VED PRAKASH SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) CONNECT with Writ Petition No.4621 of 2009. The petitioner was appointed as 'Junior Clerk' by way of direct appointment in 'Laghu Krishak Vikash Abhikaran'. He has challenged the notice dated 29.01.2009 by which an information is given to him that he is to retire on 31.3.2009 on attaining the age of 58 years. Learned counsel for the petitioner has relied upon the judgment of this Court in Writ Petition No.45 S/S of 2005 dated 09.4.2007 in which this Court relying upon amendment in Fundamental Rule 56 found that since the rules have statutory force under Art.309 of the Constitution of India, all executive instructions including the Government Order dated 09.3.2004, will stand altered and modified, and thus the employees of the District Rural Development Agency will retire at the age of 60 years. Learned Standing Counsel would contend that the Authorities such as 'DRDA', 'MPVA' and 'LKVA' are Government Societies with the District Magistrate of the District as its Chairman. The societies are registered under the Societies Registration Act. The service conditions of the employees appointed in the society are regulated by the Government Orders dated March 17th, 1994, which provided that the matters for which provisions have not been made, or that special provisions have not been made, the rules applicable to the serving government servant will apply. In the present case the State Government had taken a policy decision on 9th March, 2004 to retire all the employees, who were directly appointed in the District Rural Development Agency, at the age of 58 years. The Government Order dated 17th March, 1994 was also applicable to all the district level authorities, which have been registered as societies. It is not denied that in the present case the Abhikaran is society registered under the Societies Registration Act and thus the Government Order dated 17th March, 1994 will be applicable to all those employees, who were directly appointed in the society. The petitioner is not a government servant and thus the Fundamental Rules are not applicable to him and have also been made inapplicable by the State Government in the Government Order dated 9th March, 2004. This point appears to have escaped the attention of the Court in deciding Kalika Prasad's case (Supra). The effect of the Government Order dated 17th March, 1994 and the inapplicability of Art.309 to the employees of the Government Societies was not considered by the Court. I find that the judgment in ignorance of the relevant Government Orders providing that the terms and conditions of services of government servants under Art.309 of the Constitution of India are not applicable to the employees of the State Government societies and further that these employees do not hold civil post, does not cover the legal issue. Learned Standing Counsel will file counter affidavit within four weeks. The petitioner will have one week, thereafter, to file rejoinder affidavit. List on 25th May, 2009. The petitioner's retirement at the age of 58 years and his right to continue upto 60 years will be subject to result of this writ petition.