State Of U.P.Throu The ... vs Ramesh Chandra Tiwari & Ors. ...
2015 Latest Caselaw 1919 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Chief Justice's Court
 

 
Case:- SPECIAL APPEAL DEFECTIVE No 360 of 2015
 

 
Appellants :- State of U P through the Secretary, Basic Education, Lucknow 		   & Ors
 

 
Respondents :- Ramesh Chandra Tiwari & Ors

Counsel for the appellants :- C S C

Counsel for the respondents:- Manoj Kumar Dwivedi

Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice

Hon'ble Shri Narayan Shukla, J

(Per Dr D Y Chandrachud, CJ)

The respondents, who are the original petitioners in writ proceedings instituted before the learned Single Judge under Article 226 of the Constitution, are working as Assistant Teachers or, as the case may be, Head Masters of primary institutions conducted and managed by the Uttar Pradesh Basic Education Board at Allahabad. The institutions are recognized under the Uttar Pradesh Basic Education Act, 19721. The Uttar Pradesh Basic Education Teachers Service Rules, 19812 framed under the Act, are applicable to teachers of primacy schools. Rule 29 provides as follows:

"29. Age of superannuation.- Every teacher shall retire from service in the afternoon of the last day of the month in which he attains the age of 62 years:

Provided that a teacher who retires during an academic session (July 1 to June 30) shall continue to work till the end of the academic session, that is, June 30 and such period of service will be deemed as extended period of employment."

For convenience of reference, we are referring to the parties by their description in the original writ petition. The dates of birth of the four petitioners are respectively 1 June 1953, 27 May 1953, 4 June 1953 and 30 June 1953. Consequently, the dates of retirement of the four teachers on attaining the age of superannuation of 62 years were 1 June 2015, 27 May 2015, 4 June 2015 and 30 June 2015. Until 2013-14, the academic session of primary schools and junior high schools conducted by the Uttar Pradesh Basic Education Board commenced on 1 July and would end on 30 June of the succeeding year. Under Rule 29, a teacher is liable to retire on the last day of the month in which he attains the age of 62 years. Consequently, the four teachers in question would have continued in the normal course until the last day of the respective months in which they attained the age of 62 years. However, the proviso to Rule 29 postulates that a teacher who retires during an academic session would continue to work till the end of the academic session. Since the academic session was between 1 July to 30 June, a teacher who attained the age of superannuation within that period would continue until the following 30 June and such period of service would be deemed to be an extended period of employment.

On 9 December 2014, a Government Order was issued by which it was resolved that with effect from academic year 2015-16, the academic session would commence from 1 April and would end on 31 March following year. The Government Order stipulated that the benefit of this would be available for the purposes of admission, promotion of students and for conducting the institutions. However, it was contemplated that this would not affect any change in the grant of 'sessional benefits' to teachers who, in consequence, would be granted the same benefit as before. The State Government issued another Government Order on 29 June 2015 clarifying certain directions which had been issued in the meantime on 15 June 2015 and 19 June 2015.

The teachers in the present case filed a writ petition3 in order to challenge a decision which was taken by the Secretary, Basic Education on 15 June 2015, relying upon the terms of the Government Order. The view of the Secretary, Basic Education was that the teachers in question would not be entitled to the sessional benefit beyond 30 June 2015. The learned Single Judge, by an interim order dated 30 June 2015 held that since the dates of superannuation of the petitioners were respectively on 1 June 2015, 27 May 2015, 4 June 2015 and 30 June 2015, which fell in the midst of the academic session that had commenced on 1 April 2015 and was to end on 31 March 2016, the petitioners would be allowed to continue till the end of the academic session, i e until 31 March 2016 subject to the verification of their dates of birth. The learned Single Judge noted that the petitioners in the present case had not already availed of the benefit of Rule 29 earlier. Accordingly, an interim order was passed in the aforesaid terms. The State is in appeal.

Since the issue which arose before the Court is a pure question of law and in the interest of rendering finality and certainty, we have by consent of all counsels taken up the writ petition for hearing and final disposal. No issue of fact is to be resolved in these proceedings and the entirety of the matter turns on an appreciation of the relevant Rules and Government Orders.

Rule 29 of the Rules provides that a teacher shall retire from service upon attaining the age of superannuation of 62 years on the last day of the month in which the age of superannuation is attained. However, the purpose of the proviso to Rule 29 is to enable a teacher who has retired during the academic session to continue to work until the end of the academic session. The benefit of this extended period of employment under the proviso of Rule 29 is to ensure that the educational needs of students are not disturbed as a result of the retirement of a teacher in the midst of an academic session. Originally, the academic session was to commence from 1 July every year and to end on 30 June of the following year. Consequently, a teacher who attained the age of superannuation between 1 July and 30 June of the following year would continue in service until 30 June when the academic session would end. The State Government took a decision that with effect from 2015-16, the academic session would commence from 1 April (instead of 1 July) and would end on 31 March of the following year (instead of 30 June). The issue which arose before the Court in several cases was whether, and to what extent, teachers who had attained the age of superannuation in the previous academic session would be entitled to the sessional benefit upon the change in the academic session. This issue was considered by a Division Bench of this Court at Allahabad in two cases which arose in relation to intermediate institutions governed by the Uttar Pradesh Intermediate Education Act, 19214. On 12 June 2015, the State Government had amended Regulation 21 of Chapter III of the Regulations framed under the Act of 1921. As a result of the amendment, the academic session was similarly altered so as to commence in April and end on 31 March of the following year. In Bhajan Lal Diwakar Vs Bani Singh Thakurela5, the teacher in question had a date of birth of 12 July 1952 and would have attained the age of 62 years on 12 July 2014. Since the date of superannuation fell in the midst of academic session 2014-15, he was allowed to continue until 30 June 2015. The State Government issued a Government Order on 15 October 2014 by which the academic session was changed to 1 April-31 March. The teacher in that case contended that since he had been allowed to continue until 30 June 2015 which fell within the re-designated academic year of 1 April-31 March, he would be entitled to continue until 31 March 2016. Rejecting that contention, the Division Bench by its judgment dated 20 July 2015 observed as follows:

"In the present case, the first respondent attained the age of sixty two years in the month of July 2014. Under the unamended Regulation 21, since the date of retirement of the first respondent fell within the midst of the academic session, he was allowed to continue as a Lecturer until 30 June 2015. The first respondent continued on that basis until 30 June 2015. What the first respondent seeks, essentially is a further extension in service until 31 March 2016 which, in our opinion, would be impermissible. The benefit of such an extension under the amended regulation would clearly not be available to a teacher in the position of the first respondent who had already attained the age of superannuation prior to 1 April 2015. The first respondent had already availed of the continuance in service until the end of the academic session, which according to the unamended regulation, was to come to an end on 30 June 2015. The State Government by a Government Order dated 25 May 2015, clarified that such an employee would continue until 30 June 2015. In other words, the first respondent would not be entitled to a further extension in service until 31 March 2016."

In that case, the learned Single Judge had granted an interim order allowing the teacher to continue to work until 31 March 2016. The petition was heard finally by the Division Bench since questions of law had arisen and both the State and the counsel for the petitioner had stated that the matter may be heard and disposed of finally. The principle which was laid down in the judgment of the Division Bench is that a teacher, who had already taken the benefit of an extended period of employment until 30 June 2015, would not be entitled to a further extension until 31 March 2016.

The same view was reiterated in another judgment of a Division Bench of this Court at Allahabad on 24 July 2015 in Dulare Lal Vs State of U P6. In that case also, Assistant Teachers of an intermediate college whose dates of birth were 3 January 1953 and 14 January 1953 attained the age of superannuation on 3 January 2015 and 14 January 2015. Since the dates of their superannuation fell in the midst of the academic session 2014-15, the teachers were allowed to continue until 30 June 2015 which was the end of the academic session 2014-15. In this background, the Division Bench held that having once availed of an extension of service until the end of the academic session, the teachers would not be entitled to a further extension until 31 March 2016. The Division Bench observed as follows:

"The basic issue before the Court is whether a person who had already attained the age of superannuation prior to 1 April 2015 and who had availed of an extension of service until the end of the academic session would be entitled to a further extension of service until 31 March 2016. In answer to this question, what must be emphasized is that the purpose of granting an extension of service until the end of the academic session is to protect the interest of education of the students so that the retirement of a teacher during the midst of an academic session does not result in disrupting the cause of education. This was also adverted to in a judgment of a Division Bench of this Court in Surendra Prasad Agnihotri vs. State of U.P. and ors.7 upon which reliance has been placed by the learned Single Judge.

In the case of the appellants, it is clear that they attained the age of superannuation in January 2015 during the midst of academic year 2014-15. Hence, they were granted an extension of service until the end of the academic session which then stood as 30 June 2015. The date of superannuation is not postponed as a result of Regulation 21 but employees are only granted an extension until the end of the academic session. Once having availed of the extension of service until 30 June, the appellants would not be entitled to a further extension of service until 31 March 2016. The appellants would not be entitled to claim that as a result of the change in the academic year now to 1 April - 31 March, their date of superannuation falls in the midst of the academic year thereby entitling them to a further extension of service. The appellants have already availed of an extension of service and there would be no occasion granting them a further extension."

The same view has been taken by a Division Bench of this Court at Lucknow in Krishna Chandra Pal Vs State of U P8. In that case, the teachers had already attained the age of superannuation between 14 July 2014 and 31 December 2014 which was within the academic session 2014-15 and were, therefore, continued until 30 June 2015. The Division Bench held that Regulation 21 would not entitle them to a further extension until 31 March 2016.

Primary schools are governed by the provisions of the Uttar Pradesh Basic Education Act, 1972 and the service conditions of the teachers are governed by the Rules framed under the Act. Rule 29 lays down (i) the age of superannuation which is 62 years; (ii) the principle that a teacher who attains the age of 62 years will retire from service on the last day of the month in which the age of superannuation is attained; and (iii) the principle that a teacher who has retired during an academic session, shall continue to work till the end of the academic session and that such period of service will be deemed to be an extended period of employment. The proviso to Rule 29 enacts a legal fiction through the subordinate legislation, the effect of which is that though a teacher has attained the age of superannuation, the teacher, notwithstanding the fact that he or she had retired during the academic session, will continue to work until the end of the academic session and that such period of service will be deemed to be an extended period of employment. Rule 29 refers to the academic session as being 1 July to 30 June, since this was the academic session which prevailed right until academic session 2013-14. The reason why a special provision is made in the proviso to Rule 29 is to ensure that the educational needs of students are not disrupted by the retirement of a teacher in the midst of an academic session. In other words, the benefit is extended not so much for teachers (though the teachers would obviously also receive the benefit of an extended period of employment) but primarily to protect the students whose education would be disturbed by the absence of a teacher for the academic session. The State Government can certainly alter an academic session, as it has, to 1 April-31 March. The consequence, however, of a change in the academic session as provided under Rule 29 cannot be altered so long as the proviso to Rule 29 continues to hold the field. What the proviso enacts is that a teacher who retires during an academic session will continue to work until the end of the academic session on the basis of a deeming fiction, as we have noted above. Once the academic session has been changed, the principle which has been enunciated in the proviso to Rule 29 will apply to the newly altered academic session. All that really remains now is for the State to make a consequential change in the date of the new academic session under the proviso to Rule 29 but that part is merely clarificatory of the decision which has already been taken of the dates of commencement and conclusion of the academic session.

In the present case, we find from the diverse Government Orders which have been issued by the State Government that there has been a considerable degree of ambiguity and a lack of application of mind which could have best been avoided. The State Government issued a Government Order on 9 December 2014 stating that a decision has been taken to alter the academic session from the erstwhile 1 July-30 June to 1 April-31 March. This change in the academic session was to take effect from 2015-16. In other words, on and from 1 April 2015, the new academic session has taken effect and which will continue until 31 March 2016. A teacher whose normal date of retirement upon attaining the age of superannuation of 62 years falls within the academic session would be entitled to the benefit of an extension of service until 31 March 2016. Obviously, as the two judgments of the Division Bench of this Court at Allahabad and the judgment of the Division Bench at Lucknow have held, a teacher who has continued in service until 30 June 2015 by virtue of the operation of the proviso to Rule 29 and who has already taken a benefit of the proviso, would not be entitled to a further extension of service till 31 March 2016. Consequently, as we have noted earlier, the teachers in the cases which were decided by the Division Bench at Allahabad had already attained the age of superannuation in July 2014 or, as the case may be, in January 2015. These teachers had been continued until 30 June 2015 which was the earlier academic session, in pursuance to the proviso to Regulation 21 (applicable in the case of intermediate institutions). However, a teacher who attains the age of superannuation during academic session 2015-16, as modified, and who has not taken the benefit of the proviso to Rule 29, would be entitled to continue in service until the end of the academic session which would be 31 March 2016. The Government Orders which have been issued from time to time, more particularly on 9 December 2014 and 29 June 2015 have to be necessarily brought in line with the mandatory requirements of the proviso to Rule 29. As we have observed earlier, the power to alter the academic year undoubtedly vests with the Government but having once altered the academic year, the consequence which is envisaged under the proviso to Rule 29 must ensue. The State Government cannot by a government order override the proviso to Rule 29. That is part of subordinate legislation which cannot be simply disregarded by an administrative order.

On the facts of the present special appeal, the dates of superannuation of the four respondent teachers would respectively be 1 June 2015, 27 May 2015, 4 June 2015 and 30 June 2015. All these teachers worked in academic session 2015-16 commencing from 1 April 2015 in the normal course, without taking the benefits of the proviso to Rule 29. Since the dates of their retirement fell in the midst of the academic session, they would plainly be entitled to continue in service until the end of the academic session, as envisaged in the proviso to Rule 29. The Secretary, Basic Education, Government of U P, who decided upon the issue on 15 June 2015 has taken a view clearly contrary to the mandate of the proviso to Rule 29.

For these reasons, the order dated 15 June 2015 passed by the Secretary, Basic Education shall accordingly stand quashed and set aside.

We have taken up the writ petition by consent for final hearing at this stage having due regard to the need to resolve the question of law and to ensure that a measure of certainty is established as a result of the alteration in the academic session as notified by the State. In that view of the matter, we have taken up Writ Petition No 3653 (S/S) of 2015 for hearing and final disposal. Since no further issue would survive in the writ petition filed by the respondents (original petitioners), both the special appeal and the writ petition shall be governed by the present judgment and are accordingly disposed of. There shall be no order as to costs.

Order Date :- 20.8.2015

AHA

(Dr D Y Chandrachud, CJ)

(S N Shukla, J)

Chief Justice's Court

C M Application No 85345 of 2015

Re:

 

 
Case:- SPECIAL APPEAL DEFECTIVE No 360 of 2015
 

 
Appellants:- State of U P through the Secretary, Basic Education, Lucknow 		  & Ors
 

 
Respondents:- Ramesh Chandra Tiwari & Ors 
 

 
Counsel for Appellants :- C S C
 

 
Counsel for Respondents:- Manoj Kumar Dwivedi
 

 
Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice
 
Hon'ble Shri Narayan Shukla, J
 

 
	The delay of 13 days in filing the special appeal is condoned since sufficient cause has been shown in the affidavit filed in support of the delay condonation application.
 
	The delay condonation application stands disposed of. There shall be no order as to costs.
 
Order Date :- 20.8.2015
 
AHA
 
(Dr D Y Chandrachud, CJ)
 
                   
 
    
 
(S N Shukla, J)