MAN BAHADUR Vs. UTTARAKHAND JAL SANSTHAN

JUDGEMENT

(1.) By means of this petition, the peti tioner has sought the relief that a mandamus be issued to the respondents to permit the petitioner to continue his service till he attains the age of 60 years as per the service record.

(2.) IT is admitted case of the parties that the petitioner was appointed as a Junior Engineer on regular basis on 04-11-1978 in the office of Executive Engi neer, Kumaon Jal Sansthan, Nainital. As per the service records of the petitioner, his date of birth is 01-09-1950 and is completing 58 & 60 years on 31- 08-2008 and 31-08-2010 respectively. The petitioner received an order dated 17-03-2008 issued by the Executive Engi neer stating therein that he would be su perannuated on 31-08-2008 because he has opted for the superannuation at the age of 58 years. After receiving the said order, the petitioner submitted his rep resentation on 18-03-2008 with the prayer that he may be permitted to con tinue his service till he attains the age of 60 years. The petitioner belonged to the Centralized Cadres pursuant to the U. P. Palikas and Jal Sansthans Water Works Engineering (Centralised) Serv ices Rules, 1986 (hereinafter referred as 'rule 1986') wherein there is no provision for providing the superannua tion of age. Rule 7 of Rule 1986 pro vides that the matter not covered by these Rules or by special orders, the provisions of the U. P. Palika (Central ised) Service Rules, 1966 (hereinafter referred as 'rule 1966') and the U. P. Palika (Centralised Service Retirement Benefit Rules, 1981 (hereinafter referred as 'rule 1981') shall, mutatis mutandis, apply until such time appro priate rules in this behalf are made for these services. Rule 38 of the Rule 1966 provides that the age of superannuation from service shall be 60 years. Accord ing to the petitioner, Rule 38 is applica ble in this case. Pursuant to the pay re vision of the Central Government em ployees by the Pay Commission, the State Government constituted the Samata Committee of the Pay Commis sion in the year 1989 for removing anomalies between the pay- scales of State Government employees and the employees of local bodies/authorities. While removing such anomalies in the pay scale the Samata Committee had taken into consideration that the age of retirement in the State Services was 58 years and in the local bodies it was 60 years and in order to bring the pay-scale of the employees of the local bodies at par with the employees of the State Government, a recommendation was made by the Samata Committee to give pay parity benefits and other benefits equal to other government employees and the employees of the local bodies, who have opted for superannuation at the age of 58 years. Pursuant to the rec ommendation of the Samata Commit tee constituted for removing anomalies between the pay scales of the employ ees of local bodies and Government employees, the Government Order No. V. A. 2-3-315/das-Estha. Ni. 3-89 dated 13-02-1990 was issued to all the Gen eral Managers of the Jal Sansthan in which the options of the employees with regard to the age of superannuation were obtained. Pursuant to aforesaid G. O. dated 13-02-1990 the petitioner has opted the age of retirement as 58 years and thereafter as per the condi tion as provided in the 1990 G. O. he was given selection grade w. e. f. 01-01-1986 and then his pay was fixed in the scale of Rs. 1400-2400 which is the re vised pay scale of Junior Engineer Grade-I. However, these benefits were only admissible to the employees who have completed 14 years of service. Since the petitioner has opted for the su perannuation at the age of 58 years, as such, he was given said benefits imme diately after issuance of the 1990 G. O. A further benefit of higher pay scale was also given to the petitioner pursuant to the aforesaid G. O. dated 13-02-1990 and his pay scale was fixed at Rs. 2200-4000/- w. e. f. 12-11-1991 i. e. after 8 years from the grant of the benefit of the selection grade. This scale was admis sible for the post of Assistant Engineer. Generally, the benefit of higher scale to other employees are admissible after 4 years from the grant of the benefit of selection grade.

(3.) THUS, the G. O. dated 13-02-1990 was issued about 18 years ago; it has been followed by all the employees of the department; and they have been get: ting benefits arising out of the said G. O. Learned counsel for the parties could not demonstrate us that the said G -. O. was ever quashed by the court. The said G. O. was beneficial to all the employ ees and their pay scales had been up graded equal to the State Government employees. The said benefits are being given to the employees by the Govern ment for the last 18 years. Since the petitioner in the year 1990 has opted for the superannuation at the age of 58 years, hence he has taken all benefits and promotions which were not admis sible to him during his tenure if he would not have opted his retirement age as 18 years. It is admitted to the parties that the petitioner has not withdrawn his option which he submitted pursuant to the G. O. dated 13-02-1 990 and the option given by the petitioner in the year 1990 is valid till date. The petitioner already taken the salary as well as the promotional benefits by opting the retirement age as 58 years pursuant to the said G. O. The petitioner has availed all the facilities which were available to him under the aforesaid G. O. The em ployees who have not opted for the su perannuation at the age of 58 years have been deprived of the said benefits and the promotions. Since the petitioner has opted for the superannuation at the age of 58 years hence he was given selec tion grade w. e. f. 01-01-1986 and his pay was fixed at higher pay- scale. If the pe titioner would not have opted for the superannuation at the age of 58 years he was entitled to get the benefit of se lection grade in the year 1992 and then the higher pay scale after 4 years from the date of selection grade i. e. in the year 1996, but he got higher grade in the year 1994. The relevant extracts of the service book of the petitioner has been annexed with the counter affida vit. The petitioner has taken all benefits pursuant to the aforesaid G. O. and now at the fag end he cannot claim to con tinue in service in the attains the age of 60 years.