Hon'ble Ferdino I. Rebello, C.J. - (1.) THE State, aggrieved by order dated 23.3.2010 passed in Writ Petition No. 10464 of 2009, has preferred this appeal. THE learned Single Judge in the order has noted that the Government Order dated 9th March 2004, on the basis of which the notice was issued to the writ petitioner - respondent (hereinafter referred to as the 'respondent') retiring him at the age of 58 years, had already been quashed, and that fact has been noticed by the Division Bench in its order dated 7.10.2009 passed in Writ Petition No. 51679 of 2009 and, accordingly, quashed the notice dated 29.12.2008, and held that the respondent would be entitled to continue up to the age of 60 years, and shall also be paid salary in lieu thereof.
(2.) IN Writ Petition No. 51679 of 2009, the learned Division Bench, after noting the contention urged on behalf of the petitioner therein that the Government Order dated 9th March, 2004 had been quashed by judgment and order dated 8th September, 2009 in Writ Petition No. 39043 of 2006 (Jai INdra Dutt Sharma v. State of U.P. and others) and other connected petitions, granted interim relief in favour of the petitioner in the said writ petition. Writ Petition No. 39043 of 2006 was disposed of by a learned Single Judge of this Court relying on the judgment of another learned Single Judge of Lucknow Bench in the case of Kalika Prasad v. State of U.P. and others (Writ Petition No. 45 (SS) of 2005), wherein it was held that the age of retirement of the employees of DRDA would be 60 years. The learned Single Judge in Kalika Prasad (supra) relied on Rule 56 of the Fundamental Rules. The appellants had relied on the Government Order dated 9.3.2004. The learned Single Judge proceeded to hold that the provisions contained in Fundamental Rules, legislated under Article 309 of the Constitution of India, have got statutory force, and that it is settled law that the executive instructions cannot alter or modify a statutory rule and, accordingly, held that Government Order dated 9.3.2004 is not sustainable, as Rule 56 of the Fundamental Rules would be applicable in respect of the employees of DRDA. In this appeal, correctness of this view has been called in question. To understand the controversy, we may note a few aspects. The respondent herein is working in the DRDA, which was earlier created in each district of the State gnder the directions of the Government of India for ensuring effective implementation of rural development programmes. Formal creation of DRDA was contemplated under the Office Memorandum of the Government of India dated 24.10.1980, which provided that DRDA will be created as a Society in each district. The State Government, vide Government Order dated 24.11.1980, created DRDAs in each district. The Central Government issued an Office Memorandum dated 10.3.1981 pursuant to which all DRDAs prepared almost identical Bye-laws. As regards the structure of DRDAs, District Magistrates are the Head of each DRDA and total funding is being done by the Central Government and State Government in the ratio of 70 - 30. Applying the test of funding and pervasive control which the State have over the DRDAs, there can be no dispute that the DRDA is a State within the meaning of Article 12 of the Constitution of India. [See Anoop Rai Jain and others v. State of U.P. and others, Writ Petition No. 458 (SB) of 2000 of Lucknow Bench, decided on 24.12.2009]. The question for our consideration is, whether the employees of DRDA are Government employees and are holding civil post in the civil services of the State to make applicable Rule 56 of the Fundamental Rules.
(3.) BEFORE dealing with the issue, we may frame two questions, which have been raised and are required to be answered: (1) Considering the Bye-laws of the Society and more specifically Bye- laws 19 and 20 (h) read with Government Notification dated March 17,1994, was it open to the State Government to have issued the Government Order dated 9.3.2004 fixing the age of retirement of the employees of DRDA as 58 years? (2) Whether the employees of DRDA are holding civil posts and/or are Government employees of the State, in order to make applicable Rule 56 of the Fundamental Rules and, consequently, would they be governed by Government Notification dated 28.11.2001, whereby the age of retirement of the Government servants has been fixed as 60 years under Rule 56 of the Fundamental Rules? On behalf of the State, it has been submitted that the employees of DRDA are employees of that Society and are not Government employees and, therefore, they would be governed by the conditions of service, which has been notified under Government Notification dated 17th March 1994, as amended by Government Order dated 9.3.2004.;