IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL W.P. No. 348 of 2002 (S/B) Gusain Ram, S/o Late Sri Moti Ram, R/o Waverly Cottage Compound Mallital, Nainital. ………. Petitioner Versus State of Uttaranchal & others ………. Respondents Mr. Manoj Tiwari, learned Advocate for the petitioner. Mr. Sharad Sharma, learned Counsel for respondents No. 3 & 4. Hon’ble P.C. Verma, A.C.J. Hon’ble M.M. Ghildiyal, J. By means of this writ petition, the petitioner seeks a writ of certiorari to quash the impugned order dated 02.01.2002 passed by the Respondent No. 3 i.e. Executive Officer, Nagar Palika Parishad by which the petitioner has been retired compulsorily at the age of 58 years. The petitioner was a Clerk in the Nagar Palika Parishad, Nainital. The retirement age of the Clerks and other staff of the Municipality is governed by the Rule known as Retention and Retirement of Servants of Municipal Boards Regulations, 1965. These Regulations have been framed under Section 297 of the U.P. Municipalities Act. Sub-clause 1 of Rule 3 of the Retention and Retirement of Servants of Municipal Boards Regulations, 1965 provides that the age of retirement from service of all servants of all Municipal Boards below the age of sixty years on June 30, 1964, on appointed thereafter, shall be sixty years beyond which no one shall ordinarily be retained in the service of the Municipal Boards. Learned counsel for the petitioner has challenged the order on the ground that the petitioner has been illegally retired from service at the age of 58 years in violation of sub-clause 1 of Rule 3 of the Retention and Retirement of Servants of Municipal Boards Regulations, 1965, therefore, the order impugned is liable to be quashed. 2 Mr. Sharad Sharma, learned counsel for the Municipal Board has submitted that the petitioner opted to retire at the age of 58 years in view of the Government Order dated 13th February, 1990 by which the pay scale of IVth Pay Commission was implemented. Mr. Sharad Sharma relied upon Clause 9 and 10 of the said Government Order, which reads as under: ^^¼9½ fnukad 5-11-1985 ds iwoZ fu;qDr prqFkZ Js.kh deZpkfj;ksa lfgr mijksDr oxksZa ds ,sls deZpkjh ftudh vf/ko’kZrk vk;q 58 o’kZ gks vFkok tks 58 o’kZ ij vf/ko’kZrk vk;q dk fodYi nsa rFkk ftuds iqujhf{kr osrueku dk vf/kdre #0 3500 rd gS] muds ckjs esa fuEufyf[kr O;oLFkk gksxh%& d- ,sls deZpkjh ftUgksaus 10 o’kZ dh larks’ktud vuojr lsok fnukad 1-1-1986 rd iwjh dj yh Fkh mudk osru Lohd`r iqujhf{kr osrueku esa gh mi;qZDr izfØ;k ds vuqlkj fnukad 1-1-86 dks fu/kkZfjr djus ds i'pkr~ iqujhf{kr osrueku esa gh vxys izdze ij fu;r dj fn;k tk;A [k- ,sls deZpkjh tks 10 o’kZ dh larks’ktud vuojr lsok fnukad 1-1-86 ds ckn vkxkeh frfFk dks iw.kZ djrs gSa] lSysD”ku xzsM dk YkkHk vuqeU; djkus gsrq mudk osru iqujhf{kr osrueku esa gh ml frfFk dks vxys izdze ij fu/kkZfjr dj fn;k tk;sA x- ,sls deZpkjh tks lEcfU/kr in ij fu;fer gks pqds gSa] mudks tc lSysD”ku xzsM dk mDr ykHk feyus dh frfFk ls 6 o’kZ dh larks’ktud lsok iwjh gks tkrh gS] inksUufr dk vxyk osrueku oS;fDrd :i ls nsrs gq, mudk osru ml osrueku ds vxys mPp izdze ij fu/kkZfjr fd;k tk;sA ,sls laoxZ@in ftuds fy;s inksUufr dk dksbZ in ugha gS] mudks ml osrueku ftlesa os dk;Zjr gSa ls vxyk osrueku ns; gksxkA ?k- lacfU/kr in/kkjd tc viu osrueku ds vf/kdre ij igqWp tk;s rks muds osruekuksa dks muds vfUre osru o`f) ds cjkcj 6 osru o`f);ksa dh /kujkf”k tksM+dj c<+k fn;k tk;s tks okf’kZd :i ls vuqeU; gksxhA** 3 10- fnukad 4-11-1985 ds i'pkr fu;qDr prqFkZ Js.kh ds deZpkfj;ksa lfgr mijksDr oxksZa ds ,sls deZpkjh ftudh vf/ko’kZrk vk;q 60 o’kZ gks vFkok tks vf/ko’kZrk vk;q 60 o’kZ cuk;s j[kus dk fodYi ysa rFkk ftuds iqujhf{kr osrueku dk vf/kdre :0 3500 rd gS] mids lEcU/k esa fuEufyf[kr O;oLFkk ds vuqlkj dk;Zokgh dh tk;s%& d- ftUgksaus 12 o’kZ dh larks’ktud vuojr lsok fnukad 1-1- 1986 rd iqjh dj yh Fkh mudk osru Lohd`r iqujhf{kr osrueku esa gh mi;qZDRkk izfdz;k ds vuqlkj fnukad 1-1-86 dks fu/kkZfjr djus ds i'pkr iqujhf{kr osrueku esa gh vxys izdze ij fu;r dj fn;k tk;sA [k- ,sls deZpkjh tks 12 o’kZ dh larks’ktud vuojr lsok fnukad 1-1-86 ds ckn vkxkeh frfFk dks iw.kZ djrs gSa] lSysD”ku xzsM dk YkkHk vuqeU; djkus gsrq mudk osru iqujhf{kr osrueku esa gh ml frfFk dks vxys izdzxe ij fu/kkZfjr fd;k tk;sA x- ,sls deZpkjh tks lEcfU/kr in ij fu;fer gks pqds gSa] mudks tc lSysD”ku xzsM dk mDr ykHk feyus dh frfFk ls 8 o’kZ dh lark’ktud lsok iwjh gks tkrh gS] inksUurh dk vxyk osrueku oS;fDrd :i ls nsrs gq, mudk osru ml osrueku ds vxys mPp izdze ij fu/kkZfjr dj fn;k tk;sA ,sls laoxZ@in ftuds fy;s inksUufr dk dksbZ in ugha gS] mudks ml osrueku ftlesa os dk;Zjr gSa ls vxyk osrueku ns; gksxkA ?k- lacfU/kr in/kkjd tc vius osrueku ds vf/kdre ij igqWp tk;s rks muds osruekuksa dks muds vfUre osru o`f) ds cjkcj ,d osru o`f) dh /kujkf”k tksM+dj c<+k fn;k tk;s tks vf/kdre ij igqWpus ij 1 o’kZ dh lsok ij vuqeU; gksxhA** Clause 9 referred to above, provides that such employees including class IV employees whose retirement age is 58 years or who have opted to retire at the age of 58 years, will be entitled to the benefit provided under the Clause. 4 Clause 10 referred to above, provides that such employees including class IV employees whose retirement age is 60 years or who have opted to retire at the age of 60 years, the benefit of clause 10 will be provided to them. Mr. Sharad Sharma, learned counsel for the Municipal Board has submitted that since the petitioner opted for the benefit as available under clause 9 and has opted to retire at the age of 58 years, therefore, he has rightly been retired at the age of 58 years. According Mr. Sharad Sharma, since the petitioner has availed the benefit under clause 9, therefore, it is not open for him to challenge the impugned order. Mr. Manoj Tiwari, learned counsel for the petitioner submitted that Rule 3(1) of the Regulations framed under Section 297 relating to age of retirement, cannot be over-ridden by a Government Order putting such condition. It does not leave any scope for an employee to opt to retire at 58 years, which is further clear from sub-rule 3 that after attaining the age of 58 years, the employee can seek voluntary retirement or he can be retired compulsorily if he is not suitable to be retained in service. However, Mr. Manoj Tiwari further submitted that the petitioner has availed only Rs. 888/- pursuant to his option and whatever benefit ha has received, he is willing to return. Mr. Manoj Tiwari, further submitted that the petitioner has withdrawn his option at the age of 58 years before the order of retirement was passed. The petitioner was retired w.e.f. 30.4.2002 while he withdrew his option on 19.4.2000. His withdrawal was neither refused nor accepted. It was pending and pending such withdrawal application of option to retire at the age of 58 years, the petitioner has been retired. The competent authority ought to have taken a decision on the application of withdrawal of the petitioner’s option and while taking a decision, petitioner’s withdrawal application should have been allowed withdrawing all the benefits given to him under Clause 9 of the Government Order as sub-rule 1 of Rule 3 of the Retention and 5 Retirement of Servants of Municipal Boards Regulations, 1965 says that every employee of the Municipal Board shall be retained up to the age of 60 years, which is imperative in terms. The Authorities ought to have taken the said rule into account. Having regard to the facts of the case and provisions of Rule 3(1) of the Retention and Retirement of Servants of Municipal Boards Regulations, 1965, we provide that the petitioner shall be treated to have retired at the age of 60 years. He shall be paid salary up to the age of 60 years after deducting the benefits given to him under Clause 9 of the Government Order dated 13th February, 1990. Petition is disposed of accordingly. However, it is made clear that this case is being decided in the peculiar facts of the case that the withdrawal application of the petitioner is pending. It will not be treated as precedent. (M.M. Ghildiyal, J.) (P.C. Verma, A.C.J.) Dt. 19.04.2004 G