SUDHIR AGARWAL, J. - (1.) THE petitioner is an employee in District Rural Development Agency (hereinafter referred to as the 'DRDA'), which is a society registered under the Societies Registration Act, 1860 (hereinafter referred to as the "Act, 1860"). As per the existing provisions applicable to employees of DRDA the age of retirement is 58 years and, therefore, the employees are being retired on attaining the age of 58 years. In Fundamental Rules 56 an amendment was made in exercise of power under proviso to Article 309 of the Constitution changing age of retirement from 58 to 60 years. The employees of DRDA claiming that DRDA is a society managed by State Government officials and, therefore, is an instrumentality of the State, hence is covered by Article 12 of the Constitution. That being so, the employees of DRDA are holders of civil posts and the Rules, applicable to government employees, are applicable to them hence with the enhancement of age of retirement vide Fundamental Rule 56, they are also entitled to continue up to the age of 60 years.
(2.) THIS issue came to be considered by a Division Bench of this Court in Special Appeal No.687 of 2010 (State of U.P. Vs. Pitamber). The Court formulated the following question: "Whether employees of DRDA are Government employees and are holding civil post in the civil service of State to make applicable Fundamental Rule 56". Two more questions were formulated by this Court as under: "(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 09.03.2004 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?"
(3.) ANSWERING the above questions, in paras 16 and 17, the Division Bench said in its judgment dated 19.08.2010 as under: "16. Considering the above referred judgments and the material on record, it will be clear that firstly the DRDA is a Society registered under the Societies Registration Act. Its funding is 70 percent from the Central Government and 30 percent from the State Government. The members of the Society and also the Working Committee are basically persons holding the posts in government service, mostly in the State Government and some in the Central Government, as the object is of rural development. Bye -law 20 (h) recognizes that the staff are to be appointed by the Governing Body. The accounts are to be approved by the Governing Body in its annual general meeting. Suits are to be filed against the Society. Thus, though there may be funding by the Central/State Governments and control by the State Government, nonetheless they are employees of the Society. Some posts are filled up on transfer by the Governor and in respect of others, appointments are to be made by the Chief Executive Officer, who is the District Magistrate. Considering the tests laid down in Kanik Chandra Dutta (supra), we are clearly of the opinion that the tests laid down in the judgment of the Supreme Court are not satisfied. Once it is held that they are the employees of DRDA and are not holding civil posts in the service of State, Rule 56 of the Fundamental Rule would not apply to them. 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 09.03.2004 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." ;