# Sri Gopal Singh v. Executive Engineer, Construction and another

- **Citation:** High Court of Judicature at Allahabad #39645
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-gopal-singh-v-executive-engineer-construction-and-another-39645
- **Pages:** 6

## Text

1ALL] Sri Gopal Singh V. Executive Engineer, Construction and another

77
became the member of the subordinate
judiciary and only the High Court, under
Article 235 of the Constitution of India, could
hold the enquiry, but unfortunately the High
Court abnegated its control by holding the
enquiry against the petitioner ( deceased).

31. We are of the view that the High
Court under Article 235 is vested with the
control of the subordinate judiciary, ought not
to have asked the State Government to hold
the
enquiry
through
the
administrative
Tribunal. It appears that the High Court failed
to discharge its duty of preserving its control.
It was nothing, but an act of abnegation of its
powers of control. If the High Court would
have conducted the enquiry through any
officer subordinate to it and recommended to
the State Government for the deduction of the
pension of the petitioner (Late Shri Suraj Bali
Katiyar), then the State Government could
have been perfectly justified in passing the
said order, but in the instant case the
Administrative
Tribunal
conducted
the
enquiry, submitted its report and the High
Court on the basis of the said report,
recommended for deduction of 50% of the
pension of the petitioner (Late Shri Suraj
Bali Katiyar) under Regulation 351-A of
Civil Service Regulations and the State
Government passed the impugned order.

32. As we have state earlier, it was the
duty of the High Court to have conducted the
enquiry preferably through the District Judge
and thereafter would have recommended to
the State Government for any appropriate
action.

33. In view of our observations indicated
in the foregoing paragraphs, as a result of
which this writ petition succeeds, we have not
delved into the other points raised in this writ
petition regarding malafide and denial of
reason of reasonable opportunity.

34. In view of what has indicated herein
above the writ petition succeeds and is
allowed. A writ in the nature of certiorari
quashing
the
impugned
order
of
the
Government directing 50% deduction from
the pension of the petitioner (Late Shri Suraj
Bali Katiyar), the order of the Government
dated 27.11.1974 suspending the petitioner
(Late Suraj Bali Katiyar) pending enquiry and
the report of the Administrative Tribunal
dated 18.12.1976, is issued. The respondents
are directed to make the payment of full
pension to the substituted heirs and legal
representatives of the deceased petitioner and
grant family pension to his wife in accordance
with rules form the date of death of the
deceased petitioner.
Petition Allowed.

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By the Court

1. Gopal Singh, Petitioner, has impugned
order dated January 16. 1997, passed by
Executive Engineer Construction Division
(Nirman
Khand)
Lok-
Nirman
Vibhag,
Bageshwar
District
Almora
(now
reconstructed
District
Bageshwar)/
Respondent no.1 (Annexure-2 to the Writ
Petition) whereby the said authority gave one
month's notice to the petitioner on purported
attainment of age of superannuation under
Rule 56 (c) of Financial Handbook - Vol. 2 to
4 in public interest.

Rule 56(a) (b) and (c) which came in
existence in the year 1975 is reproduced
below:

56(a) Expect 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 of 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 service in inferior
service shall retire from service on the
afternoon 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,
except in very special circumstances and with
sanction of the Government.

(c)
Notwithstanding anything contained
in clause (a) or clause (b) the appointing
authority may, at any time, by notice to any
Government servant (whether permanent or
temporary). Without assigning any reason,
require him to retire after he attains the age
of fifty years or such Government servant may
be notice to the appointing authority
voluntarily retire at any time after attaining
the age of forty-five years or after he has
completed qualifying service of twenty years.

2. The aforesaid Rule was, however,
amended by U.P. Fundamental (Ist Amend
Rules, 1987 vide Government Order dated
28.7.1987 (enforced retrospectively, w.e.f.
5.11.1985) and reads:

56(a) Except as otherwise provided in
other clauses of this rule, every Government
servant 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 on the after the
date of retirement on superannuation, 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:

Provided that a Government servant,
recruited before November 5,1985 and
holding the Group 'D' post shall retire from
1ALL] Sri Gopal Singh V. Executive Engineer, Construction and another

79
service on the afternoon of the month in which
he attains the age of 60 (Sixty) years.

Explanation.- The above proviso shall not
be applicable in those case where the status of
a post/posts referred to in the above proviso,
has been changed after February 27, 1982 an
categorized in higher Group of post/post.

3. Learned counsel for the petitioner
initially argued that correct date of birth of the
petitioner was February 14, 1942 as per
horoscope; a copy of which has been filed as
Annexure 3 to petition.

Learned
Standing
Counsel
Sri
K.S.
Kushwaha placed reliance on Rule 2 of Uttar
Pradesh
Recruitment
to
Service
(Determination of Date of Birth) Rules 1974.
The relevant Rule 2 reads:-

2. Determination of Correct Date of Birth
or Age. The date of birth of a Government
servant as recorded in the certificate of his
having passed the High School or equivalent
examination at the time of his entry into the
Government service or where a Government
servant has not passed any such examination
as aforesaid or has passed such examination
after joining the service, the date of birth or
the age recorded in his service book at the
time of his entry into the Government service
shall be deemed to be his correct date of birth
or age, as the case may be, for all purposes in
relation of his service, including eligibility for
promotion,
superannuation,
premature
retirement or retirement benefits and no
application
or
representation
shall
be
entertained for Correction of such date of age
in any circumstances whatsoever.

4. Apart from the legal position that the
Date of birth recorded in service book could
not be disputed, this Court required learned
counsel for the petitioner to produce original
horoscope for perusal. The original horoscope
has been placed for perusal but it is found that
alleged original horoscope has been copied by
someone (hand written) on plane paper and
said copy has been pasted upon the so-called
original horoscope making it impossible for
any one to peruse the contents of original
document.

5. In view of the above, this Court is of
the opinion that petitioner has no locus standi
or case on merit to dispute the date of birth
recorded
in
his
service
record
which
continued throughout and exists as on date.

6. Learned counsel for the petitioner, in
the alternative, submitted that assuming the
date of birth recorded in financial hand book
to be correct, petitioner could not be retired
before attaining age of 60 years and he should
have been allowed to continue up to 30th June,
1999. According to petitioner the impugned
order is arbitrary and the concerned authority
was not competent to pass the same in view of
the fundamental Rules 56 (b) (before Amend
Rule 1987 came in force) as the concerned
authority itself did not refer to the amended
Rule 1987.

7. In para 2 of the petition it is stated that
petitioner is an illiterate person residing in
remote part of hill area of the Sate of U.P. He
was appointed as a Muster Roll Labour in the
year 1970. Learned counsel for the petitioner
claims that petitioner was working in the
establishment on or before 19th February,
1988 as 'Incharge Beldar' in temporary
establishment on the basis of District seniority
and he was regularised against sanctioned
posts of Beldar- which were vacant vide order
dated 19th February, 1988 (to be operative
w.e.f. 26th February, 1988); true copy of
which has been filed as Annexure 1 to the
petition.

8. It is argued by the learned counsel for
the petitioner that petitioner was in 'inferior
service' and hence he was entitled to continue
up to the age of 60 years as contemplated in
Rule 60 (b)- which existed prior to July 1987
(and appears to have been relied upon in the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
80
impugned order- Annexure-2 to the Writ
Petition).

9. On behalf of the petitioner it is
contended that Petitioner was recruited before
November 5, 1985 (see proviso of amended
Rule 56)- as also apparent from Annexure 1 to
the petition. On this basis it is argued that
petitioner was entitled to continue up to the
age of 60 years and no notice could be given
at 58 years. It is further submitted that it was
not within the competence of concerned
authority to retire the petitioner at the age of
58 years.

10. Learned counsel for the Respondent
on the other hand referred to amended Rule
56 and submitted that no reliance can be place
on
nonexistent
'rule' and reference in
impugned order to said Rule has to be referred
to the existing rule. According to the
respondents, petitioner was regularised after
November 5, 1985 and hence he cannot claim
to have been recruited prior to the date of
regularisation given in the concerned order,
i.e. Annexure- 1 to the Writ Petition.

11. Respondent laid emphasis on the word
'recruitment' used in the proviso to amended
Rule 56. Learned counsel for the petitioner on
the other hand places reliance on the
expression used in the regularisation order
date 19- 1988 (Annexure-1 to the Writ
Petition) and submits that the petitioner was
recruited
and
working
in
'temporary
establishment' prior to regularisation and it
shows that he is covered by the proviso to the
amended Rule 56. It is argued that in absence
of necessary pleadings and grounds on this
aspect the respondents were not aware of the
exact issue to be determined in this case and
hence the respondents are handicapped.

12. Learned Standing Counsel, had no
opinion but to concede that the impugned
order was passed in ignorance of amended
Rule and /or reference to the un-amended rule
in the impugned order is due to inadvertent
clerical mistake. Be that as it may be, the
impugned order has to be read as it stands
since there is no explanation on record by the
concerned authorities.

13. As the record stands today, unamended rule did not exist when the
impugned order was passed and the validity of
he said order is to be considered in the light of
the amended rule. This position is not
disputed by e learned counsel for the
Respondents.

14. Concerned Authorities and the parties,
it appears, were not alive to the Amendment
in the Rule. The parties thus had no
opportunity to consider the applicability of
amended Fundamental Rules 56, i.e. whether
the proviso of the amended rule shall be
applicable to the facts of the case of the
petitioner or not.

15. No one dealing with the matter
attempted to ascertain the date of recruitment
of the petitioner, i.e. - to find out the exact
extent
and
scope
of
the
expression
"Recruitment. In other words - whether
expression "Recruitment" in the proviso to
Fundamental Rule 56 include or exclude
temporary appointment or it only means the
date of regular/substantive appointment.

In this context - it will be useful to have
Definition of the word - "Recruit/Recruited"
or Recruitment" as given in some of the
Dictionaries:-

THE NEW LEXICON WEBSTER'S
DICTIONARY
(Vol.2) Encyclopaedia Edition Particular
page 834
RECRUIT ;" - to enlist men for (an army)
-Newly enlisted member of the armed
force.
-A member or supporter of a society,
cause, etc."

MUKHERJEES THE LAW LEXICON-
1ALL] Sri Gopal Singh V. Executive Engineer, Construction and another

81
(Vol. II) Second Edition. 1977 - page 406

5(&58,70(17

-
the dictionary meaning of the word
'Recruit.

-
Fresh supply of number of persons either
as additional or to -make up for deceased so
'recruitment' is only for purpose of making up
deficiency which occurs in the Cadre while
'appointment' means an actual act of posting
a person to a particular.

-
the term 'recruitment' and appointment '
are not synonymous and cannot different
meanings.

-
the term recruitment signifies enlistment,
acceptance,
selection
or
approval
for
appointment and no actual 'appointment or
positing in service while of 'appointment'
means and actual act of posting a person to a
particular office.

AIR 1969 Punjab & Haryana 178 (181)

THE LAW LEXICON :- by Pramanatha
Aiyer
Reprint Edition 1987 (Wadhya & Company)

RECRUIT :-

-
is a newly enlisted and not trained soldier
; a person who newly joins a society or
organisation.
THE RANDOM HOUSE - DICTIONARY
OF
ENGLISH
LANGUAGE
-College
Edition (1972) - (Published in India)

RECRUIT -
" ........ a new mention of group, organisation
or the like
 .......... To raise or increase (a force) by
enlistment ....... to engage or hire (new
employees, members etc.)"

Expression "recruitment" is wider in scope
as compared o the term "appointment" in
service jurisprudence.

16. The controversy in hand apparently
will require perusal of original record and
relevant materials, parties may like to adduce
evidence before the question - which involve
both mixed questions of fact and law, have to
be adjudicated in the back ground of the
circumstances in which the authority passed
impugned order and whether the case of the
petitioner is governed by amended a Rule 56
fed under provision.

17. Consequently, it will be appropriate
that
Petitioner
be
directed
to
file
a
representation before the concerned authority
for deciding the question in accordance with
law, to determine the question as to when
petitioner was recruited and thereafter the
applicability of Rule 56 as a whole -at
relevant time.

18. Learned counsels for the a parties are
in agreement that petitioner has already
completed 60 years and thus, he has attained
the age of superannuation (according to the
sate of birth mentioned in his service book). It
is, therefore, submitted that Petitioner has no
claim to be reinstated in the service. The only
relief, which survives, is regarding payment
of salary for the disputed period.

In view the above the impugned order
January
16,1997,
passed
by
Executive
Engineer
Construction
Division
(Nirman
Khand) Lok Nirman Vibhag, Badeshwar
District Almora (now reconstructed District
Bageshwar)/Repondent no.1 (Annexure-2 to
the Writ Petition ) is set aside subject to the
condition
that
petitioner

files
a
comprehensive representation containing his
grievance on the aspect referred to above in
the judgement (along with a certified copy of
this judgement) within six weeks from today.
Petitioner will not be entitled to re-open
controversy on the ground of horoscope or
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
82
entry not being correctly recorded in service
record. The concerned authority shall decide
the said representation within three months by
giving opportunity to the petitioner in
accordance with law and shall a reasoned
order which shall be communicated within
two weeks of its being passed by Registered
post acknowledgement due apart from any
other mode to the Petitioner.

It is made clear that none of the
observation made above shall effect the
discretion of the concerned authority in
deciding the issue before him. If it is found
that petitioner was entitled to be continued up
to the age of 60 years, the question of
payment of arrears of salary on the basis of
full wages shall be decided by concerned
authority
taking
into
account
relevant
circumstances (keeping in mind-employee in
the instant case has not refused to work) on
the basis of criterion pointed out in several
decisions of this Court as well as Apex Court,
whether employee was gainfully employed or
not etc., during relevant period in question.
See AIR 1991 SC 2010 (Union of India
versus K.V. Jankiramna):AIR 1999 SC 3265;
AIR 1979 SC 75; AIR 1980 SC 840 (para 18
and 19); 1998 (78) FLR 530(SC); AIR 1991
SC 1490 and 1998 (1) UPLBEC 304 (DB)
All. H.C.

Writ petition stands allowed subject to the
direction and observations made above.
Petition Allowed.

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By the Court

1. This writ petition has been filed against
the
impugned
orders
dated
13.1.1998
Annexure 25 and 26 to the petition. By the
order dated 13.1.1998 Annexure 25 to the
petition the post of Deputy Director (Public
Relation) in the North Central Zone Cultural
Centre, Allahabad was abolished. By the
second order of the same date (Annexure 26
to the petition) the petitioner was given
contractual appointment for two years from
1.12.1993 terminable at any point of time
without any prior notice. It was also provided
therein that on the expiry of the contract
period it will be in the sole discretion of the
Executive Board of the North Central Zone
Cultural Centre, Allahabad to determine