S.P.Srivastava - (1.) THE Petitioner,, who had initially been recruited as a Routine Grade Clerk in the year 1959 and later on had been promoted on the post of Superintendent Grade-2 in the year 1992, which post carries a time scale of pay of Rs. 1400-2600 has approached this Court by means of the present writ petition feeling aggrieved by the action of the respondent authorities to superannuate him on his attaining the age of 58 years.
(2.) IT appears thai the Additional Secretary, Secondary Education, Regional Office, Allahabad issued a Circular dated 15-7-1993, requiring all the Superintendents and Section Officers of the Regional Office to ensure that no dues are payable by the employees falling in category 3 and 4 as well as regularised workmen who were going to retire in the year 1994, the particulars whereof were furnished in the attached list. This circular appears to have been issued with the objective that the issuence of a 'no dues' certificates in favour of the Superannuating employees may not be unnecessarily delayed and the post retirement benefits may be made available to these employees at the earliest The list appended to the aforesaid Circular contained the name of the petitioner indicating his date of retirement as 28-2-1994 on which date he was to reach the age of superannuation of 58 years. IT further appears that the petitioner submitted a representation to the Chief Secretary (Education) Government of U. P. Lucknow bringing to his notice that he was going to attain the age of superannuation in the month of February, 1994 and claiming that his date of birth as entered in High School certificate was not correct but his application seeking correction of the date of birth was rejected although on the basis of his correct dated of birth, he could continue for two years more in service, the petitioner, in the aforesaid representation prayed for an extension of service for a period of two years taking into consideration his past performance in the service. The representation of the petitioner seeking extension of service appears to have been recommended by the Secretary, Board of Secondary Education, Allahabad vide the letter dated 30-12-1993. During the pendency of the representation submitted by the petitioner seeking extension of service for a period of two years, the respondent authorities sought to implement the decision dated 15-7-1993 to which a reference has already been made above, whereupon the present writ petition was filed on 16-2-1994 seeking the quashing of the order dated 15-7-1993 and a direction in the nature of mandamus requiring the respondents not to give effect to the aforesaid order and further not to retire the petitioner at the age of 58 years. The petitioner further prayed for the issuance of a direction holding the Rule 56-A of U. P. Fundamental (First Amendment) Rules, 1987 as ultravires. I have heard Sri Pradeep Chandra, learned Counsel for the petitioner as well as the learned Standing Counsel representing the, respondents and have carefully perused the record.
(3.) THE learned Counsel for the petitioner has asserted that the Board of Secondary Education had always been treated as a department of Government for all purposes other than those powers which the U. P. Board of High School and Intermediate Education U. P.. (U. P. Act No. 2 of 1921) Act itself had specifically conferred and made the Board autonomous to that extent and the status of the petitioner is that of civil servant under the State. He has placed strong reliance on a decision of a Division Bench of this Court in the case of Gulam Haqqani Khan v. State of U. P., AIR 1962 Alld. 413. What has been urged by the learned Counsel for the petitioner is that in the circumstances the provisions contained in the Fundamental Rules 56 of Financial Hand Book, part 2 and 4 become applicable to the petitioner and since by virtue of U. P. Fundamental (First Amendment) Rules, 1987, the age of superannuation so far as the employees falling in group 'D' are concerned has been provided as 60 years, the age of superannuation of the petitioner who is an employee falling in category group 'C' should also be put at par with the category group 'D' employees and under the law, the petitioner cannot be retired from service at the age of 58 years. THE learned Counsel for the petitioner has further asserted that the impugned action of retiring the petitioner at the age of 58 years is wholly illegal, void being not only arbitrary but discriminatory being violative of Article 14 and 16 of the Constitution of India as the rule in question seeks to treat equals unequally. THE petitioner in support of his submission has heavily relied upon the decision of a learned Single Judge of this Court in the case of Girija Prasad Singh v. State of U. P. and others (Civil Misc. writ petition No. 6896 of 1993, decided on 12-7-1993), a true copy of which judgment has been filed as Annexure-4 to the writ petition, wherein while considering Rule 20 of the U. P. Recognised Basin Schools Junior High School) Recruitment and Conditions of Service of Clerks and Class IV Employees Rules, 1994, which provides the age of superannuation for the clerks to be 58 years and for class IV employees to be 60 years was held to be unconstitutional, arbitrary and discriminatory on the view that a clerical job does not call for any special skill and the nature and function of employees falling in class 3 and class 4 were basically the same. It was observed in the aforesaid decision Chat Clerks can continue to be fit to work up to the age of 60 years and therefore, it would be unfair to retire them at the age of 58 years as they do not have to do strenuous physical work like a soldier or 'Lashkurer'. THE learned Single Judge in the foresaid decision recommended that the State Government should raise the age; of superannuation for all clerks up to 60 years where the nature of the work does not require special physical efforts. In order to appreciate the controversy raised in this case and the implications arising under the amended Fundamental Rule 56, it will be appropriate to reproduce the relevant portion of Fundamental Rule 56 of the U. P. Fundamental Rules contained in Financial Hand Book Vol. 2 parts 2 to 4, the English version whereof as notified by the State Government is as follows. The petitioner has already annexed the Hindi version of the Fundamental Rule 56 as amended in 1987 as Annexure-5 to the Fundamental Rules. "56. (a) Except as otherwise, provided in other Clauses of this rule, every Government servant shall retire from service on the after non of the last day of the month in which he attains the age of fifty eight years. He may be retained in service after the date of retirement on superannuation, with the sanction of the Government, on public grounds, which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances : Provided that a Government Servant recruited before November 5, 1985 and holding the Group 'D' post shall retire from service on the after noon of the month in which he attains the age of 60 (sixty) years, Explanation-The above proviso shall not be applicable in those cases where the status of a post/posts referred to in the above provision, has been changed after February 27, 1982 and categorised in higher group of post/posts". ;