- (1.) S. N. Srivastava, J. Short question canvassed for consideration in this petition is whether the petitioner, an employee governed by U. P. Co-operative Societies Employees Service Regulations, 1975 could claim to continue in the service upto the age of 60 years on the basis of Amendment in the Fundamental Rules by means of the Notification dated 27-6-2002.
(2.) THE petitioner claims to have entered the service as Lab Attendant indisputably a post in Category IV, on 24-7-1970 in the Dairy known as Infant Milk Food Factory, Dalpatpur Moradabad. By means of order- dated 1-9-1971, the petitioner received the first promotion as Lab Assistant and subsequently by means of order dated 8-12-1978; he was promoted to the post of Shift Dairy Chemist. By means of order dated 3-8-1990 the petitioner received further promotion on the post of Grade IV Manager Quality Control and again by means of order dated 20-11-2002 he was transferred and posted on the post of Manager Quality Control in the Cattle Feed Factory Meerut which is a post in the pay scale of Rs. 8000-13500. The learned counsel for the petitioner has assailed the notice of superannuation on grounds, which are two folds; firstly that since the petitioner entered the service as employee in Category IV, and the age of superannuation in relation to an employee in Category IV being 60 years, he was entitled to be retired at the age of 58 years and secondly; with the amendment in the Fundamental Rules by means of Government Order dated 27-6-2002 thereby age of retirement had been enhanced from 58 years to 60 years, the said Government Order could be imported for application to the employees governed by U. P. Co-operative Societies Employees Service Regulations, 1975. So far as the first contention of the learned counsel is concerned, it has been strenuously repudiated by the learned counsel for the respondents stating that the petitioner had in the course of service, received as many as three promotions with due approval from the Institutional Board after his initial appointment in Category IV and had risen to become Manager Quality Control, and therefore, the contention that the petitioner could be retired on attaining the age of 60 years, is far fetched and has no cutting edge. The petitioner, it has been contended, is governed by Regulation 24-A and not Regulation 24-B of the aforestated Rules.
(3.) BEFORE proceeding further, I feel called to acquaint myself with the provisions embodied in Regulations 6, 24-A and 24-B and Rule 27 being germane to the controversy involved in this petition. The aforestated Regulations are excerpted below : " (6) Every Co-operative Society shall with previous approval of the Board categorize its staff in Categories I, II, III and IV, keeping in view the emoluments, duties and functions of the employees. ***** 24. Retirement - The date of superannuation from service of an employee of a cooperative society shall be: (a) in the afternoon of the last day of the month in which he attains the age of fifty-eight years, if he is appointed to a post in Category I, II or III: Provided that, where, before commencement of the Uttar Pradesh Co-operative Societies Employees Service Regulations, 1975, the society had entered with an employee, at the time of his appointment, into a contract whereby he is entitled to be retained in service after the date on which he attains the age of 58 years, the provisions of this sub-clause shall not apply and the date of superannuation of such employee shall be determined in accordance with the terms of the said contract; (b) in the afternoon of the last day of the month in which he attains the age of sixty years, if he is appointed to a post in Category IV. ****** 27. Source of recruitment.- (i) Recruitment to various grades or categories of posts under a co-operative society shall, as far as possible; be so arranged that 25 percent of posts in Category I, 50 percent of posts in Category II and 85 percent of posts in Category III are held by persons recruited directly and the remaining posts in the said categories are held by persons appointed by promotion from amongst incumbents of the posts in the just below grade or category: Provided that the employees in Category IV shall be considered for promotion to posts in the lowest scale of pay in Category III to the extent of 15 percent of the sanctioned strength of posts in that category. (ii) Appointments to posts in Category IV, except the posts of Daftari, Jamadar etc. carrying a higher scale of pay, shall be made by direct recruitment, while the said posts of Daftari, Jamadar etc. carrying a higher scale of pay shall all be filled in by promotion from amongst employees working in the lower scale of pay in that category. (iii) Promotions to posts under a Co-operative Society, whether from one grade to another within the same category of posts or from one category of posts to another category, shall all be made on the Principle of seniority, subject to the rejection of the unfit and an employee shall not be eligible for promotion to the next higher grade or category unless he has put in continuous service for a minimum period of three years in the post held by him : Provided that the employees in Category IV shall be considered for promotion to posts in Category III under the proviso to clause (i) only after they have passed the Intermediate Examination of the Board of High School and Intermediate Education; Uttar Pradesh or any other examination recognized by the State Government as equivalent thereto. " Rule 6 of the Rules envisages that the society shall categorize its staff in respective categories keeping in view, the emoluments, duties and functions assigned to each category. Rule 24 provides that age of retirement for employees in category IV would be 60 years and those in categories other than category IV shall be retired on attaining the age of 58 years. Rules 27 prescribes source of recruitment to various categories by promotion as well as by direct recruitment. It would thus crytallise in the above perspective that the petitioner who had been initially appointed as employee in Category IV, had made grades in the service and had risen to become the Manager Quality Control and thus, his initial appointment in Category IV cannot be reckoned with to furnish foundation in order to merit superannuation at the age of 60 years as applicable to persons holding posts in category IV. It is envisaged in Rule 6 that every promotion from Category IV to category III and onwards would be made with prior approval of the Institutional Board. It is nobody's case that as many as three promotions received by the petitioner had no prior approval of the Institution Board nor has the counsel pressed this point in order to vindicate his stand that he was entitled to be retired at the age of 60 years. In this regard, Rule 24 is too patent to be ignored. Thus I do not have any hesitation to hold that the promotions received by the petitioner from one ladder to another were duly approved by the U. P. Co- operative Societies Institutional Board Lucknow and thus, he having attained the age of 58 years on the post in a category other than Category IV, the age of superannuation as prescribed for employees in Category IV cannot be imported for application to the petitioner. In the facts and circumstances that the U. P. Co-operative Societies Employees' Service Regulations have not been amended, the contention does not merit the view that the petitioner was entitled to be superannuated at the age of 60 years. It is also worthy of notice that the emoluments, duties and functions assigned to the petitioner were such which could be taken into reckoning to signify that he was holding a post which did not fall within Category IV. By this reckoning also, the petitioner cannot be said to be justified in claiming that he was entitled to be retired at the age of 60 years. As stated supra, the petitioner has not been able to make out a case to claim benefit flowing from Amendment in the Fundamental Rules inasmuch as the Amendment having taken place in the Fundamental Rules by means by Notification dated 27-6-2002, cannot be imported to inure to the benefits of employees governed by U. P. Co-operative Societies Rules, 1968 and the Regulations framed thereunder.;