The age of retirement for teachers in State Medical Colleges is governed by Fundamental Rule 56 and not by the age of retirement prescribed for teachers in Medical Colleges run by Universities.

S.C. MATHUR, J.

1. By our short order dated 23rd March, 1993 we dismissed this writ petition and reserved reasons. We now proceed to give the reasons.

2. The dispute in the petition pertains to the age of superannuation of teachers working in State Medical Colleges. On 26th December, 1992 the State Government issued order mentioning therein that the Petitioner, whose date of birth was 25.2.1935 and who would attain the age of 58 years on 24.2.1993, would retire from service on 28th February, 1993. Aggrieved by this order, the Petitioner approached this Court asserting that his age of retirement should not be governed by Fundamental Rule 56 and should be 60 years as is the age of retirement prescribed for teachers In Medical Colleges ran by Universities.

3. The controversy raised in the present petition was raised before this Court in several petitions, leading petition being Civil Misc. Writ No. 12222 of 1990 Dr. V.K. Agarwal vs. Stare of Uttar Pradesh decided on 24th February, 1992. This Petition was dismissed and the applicability of Fundamental Rule 56 to the teachers in State owned Medical Colleges was upheld. The learned Counsel for the present petitioner, however relies upon certain observations made in Dr. vs. K. Agarwal's case for asserting that in the change situation, the Petitioner is entitled to relief.

4. In the writ petition of Dr. V.K. Agarwal (supra) It was asserted that the teachers of Medical Colleges exclusively owned by the State Government did the same work of teaching, preparing students for medical degrees and holding examination in accordance with the directions of the University as the teachers of the Medical Colleges maintained by the University did and there was no distinction of work at all between the two classes of teachers yet teachers falling in the former category retired on attaining the age of 58 years while their counter-parts falling in the latter category continued in service upto the age of 60 years. It appears that in support of the plea of discrimination, it was asserted that King George's Medical College, Lucknow was maintained by Lucknow University which had prescribed 60 years as the age of superannuation for its teachers and this age applied to the teachers of King George's Medical College also. The Division Bench noticed that King George's Medical College had been taken over by the State Government and the teachers working in that Collage had also become Government servants governed by !be age of superannuation prescribed by Fundamental Rule 56. The Bench was, therefore of the opinion that the plea of discrimination had vanished While dismissing the writ petition the Bench made an observation of which the Petitioner seeks to take advantage, the observation reads as under:

It is no doubt true that if the work and duties to be performed by the teachers of the Constituent College maintained by the University and those maintained by the State Government are same, then to retire teachers of Medical Colleges maintained by the Stale Government at an early age would be clearly discriminatory bat this argument is not now open to the Petitioner.

After making this observation, the Division Bench proceeds to say that in the State of Uttar Pradesh, there was only one Medical College which was maintained by the University viz. King George's Medical College. Lucknow, which was a constituent College maintained by the Lucknow University, but this College was later taken over by the State Government through the King George's Medical College and the Gandhi Memorial and Associated Hospital (Taking over) Act, 1983. Validity of the Taking Over Act was challenged successfully before this Court at the Lucknow Bench The consequence of the judgment of this Court was that King George, Medical College again reverted to the Lucknow University. On the basis of the extracted portion of the judgment in Dr. V.K. Agarwal's case, the submission of the learned Counsel for the Petitioner is that if the Taking Over