RAM NIWAS TYAGI Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner Ram Niwas Tyagi by means of this writ petition filed under Article 226 of the Constitution of India has assailed the cut-off date prescribed in the Government Order dated 25.8.2005 (hereinafter referred to as the "G.O.") as illegal and arbitrary, hence has prayed for issuance of writ of certiorari to quash the same to the extent of condition no. 1 making the said G.O. effective from 25.8.2005. He has further sought a mandamus commanding the respondents to allow the petitioner to continue on the post of clerk at Sri Nehru Vidya Peeth, Kharkhauda, District Meerut (hereinafter referred to as the "Institution") till he attain the age of 60 years i.e. 30.7.2007.

(2.) The facts in brief necessary for adjudication of this matter are that the institution is a recognized Junior Basic High School managed by a committee of management i.e. a privately managed Institution. He was appointed on the post of Clerk in the said Institution on 10.7.1974 in the pay scale of Rs. 80-140. In the service book his date of birth is mentioned as 30.7.1947 and therefore he is likely to attain the age of 60 years on 30.7.2007. The State Government amended Fundamental Rule 56 vide gazette notification dated 27.6.2002 extending the age of retirement of government servants from 58 to 60 years and the said amendment was given effect from 28.11.2001. A similar demand was raised by the teachers of all the primary schools maintained by the Basic Shiksha Parishad and vide G.O. dated 4.2.2004 their age of retirement was also extended from 60 years to 62 years and those who has opted to retire at the age of 58 years to 60 years. Thereafter a cabinet decision was taken on 12/13.7.2005 to increase the age of retirement of clerical staff in non government aided basic schools from 58 years to 60 years which was published in the news paper on 13.7.2005 and the G.O. consequently was issued on 25.8.2005 extending the age of retirement of clerical staff of non government recognized and aided junior high schools to 60 years. However, the said G.O. has been applied with immediate effect meaning thereby the same would not apply to those who retired earlier. Since the petitioner attained the age of superannuation i.e. 58 years on 31.7.2007 and therefore, the benefit of the said G.O. has not been extended to him.

(3.) Learned counsel for the petitioner contended that since the cabinet decision was taken already on 12/13.7.2005 therefore, the G.O. dated 25.8.2005 must be deemed to have been given effect from the date when the cabinet has took the said decision. He further contended that the cut-off date is arbitrary and discriminatory inasmuch as the said decision creates two classes namely, those who retired prior to 25.8.2005 and those who would retire subsequently. It is also contended that Article 14 prohibits class legislation but permits reasonable classification, which must specify intelligible differentia and rational nexus with the object sought to be achieved. Where all the relevant considerations are same, persons holding identical post cannot be differentiated or treated differently. All pensioners form same class and cannot be treated differently. Moreover, there is no justification to differentiate the class of non-government aided junior high school and those, which are maintained by the Basic Shiksha Parishad. I have heard Sri W.H. Khan, learned counsel for the petitioner and perused the record.