IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 132 of 2008 The State of Uttarakhand and others. ….Appellants. Versus Mehar Chand …Respondent. Mr. H.M. Raturi, Advocate for the appellants. Mr. N.S. Negi, Advocate for the respondent. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) The issue, which arises for consideration in the instant Special Appeal, is whether the respondent, who is a driver in the Forest Department of the State Government holds a Group ‘D’ post, and as such, would retire on attaining the age of superannuation at 60 years; or whether the respondent holds a Group ‘C’ post, and as such, would retire on attaining the age of superannuation at 58 years. The learned Single Judge determined the controversy by applying the provisions of the U.P. Forest Department Service Rules, 1981 (hereinafter referred to as the 1981 Rules). The aforesaid rules were framed under Article 309 of the Constitution of India. The solitary contention of the learned counsel for the appellants is that the 1981 Rules, relied upon by the learned Single Judge had been superseded by the Uttar Pradesh Government Department Driver’s Service Rules, 1993 (hereinafter referred to as the 1993 Rules). The 1993 Rules, according to learned counsel were applicable to all posts of drivers, in all departments of the Government, even though the same were regulated by different set of rules framed under Article 309 of the Constitution of India. In this behalf, learned counsel for 2 the appellants has invited our attention to Rule 4 of the 1993 Rules, which is being extracted hereunder:- “4. Overriding effect.—These rules, shall have effect notwithstanding anything to the contrary contained in any other rules made by the Governor under proviso to Article 309 of the Constitution.” Based on the mandate of Rule 4 of the 1993 Rules, it is submitted that the 1981 Rules applied by the learned Single Judge to adjudicate the controversy, had expressly been over-ridden by the 1993 Rules. It is submitted that under the 1993 Rules, the post of driver had expressly been depicted as a Group ‘C’ post. This, according to learned counsel, is apparent from Rule 2 thereof, which is also being extracted hereunder:- “2. Status of service.—The service of Drivers in Government Department or office comprises group ‘C’ posts.” Since the post of Driver in terms of the mandate of the 1993 Rules is in Group ‘C’ service, it is apparent that the respondent would retire, on attaining the age of superannuation, at 58 years. This is exactly, what was done by the Government. It is, however, submitted, that the order passed by the Government was set aside by the learned Single Judge, while allowing Writ Petition (S/S) No. 1622 of 2001 vide order dated 31.3.2008. The said order dated 31.3.2008 has been impugned by the State Government through the present Special Appeal. There can be no doubt that the learned Single Judge wrongfully placed reliance on the 1981 Rules to decide the claim raised by the respondent. The 1981 Rules could not be relied upon because the same had been overridden by the 1993 Rules. Under the 1993 Rules, the post of driver was depicted as a Group ‘C’ post. As such, the respondent was liable to be retired on attaining the age of 58 yeas. 3 For the reasons recorded hereinabove, the judgment rendered by the learned Single Judge on 31.3.2008 disposing of Writ Petition (S/S) No. 1622 of 2001 is hereby set aside. Despite the conclusion drawn by us hereinabove, learned counsel representing the respondent states that the respondent has not yet been paid any retiral benefits. He accordingly prays that a direction be issued to the appellants to release his retrial benefits. Since the respondent was validly retired from service on 13.4.1999, he could raise his claim for retiral benefits only from the successor State of U.P., inasmuch as, the successor State of Uttarakhand was created only with effect from 9.11.2000. Accordingly, the successor State of Uttar Pradesh is directed to release the retiral benefits payable to the respondents at the earliest, but not later than two months from the date of receipt of a certified copy of this order. The instant Special Appeal is accordingly hereby disposed of in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 30.3.2010 Rathour