Kailash Chandra Verma vs State Of U.P.& 3 Ors.
2013 Latest Caselaw 6992 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 62792 of 2013
 

 
Petitioner :- Kailash Chandra Verma
 
Respondent :- State Of U.P.& 3 Ors.
 
Counsel for Petitioner :- Dinesh Kumar Yadav,A.R.Nadiwal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. The petitioner is an employee of Matsya Palak Vikas Abhikaran, which is a society registered under Societies Registration Act. The petitioner claims that since society has been founded and managed by officials of State Government, therefore, he is holder of civil post and is entitled to be governed by provisions i.e. Rules and Regulations framed under proviso to Article 309 of Constitution of India and in that view of the matter, since Fundamental Rule 56 has been amended by notification dated 28.11.2001, enhancing the age of superannuation from 58 years to 60 years, petitioner is entitled to continue till he attains the age of 60 years and cannot made to retire on attaining the age of 58 years.

2. In the context of another similar nature of Society, i.e. District Rural Development Agency, this issue has already been considered by a Division Bench in Special Appeal No.687 of 2010 (State of U.P. Vs. Pitamber). The Court formulated the following question:

"Whether employees of DRDA are Government employees and are holding civil post in the civil service of State to make applicable Fundamental Rule 56".

3. Two more questions were formulated by this Court as under:

"(1) Considering the Bye-laws of the Society and more specifically Bye-laws 19 and 20 (h) read with Government Notification dated March 17, 1994, was it open to the State Government to have issued the Government Order dated 09.03.2004 fixing the age of retirement of the employees of DRDA as 58 years?

(2) Whether the employees of DRDA are holding civil posts and/or are Government employees of the State, in order to make applicable Rule 56 of the Fundamental Rules and, consequently, would they be governed by Government Notification dated 28.11.2001, whereby the age of retirement of the government servants has been fixed as 60 years under Rule 56 of the Fundamental Rules?"

4. Answering the above questions, in paras 16 and 17, the Division Bench said in its judgment dated 19.08.2010 as under:

"16. Considering the above referred judgments and the material on record, it will be clear that firstly the DRDA is a Society registered under the Societies Registration Act. Its funding is 70 percent from the Central Government and 30 percent from the State Government. The members of the Society and also the Working Committee are basically persons holding the posts in government service, mostly in the State Government and some in the Central Government, as the object is of rural development. Bye-law 20 (h) recognizes that the staff are to be appointed by the Governing Body. The accounts are to be approved by the Governing Body in its annual general meeting. Suits are to be filed against the Society. Thus, though there may be funding by the Central/State Governments and control by the State Government, nonetheless they are employees of the Society. Some posts are filled up on transfer by the Governor and in respect of others, appointments are to be made by the Chief Executive Officer, who is the District Magistrate. Considering the tests laid down in Kanik Chandra Dutta (supra), we are clearly of the opinion that the tests laid down in the judgment of the Supreme Court are not satisfied. Once it is held that they are the employees of DRDA and are not holding civil posts in the service of State, Rule 56 of the Fundamental Rule would not apply to them.

17. In the light of that, we are clearly of the opinion that the appeal filed by the State will have to be allowed. The employees of DRDA after 09.03.2004 will have to retire at the age of 58 years. Consequently, we hold that the view taken by the learned Single Judge in the case of Kalika Prasad (supra) that Rule 56 of the Fundamental Rules would apply so far as the employees of DRDA are concerned, does not lay down the correct law and, hence, we overrule the judgment in Kalika Prasad (supra) and all other judgments, which have taken a similar view."

5. There are two more writ petitions, i.e., Writ Petitions No. 51679 of 2009, 29195 of 2011 (Shoeb Ullah Khan Vs. State of U.P. and others). Both these writ petitions came up before a Division Bench on 04.07.2011. Following the decision in State of U.P. and others Vs. Pitamber (supra), the Court held that employees of DRDA are entitled to continue till the age of retirement, i.e., 58 years only and not 60 years, therefore, the notice issued to them, informing their date of retirement on attaining the age of superannuation as 58 years were valid.

6. Another Hon'ble Single Judge has also followed aforesaid Division Bench decision in Writ Petition No.30920 of 2013 (Lal Ji and Anr. Vs. State of U.P. & 3 Ors.) decided on 29.5.2013 and myself has also followed the same in Writ Petition No.4650 of 2013 (Shiv Lal Vs. State of U.P. & Ors.) decided on 25.7.2013 and several other matters.

7. Since nature of society in District Rural Development Agency and Matsya Palak Vikas Abhikaran is the same, the dictum laid down in respect to employees of District Rural Development Agency, in my view, is squarely applied to the society in question also and therefore, the petitioner also cannot be said to be a holder of civil post.

8. In that view of the matter, petitioner is not entitled to continue till the age of 60 years as per the existing provisions of Society in which the petitioner is employee and is liable to retire on attaining the age of 58 years.

9. There is another aspect of the matter. I find that even under Fundamental Rule 56, age of retirement, if strictly speaking, is still 58 years and there is no amendment in the eyes of law. Fundamental Rule 56 was inserted and substituted by provincial legislation i.e. vide U.P. Act No. 33 of 1976 [U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1976] and therefore, any amendment therein could have been made only by principal provincial legislature and no amendment therein could have been made in exercise of powers under Proviso to Article 309 of the Constitution since legislature has already intervened by promulgating an enactment containing a single provision i.e. Fundamental Rule 56, therefore, even if what has been said by the petitioner is accepted to the correct, since there is no amendment by competent legislature in Fundamental Rule 56, it cannot be said that age of retirement therein has extended to 60 years so as to entitle the petitioner to retire on attaining the age of 60 years. The amendment notification dated 28.11.2001 is a formal amendment notification by State Government in exercise of rule framing power and it appears that State Government completely failed to notice that Fundamental Rule 56 having been brought on statute book by a legislative Act, no amendment can be made therein in exercise of rule framing power under proviso to Article 309 of the Constitution.

10. In view of the above, I find no merit in the writ petition.

11. Dismissed.

Order Date :- 18.11.2013

KA