- (1.) SUDHIR Agarwal, J. Unfortunate and sorrow state of affairs emerge from the facts giving rise to this writ petition. In this case a retired Government servant has been subjected to extensive harassment and trauma by the State Government and its officers who are expected to act as a model employer. The petitioner retired on attaining the age of superannuation on 31-12-1991 and for his lawful claim of pension and post retiral benefits he is running from pillar to post for more than a decade, though pension and other retiral benefits under the rules is his legal right and not a bounty yet the starvation and agony, which the petitioner facing in these hard days, is writ large.
(2.) THE petitioner working as a Consolidation Lekhpal in Consolidation Department sought to be retired on attaining the age of 58 years on 31-12-1991, but as per the decision taken by the State Government since the retirement age was increased to 60 years, he approached this Court by means of a Writ Petition No. 35332 of 1991 wherein an interim order was passed on 7-12-1991 directing the respondents to continue him in service till the age of 60 years. THE petitioner served the respondents till the age of 60 years and retired on 31-12-1993. It appears that during the period he served the respondents after completing 58 years of service, pursuant to interim order dated 7-12-1991, the respondents neither finalized his pension nor paid any salary. THEreafter, the petitioner made repeated requests and representations to the respondents but they did not take any action either for payment of pension and post retiral benefits or salary for the said period. The aforesaid writ petition was dismissed on 17-10-2001 as infructuous. In the meantime, the Settlement Officer (Consolidation), Farrukhabad forwarded his pension papers to the Pension Directorate on 14-5-2001 whereupon the Director (Pension) made an enquiry vide letter dated 17-7- 2001 to find out the reasons of delay. However no further action was taken, thereafter. The petitioner thus preferred the present writ petition seeking a mandamus commanding the respondents to pay arrear of salary from 31-12-1991 to 31-12-1993 and pension alongwith 18% interest. The respondents have filed a counter-affidavit wherein entitlement of petitioner for salary is disputed since he was liable to retire on attaining the age of 58 years. It is said that petitioner's claim that he was entitled for salary till 60 years of age was not adjudicated and on the contrary his writ petition has been dismissed without granting any relief, hence he was liable to be treated to have worked only till the age of 58 years. However, with regard to pension and other retiral benefits, it is averred that the petitioner has retired on 31-12- 1991 or on 31-12-1993 and hence his claim for pension and other retiral benefits by means of the present writ petition preferred in 2003 is grossly barred by limitation and laches. In para 13 of the counter-affidavit it is said that the writ petition lacks merit and deserved to be dismissed.
(3.) I have heard learned Counsel for the parties and perused the record. It would be appropriate first to deal with the prayer of the petitioner with regard to the salary for the period from January, 1992 to December, 1993 during which he has served pursuant to an interim order dated 7-12-1991 passed by this Court in Writ Petition No. 35332 of 1991 which stood dismissed as having become infructuous on 17-10-2001. Admittedly the respondents seek to retire the petitioner on attaining the age of 58 years, i. e. , on 31-12-1991. The action of respondents was consistent with provisions of Fundamental Rule 56. The writ petition filed by the petitioner having been dismissed, it cannot be said that this Court held that the petitioner was entitled to continue till the age of 60 years. In the absence of any adjudication regarding entitlement of the petitioner to continue till the age of 60 years it cannot be said that under law he was entitled to continue till 60 years of age and therefore, in my view the petitioner is not entitled to claim salary for the aforesaid period. The question of entitlement of employees whether to continue till 58 or 60 years has been considered by a Full Bench in Surya Deo Mishra v. State of U. P. through Chief Secretary U. P. , Lucknow and Ors. , 2006 (1) LBESR 270 (All) (FB) : 2006 (1) ADJ 467, wherein it has been held that the provision pertaining to retirement at the age of 60 years is applicable to the members of inferior service only and other employees are liable to retire on attaining the age of 58 years. Admittedly the petitioner is not a member of inferior service and therefore, he would have retired on attaining the age of 58 years. The Full Bench has also held where pursuant to an interim order a person has worked beyond 58 years and has been paid salary no recovery shall be made but where no payment has been made, a mandamus for payment of salary cannot be issued since the employee has no legal right to ask for such a mandamus. Learned Counsel for the petitioner in view of the aforesaid law laid down in Surya Deo Mishra (supra) also finds difficulty to press his relief in respect to salary for the period from January, 1992 to December, 1993 and therefore, did not press further and confined his claim for payment of pension and other post retiral benefits alongwith interest thereon. In the aforesaid circumstances, this Court now proceed to consider the question whether the demand of the petitioner for pension and other retiral benefits is barred by Limitation or he is entitled for the same in accordance with rules and such other relief including interest, on the amount if any, found payable to the petitioner.;