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Shyam Lal Yadav v. State Of U.P. & Others - WRIT - A No. 17663 of 2001 [2004] RD-AH 997 (1 October 2004)


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Court No. 27

Civil Misc. Writ Petition No.17663 of 2001

Shyam Lal Yadav             Vs.  The State of U.P. & others


Hon'ble Vikram Nath J.

This petition was filed with a prayer to quash the impugned notice dated 21.2.2001 whereby the petitioner was to be retired from service at the age of 58 years w.e.f. 31.7.2001. The further prayer was that petitioner ''s age of retirement is 60 years and he may be allowed to continue till the age of 60 years.

Vide order dated 17.7.2001 the writ petition was admitted and it was directed that the operation of the impugned order dated 21.3.2001 shall remain stayed and the petitioner will be allowed to continue till he attain the age of 60 years. Pursuant to the said order the petitioner has worked till the age of 60 years and has retired on 31.7.2001.

I have heard Sri H.P.Dubey Advocate appearing for the petitioner and Sri C.P.Misra learned Standing counsel representing the respondents.

The contention of petitioner is that he was initially appointed as a peon in the Transport Department in 1963, thereafter his services were confirmed as peon with effect from 1.1.71 vide order dated 24.3.1972. With effect from 27.1.75 he has been working as enforcement constable in Transport Department. His contention is that the age of retirement for Group-D employee is 60 years and that enforcement constable falls in Group D, therefore, he was liable to be retired at the age of 60 years and not at the age of 58 years. In support of the said contention he has relied upon the following (i)Uttar Pradesh Parivahan Vibhag Pravartan Karmchari Varg(Samuh-Gha) Sewa Niyamawali,1979(ii) the office order issued by the State Government dated 27.2.1982 wherein it is directed that all non gazetted posts wherein minimum pay scale was less than 354 and shall be treated as Group D employees post and (iii) the Government Order dated 31.8.1989 along with which a chart is annexed wherein the pay scale of enforcement Constable is mentioned as Rs.330-495. Counsel for the respondent has relied upon paragraph 5 of the counter affidavit wherein it has been mentioned that the petitioner was working at the post of enforcement driver and not as enforcement constable. In paragraph 5 it is further mentioned that vide Government order dated 14.6.1984 it has been provided that the enforcement driver shall be treated to be in Group C not Group D and therefore his age of retirement was 58 years and the notice given on 21.3.2001 is correct.

A perusal of the letter 31.8.1989 along with pay scale of employees of the Transport Department as filed Annexure-6 to the petition indicates that the pay scale of enforcement driver and enforcement constable are the same. The impugned notice dated 21.3.2001(Annexure-1 to the petition) also mentions that petitioner is enforcement constable and not enforcement driver. The respondents have neither filed Government order dated 14.6.1984 along with counter affidavit nor they filed any letter or document to show that the petitioner was ever appointed or treated as enforcement driver. In the absence of any document on record it is to be held that the petitioner was working as enforcement constable. Mere allegations in the counter affidavit that the work of enforcement driver is being taken by the petitioner will not make the appointment of the petitioner on the post of enforcement driver.

In the circumstances, the petitioner is held to be enforcement constable and is to be treated, as Group D employee and his age of retirement would be 60 years. The petitioner has already worked up to  60 years and retired on 31.7.2003.

Supplementary affidavit has been filed along with which a letter of Regional Transport Officer, Jhansi dated 13.6.2003 has been annexed wherein it is provided that the pension papers of the petitioner will not be forwarded, as the petitioner has filed the writ petition before this Court, till the disposal of the writ petition. More than one year has been passed since the petitioner has retired. It is accordingly directed that the post retirement benefits of the petitioner shall be finalized within a period of three months from the date of production of certified copy of this order treating the petitioner to have retired at the age of 60 years and not at the age of 58 years.

The writ petition is allowed. He impugned notice dated 21.3.2001 is quashed. The respondents are directed to comply with the directions as contained in this order.

Dt. 1.10.2004



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