JUDGMENT [ENTITY], J.
1. Petitioners of [CASE NUMBER] and Civil Misc. Writ Petition No. 20[SECTION]9 of 2002, Sri [ENTITY] and Sri [ENTITY] are [ENTITY] in Zila Panchayat. Petitioners of Civil Misc. Writ Petition No. 29[SECTION]9 and 34752 of 2002 Dr. [ENTITY], Dr. [ENTITY] and Dr. [ENTITY] are Medical Officers of Zila Panchayat. All the five petitioners in the aforesaid writ petitions have challenged the notice of their retirement at the age of 58 years. All the petitioners belong to [ACT] of Zila Panchayat. The contention of the petitioners is that the Government has enhanced the age of superannuation of the Government servants from 58 years to 60 years and they are also entitled to the benefit of the enhanced age of superannuation of the Government servants because of the Rules relating to their Cadre are silent about the age of superannuation and [SECTION] of the Rules specifically provides that in regard to the matters not specifically covered by the Rules applicable in their case, persons appointed to the Central Cadre shall be governed by Rules, Regulations and Orders applicable generally to the Government servants serving in connection with the affairs of the State. While the contention of the State and Zila Panchayat is that the members of both cadres, namely, [ENTITY] and Medical Officers are governed by [ACT], as amended by the [ACT] and [ACT]. Petitioners ([ENTITY]) mainly relied on U. P. Zila Parishad ([ACT] of [ENTITY]) Rules, 1993 and the petitioners Medical Officers relied on [ACT] and U. P. Zila Parishad ([ACT] of [ENTITY]) Rules, 1993. According to petitioners (Medical Officers), since [ACT] and U. P. Zila Panchayat ([ACT] of [ENTITY]) Rules, 1993, do not provide the age of superannuation, therefore, the Rules with regard to retirement generally applicable to the Government servants shall also apply to the Medical Officers of Zila Parishad like [ENTITY] who also belong to the [ACT].
2. We have heard learned counsel for the petitioners and the learned standing counsel for State of U. P. and Zila Panchayat at length. Both State of U. P. and Zila Panchayat have filed counter-affidavits in the writ petition relating to [ENTITY]. Petitioners have filed rejoinder and supplementary affidavits.
3. The different provisions of U., [ACT] and [ACT] (hereinafter referred to as the Act) are relevant before coining to the different Rules relied by the respective parties. [SECTION] of the Act is relevant which is as follows :
"[SECTION]. "Servant of the Zila Panchayat" means a person in the pay and service of the Zila Panchayat ;
[SECTION] of the Act deals with the heading Officers and Servants of the Zila Panchayats and Kshettra Panchayats'."
4. [SECTION] of the Act provides the list of the officers of the Zila Panchayat. In the list, [ENTITY] is at serial No. (U) and the [ENTITY] is mentioned at serial No. (iv), [ENTITY] was included by the [ACT]. The post of [ENTITY] was earlier known as "Additional [ENTITY]" and these posts with the nomenclature of Additional [ENTITY] were created for the first time by the Notification dated 17.5.1972 and the nomenclature of the Additional [ENTITY] was changed to [ENTITY] vide Notification dated 12th December, 1985. The posts of the officers of the Zila Panchayat specified in [SECTION] are of two categories, one category of post is occupied by the Government servants and the other category of posts is filled by promotion from Zila Panchayat. This fact is evident from [SECTION] of the Act. Entire [SECTION] of the said Act is relevant and it is as follows :
[SECTION]. Officers and Servants of the Zila Panchayat-
(1) Subject to any special directions by the State Government from time to time, Zila Panchayat shall have the following posts of officers :
(i) [ENTITY] ;
(ii) [ENTITY] ;
(iii) [ENTITY] ;
(iv) [ENTITY] ;
(v) [ENTITY] ;
(vi) Vikas Adhikari ;
(vii) [ENTITY] ;
(viii) [ENTITY] ;
(ix) [ENTITY] ;
(x) [ENTITY] ;
(xi) [ENTITY] ;
(xii) [ENTITY] ;
(xiii) [ENTITY] ;
(xiv) [ENTITY] ;
(xv) [ENTITY] ;
(xvi) [ENTITY] ;
(xvii) [ENTITY] ;
(xviii) [ENTITY] ;
(xix) [ENTITY] ;
(xx) [ENTITY] ;
(xxi) [ENTITY] ;
(xxii) [ENTITY] ;
(xxiii) [ENTITY] ;
(xxiv) [ENTITY] ;
(xxv) [ENTITY] ;
(xxvi) [ENTITY] ;
(2) Subject to such conditions as may be prescribed, the Zila Panchayat, may in connection with its affairs, create post of such other officers (including [ENTITY] and [ENTITY]) and other servants as may be prescribed by rules.
(3) The [ENTITY], and where the [ENTITY] is not posted in a district, the Chief Development Officer, the Deputy Chief Medical Officer nominated by the Chief Medical Officer, the Executive Engineer, Jal Nigam, the District Development Officer, the Basic Shiksha Adhikari, the District Agriculture Officer, the Assistant Registrar, Cooperative Societies, the Chief Veterinary Officer, the District Social Welfare Officer, the Executive Engineer, Rural Engineering Services, the District Youth Welfare Officer, the District Soil Conservation Officer, the District Horticulture Officer, the District Panchayat Raj Officer, the Executive Engineer, Minor Irrigation, the District Programme Officer (Child Development Project), the Assistant Director (Fisheries or the [ENTITY], Fish Farmers Development Agency, as the case may be, the District Cane Development Officer, the Deputy Dairy Development Officer, the District Inspector of Schools, and the Executive Engineer (Tube well) of the State Government shall also hold respective posts mentioned in Clauses (i), (iv), (v), (vi), (ix) to (xx) and (xxii) to (xxvi) of subsection (1).
(3A) The State Government may direct that all or any of the posts mentioned in Clauses (mi), (viii), (xxi) of Sub-section (1) shall be held ex-officio by such officers and on such terms and conditions as may be specified.
(3B) The State Government may, by order create any other post of officer or servant in a Zila Panchayat and :
(a) direct that such post shall be held ex-offlcio by such officer or servant of the State Government as may be specified ; or
(b) appoint any person to such post ; or
(c) regulate the recruitment to such post, and further specify the terms and conditions on which the post shall be held.
(3C) Any post created under Sub-section (3B) shall not be abolished without the sanction of the State Government."
5. The provisions of [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] and [SECTION] are also relevant for recording a finding about the application of Rules to the Central Cadre of Zila Panchayat. The aforesaid provisions are as follows :
"[SECTION]. Employment of servant of Government under the Zila Panchayat :
(1) Subject to any rules, made in this behalf, the State Government may-
(a) at the request of Zila Panchayat and for such time and on such term as may be agreed to place at the disposal of the Zila Panchayats the services of any of its servants ; and
(b) Whenever the work of any Government office is transferred to Zila Panchayat by order in writing require the Zila Panchayat to employ on such posts and on such terms as may be specified in the order either the entire staff of the office of Government connected with that work or such of the servants in that office as may be designated or nominated by the State Government and the services of such staff or servants shall thereupon be deemed to have been placed at the disposal of the Zila Panchayat for the time being : Provided that a servant so employed with a Zila Panchayat may at any time be recalled by the State Government.
(2) The salaries and allowances of servants referred to in Sub-section (1) shall be paid out of the Zila Nidhi as if they were servants of the Zila Panchayat.
[SECTION]. Method of appointment of [ENTITY] and to certain other posts :
(1) Appointments to the posts of [ENTITY], [ENTITY] and [ENTITY] and the posts created under [SECTION] carrying such pay scales as the State Government may, by notification fix shall be made by the Zila Panchayat in consultation with the State Public Service Commission or such other Commission or Selection Board as may be constituted by the State Government in this behalf for all Zila Panchayats or any groups of Zila Panchayats separately (in either case hereafter referred to as the Commission) in the manner prescribed :
Provided that if there is a difference of opinion between the Commission and the Zila Panchayat the matter shall be referred to the State Government whose decision shall be final.
[SECTION]. General transferable cadre of certain classes of servants :
Notwithstanding anything in [SECTION], [SECTION] and [SECTION], the State Government may at any time create a [ACT] of [ENTITY], [ENTITY], [ENTITY] and other officers and where any such cadre has been created, appointment to the posts of [ENTITY], [ENTITY], [ENTITY] or other officers and employee aforesaid, as the case may be, shall be made out of the persons of the cadre concerned in such manner and on such terms as may be prescribed by rules, and notwithstanding anything elsewhere in this Act, selection of persons to any such cadre and the transfer and punishment of officers, and employee of the cadre shall be regularised by Rules.
[SECTION], The following procedure shall be adopted in appointing the officers and servants referred to in Sub-section (1) to the posts created under [SECTION]
(a) appointments to posts for which consultation of the Commission under [SECTION] is necessary shall be made according to the provisions of the said sub-section ;
(b) appointments to the other posts shall be made by the [ENTITY] in accordance with rules made in this behalf :
Provided that any officer or servant aggrieved by any appointment made by the [ENTITY] may within thirty days of the date of the order by which the appointment was made, make a representation to the Commissioner of the Division and in that case the decision of the Commissioner of the Division Shall be final and binding ;
(c) if for any post a suitable person out of the officers and servants aforesaid is not available then appointment to the post may be made from outside under the provisions of this Act. The suitability of such officers and servants shall be considered in the prescribed manner ;
(d) if any officer or servant as aforesaid declines to accept the post to which he is appointed on the ground that the pay or the time-scale of the pay attached to the post is less than his present time-scale of pay, then his service shall be terminated after such notice and on such terms as he would have been entitled to on the abolition of the post held by him if this Act had not been passed ;
(e) in making appointments under Clauses (a) and (b) due regard will be made for the length of service and experience of the officers and servants ; and
(f) an officer or servant appointed to a post of which the pay or the time-scale of pay is less than his present pay or time-scale of pay, may within thirty days of the order by which he has been appointed to that post make a representation to the State Government and in that case the decision of the State Government shall be final and binding.
[SECTION]. Punishment of servants of Zila Panchayat and Kshettra Panchayats. The punishment of officers and other servants employed with the Zila Panchayat or with any Kshettra Panchayat, including appeals from orders of punishment the power of revision, if any, of appellate orders and suspension pending enquiry, shall be regulated by Rules :
Provided that the authority which is given the power to dismiss, remove from service or reduce in rank any officer or servant shall not be lower in rank than the appointing authority for the post held by such officer or servant :
Provided secondly, that in the case of employees whose appointment is required to be made in consultation with the State Public Service Commission it shall be necessary for the punishing authority to consult the Commission in the manner prescribed before passing an order for the dismissal, removal or reduction in rank of any such employee.
[SECTION]. Power of State Government to makes rules :
(1) The State Government may by notification in the Gazette make rules consistent with this Act in respect of any matter or matters for which the power of making rules is expressly or by Implication conferred by this Act, and may also make rules which are otherwise requisite for carrying out the purposes of this Act.
(2) Any Rule made under Sub-section (1) may be general for all Zila Panchayats or all Kshettra Panchayats or special for any one or more Zila Panchayats or Kshettra Panchayats to be specified.
(3) All Rules made under this Act, shall, as soon as may be, after they are made, be laid before each House of the State Legislature while it is in session for a total period of thirty days extending in its one session or more than one successive sessions and shall unless some later date is appointed, take effect from the date of their publication in the Gazette, subject to such modifications or annulments as the two Houses of the State Legislature may during the said period agree to make so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder.
6. The following Rules on which the parties relied are also relevant for deciding the controversy in these writ petitions :
(1) Uttar Pradesh Zila Paris had ([ACT]) Rules. 1966. Rule 2 (c) defines the cadre, which means a [ACT] created under [SECTION] of the Act. [SECTION] of these Rules provides that the State Government shall create [ACT] of [ENTITY] and certain other officers.
(2) V. P. [ACT]. These Rules framed under [SECTION] read with sub-rules (2) and (4) of [SECTION], Section 40 and [SECTION], Sub-section (1) of [SECTION], [SECTION], Sub-section (2) of Section 46 and [SECTION] of the Act. [SECTION] are relevant.
(3) Uttar Pradesh Zila Parishad (Terms and Conditions for Holding Certain Post by Government Official) Rules, 1968. These rules provide for payment of salary and other allowances, departmental proceedings etc. of the Government Officers who are holding the post as per provisions of [SECTION].
(4) Uttar Pradesh Zila Parishad Servant (VIIIth Amendment) Rules, 1979. These Rules amend [ACT]. The relevant amendment has been carried out in [SECTION], [SECTION] and [SECTION] and now existing provisions provide that every servant of Zila Parishad shall retire from service on the afternoon of the last day of month in which he attains the age of 58 years.
(5) Uttar Pradesh Zila Parishad ([ACT] of [ENTITY]) Rules, 1993. These Rules were framed under [SECTION] of the Act by the State Government. [SECTION] relied on by the petitioners is as follows :
[SECTION]. Regulation of civil matters. In regard to the matters not specifically covered by these Rules, persons appointed to the cadre shall be governed by Rules, Regulations and Orders applicable generally to the Government Servants serving in connection with the affairs of the State.
(6) [ACT]. These rules were framed under [SECTION] read with [SECTION] and [SECTION] of the Act. These Rules supersede all the Rules relating to pension and retirement benefits to the [ACT]. Certain Rules of these Rules are material which are quoted below :
[SECTION]. "Superannuation pension" means pension granted to an officer who is entitled or compelled by Rules to retire at a particular age (58 years).
[SECTION]. "Retiring pension" means pension which may be granted to an officer attaining the age of 58 years and Includes pension that may be granted to an officer who is required to retire at or after the age of 55 years and also includes pension granted after completion of age of 50 years or on completion of 20 years qualifying service voluntarily sought for.
[SECTION]. "Service"
means Uttar Pradesh Zila Panchayat ([ACT] Service) created under [SECTION] of the [ACT] and [ACT].
7. First of all, we take the Rules relied on by all the petitioners (Annexure-2 to the writ petition in [CASE NUMBER]). These Rules are called Uttar Pradesh Zila Parishad ([ACT] of [ENTITY]) Rules, 1973. All the petitioners have emphasised [SECTION] of these Rules cited above and have argued that [SECTION] will cover the provisions relating to retirement age and since these Rules do not provide for the retirement age, the Rules relating to age of retirement applicable generally to the Government servant shall apply in their case. Admittedly, Rules relating to retirement to Government servant provide 60 years as age of superannuation. We may point out here that these Rules have been framed by the State Government under [SECTION] read with [SECTION] of the Act. Both the provisions are cited above. [SECTION] deals with general rule making power of the State Government, while [SECTION] empowers State Government for the creation of the [ACT] of different officers and includes the power of the State Government to create [ACT] for [ENTITY] also. Under this section, the State Government is authorised to prescribe by Rules the manner and terms of selection of persons and transfer and punishment of officers of [ACT]. We emphasize here that [SECTION] of the Act does not authorize the State Government to provide the 'condition of service' in general but State Government has been given power to frame Rules for specific purposes as given in [SECTION] cited above.
8. The State Government, after change of nomenclature, has issued a notification under which the post of [ENTITY] has been created in exercise of power under [SECTION] of the Act. A perusal of [SECTION] cited above goes to show that under [SECTION] the State Government is authorised to regulate the recruitment to such posts and may also specify the terms and conditions of each post created under this Section. It appears to us that the State Government in framing Uttar Pradesh ([ACT] of [ENTITY]) Rules, 1993, has not exercised the power given under [SECTION] of the Act. So it is clear that the "conditions of service" have not been provided in Uttar Pradesh Zila Parishad ([ACT] of [ENTITY]) Rules, 1993 because these Rules have been framed only under [SECTION] read with [SECTION] of the Act. The expression "condition of service" means all those conditions which regulate the holding of the post of a person right from the time of his appointment till his retirement as has been laid down in the case of [PRECEDENT].
9. The petitioners Medical Officers of Writ Petition Nos. 29[SECTION]9 of 2002 and 34752 of 2002, have relied on U. P. Zila Parishad's ([ACT] of [ENTITY]) Rules, 1993 and have averred in the petition that these Rules also did not provide any age of superannuation and have also pointed out the provisions of [SECTION] of these Rules but these Rules are not at all relevant in the case of Medical Officers because these Rules were framed only for [ACT] of [ENTITY]. So the Medical Officers petitioners cannot claim any benefit of these Rules.
10. We may also refer the [ACT], by which the State Government has created the [ACT] of Medical Officers. These Rules also appear to have been framed under [SECTION] of the Act. That is why these Rules also do not provide for the age of retirement of these cadres, which have been created by these Rules after exercising powers under [SECTION] of the Act.
11. A perusal of [ACT] and the Uttar Pradesh Zila Parishad ([ACT] of [ENTITY]) Rules, 1993 and other ([ACT]) Rules go to show that such Rules do not provide for age of retirement of the servant of Zila Panchayat. The question is who are the servant of Zila Panchayat. It is provided under [SECTION] of the Act cited above. It means a person in the pay and service of the Zila Panchayat. It is not disputed that the petitioners [ENTITY] and Medical Officers are in the pay and service of the Zila Panchayat and they get pension and other retirement benefits as provided under [ACT], as amended from time to time and specifically the [ACT]. As stated above [SECTION], [SECTION] and [SECTION] are material for this purpose.
12. For the purpose of retirement benefit to the members of the [ACT], the State Government has framed [ACT]. A perusal of [SECTION] makes it clear that till these Rules were framed, the retirement age of the members of the [ACT] of Zila Panchayat was 58 years. Learned counsel for the petitioners in Civil Misc. Writ Petition No. 29[SECTION]9 of 2002. Dr. [ENTITY] and Anr. v. State of U. P. and Anr., has relied upon the observations in the case of Mathura Das Mohan Lal Kedia and Ors. v. S.B. Munshwa, AIR 1981 SC [SECTION], which was decided by the Constitution Bench of the Supreme Court along with the case of [PRECEDENT]., Learned counsel has also referred to [PRECEDENT]. The Judgment delivered by the Constitution Bench in AIR 1981 SC [SECTION], is not relevant because the view taken therein was set aside and both the cases were heard afresh and the subsequent Judgment is in the case of [PRECEDENT]. The Constitution Bench has held that the members of the Gujarat Panchayat Services are Government servants and at the same time, it has been held that it is not possible to lay down any definite test to determine whether a person may be said to hold civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. Observations of the Constitution Bench in paragraph 29 of the report are relevant which are as follows :
"Considerable stress was laid by the counsel for the State of Gujarat on the statement in [SECTION] that such service (Panchayat Service) shall be distinct from the State Service. We do not think this is to be interpreted as a disclaimer by the Legislature that the Panchayat service is a service under the State. All that it can possibly mean is that the Panchayat service is not a service which can be identified with other State services for the reason that while the Panchayat service too discharges the duties connected with the affairs of the State, it does so not directly under the State but under the various Panchayat Institutions to whom are delegated or transferred certain functions of the State Government. Panchayat service is distinct from a State service because the Panchayat Institutions whom it serves together constitute an almost parallel but subsidiary Government. It is only in that sense Panchayat service is distinct from a State service and not in the sense that members of the service are not servants of the State."
13. In view of the aforesaid findings of the Constitution Bench, we are of the opinion that merely the facts that the [ENTITY] of Zila Panchayat are appointed by the State Government or they are transferred by the State Government are not sufficient to hold that they are entitled to take the benefit of the amendment of [ACT] which provides the retirement age of the Government servant as 60 years. The retirement age of the employees of the Zila Panchayat shall be determined by the Service Rules which have been framed for the employees of the Zila Panchayat and these Rules are [ACT], which have been amended by the [ACT] and [ACT]. All the members of the [ACT] and those Cadres which are not [ACT] shall be governed by their service conditions which have been provided in 1970 Rules as amended from time to time. Moreover, the intention of the Government has been made clear by framing [ACT].
14. The question whether [ENTITY] and Medical Officers under the services of the Zila Panchayat are holding civil post or not, is not very material for determining the age of their superannuation because there is no bar for the Government to fix the age of superannuation differently for the different cadre. Prior to the enhancement of the age of the Government servant by amending the Fundamental [SECTION] with effect from 28th November, 2001, the retirement age of the Government servants in the different cadre were different. While the superannuation age of the All India Service, Members of the State Judicial Services and Class IV Service was 60 years, age of superannuation of other State Service was 58 years. So it depends upon the cadre Rules, which are framed for the members of the cadre. So in the instant case, the [ENTITY] and Medical Officers under the service of the Zila Panchayat shall continue to be governed by the Services Rules cited above and unless their Service Rules are amended, the age of superannuation as provided in their cadre Rules shall continue to be 58 years.
15. In view of the reasons above, the writ petitions are devoid of any merit and all the four writ petitions are accordingly, dismissed.