitted by Shri Rajan Roy learned Counsel for the respondents that service rule has been made applicable to the employees of the Corporation in question. 8. It has not been disputed by Shri Rajan Roy learned Counsel for the respondents that the service rule framed of the corporation has been duly approved f by its Board. It has also been admitted by Shri Rajan Roy learned Counsel for the respondents that service rule has been made applicable to the employees of the Corporation in question. Once service rules has been made applicable for all practical purpose regulating the service condition of the employees of the corporation then there is no justification on the part of respondents to retire the petitioner at the age of 58 years in contravention of provisions contained in Financial Handbook. The Government Order dated 25-7-2002 relied upon by the respondents Counsel shall not come in the way to avail the benefit of rights flowing from Fundamental Rule 56 of the Financial Handbook. Moreover the Government order seems to be vague and it does not speak that how the benefit accruing to the employees in pursuance to right flowing from Fundamental Rule 56 can be denied. 9. In view of above, writ petition deserves to be allowed. The petitioner shall be entitled to continue in service up to the age of 60 years keeping in view the provisions contained of Financial Handbook read with Rule 25 of the Service Rule referred hereinabove. Accordingly, writ in the nature of mandamus is issued commanding the opposite parties to permit the petitioner to continue in service up to the age of 60 years for all practical purpose with consequential benefits. 10. Writ petition is allowed accordingly. No order as to costs. Petition allowed. .