Y.K. Srivastava, J. - (1.) HEARD Dr. Y.K. Srivastava, learned Counsel for the appellant and Sri Ashok Khare, learned Senior Advocate assisted by Sri A.B. Singh for the respondent.
(2.) THIS special appeal has been filed against the judgment and order of the Hon'ble Single Judge dated 2.2.2010 by which order, the writ petition filed by the respondent challenging the order dated 13.1.2010, by which the respondent was asked to retire after completion of the age of 58 years, has been allowed. The respondent was employed in the District Rural Development Agency at Gorakhpur holding the post of Junior Clerk. A notice dated 13/1/2010 was issued by the Project Director referring to the Government order dated 9/3/2004, that respondent after competition of 58 years of age would retire on 30/6/2010. The said order was challenged by the respondent by means of a writ petition. In the writ petition, the writ petitioner prayed for quashing the order dated 13/1/2010 and further a mandamus was sought commanding the respondents to allow the writ petitioner to continue up to the age of 60 years. The writ petition was allowed by Hon'ble Single Judge on 2/2/2010 relying on an earlier judgment dated 21/1/2010 passed in Writ petition No. 2440 of 2010. Learned Standing Counsel at the very outset submitted that the controversy raised in this appeal is fully covered by the Division Bench judgment of this Court delivered on 19/8/2010 in special appeal (D) No. 687 of 2010 State of U.P. and others v/s. Pitamber. Learned Standing Counsel further submits that State filed an appeal against a similar judgment of Hon'ble Single Judge dated 23/3/2010 by which the writ petition was allowed and the notice directing the employee to retire at the age of 58 years, was quashed. The State appeal has been allowed by the Division Bench on 19/8/2010 taking a view that the employees of DRDA are not Government servants nor Fundamental Rule 56 is applicable on them. The Government order dated 9/3/2004 by which the State Government decided that age of retirement of employees of DRDA shall be 58 years has been relied on by the Division Bench. The Division Bench after considering the submissions of the parties, recorded conclusion in paragraph 17 of the judgment, which is quoted here in below: "17. In the light of that, we are clearly of the opinion that the appeal filed by the State will have to be allowed. The employees of DRDA after 9.3.2004 will have to retire at the age of 58 years. Consequently, we hold that the view taken by the learned Single Judge in the case of Kalika Prasad (supra) that Rule 56. of the Fundamental Rules would apply so far as the employees of DRDA are concerned, does not lay down the correct law and, hence, we overrule the judgment in Kalika Prasad (supra) and all other judgments, which have taken a similar view."
(3.) SRI Ashok Khare, learned Counsel appearing for the respondent tried to distinguish the Division Bench judgment relying on clause (9) of the Government order dated 17/3/1994, which was earlier issued by the State providing that those matters which are not covered by the Government order dated 17/3/1994 or special orders issued by the State shall be regulated by the orders applicable to the employees of the State Government. Learned Counsel for the respondent submitted that by virtue of said clause (9) of the Government order dated 17/3/1994, the age of retirement which is 60 years for the State Government employees, should also govern the employees of the DRDA. We have considered the submissions of learned for the parties and have perused the record.;