SBCWP No.8763/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.8763/2002. Jaimal Singh Vs. State of Rajasthan & Ors. Date of Order:- December 7, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.Iqbal Khan for the petitioner. Shri Zakir Hussain, Additional Government Counsel. ******* BY THE COURT:- This writ petition has been filed with the prayer that the order dated 6/7/2002 whereby, recovery for a sum of Rs.1,05,342/- has been made from the petitioner be quashed and set-aside and it may be directed that petitioner would be treated to have retired from service w.e.f. 30/9/2001 on attaining the age of superannuation of 60 years. Contention of the learned counsel for petitioner is that petitioner, who is a ex- serviceman was appointed on the post of Gunman vide order dated 16/10/1980. In his appointment order, it is clearly stated that it would be governed by sub-rule (iii) of Rule 8-A of the Rajasthan Class-IV Service (Recruitment & Other Service conditions) Rules, 1965 (for short, SBCWP No.8763/02. 2 “Rules of 1965”). Learned counsel referred to the notification of the Government dated 28/12/1998 by which, Rajasthan Service Rules, 1951 were amended to provide that “the date of compulsory retirement of a Government servant other than a Government servant of Class-IV would be the afternoon of the last day of the month in which he attains the age of 58 years and the date of compulsory retirement of a Government Servant of Class-IV would be the afternoon of the last day of the month in which he attains the age of 60 years. Provided that the Government Servants other than Class-IV who has crossed the age of 58 years shall also be compulsorily retired on 31-3-1999. It is contended that the respondents themselves by treating the petitioner as Class- IV employee continued him in service upto 11/7/2001 on which date they illegally retired him from service. Learned counsel for the respondents has opposed the writ petition and submitted that petitioner was appointed on the post of Gunman, which was not a post of Class-IV but is a Class- III post. Initially though, petitioner was treated as Class-IV employee whereas, he was Class-III employee. Petitioner was not promoted SBCWP No.8763/02. 3 because there was no channel of promotion but he was granted benefit of Selection Scale on completion of 9, 18 and 27 years of service. Post of Gunman was not included in the Rules of 1965 and Rajasthan Subordinate Mines & Geology Department Service Rules, 1960. It is submitted that since petitioner was class-III employee and not Class-IV employee, he was not entitled for the retiral benefits after 30/9/1999 as on that date, he attained the age of superannuation of 58 years. Having heard learned counsel for the parties and perusing the material available on record, I find that there is nothing on record even in the reply filed by the respondents to show that petitioner continued in the service on the strength of any fraud or misrepresentation on the part of the petitioner. What is evident from the material is that continuation of the services of the petitioner was not on the basis whether or not petitioner was Class-IV employee. Rather, what is evident from the material is that first appointment order of the petitioner does show that he was appointed under the Rules of 1965, which are applicable on Class-IV employees, according to which, the age of superannuation at the relevant time though was SBCWP No.8763/02. 4 58 years but that may not be a ground for recovery of the payment already paid to the petitioner, which even otherwise, is prohibited by the Constitution. Although, ofcourse, respondents can prepare his pension case treating him to have retired from 30/9/1999. In the result, writ petition is partly allowed. Impugned order of recovery dated 6/7/2002 (Ann.7) is quashed and set-aside and the respondents are directed to refund the payment of Rs.1,05,342/- to the petitioner together with interest @6% p.a. Compliance of the judgment shall be made within a period of three months from the date copy of this judgment is produced before the respondents. (MOHAMMAD RAFIQ) J. anil