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Daya Shanker Dubey v. State Of U.P. And Others - WRIT - A No. 76215 of 2005 [2005] RD-AH 8143 (25 December 2005)


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Hon. A.P.Sahi,J

Heard learned counsel for the petitioner and  learned standing counsel for the respondents no. 1 to 4.

The petitioner, who is a class III employee in an Inter College, contends that his age of retirement deserves to be enhanced  to 62 years, in view of such benefits  having been extended  to the teachers  of the Institution by the Govt Order  issued by the State Government  on 4.2.2004. Learned counsel for the petitioner relies  on the case of Ram Mohan Vs. State of U.P. & others decided on 25.2.2005, wherein this court had expressed a hope that the State Govt.  would consider the enhancement of age of superannuation  of such employees, who are appointed as class III in  privately managed aided Institutions. However, the State Government has not framed any rule extending such benefits. Learned counsel for the petitioner further relied  on para 3 of the decision reported in A.I.R. 1963, S.C. 268 wherein the Apex Court while considering  the limitation prescribed  with regard to the rule for practicing Advocates in Andhra Pradesh  High Court, had ruled that the limitation prescribed therein are ultravires.

Having heard the learned counsels  for the parties,  this court is of the opinion that the benefits extended to  teachers cannot be the basis of any claim for similar benefits by class III employees as they form a totally different class. The Apex court  has ruled  in several decisions that a claim for  equal treatment cannot be demanded by unequals as a matter of right. It is for the employer to extend equal treatment to unequals which is a matter of policy to be framed  and applied by the Govt in the instant case. The petitioners age of superannuation remains unchanged under the Statute. In my considered opinion  there is no violation  of Articles  14 and 16 of the Constitution of India as suggested by the learned counsel for the petitioner. The ratio of the decisions relied on by the learned counsel for the petitioner are  not applicable to the fact of the present case.

So far as the decision in Ram Mohan's case ( supra ) is concerned , it is evident that  this court had found the class III employees to be a different class. Yet this court had only expressed hope that the State Govt.  should take the matter and determine  the issue raised by the petitioners. Unfortunately, the State Govt. till date had not issued any Govt.order  

with regard to  the   enhancement of the age of such employees. This court under Article 226 of the Constitution cannot issue  directions to the legislature  and Executive  to legislate  in respect of the service conditions  of employees governed by a Statute. The court has no power to direct the legislature or the Executive  to enhance the age of employees. In these circumstances, the prayer made by the petitioner cannot be granted.

The writ petition lacks merit and is accordingly dismissed.




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