AI Structured Summary
Not yet generated for this judgment
Judgment
N.K. Mehrotra, J.
This is a petition under Article 226 of the Constitution of India for issuing a writ of Certiorari to quash the impugned order dated 7.6.2003 passed by the opposite party No.2 Annexure1 and a writ of mandamus commanding the opposite parties to permit the petitioner to discharge his duties as seasonal clerk of Cooperative Cane Development Society.
Heard the learned counsel for the petitioner and Shri A.K. Pandey, learned Standing Counsel for the opposite parties. The impugned order dated 7.6.2003 Annexure1 is the retirement notice by which the petitioner has been directed to superannuate with effect from 31.12.2003 at the age of 58 years. Admittedly the petitioner has been the seasonal clerk in Cooperative Cane Development Society, Lakhimpur Kheri. The service conditions of the petitioner are governed by U.P. Cane Cooperative Service Regulations, 1975 (hereinafter referred to as the "Regulations") framed by the Registrar, Cooperative Societies under Section 121 of the U.P. Cooperative Societies Act.
The case of the petitioner is that he is civil servant discharging public duties belonging to the marketing of sugarcane to sugar mills under the control of the District Cane Officer, Lakhimpur Kheri and thus the service rendered by a seasonal clerk pertain to discharging of the functioning of the State. It is averred in the petition that Vth Pay Commission enhanced the age of superannuation of the civil servant to be raised from 58 to 60 years and Govt. of Uttar Pradesh has accepted the same and has enhanced the age of superannuation of the government servant. The Registrar, Cooperative Societies did not treat the seasonal clerk of the Cane Development Societies of the State to be the State Government servant in respect of the age of superannuation. The Regulations do not contemplate the retirement of a seasonal clerk and no age of superannuation has been laid down in the Regulations. Regulation 47 of the Regulations is as follows:
"47. Compulsory Retirement (a) The date of compulsory retirement of a member of the Cane Cooperative Service other than the fourth class employees shall be the date on which he attains the age of 58 years. He may be retained in service after the date of compulsory retirement only under very special circumstances with the sanction of Cane Commissioner in the interest of the Cane Cooperative to be recorded in writing. Provided (i) the Recruiting and Appointing authority concerned may at any time, without assigning any reason, require a member of the Cane Cooperative Service to retire on three months notice or pay in lieu of the whole or part thereof, after he attains the age of 55 years or such lesser age as together with the period of notice in lieu of which the pay is substituted would aggregate to 55 years so however, that in the case of pay being given in lieu of whole or part of such notice the said period shall stand added to the employees qualifying service for the purpose of calculating federation share of C.P.F. and the deathcumretirement gratuity due to him and for no other purpose:
(1) the member of the Cane Cooperative Service, may, after attaining the age of 55 years voluntarily retire after giving three months notice, to the Recruiting and Appointing Authority concerned.
(2) Provided further that:
(i) The notice of voluntary retirement given under part (ii) of the first proviso by an employee against whom a disciplinary proceeding is pending or contemplated, shall be effective only if it is accepted by the Recruiting and Appointing Authority concerned subject to the condition that in case of a contemplated disciplinary proceeding, employee is informed before the expiry of the period of notice.
(ii) The notice once given by member of the Cane Cooperative Service under part (ii) of the first provision shall not be withdrawn by him except with the permission of the Recruiting and Appointing Authority concerned.
(b) The date of compulsory recruitment of a fourth class servant of the Cane Cooperative Service is the date on which he attains the age of 60 years. He may be retained in service after that date only under very special circumstances and with the approval of the Cane Commissioner.
(c) In giving notice under proviso I(i) of sub regulation (a) above the Recruitment and Appointing Authority shall be guided by the instructions and standards laid down by the State Government for Government servants from time to time."
It is further provided that the petitioner is a workman and the Cooperative Cane Development Society is an Industry'' and according to the judgments of the High Court, a workman is entitled to continue into his employment till he is fit to discharge his duties. The petitioner has further relied on a Constitutional Bench judgment of the Hon''ble Supreme Court in State of Gujrat v. Raman Lal Keshav Lal Soni, AIR 1984 SC 161.
The first contention of the petitioner is that he is a workman and the opposite party No.4 the Cane Society is an Industry. If this contention is accepted the writ petition shall not lie because of the alternative remedy available in the Labour Court. The second contention of the petitioner is that Regulation 47 Clause (c) mandates upon the opposite parties to be guided by the instructions and standards laid down by the State Government for Government servant from time to time. It appears that the petitioner has not been able to appreciate the import of Clause (c) of Regulation 47. It provides for taking into consideration the standard laid down by the State Government for the government servants in matters of compulsory retirement at the age of 55 years. It has nothing to do with the age of retirement fixed for the employees of the State Government. The petitioner has also contended that there is no age of retirement for the seasonal clerk under the Regulations. This contention has also no force. Regulation 47 provides the age of retirement for Class III and Class IV employees separately. Petitioner is either Class III or Class IV. He being a seasonal clerk cannot be treated to be a Class IV employee. Since he is a Class III employee, the age of superannuation is 58 years in his case.
The petitioner has next relied on observation of the Constitutional Bench in State of Gujrat v. Raman Lal Keshav Lal Sons (supra). The observation of the constitutional bench noted in the petition are of no help to the petitioner. The ratio of the judgment of the constitutional bench can be seen in the following paragraph 29 of the report:
"Considerable stress was laid by the counsel for the State of Gujarat on the statement in Section 203 that such service (panchayat service) shall be distinct from the State Service. We do not thing this is to be interpreted as a disclaimer by the Legislature that the Panchayat Service is a service under the State. All that it can possibly mean is that the Panchayat Service is not a service which can be identified with other State Services for the reason that while the Panchayat Service too discharges the duties connected with the affairs of the State, it does so not directly under the State but under the various Panchayat Institutions to whom are delegated or transferred certain functions of the State Government. Panchayat Service is distinct from a State Service because the Panchayat Institutions whom it serves together constitute an almost parallel but subsidiary Government. It is only in that sense Panchayat Service is distinct from a State Service and not in the sense that members of the service are not servant of the State."
In Narain Chandra Hemraj v. Lt. Governor Administrator Union Territory Himanchal Pradesh and others, 1972 (1) SLR 940, it has been held by the Hon''ble Supreme Court that executive cannot be asked not to enforce a provision of law.
Since there is a provision under the rule for retirement at the age of 58 years, no direction can be issued to the opposite parties for not enforcing that rule.
The next contention of the petitioner is that in the matter of the Government servant, the age of retirement has been extended, so this benefit should be accorded to the employees of the Cane Socieites also. This argument has also no force. The service condition of the petitioner shall be governed by the provision under Regulation 47 of the aforesaid Regulations.
In view of the aforesaid regulation, the age of retirement of the petitioner shall be 58 years.
In view of the above, the writ petition is dismissed.
(Petition dismissed)