Allahabad High Court
Keshav Prasad Lal vs State Of U.P. And Ors. on 14 March, 2002
Equivalent citations: 2002(2)AWC1225
Author: S. Rafat Alam
Bench: S. Rafat Alam
JUDGMENT S. Rafat Alam, J.
1. This special-appeal is preferred against the Judgment and order of the learned single Judge dated 19.1.2001 in Writ Petition No. 2354 of 2001 whereby the learned single Judge dismissed the writ petition challenging the office order notice dated 23.12.2000 retiring the petitioner with effect from 31.1.2001 on attaining the age of 58 years.
2. The short question involved in the present appeal is as to whether the age of retirement of Consolidation Lekhpal is 60 years or 58 years?
3. We have heard Smt. Poonam Srivastava, learned counsel appearing on behalf of the appellant and Sri U. K. Pandey, learned standing counsel on behalf of the State-respondents. With the permission of the Court, they have also filed their written arguments, which are on record.
4. It appears that the petitioner-appellant was appointed as Consolidation Lekhpal on 11.10.1979 in the pay scale of Rs. 330-7-365-8-381-405-9-450 in the district of Basti. It is not in dispute that his date of birth is 10.1.1943 . He was however, served with the office order/notice dated 23rd January. 2001 informing that in view of Rule 5 of Volume II. Part II to IV of Financial Hand Book and also in view of the instructions issued from time to time by the State Government, he would retire on 31.1.2001 on attaining 58 years of age. Being aggrieved, the petitioner challenged the aforesaid order notice before this Court by moving Writ Petition No. 2354 of 2001 on the ground, inter alia, that the post of Consolidation Lekhpal belongs to Group D posts as described under Rule 2 of the Uttar Pradesh Consolidation Lekhpal Service Rules, 1978, and, therefore, in view of the provisions contained in Rule 56 of Fundamental Rules, he can only be superannuated on attaining 60 years of age. The learned single Judge having heard learned counsel for the parties and relying on a judgment of this Court in the case of Rajendra Prasad Tiwari v. State of U. P., and others, 2000 (4) AWC 2833 ; 2000 (4) ESC 2309 (Alt), held that after the revision of the pay-scale with effect from 1st January. 1996, the petitioner ceased to be an employee belonging to 'Group-D' category and, therefore, he cannot continue in service upto the date of 60 years.
5. Smt. Poonam Srivastava, learned counsel appearing for the appellant contended that the post of Consolidation, Lekhpal being non-gazetted, it comprises of 'Group-D' posts as provided under the U. P. Consolidation Lekhpal Service Rules, 1978, the age of retirement of Consolidation Lekhpal would be 60 years in view of the provisions contained in Fundamental Rules, 56. The submission in short is that in view of the amendment in Rule 56 (a) of the Fundamental Rules by U. P. Fundamental (First Amendment) Rule. 1987, the petitioner being appointed prior to 5.11.1985 is entitled to continue in service till he attains the age of 60 years. Learned counsel further sought to distinguish the judgment of this Court in the case of Rajendra Prasad Tiwari v. State of U. P. and others (supra), relied by the learned Single Judge in the order under appeal and submitted that the said order is in respect of Tube Well Operators who were earlier classified as 'Group-D' Employees but subsequently by Government order dated 31.8.1989 they are classified as 'Group-C' Employees on account of revision of their pay-scale and, therefore, it is contended that the reliance on the aforesaid judgment by the learned Single Judge is misconceived and it does not apply in the facts and circumstances of the present case.
6. On the other hand, learned standing counsel submitted that upon the revision of the pay-scale with effect from January, 1986, the 'Samta Committee' constituted by the State Government recommended for re-
classification of the State Government's Employees on the pattern of the classification made by the Central Government according to which the posts, having maximum scale of pay of Rs. 4.000 or more came in Group-A and maximum of scale of pay of Rs. 2,900 or more but less than Rs. 4.000 came in Group-B and maximum of the scale of Rs. 1150 or more but not exceeding Rs. 2.900 were placed in Group-C and the posts carrying scale of pay the maximum of which did not exceed Rs. 1150 were placed in Group-D posts. It is submitted that since the Consolidation Lekhpals are in the pay scale of Rs. 950-1500, therefore, they are 'Group-C' Posts and their age of retirement is 58 years. It is also submitted that after revision of the pay scale of the State Government's Employees, re-classification of groups have been made on the basis of scale of pay. The posts of Consolidation Lekhpals are in the pay scale of Rs. 950-1500 and it comes in 'Group-C. hence their age of retirement is 58 years. He further placed reliance on the judgment rendered in the case of S. S. Sharma v. Tehsildar and others, 1993 (2) UPLBEC 1029 and submitted that the Lekhpals do not perform manual function and their duty Is only to maintain revenue records, they cannot be treated 'Group-D' Employees, He also placed reliance on the Judgment rendered in the case of Dharm Pal Singh Pipil v. Executive Engineer. Tube Well Division, Bulandshahr, 1997 ID AWC 2.106 (NOC) ; ALR 1997 (29) 351 and in the case of R. P. Tiwari v. State of U. P., and others, 2000 (3) UPLBEC 2683 and submitted that in view of the work and function of the petitioner and his pay scale, he belongs to 'Group-C' and therefore, the learned single Judge has rightly held that the petitioner ceased to be an employee belonging to 'Group-D' category and cannot claim as a matter of right to continue in service upto the age of 60 years.
7. The State Government has framed specific Rules in respect of Consolidation Lekhpals called as the Uttar Pradesh Consolidation Lekhpals Service Rules. 1978 (in Short Rules of 1978). In the above rule, the status of Lekhpals, its strength, source of recruitment, qualification, procedure for recruitment, etc. are provided but the age of super annuation is not provided. Rule 24, however, provides that the matters not specifically covered by these rules or by special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State. Rule 24 reads as under :
"24. Regulation of other matters.--In regard to the mailers not specifically covered by these rules' or by special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with affairs of the State."
Since the Rules, 1978 is silent in respect of age of retirement of Consolidation Lekhpal, it would be governed by the rules, regulations and orders applicable generally to the Slate Government Employees.
8. Fundamental Rule 56 (a), amended in 1987, prescribes the age of retirement of Government servants which is as under :
"56. (A) Except as otherwise provided in other clauses of this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years. He may be retained in service after the day of retirement on superannuation with the sanction of the Government, on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances :
Provided that a Government servant recruited before November 5, 1985 and holding the Group-D post shall retire from service on the afternoon of the month in which he attains the age of 60 (sixty) years.
Explanation.--The above proviso shall nol be applicable in those cases where the status of a post/posts referred to in the above proviso, has been changed after February 27, 1982 and categorised in higher Group of post/posts."
9. The age of retirement of Government servants in general is 58 years. However, proviso to Rule 56 (a) of the Fundamental Rules made exception in respect of government servants of Group 'D' appointed prior to 5.11.1985 and only they are to be superannuated on attaining 60 years of age. The Explanation to the proviso is very significant. It provides that the proviso shall not be applicable in those cases where the status of a post/posts referred to in the proviso has been changed after February 27, 1982 and categorized in higher group of post/posts. Therefore, only those government servants of Group 'D', who are appointed prior to 5.11.1985 and their status is not changed alter February 27. 1982 will retire on attaining the age of 60 years and unless both the conditions are salisfied, a Government servant cannot continue beyond the age of 58 years.
10. The Stale Government has also famed rules in respect of Group 'D' employees called as "Group 'D' Employees Service Rules, 1985" (in short Rules of 1985) under the proviso to Article 309 of the Constitution of India, which came into force w.e.f. 16.3.1985. Rule 2 of the above rules provides that it shall apply to all Group 'D' posts in all the subordinate offices. Subordinate offices are defined in Clause (h) of Rule 4 of the Rules of 1985, which includes all the offices under the control of the Government of Uttar Pradesh excluding the Secretariat. Offices of the Slate Legislature, Lokayukt, Public Service Commission. High Court. Subordinate Courts under the control and superintendence of High Court. Advocate General and the Establishment under the control of the Advocate General. The petitioner appellant is an employee of the consolidation department, which is a subordinate office under the control of the State Government and, therefore, Rules of 1985 is applicable in respect of its employees belonging to Group 'D'. Rule 3 of Rules of 1985 provides that It will have overriding effect over specific rules made prior to it. It reads as under :
"3. Overriding effect of these rules.--In the event of any inconsistency between these rules and a specific rule or rules pertaining to any of the aforesaid posts in any department-
(i) the provisions contained in these rules shall prevail to the extent to the inconsistency in case the specific rules were made prior to the commencement of these rules ; and
(ii) the provisions contained in the specific rules prevail in case they are made after the commencement of these rules."
Thus, the provisions of this rule shall prevail, to the extent of inconsistency in case the specific rules were made prior to the commencement of this rule. But where the specific rules are made after the Rules of 1985, then the provisions of such specific rules shall prevail. The specific Rules of 1978 for Consolidation Lekhpals was notified and came into force w.e.f 29th July, 1978, which although provides that Consolidation Lekhpals Service Comprises Group 'D' posts but since it came into force much before the Rules of 1985 and therefore, in the event of any' inconsistency in respect of any provision, the Rules of 1985 shall prevail over it.
11. The various categories of Group 'D' employees are mentioned in Rule 6 of the Rules of 1985, which are Peon, Messenger, Chaukidar, Mali. Farrash, Sweeper, Waterman/Bhishti. Tindal, Thelaman, Record Lifter, Peon-Jamadar. Daftari/Bookbinder/ Cyclostyle Operator, Farrash. Jamadar. Sweeper Jamadar, Head Mali and every other non-technical posts. Therefore, only those employees, who perform menial nature of work, they belong to Group 'D' posts. On the other hand, as it appears from various provisions of the Uttar Pradesh Consolidation of Holding Act, 1953 and the Uttar Pradesh Consolidation of Holdings Rules, 1954, the functions and duties of Consolidation Lekhpal is almost of ministerial nature such as to collect agricultural statistic in respect of kharif and rabi crops every year during the period the village remains under the consolidation operation, to prepare statement of C.H. Form 7 regarding the amount of land revenue payable on new holdings and also to prepare revised annual register in C.H. Form 11 incorporating all the orders relating to rights and liabilities in respect of the land. etc.. etc., which are of clerical nature. Besides, that qualification for appointment to the post of Consolidation Lekhpal is high school, with a training certificate of Patwari or Lekhpal whereas the qualification for Group 'D' employees in Rule of 1985 is class 5 only. So far as Peon, Messenger. Cyclostyle Operator and other post is concerned, no educational qualification is required in terms of Rule 6 of Rules of 1985. Therefore, because of inconsistency in regard to duties and functions, apart from qualification of Group 'D' posts. Rules of 1985 shall prevail over Rules of 1978, which is a specific rule framed prior to the enactment of Rules of 1985 by virtue of the provisions contained in Rule 3. It is also not in dispute that the pay scale of the petitioner/appellant was revised in 1986 and he was allowed scale of Rs. 950 to 1500. The State Government reclassified the posts on the pattern of classification made by the Central Government and only the posts carrying the scale of pay, the maximum of which did not exceed Rs. 1150, were classified as Group 'D' post vide G.O. dated 19th May, 1989. Therefore, the benefit of proviso to Fundamental Rule 56 (a) is not available to the petitioner appellant by reason of Explanation to the proviso as status of the post of Consolidation Lekhpal was changed on account of revision of the pay scale.
12. The learned single Judge relying on a judgment in the case of Rajendra Prasad Tiwari v. State of U. P. and others (supra) has found that the petitioner on account of revision of his pay scale w.e.f. 1.1.1986 ceased to be an employee belonging to Group 'D' category and. therefore, he cannot claim as a matter of right to continue in service up to the age of 60 years.
13. Learned counsel for the petitioner has placed reliance on the Judgment and order dated 9.4.1999 of the learned single Judge in the case of Writ Petition No. 30347 of 1998, Har Govind Sahai Saxena v. State of U. P. through Collector and others, a copy whereof is enclosed as Annexure-3 to the affidavit filed in support of the special appeal. In our view, they are of no help to the appellant for the reason that in that judgment, the effect of the revision of scale and the re-classification of the post vide G.O. dated 19th May. 1989, has not been considered. Further Rules of 1985 framed in respect of Group 'D' employee has also not been noticed. Therefore, we are of the view, that the learned single Judge has rightly held that upon revision of the pay scale and re-classification of the post, the petitioner, ceased to be Group 'D' employee. In that view of the mater, the order under appeal does not call for any interference.
14. In the result, the appeal fails and is, accordingly, dismissed but without cost.