V.K.Shukla, J. - (1.) By means of present writ petition, petitioner has prayed for following relief, which is quoted below : (1) Issue a writ or order or direction in the nature of certiorari quashing the impugned order dated 13.6.1996 for recovery of Rs. 8364/- being the pay paid to the petitioner w.e.f. March to May, 1995. (2) Issue a writ or order or direction in the nature of mandamus directing the Respondents to continue the petitioner in service and pay the entire service benefits including the arrears of salary w.e.f. 28.2.1995 to 28.2.1997 being a Class IV employee after attaining the age of 60 years. (3) Issue a writ or order or direction in the nature of Mandamus directing the Respondents not to interfere in the functioning of the petitioner till 28.2.1997. (4) Issue any other writ or order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. (5) Award the cost of the petition in favour of the petitioner.
(2.) Brief background of the case as mentioned in the writ petition is that petitioner was appointed as Attendant (Class- IV post) in Employees State Insurance Scheme on 14.11.1959. Petitioner claims that he has served on the aforementioned post till 2.3.1986. On 26.2.1986 petitioner was promoted to the post of Untrained Dresser in the pay scale of Rs. 330-495. Petitioner contends that post of Untrained Dresser is Class- IV post as per relevant rules and Government Order. Petitioner submits that in view of the Government Order dated 27.2.1982, all the post carrying basic pay of less than Rs. 354/- per month, had been grouped in category 'D' post whose age of retirement is 60 years. This Government Order has been further modified by Government Order dated 30.4.1996 and the post carrying basic pay at the scale of Rs. 825-1200 will be covered under Group 'D' of Class-IV post. Copy of aforementioned Governments Orders dated 27.2.1982 and 30.4.1996 has been brought on record. Petitioner submits that his date of birth as per Service Book in 28.2.1987 and by virtue of Group 'D' employee he would attain the age of superannuation on 28.2.1997 and thus in all eventuality petitioner is entitled to function till 28.2.1997. Petitioner contends that though he had been functioning continuously, but his salary was stopped w.e.f. 31.5.1995 and matter had been referred to State Government for clarification as to whether petitioner is to be treated as Class III employee or Class IV employee for the purposes of his superannuation. Petitioner was informed that he has been superannuated and then petitioner represented the matter. Even pension papers alleged to have been submitted to the Directorate of Pensions, U.P. The aforementioned papers had been returned directing the respondents that petitioner being Untrained Dresser, he belongs to Class- IV employee, hence his pension matter be decided by the department itself. As petitioner was allowed to continue upto 31.5.1995 and he had been paid his salary, but by means of letter dated 13.6.1996 directives had been issued directing recovery of Rs. 8364/- from the petitioner treating the age of retirement of petition as 58 years on 28.2.1995. At this juncture present writ petition has been filed.
(3.) To this writ petition, counter affidavit has been filed and therein it has been contended that Government Order dated 27.2.1982 is not applicable to the petitioner. Further, it has been contended that post of Dresser is Class- III post carrying basic pay scale of Rs. 825-1200. It has also been contended that petitioner has been accorded retiral benefit as per the same. It has been reiterated that petitioner has been awarded his post retiral benefit, treating him to be Class-III employee on the basis of the Government Order dated 27.2.1982. Recovery, which has been made from the petitioner from the period 1.3.1995 to 31.5.1995, has been sought to be justified.;