Allahabad High Court
Chandra Sen vs State Of U.P. And Others on 28 March, 2023
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- WRIT - A No. - 68380 of 2011
Petitioner :- Chandra Sen
Respondent :- State of U.P. and Others
Counsel for Petitioner :- Sanjay Kumar Pandey
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Srivastava,J.
Heard Sri Satyavan Shahi, learned counsel holding brief of Sri Sanjay Kumar Pandey, learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.
Order on Civil Misc. Substitution Application No.03 of of 2022
Learned counsel for the petitioner states that during pendency of this petition, the sole petitioner expired on 18.04.2022 and a substitution application has already been preferred by the wife of the petitioner (now deceased) on 17.05.2022.
The substitution application is allowed.
Necessary incorporation be carried out during the course of the day.
Order on Petition
The present petition has been filed seeking the following relief:-
(a) To issue a writ order or direction in the nature of Certiorari quashing the order dated 08/09/2011 issued by the respondents, where by issued retirement notice to the petitioner at the age of 58 Years. (Annexure No.4) to the writ petition.
(b) To issue a writ order or direction in the nature of mandamus commanding the respondents allow the petitioner to continue till the age of 60 years."
It is the case of the petitioner that after rendering the regular services till the age of 58 years, the petitioner has been forcefully retired before completion of the age of superannuation i.e. 60 years, although there were no specific rules available at time of the retirement of the petitioner that the age of superannuation has increased from 58 to 60 years by the State Government in pursuant to the enhancement made by the Central Government of Government employees. Being the employee of District Rural Development Agency which is directly under control by the State Government of U.P. and the service conditions are the same as applicable to the employees of the State Government, on query, it has been submitted by Sri Girijesh Tripathi, learned Standing Counsel that in absence of any specific provisions, the service rules/conditions of the employees of the State Government is applicable.
Under the same nomenclature and conditions, several other similarly situated persons sought the enhancement of age of superannuation from 58 to 60 years and the same has been allowed by the coordinate Benches of this Court.
The controversy traveled from the coordinate Bench to Hon'ble the Apex Court and the same has been finally decided in several matter wherein one of the Special Leave Petition No.30333 of 2019 connected with several other Special Leave Petitions arising out of the final judgment and order dated 29.08.2018 passed in Intra Court Appeal preferred by the State of U.P. under Chapter VIII Rule 5 of the High Court Rules and all were decided with the single order dated 18.04.2022 through which the all Special Leave Petitions were dismissed.
Considering the abovementioned order passed by Hon'ble the Apex Court, a coordinate Bench of this Court decided the similar controversy in Bhagwan Das Vs. State of U.P. and others (Writ A No.24377 of 2007, decided on 15.02.2023) which is quoted hereinbelow:-
"Heard learned counsel for the petitioner and learned Standing counsel for the respondent-State.
The petitioner has preferred present writ petition inter-alia with the following prayers :-
"1. Issue a writ in the Nature of Certiorari quashing the impugned notice/order dated 24.04.2007 (Annexure No.5) asking the petitioner to retire on 31.07.2007.
2. Issue a writ in the nature of Mandamus commanding the Respondents to allow the petitioner to continue up to the age of 60 years."
It is argued by counsel for the petitioner that the controversy involved in the present writ petition is absolutely identical as in Civil Misc. Writ Petition No.39043 of 2006 (Jai Indra Dutt Sharma Vs. State of U.P. & others) connected with other writ petitions, which was disposed of on 08.09.2009 with the following directions:-
"Heard learned counsel for the petitioner and learned Standing counsel.
The petitioners are employees of District Rural Development Agency, which is a Society funded by the Central and the State Governments. The dispute is with regard to their age of retirement.
It is not denied that a learned Single Judge of the Lucknow Bench of this Court in the case of Kalika Prasad vs. State of U.P. & others (Writ Petition No. 45(SS) of 2005) has held that the age of retirement would be 60 years in view of the fact that the Government rules are applicable to such persons and thus has allowed the writ petition vide judgment dated 9.4.2007 and quashed the Government order dated 9.3.2004. This judgment has been followed by another learned Single Judge of this Court in the case of Surya Bali vs. State of U.P. & others (Writ Petition No.59036 of 2006) decided on 16.12.2008. Yet another learned Single Judge of this Court in the case of Ram Prakash Batham vs. State of U.P. & others (Writ Petition No.62132 of 2007) decided on 27.2.2009 has relied on the same judgment.
Learned Standing counsel has not been able to show any decision contrary to it.
Accordingly, the writ petitions succeed and are allowed and the impugned notice calling upon the petitioners to retire at the age of 58 years is hereby quashed. It is also directed that the petitioners shall be allowed to continue in service till the age of 60 years."
In view of the facts, since the controversy involved in the present writ petition is identical as has been in the case of Jai Indra Dutt Sharma (supra) hence present petitioner is also entitled for the same relief.
The writ petition succeed and is allowed and the impugned notice/order dated 24.04.2007 calling upon the petitioner to retire at the age of 58 years is hereby quashed. It is also directed that the petitioner shall be allowed to continue in service till the age of 60 years. "
The petitioner is similarly situated employee of the DRDA who is also entitled to get the similar benefit as granted by the coordinate Bench of this Court in the abovementioned petition.
In the latest even which has been apprised by the learned Standing Counsel that the age of superannuation with regard to the employees of the DRDA has already been extended from 58 to 60 years by amending the Rules dated 30.09.2014.
In view of the aforesaid facts and circumstances, the present petition is allowed. The order dated 08.09.2011 is hereby quashed and set aside. The respondent no.2 is hereby directed to treat the husband of the petitioner as regular incumbent of the department without taking into the consideration of the Government Order dated 22.04.2004 since the same has already been adjudicated by the coordinate Bench in several other writ petitions for similarly situated employees and ensure the payment of salary of two years with all admissible increments to the petitioner being the widow of the deceased employee who had been Head Clerk in the District Rural Development Agency.
The entire abovementioned exercise shall be finalized within a period of two months from the date of production of a certified copy of this order before him.
Order Date :- 28.3.2023
Vivek Kr.
