Allahabad High Court
Dharam Pal Singh Pipil vs Executive Engineer Tubewell Dn. (West) on 6 November, 1996
Equivalent citations: (1997)1UPLBEC69
Author: D.K. Seth
Bench: D.K. Seth
JUDGMENT D.K. Seth, J.
1. The petitioner has challenged the order to retire him on superannuation on attainment of the age of 58 years with effect from 30-6-1989 by reason of the Government Order dated 28th July 1987 which provides a Class IV employee in the basic salary of Rs. 354/-or less is entitled to continue till the age of sixty years. In Writ Petition No 18104 of 1988, Surya Nath Dubey v. State of U. P. and Ors., disposed of on 18-1-1989 it was held that by reason of the said Government Order a Class IV employee having salary less than Rs. 354/- would be eligible to continue till sixty years. Sri Devendra Kumar, learned counsel for the petitioner relying on the said judgment contends that the petitioner being a Class IV employee he is entitled to continue till sixty years and, therefore, the order to retire him with effect from 30-6-1989 on attainment of 58 years of age is bad.
2. The fact remains that in the writ petition no where the petitioner has disclosed his salary neither he has contended that he is getting less than Rs. 354/- though he has pleaded that he is a Class IV employee.
3. In order to avail the benefit of the said Circular dated 28th July, 1987 an employer has to fulfil two conditions; (i) he has to be a Class IV employee and (ii) he should be getting basic salary less than Rs. 354/-when attaining the age of 58 years. Unless both the said facts are satisfied no one is entitled to the benefit of the said circular.
4. In the counter-affidavit in para 8 the counter-affidavit the petitioner's pay from the year 1965 till 1989 have been indicated. Therefore, admittedly the petitioner was getting basic Salary of more then Rs. 354/-, may be even in the year 1984 but definitely in the year 1985. Therefore he cannot be brought within the purview of the said Government Order. Though the learned counsel for the petitioner attempted to rely on the Government Order dated 3-12-1993 whereby a Class IV post was sought to be brought within the purview of retirement on attainment of sixty years. But the said Government Order also point out that Class IV employees in the scale of Rs. 315-440 or Rs. 330-490/-were brought within ambit of sixty years. But then the petitioner was in the higher scale in the year 1985 namely Rs. 405-540/-. Then again the Circular having been issued in 1993 long after the petitioner had retired in 1989, the said circular could not have any effect. For all these reasons the writ petition cannot succeed. The writ petition fails and is accordingly dismissed.
5. Learned counsel for the petitioner submits that in view of the pendency of the writ petition the retirement benefit to the petitioner has not been paid. If it is so the petitioner shall be at liberty to make a representation before the appropriate authority within a period of 4 weeks from date praying for release of the retirement benefit, as admissible to him, together with certified copy of this order. If such a representation is made the respondent shall consider the same in accordance with law and shall pay retirement benefit or part thereof as admissible in law to the petitioner, within a period of six months from the date of making of such representation, if not already released or paid.
6. There will, however, be no order as to costs.
7. Let a copy of this order be given to the learned counsel for the petitioner on payment of usual charges within a week.