- (1.) This is a petition under Article 226 of the Constitution of India for issuing a Writ of Certiorari to quash the impugned order dated 7.6.2003 passed by the opposite party No. 2 Annexure- I and a writ of mandamus commanding the opposite parties to permit the petitioner to discharge his duties as seasonal clerk of Co-operative Cane Development Society.
(2.) Heard the learned Counsel for the petitioner and Shri A.K. Pandey, learned Standing Counsel for the opposite parties. The impugned order dated 7.6.2003 Annexure-I is the retirement notice by which the petitioner has been directed to superannuate with effect from 31.12.2003 at the age of 58 years. Admittedly the petitioner has been the seasonal clerk in Co-operative Cane Development Society., Lakhimpur Kheri. The service conditions of the petitioner are governed by U.P. Cane Co-operative Service Regulations, 1975 (hereinafter referred to as the 'Regulations') framed by the Registrar, Co-operative Societies under Section 121 of the U.P. Co-operative Societies Act.
(3.) The case of the petitioner is that he is civil servant discharging public duties belonging to the marketing of sugarcane to sugar mills under the control of the District Cane Officer, Lakhimpur Kheri and thus the service rendered by a seasonal clerk pertain to discharging of the functioning of the State. It is averred in the petition that Vth Pay Commission enhanced the age of superannuation of the civil servant to be raised from 58 to 60 years and Govt. of Uttar Pradesh has accepted the same and has enhanced the age of superannuation of the government servant. The Registrar, Co-operative Societies did not treat the seasonal clerk of the Cane Development Societies of the State to be the State Government servant in respect of the age of superannuation. The Regulations do not contemplate the retirement of a seasonal clerk and no age of superannuation has been laid down in the Regulations. Regulation 47 of the Regulations is as follows : "47. Compulsory Retirement- (a). The date of compulsory retirement of a member of the Cane Co-operative Service other than the fourth class employees shall be the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement only under very special circumstances with the sanction of Cane Commissioner in the interest of the Cane Co-operative to be recorded in writing. Provided (i) the Recruiting and Appointing Authority concerned may at any time, without assigning any reason, require a member of the Cane Co-operative Service to retire on three months notice or pay in lieu of the whole or part thereof, after he attains the age of 55 years or such lesser age as together with the period of notice in lieu of which the pay is substituted would aggregate to 55 years so however, that in the case of pay being given in lieu of whole or part of such notice to said period shall stand added to the employees qualifying service for the purpose of calculating federation share of C.P.F. and the death-cum-retirement gratuity due to him and for no other purpose : (1) The member of the Cane Co-operative Service, may after attaining the age of 55 years voluntarily retire after giving three months' notice, to the Recruiting and Appointing Authority concerned. (2) Provided further that: (i) The notice of voluntary retirement given under part (ii) of the first proviso by an employee against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the Recruiting and Appointing Authority concerned subject to the condition that 'in case of a contemplated disciplinary proceeding, employee is informed before the expiry of the period of notice. (ii) The notice once given by member of the Cane Co-operative Service under part (ii) Of the first provision shall not be withdrawn by him except with the permission of the Recruiting and Appointing Authority concerned. (b) The date of compulsory retirement of a fourth class servant of the Cane Co-operative Service is the date on which he attains the age of 60 years. He may be retained in service after that date only under very special circumstances and with the approval of the Cane Commissioner. (c) In giving notice under proviso 1(i) of Sub-Regulation (a) above the Recruitment and Appointing Authority shall be guided by the instruction and standards laid down by the State Government for Government servants from time to time.";