Dilip Kumar Seth, J. - (1.) THE petitioner alleges that he was a driver in the Irrigation department and as such was holding Class -D post. Accordingly in terms of the amended Rule 56 -(A) of Fundamental Rule, 1987, he is eligible for retirement on attaining the age of 60 years, whereas the petitioner was sought to be retired on attaining the age of 58 years. This order has since been challenged in Writ Petition No. 32187 of 1994. Learned counsel for the petitioner relies on the judgment in the case of Subhram Dubey v. State of U.P. and others being Writ Petition No. 18104 of 1988, disposed of on 18.1.1989 by a Division Bench of this Court. He is also relying on another decision in the case of Sri Kant Shukla v. Executive Engineer and others, in Writ Petition No. 19223 of 1990, which was disposed of on 7.2.1991 by learned Single Judge. Relying on these two judgments he submits that in those two writ petitions the petitioners were also driver and holding Group -D post. Therefore, according to him the petitioner is also eligible to be retired on attainment of 60 years.
(2.) LEARNED Standing counsel on the other hand relies on the statements made in paras 3(B) and 3(C) of the counter affidavit, wherein he has denied that the petitioner had been holding Group -D post. On the other hand it has been specifically pointed out that the petitioner was holding Group -C post and was granted selection grade of pay, in the scale for the said post. Therefore, the petitioner can not claim the benefit of either of the said judgments or the Rules in view of Explanation to proviso to Rule 56(a). After having heard the learned counsel for both the parties it appears that the question rests on the finding as to whether the petitioner is holding Group -D post or not. In case the petitioner is holding Group -D post then he would be entitled to retire on attainment of 60 years in terms of the said proviso, submit to the Explanation. In the counter -affidavit in paras 3(B) and 3(C) following statements have been made: 3(A) That by way of present writ petition the petitioner seeks a mandamus for not giving effect to the order dated 8.8.1994 by which he has been retired after completing the age of superannuation i.e. 58 years on 30.9.1994. 3(B). That the petitioner was working as Driver in the department in Group -C in the Pay scale of Rs. 950 -1500/ - w.e.f. 1.1.1986 and further he was given the selection grade in the Pay scale of Rs. 1200 -2040/ - w.e.f. 1.4.1992 which falls within the category of Group -C employee. It is further submitted that at the time of retirement the petitioner was getting the basic pay of Rs. 1290/ - with total emoluments of Rs. 2752/ -. Further the Pay scale in which the petitioner was at the time of retirement was in group -C and not in Group -D category as such the age of retirement of the petitioner was 58 years. The said statement has been dealt within the rejoinder -affidavit by the petitioner in paras 6 and 7 of the respectively which are quoted below: - - 6. That in reply to the contents of paragraph No. 3(B) of the counter affidavit, the petitioner submits that apart from the clarification of Pay scales, the petitioner is entitled to be continued in service until he attains the age of 60 years, as the Irrigation Department himself had extended the services of Driver at the age of 60 year which is evident from the order dated 13th June 1996 passed by Supdt. Engineer, Indo -Duch Nalkoop Nirman Mandal, Faizabad. A true copy of the order dated 13th June, 1996 is filed herewith and is marked as Annexure -RA -1 to this rejoinder affidavit. 7. That in reply to the contents of paragraph No. 3(C) of the counter -affidavit the petitioner submits that vide notification dated 14th June, 1984 the Drivers were declared as an employee of Class -C but no benefit of Class -C employees were given to them, it is evident from the notification dated 14th June, 1984 itself. However, it is relevant to submit here subsequently the State Government vide notification dated 5th November, 1985 made it clear the person recruited before 5th Nov. 1985 will be retired on attaining the age of 60 years and subsequently the same was reiterated vide notification dated 28th July, 1987, hence it is crystal clear from the notification issued subsequently after the notification dated 14th June, 1984 that the Drivers are entitled to be continued in service till they attain the age of 60 years. It appears from the above statement and counter statement that the petitioner was holding Group -C post inasmuch ass the petitioner has contended that though by Notification dated 4.6.1984 the drivers were declared to be Group -C post, but no benefit of Group -C employees were given. He has not spelt out as to how he has not been given the benefit. However, in the counter -affidavit it has been stated that the Scale of Rs. 950 -1500/ - is the scale meant for Group -C scale and that the Selection grade of pay related thereto was Rs. 1200 -2040/ - which he was given on 1.4.1992. Admittedly Annexure -CA -1 being the Notification dated 14.6.1994 has specifically declared the drivers to hold Group -C post. These facts have not been denied by the petitioner. In that view of the matter it can not be held that the petitioner was holding Group -D post, and as such was eligible to retire on attainment of sixty years of age.
(3.) SIMILAR question arose in the Writ Petition No. 27560 of 1997, Shiv Charon Lal Sharma v. The Collector, Mathura and others decided on 28.8.1997, wherein it was held that a person recruited before 5th November, 1985 and holding the Group 'D' post shall be retired on attaining the age of 60 years. But according to explanation Group -D post if recognised as the higher post and in that event the said proviso will not be applicable in such a case. In the present case the petitioner having been given higher scale and the post having been declared to be Group -C post it can not be said that he was holding Group -D post on the date of retirement. Therefore the said rule is not applicable in this case. In the above facts and circumstances of the case, this case is distinguishable from the cases since been dealt with in the said two decisions cited above namely the case of Sobhnath Dubey (supra) and S.K. Shukla (supra), where this question has not been gone into and the judgment proceeded on the basis that the drivers had been holding Group -D post and are coming within the scope of the proviso. In view of the factual distinction the ratio decided in the said two cases can not be attracted in the present case. In that view of the matter the writ petition fails and is accordingly dismissed. The petitioner shall, however, be paid all retirement benefit treating him to have been retired on attaining the age of 58 years as early as possible preferably within six months from the date of production of a certified copy of this order. With these observation the writ petition is thus dismissed. There will be however, no order as to costs. Let a copy of this order be given to the learned counsel for the petitioner on payment of usual charges within a week.;