- (1.) THE Petitioner was serving as Assistant Engineer and was posted in Construction Division -28, U.P. Awas Evam Vikas Parishad, Kamlanagar, District Agra. By this writ petition he has prayed for a writ of mandamus commanding the Respondents not to retire him on superannuation on completing 58 years of age on 31.12.2010.
(2.) LEARNED Counsel for Petitioner states that though Regulation 45 of U.P. Awas Evam Vikas Parishad (Condition of Service) Regulation, 1966 provides, that except Class IV employees, who will retire at the age of 60 years, all other employees of the Parishad will retire at the age of 58 years, Regulation 6 provides that wherever the regulations are not clear and if there is nothing to the contrary in the regulations, the general conditions of service applicable to the State Government employees with amendments made from time to time will regulate the service conditions of the employees of the Parishad. It is submitted by Shri R.K. Ojha that under F.R. 56 (a) was amended by the U.P. Fundamental (Amendment) Rules, 2002, w.e.f. 27.6.2002, applicable to the employees of the State Government extending the age of superannuation of all the Government servants from 58 years to 60 years. He submits that in view of Regulation 6 of the Regulations of 1966, the amendments made in Fundamental Rule 56 (a) will also apply to the employees of the Parishad. He has relied upon a judgment of Supreme Court in Harvindra Kumar v. Chief Engineer Karmik Civil Misc. Writ Petition No 3449 of 2002 decided on November 18, 2005 reported in, 2006 ALJ 1 336.
(3.) REGULATION 45 in the Regulations of 1966, as aforesaid specifically provides for the retirement age of the employees of the Parishad, and which regulates the field. Regulation 6, is a residuary clause applicable to those service conditions for which either there is no specific service condition in the Regulations or such service conditions are not clear, and there is nothing contrary in the regulations. In the matter of Jal Nigam as held by the Supreme Court found in Harvindra Kumar's case there were two categories of employees namely those who were employees of the State Government, who had continued with protection of their service condition after the establishment of the Jal Nigam, and those who were appointed in the Jal Nigam. The Supreme Court in para -8 of the judgment held that after the amendment made in Rule 56 (a) of the Rules, by the State Government enhancing the age of superannuation of government servants from 58 years to 60 years, the same would equally apply to the employees of the Nigam and in case the State Government as well as the Nigam intended that the same would not be applicable, the only option with it was to make suitable amendment.;