Allahabad High Court
Ram Babu Yadav vs State Of U.P. And Others on 19 August, 2011
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 21
Case :- WRIT - A No. - 39763 of 2011
Petitioner :- Ram Babu Yadav
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Ashok Khare, Sheo Ram Singh, Kuldip Singh Yadav
Respondent Counsel :- C.S.C.,B.K.Ojha
Hon'ble Sudhir Agarwal, J.
1.Heard Sri Ashok Khare, Senior Advocate, assisted by Sri Sheo Ram Singh and Sri Kuldip Singh Yadav for the petitioner, learned Standing Counsel for State-respondent and Sri Vijay Gautam, assisted by Sri B.K. Ojha for Non-Conventional Energy Development Agency, Vibhuti Khand, Gomti Nagar, Lucknow (hereinafter referred to as "NEDA").
2.It is contended that under Rule 11 (2) of Non-Conventional Energy, U.P. (Service) Rules, 1989 (hereinafter referred to as "1989 Rules"), the age of retirement, as applicable to State Government employees was made applicable to the employees of NEDA and therefore in view of Fundamental Rule 56 providing age of superannuation as 60 years, petitioner is entitled to retire at the age of 60 years but by means of the impugned order, he has been retired at the age of 58 years.
3.Learned counsel appearing for NEDA submitted that Rule 11 (2) was amended by the Executive Council, NEDA by its resolution dated 16.1.2008, circulated on 18.2.2008 and the age of superannuation has been prescribed as 58 years and, therefore, petitioner has been rightly retired on attaining the age of 58 years.
4.Rule 11 (2) of 1989 Rules initially read as under:
"The age of superannuation will be as applicable to the State Government servants."
5.It has been amended by means of resolution dated 16.1.2008 as communicated vide office memo dated 18.2.2008 as under:
"The age of superannuation will be 58 years. Any change in the age of superannuation will be applicable only after approval of State Government."
6. Learned Counsel for petitioner submitted that subsequent part of the amended provision which says that change in age of superannuation will be applicable only after approval of the State Government, would apply to change of age of superannuation from 60 to 58 years and since no approval of State Government has been obtained, therefore, the earlier Rule would continue and petitioner would retire on attaining the age of 60 years.
7.In my view, submission lacks substance. Earlier, there was no particular age of retirement in the Rules and it only said that whatever age is applicable to the employees of State Government, that would apply to the employees of NEDA. The legislation was by reference. Now by means of resolution dated 16.1.2008, a specific age of retirement has been provided, i.e. 58 years. Only a further change, if, to be made in future, such change shall be made applicable in respect to age of superannuation only after approval of State Government and not otherwise. The two Clauses in resolution dated 16.1.2008 are independent and separate. It is also worthy to mention at this stage that power to amend Rules has been prescribed in Rule 4 of 1989 Rules, which reads as under:
"4. Amendment to these Rules:
(1) Any amendment by way of addition, alternation or deletion in these rules shall be made only under the authority of resolution of the Executive Committee and shall be notified by placing a copy on the notice-board of the Head Office.
(2) Any irregularity or accidental omission in notifying an amendment in the rules shall however, not invalidate such amendment."
8.It is not in dispute that Executive Committee has passed the resolution making amendment in Rule 11 (2) of 1989 Rules, as it stood earlier, and pursuant thereto, the amended provision has been notified on notice board. In the circumstances, I am clearly of the view that there is no existing rule entitling the petitioner to continue till the age of 60 years.
9.The question whether petitioner should continue after 58 years was also considered by a Single Judge of this Court in Writ Petition No. 7687 (S/S) of 2009 (Hirdai Ram Yadav Vs. State of U.P. & others) decided on 20.11.2009 whereby it has been held that the age of retirement prescribed under the Rules rule, i.e., 58 years in not invalid and this decision has been upheld by the Division Bench in Special Appeal No. 851 of 2009 (Hridai Ram Yadav Vs. State of U.P. & others decided on 3.12.2009 at Lucknow. It is true that in the said case validity of the amended provision was involved. In this case, the construction of amended provision is involved. However, in my view, the amended Rule does not admit any ambiguity. It clearly prescribes age of superannuation as 58 years. For this purpose there is no question of application of subsequent clause relating to approval of State Government.
10.In the result, writ petition lacks merit, deserve to fail.
11.Dismissed.
Dt. 19.8.2011
PS
