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TMI Blog2017 (4) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner is not entitled for pension since his service was not pensionable in view of Government Order dated 05.05.2000. 3. Learned counsel for the petitioner submitted that by Executive Order a service otherwise rendered by holder of civil post cannot be held, nonpensionable. He refers to appointment letter dated 27.01.1994 which shows that while appointing petitioner as Member, Sales Tax Tribunal, Governor specifically stated that in view of Section 10(1B) of U.P. Trade Tax Act, 1948 (hereinafter referred to as the "Act, 1948"), petitioner shall retire on attaining the age of 58 years. It is also admitted that petitioner continued to serve from 27.01.1994, i.e., the date on which he was appointed as Member, and retired on 21.12.2011. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry member of the Tribunal including the President, whether appointed before or after the commencement of the Uttar Pradesh Sales Tax (Second Amendment and Validation) Act, 1983, as they apply to any other Government servant: Provided that a member of the Tribunal including the President appointed before the commencement of the Uttar Pradesh Sales Tax (Second Amendment and Validation) Act, 1983, may continue as such till he attains the age of sixty years." 7. Once Fundamental Rule 56 is made applicable to Members of Tribunal by virtue of Section 10(1)(b) of Act, 1948, in absence of any otherwise statutory amendment, by an executive order, statutory rules cannot be modified or amended. Fundamental Rule 56(e) clearly provides as under: "5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e capacity or on ad hoc basis, or (b) any entry against which a representation is pending provided that the representation is also taken into consideration alongwith the entry; or (c) any report of the Vigilance Establishment constituted under the Uttar Pradesh Vigilance Establishment Act, 1965. (2A) Every such decision shall be deemed to have been taken in the public interest. (3) The expression "appointing authority" means the authority which for the time being has the power to take substantive appointments to the post or service from which the Government servant is required or wants to retire; and the expression "qualifying service" shall have the same meaning as in the relevant rules relating to retiring pension. (4) Every order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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