# Engineers and others v. Union of India and

- **Citation:** (2011) 3 ILRA 1056
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-22
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/engineers-and-others-v-union-of-india-and-42037
- **Pages:** 5

## Headnote

Constitution
of
India
article
226
Fundamental
Rule-56(II)-retirement
age-consolidation Lekhpal-challenge the
retirement notice at the age of 58 yearson ground belongs to inferior serviceprior to 1965 inferior service are those
who getting salary of Rs. 22.27, 27.32
and 32.37-does not mean all class 4th
employee shall retire at the age of 60
years-statutory
Rule
can
not
be
amended by exercising rule framing
power-no interference called for-petition
dismissed.

Held: Para 15

Fundamental Rule 56 only talks of the
age of retirement at 60 years of an
"inferior service" and not Group 'D'
employee. The petitioner nowhere claim
that he was a member of "inferior
service".
Therefore,
he
was
rightly
retired on attaining the age of 58 years.
Case law discussed:
2005 (1) UPLBEC 474; AIR 2004 SC 2317;
2006 (3) AWC 2243; Civil Misc. Writ Petition
No. 47754 of 2005 (M/s J.K. Construction
Engineers and others Vs. Union of India and
others) decided on 28.02.2006; 2006 (2) ESC
1017; 2006 (5) AWC 5306

## Text

1056 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.09.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Service Single No. - 1516 of 2000

Chhatthu Narain Vishwakarma

 ...Petitioner
Versus
State of U.P. Through Secy. Revenue
Dept. and another
 ...Respondents

Counsel for the Petitioner:
Sri A.K. Dixit

Counsel for the Respondents:
C.S.C.

Constitution
of
India
article
226
Fundamental
Rule-56(II)-retirement
age-consolidation Lekhpal-challenge the
retirement notice at the age of 58 yearson ground belongs to inferior serviceprior to 1965 inferior service are those
who getting salary of Rs. 22.27, 27.32
and 32.37-does not mean all class 4th
employee shall retire at the age of 60
years-statutory
Rule
can
not
be
amended by exercising rule framing
power-no interference called for-petition
dismissed.

Held: Para 15

Fundamental Rule 56 only talks of the
age of retirement at 60 years of an
"inferior service" and not Group 'D'
employee. The petitioner nowhere claim
that he was a member of "inferior
service".
Therefore,
he
was
rightly
retired on attaining the age of 58 years.
Case law discussed:
2005 (1) UPLBEC 474; AIR 2004 SC 2317;
2006 (3) AWC 2243; Civil Misc. Writ Petition
No. 47754 of 2005 (M/s J.K. Construction
Engineers and others Vs. Union of India and
others) decided on 28.02.2006; 2006 (2) ESC
1017; 2006 (5) AWC 5306
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned counsel for the
petitioner and perused the record.

2. The petitioner filed this writ
petition challenging notice dated 14th
October, 1999 whereby he was informed
of his retirement w.e.f. 31st January, 2000
on attaining the age of 58 years under
fundamental rule 56.

3. The contention of the petitioner
was that he is Consolidation Lekhpal,
which is a Group 'D' post. In view of
Government Order dated 28th July, 1987
he is liable to retire on attaining the age of
60 years.

4. However, I find no force in the
submission. Fundamental Rule 56(a) and
(b) as substituted w.e.f. 1st April, 1975
reads as under:

"(a) Except as otherwise provided in
this Rule, every Government servant other
than a Government servant in inferior
service shall retire from service on the
afternoon of the last day of the month in
which he attains the age of fifty eight
years. He may be retained in service after
the date of compulsory retirement with the
sanction of the Government on public
grounds which must be recorded in
writing, but he must not be retained after
the age of 60 years except in very special
circumstances.

(b) A Government servant in inferior
service shall retire from service on the
after of the last day of the month in which
he attains the age of sixty years. He must
not be retained in service after that date,
3 All] Chhatthu Narain Vishwakarma V. State of U.P. and another
1057
except in very special circumstances and
with sanction of the Government."

5. A perusal thereof shows that age
of retirement for every Government
servant other than a Government servant
in "inferior service" is 58 year. Only in
respect to a Government servant who is in
"inferior service", the age of retirement is
60 years. "Inferior service" does not mean
the entire Group 'D' employees but
amongst Group D employees those who
are governed by inferior service constitute
a small section.

6. Prior to 1st April, 1965 only those
employees of State Government who
were getting salary of Rs.22.27, 27.32 and
32.37 were members of "inferior service".
Pursuant to the pay scales revised w.e.f.
1st April, 1965 the aforesaid three pay
scales were revised to Rs.55.57 or
Rs.60.80. Later on w.e.f. 1st August, 1972
and 1st July, 1979 new pay scales were
implemented whereby inferior service
scales ceased. It is in this context,
clarification was made by Government
Order dated 5th November, 1985 but it
did not result in actual amendment in
Fundamental Rule 56 (a) and (b) having
the effect of deleting provision of age of
retirement for members of inferior service
and therefore the result is that these
provisions
continued.
Though
some
amendment
has
been
made
in
Fundamental Rule 56 by notification
dated 27th June, 2002 but it is a matter of
great concern that the said amendment has
been made in exercise of power under
proviso to Rule 309 ignoring the fact that
Fundamental Rule 56 was made by a
legislative Act in 1975 and onwards. A
legislative Act cannot be amended by
exercising Rule framing power.

7. Be that as it may, for the purpose
of present case the fact remains that
petitioner has nowhere claimed to qualify
for "inferior service" and therefore cannot
claim to continue beyond the age of 58
years. The decision cited by learned
counsel for the petitioner has not
considered
the
relevant
statutory
provision namely Fundamental Rule 56
and has proceeded on the assumption as if
all Group "D" employees are entitled to
continue till the age of 60 years and
therefore the judgment is apparently per
incurium and not binding on this Court.

8. What constitute "per incurium"
need not detain my attention, since time
and again it has been explained by the
Apex Court. A Full Bench of this Court in
Farhat Hussain Azad Vs. State of U.P.
and others, 2005 (1) UPLBEC 474 after
referring to the law with respect to "per
incurium" laid down by the Apex Court in
catena of decisions, has observed:-

"The concept of "per in curium" has
been considered by the Apex Court time
and again explaining that the expression
means through inadvertence or a point of
law is not consciously determined. If an
issue is neither raised, nor argued, a
decision by the Court after pondering
over the issue in depth would not be
precedent binding on the Courts. Per
incurium are decisions given in ignorance
or
forgetfulness
of
some
statutory
provisions or where the Court omits to
consider a binding precedent of the same
Court or the superior Court rendered on
the same issue or where Court presumes
something contrary to the facts of the
case. (Vide Mamleshwar Prasad & Anr.
Vs. Kanahaiya Lal (Dead), (1975) 2 SCC
232; Rajpur Ruda Meha & Ors. Vs. State
of Gujrat, AIR 1980 SC 1707; A.R. Antule
1058 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Vs. R.S. Nayak, AIR 1988 SC 1531;
Municipal Corporation of Delhi Vs.
Gurnam Kaur, AIR 1989 SC 38; Punjab
Land Development and Reclamation
Corporation
Ltd.,
Chandigarh
Vs.
Presiding
Officer,
Labour
Court,
Chandigarh & Ors., (1990) 3 SCC 682;
State of West Bengal Vs. Synthetics and
Chemicals Ltd., (1991) 1 SCC 139;
Maharashtra State Cooperative Cotton
Growers Marketing Federation Ltd &
Anr. Vs. Employees' Union & Anr., 1994
Supp (3) SCC 385; Pawan Alloys &
Casting Pvt Ltd, Meerut Vs. U.P. State
Electricity Board & Ors., (1997) 7 SCC
251; Ram Gopal Baheti Vs. Girdharilal
Soni & Ors., (1999) 3 SCC 112; Sarnam
Singh Vs. Dy. Director of Consolidation
& Ors., (1999) 5 SCC 638; Govt. of
Andhra Pradesh Vs. B. Satyanarayana
Rao, AIR 2000 SC 1729; Arnit Das Vs.
State of Bihar (2000) 5 SCC 488; M/s.
Fuerst Day Lawson Ltd. Vs. Jindal
Exports Ltd., AIR 2001 SC 2293; A-One
Granites Vs. State of U.P. & Ors., (2001)
3 SCC 537; Suganthi Suresh Kumar Vs.
Jagdeeshan, AIR 2002 SC 681; Director
of Settlements A.P. & Ors. Vs. M.R.
Apparao & Anr., (2002) 4 SCC 638; S.
Shanmugavel Nadar Vs. State of T.N &
Anr.., (2002) 8 SCC 361; State of Bihar
Vs. Kalika Kuer Kalika Singh & Ors., AIR
2003 SC 2443; and Manda Jaganath Vs.
K.S. Rathnam & Ors., (2004) 7 SCC 492).

In B. Shyama Rao Vs. Union
Territory of Pondichery & Ors., AIR 1967
SC 1480, the Constitution Bench of the
Supreme Court observed as under:-

"It is trite to say that a decision is
binding not because of its conclusions but
in regard to its ratio and the principles,
laid down therein."

In State of U.P. & Anr. Vs. Synthetics
& Chemicals Ltd. & Anr. (1991) 4 SCC
139, the Apex Court followed the
aforesaid judgment in B. Shyama Rao and
held as under:-

"Any
declaration
or
conclusion
arrived without application of mind or
proceeded without any reason cannot be
deemed to be declaration of law or
authority of a general nature binding as a
precedent......A
conclusion
without
reference to relevant provision of law is
weaker than even casual observation."

Similar view has been reiterated in
Divisional
Controller,
KSRTC
Vs.
Mahadeva Shetty & Anr., (2003) 7 SCC
197, observing that casual expressions in
a judgment carry no weight at all, nor
every passing remark, however eminent,
can be treated as an ex-cathedra
statement having the weight of authority."

9. In N. Bhargavan Pillai Vs. State
of Kerala, AIR 2004 SC 2317 (para 14)
the Apex Court said, if a view has been
expressed without analysing the statutory
provision, it cannot be treated as a binding
precedent and at the most is to be
considered as having been rendered per
incuriam. The same law has been
reiterated
in
Faujdar
Vs.
Deputy
Director of Education and others, 2006
(3) AWC 2243.

10. In Civil Misc. Writ Petition No.
47754 of 2005 (M/s J.K. Construction
Engineers and others Vs. Union of
India and others) decided on 28.02.2006,
a Division Bench of this Court held:-

"The doctrine of per incuriam is
applicable where by inadvertence a
binding precedent or relevant provisions
3 All] Chhatthu Narain Vishwakarma V. State of U.P. and another
1059
of the Statute have not been noticed by the
Court."...(Para 106)

11. Similar view has been taken by
another Division Bench in Brahma
Prakash Vs. State of U.P. & other- 2006
(2) ESC 1017. In para 40 of the judgment
this Court held as under-

"Thus
in
view
of
aforesaid
discussion, it is clear that while rendering
the decision in Radha Krishna Gupta's
case earlier Division Bench of this Court
with all respect did neither ascertain the
ratio
of
decisions
referred in
the
judgment, nor discussed, as to how the
factual situation fits in with the fact and
situation of the decision on which reliance
was placed. Contrary to it the decision of
Hon'ble Apex Court which requires
consideration of various factors in this
regard, referred herein before in our
judgment has been completely ignored by
the Division Bench, therefore, being a
decision given per incuriam, cannot be
held to be binding authority under law."

12. In the judgements referred to
above, the aforesaid doctrine of per
incuriam has been discussed in detail and
it has been held that a judgment per
incuriam does not lay down a binding
precedent.

13. Learned counsel for the
petitioner drew attention of this Court to a
decision of Hon'ble Single Judge of Writ
Petition No.1507 (S/S) of 2001 connected
with writ petition No.3538 (S/S) of 2000
and writ petition No.2557 (S/S) of 2000
decided on 22.8.2008 wherein this Court
observed that fundamental rule 56(a)
provides that employee belonging to
Group D shall retire at the age of 60 years
and also that Rule 2 of U.P. Consolidation
Lekhpal Service Rules, 1978 provides age
of retirement of Consolidation Lekhpal as
60 years and said that in view of the
aforesaid decision, the petitioner is
entitled to retire on attaining the age of 60
years.

14. I do not go into the question as
to whether Consolidation Lekhpal become
a Group C employees though earlier it
was Group D employees. Even if the
petitioner is considered to be a Group D
employee, Fundamental Rule 56 (a) and
(b) nowhere contemplate that all Group D
employees shall retire on attaining the age
of 60 years but it talks of "inferior
service". Reference has been made to the
Government Order dated 28th July 1987
which reads a Group D service for all
purposes attracting the provision retiring
the person at the age of 60 years. Suffice
it to mention that Fundamental Rule 56
has been inserted by U.P. Legislature
Enactment i.e. U.P. Act No. 24 of 1975
and therefore cannot be altered, amended
or changed by executive order.

15. Fundamental Rule 56 only talks
of the age of retirement at 60 years of an
"inferior service" and not Group 'D'
employee. The petitioner nowhere claim
that he was a member of "inferior
service". Therefore, he was rightly retired
on attaining the age of 58 years.

16. So far as U.P. Consolidation
Lekhpal Service Rules, 1978 is concerned
the learned counsel could not show any
provision therein laying down a particular
age
of
retirement
of
Consolidation
Lekhpal. Rule 2 of 1978 Rules declares
Consolidation
Lekhpal
Service
comprising Group D posts. It does not
talk of age of retirement. Apparently
1060 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
reference to 1978 Rules for this purpose
also is erroneous and is per incurium.

17. So far as Government Order
dated 28th July, 1987 is concerned,
suffice it to mention that no such
amendment as a matter of fact was made
under Fundamental Rule 56 since by
legislative
enactment
it
came
into
existence i.e. by U.P. Act No.24 of 1975
and therefore under proviso to Article 309
the same could not have been amended.
Moreover, this question has also been
considered and decided by Full Bench in
Surya Deo Mishra Vs. The State of U.P.
& Anr., 2006(5) AWC 5306 and the
court in para 21 said:

"learned
Additional
Advocate
General for the State respondent has
urged that the two cases of Shubh Nath
Dubey and Srikant Shukla (Supra) were
not correctly decided. He has urged that
the
age
of
superannuation
for
Government servants is provided under
Rule 56(3) of the Fundamental Rules
Chapter II part 2 to 4. The age of
superannuation of all the Government
servants of inferior category was 60
years. .... A perusal of the decisions in
Shubh Nath Dubey and Srikant Shukla
(Supra) shows that the provision relating
to higher pay scale and treating drivers
as 'technical employees' were neither
brought to the notice of the Court nor
were considered. .... In Our opinion, the
aforesaid two decisions have not been
correctly decided and as such they are
hereby over-ruled."

18. In view of the aforesaid, since
very foundation of the writ petition is
nonest hence no relief can be granted to
the petitioner.

19. At this stage, learned counsel for
the petitioner submitted that the petitioner
ought to have been provided all retiral
benefits treating to have retired on
attaining the age of 58 years. but the said
benefits have not been paid so far.

20. Suffice it to mention that in case
retiral benefits have not been paid to the
petitioner treating to have retired on
attaining the age of 58 years, the same
shall be paid to him expeditiously and in
any case within three months from the
date of production of a certified copy of
this order.

21. With the aforesaid direction the
writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2011

BEFORE
THE HON'BLE S.K. SINGH, J.
THE HON'BLE SUDHIR AGARWAL,J.

Service Bench No. - 1565 of 1998

Ram Kripal Srivastava
 ...Petitioner
Versus
U.P.P.S.T. Lucknow
 ...Respondent

Counsel for the Petitioner:
Sri P.N. Singh

Counsel for the Respondents:
C.S.C.

U.P. Fundamental Rule -54-B (3) and
(5)-Reinstatement with punishment of
denial of full salary during suspension
period-except
the
subsistence
allowance-authority concern bound to
give notice in writing prior to proposed
punishment-no notice opportunity givenwhich entails civil consequences-heldnot
sustainable.