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2014 DIGILAW 1166 (ALL)

BHOLA NATH PAL v. STATE OF U. P.

2014-04-10

SUDHIR AGARWAL

body2014
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard learned counsel for the petitioner, learned C.S.C. for the respondents and perused the record. 2. The petitioner has been made to retire after attaining the age of 58 years under Fundamental Rule 56. The petitioner however, claims that he is entitled to retire on attaining the age of 60 years and not 58 years, in view of Government notification dated 28th November, 2001 (annexure No. 3 to the writ petition), whereby, decision was taken to amend Rule 56. 3. Learned Standing Counsel has pointed out that Fundamental Rule 56 was amended by a Notification issued in exercise of powers under proviso to Article 309 of Constitution of India. 4. I find that under Fundamental Rule 56, age of retirement, strictly speaking, is still 58 years. There is no amendment in the eyes of law. 5. Fundamental Rule 56 was inserted and substituted by provincial legislation i.e. vide U.P. Act No. 33 of 1976 [U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1976] and therefore, any amendment therein could have been made only by principal provincial legislature. No amendment therein can be made in exercise of power under Proviso to Article 309 of the Constitution i.e. Rule framing power, since legislature has already intervened by promulgating a principal enactment containing a single provision i.e. Fundamental Rule 56. Learned counsel for petitioner admitted that Government Notification dated 28th November, 2001, is not enactment of Provincial Legislature but the legislative power exercised by the Governor under proviso to 309 and it is subordinate to legislation made by the State Legislature. Since Fundamental Rule 56 is inserted and substituted in the statue book, by virtue of provincial legislation, same cannot be amended by mere Government notification and therefore, it cannot be said that retirement age of 58 years, provided in Fundamental Rule 56, stands amended to 60 years by Notification dated 28th November, 2001. 6. On repeated quary made from learned counsel for petitioner, he could not dispute that there is no legislative amendment in Fundamental Rule 56, inserted by U.P. Act No. 33 of 1976. 7. The amendment notification dated 28.11.2001 is a formal amendment notification by State Government in exercise of rule framing power. 6. On repeated quary made from learned counsel for petitioner, he could not dispute that there is no legislative amendment in Fundamental Rule 56, inserted by U.P. Act No. 33 of 1976. 7. The amendment notification dated 28.11.2001 is a formal amendment notification by State Government in exercise of rule framing power. It appears that State Government has completely failed to notice that Fundamental Rule 56 having been brought on statute book by a legislative Act, no amendment can be made therein in exercise of rule framing power under proviso to Article 309 of the Constitution. 8. In the present case, by notification dated 28.11.2001, issued in exercise of rule framing power under proviso to Article 309 of the Constitution, the State Government has sought to amend Fundamental Rule 56, by increasing age of retirement to 60 years, which is patently illegal, arbitrary and without jurisdiction. 9. In the circumstances, it will have no impact of amending Fundamental Rule 56, inserted by U.P. Act No. 33 of 1976. In the result it cannot be doubted that petitioner has rightly been retired on attaining the age of 58 years in the light of statutory provision as it stand on the Statute Book. As such, no relief can be granted. 10. In view of above, I find no merit in the writ petition. 11. Dismissed. ——————