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Judgment
Shri M. Ramakrishna, CJ.
The appellants 1 to 3, being aggrieved by the judgment and order made by the learned Single Judge on Oct. 28,1994 in SWP No. 1110 of
1994, have come up in the present appeal, challenging the correctness and legality of the findings recorded and the conclusion reached by the
Single Judge, on the grounds stated in the memorandum of appeal.
2 We have heard Mr. Baldev Singh, learned Government Advocate appearing for the appellant. He has taken us through the facts and questions of
law arising in the instant case. He has also brought to our notice that the reliance placed by the learned Single Judge on the ration of a judgment
delivered by this High Court in State vs. Prem Singh Civil 2nd Appeal No. 24 of 1993 decided on Sept, 11,1993 with a view to dispose of the
matter in S. W. P. No. 1110 of 1994 in favour of the Write petitioner (respondent) and against the State (appellant) Is erroneous and the same
cannot sustain in law.
As to the legal questions in the instant case, Shri Baldev Singh learned G. A., brought to our notice the relevant provisions of law governing the
subject matter. He has brought to our notice that the respondent (Writ petitioner), Sita Ram, had been inducted into service as inferior class
somewhere in the year 1957. Indeed, he was working as such at the crucial point of time, namely, Oct. 10. 1966, but later on, it is submitted, he
(writ petitioner) had been promoted to the post of Technician II with the pay scale attached to the post (Rs 12002040) with effect from August
12, 1987; whereas he (Sita Ram) had been sought to be superannuated by an order made on Sept. 2, 1994 giving effect from Oct. 31, 1994. It is
relevant to note here, according to Shri Baldev Sing, GA, that even earlier and before he was promoted to the post of Technician II, he was
promoted to the post of line Eractor and from that post he had been promoted to the post of Technician II with salary attached to the post (Rs.
12002040). Therefore, Shri Baldev Singh learned Govt. Advocate submits that regard being had to scheduledII of Article 226 of the J and K Civil
Service Regulations (Vol. I), ""hereinafter referred to as the Regulation"", a person holding the post of TechnicianII drawing the pay scale of Rs
12002040 shall not come with n the purview of inferior service. In that view of matter, the learned Single Judge has committed an error in
extending the benefit of 60 years instead of 58 years in favour of the writ petitioner (Sita Ram) which is illegal and not sustainable in law. Therefore,
he submits that this appeal deserves to be allowed and the order under the appeal set aside.
As against the submission made by the learned Government advocate. Shri B. R. Sharma learned counsel for the respondent (writ petitioner)
submits that at the outset a person who continued to be a Government servant serving in inferior cadre on Oct. 10' 19965, shall be entitled to get
the benefit of ScheduleII of Article 226 of the Regulations. Secondly he submits that although Sita Ram respondent
herein had been promoted to the post of TechnicianII in the year 1987. admittedly he was drawing the pay scale lesser than a Line Erector and,
therefore, the learned Single Judge was right in extending the benefit of 63 vears in his favour by virtue of the order under appeal.
5, It is not possible to concede to the submission made by the learned counsel for the respondent (writ petitioner) for the reason that the court will
have to be guided by the law made by the Legislation Article 226 of the J and K Civil Service Regulations (Vol. I) reads thus :
226 (I) An officer shall retire compulsorily on his attaining the age of 55 years, unless the competent authority considers him efficient and permit to
him to remain in service. He may, however, be retained in service after the date of compulsory retirement 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 :
This is general provision of law relating to the age of superannuation of a Government servant. However, the 1st proviso to the said Article
provides as follow :
Provided that the Government servants who were in service on 10.10.1966 and were treated inferiors per schedule II will retire on attaining the
age of 60 years.
Provided further.........(Not applicable)"". Therefore, in the light of law governing the age of superannuation of a Government in the State of Jammu
and Kashmir, we will have to consider as to whether Sita Ram respondent herein would come within the scope of Proviso 2 of Article 225 of the
Regulations. With a view to enable us to be guided by the said proviso, we will have to look to scheduleII appended to Article
226 of the Regulations. ScheduleII of the said Article is to be found at page 96 of the Regulations (Vol. II). S. No. 33 of the said schedule deals
with the Electric Department. Entries 1 to 43 (Plant Repair to Gate keeper) as enumerated in 43 entries do come within the purview of Electric
Department, Although it is seen there from that s line Electric comes with in the scope of entry No. 39, but a person who had been working as
TechnicianII does not come within the entries 1 to 43 of S. No. 38 of ScheduleII to the Regulations (Vol. II). Therefore, as on the date of the
order seeking to retire by superannuation Shri Sita Ram (respondent) does not come within entries 1 to 48, as stated above, so as to enable him to
consider him as Government servant serving in the Electric Department as an inferior Government servant. Therefore, the writ court ought to have
seen the intentment of the Legislation before extending the benefit of 60 years in his favour while passing the order under appeal, Indeed, it is
incorrect to rely upon the ratio of decision rendered by this High Court in State vs. Prem Singh, Civil Second Appeal No. 24 of 1992 decided on
September 11, 1993 in as much as we have verified the findings recorded by the learned Single Judge in that appeal where the learned Single
Judge has nowhere referred to the scope of Article 226 read with ScheduleH of the Regulations referring to the cadre in which Shri Sita Ram
respondent herein had been working at the time when he was sought to be superannuated, to find out as to whether he would come within the
purview of inferior civil servant. In that view of the matter, both the decision namely, (i) in State vs. Prem Singh Civil Second Appeal No. 24 of
1993 decided on September 11,1993; and (ii) in SWP No. 1110 of 1994 disposed of by the learned Single Judge on October 28,1994, against
which the present appeal has been resented by the appellants are incorrect and not sustainable in Jaw.
In the result, this appeal is allowed and the order under appeal dated October 28, 1994 made by the learned Single Judge in SWP No. 1119 of
1994 is set aside and the order of the Government dated September 2,1994, seeking to retire Shri Sita Ram respondent herein on superannuation
on attaining the age of 58 years, is justified. The appellants shall be entitled to the costs, advocate's fee Rs. 1000/, Order accordingly.