Shashi Prabha Dwivedi vs State Of U.P. And 2 Others
2016 Latest Caselaw 4796 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 10							     AFR
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 471 of 2016
 

 
Appellant :- Shashi Prabha Dwivedi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Rishikesh Tripathi
 
Counsel for Respondent :- C.S.C.,Ashok Kumar
 

 
Hon'ble Arun Tandon,J.

Hon'ble Mrs. Sunita Agarwal,J.

This special appeal has been filed by Shashi Prabha Dwivedi, the petitioner against the order of the learned Single Judge dated 29.4.2016 whereby the benefit of continuing in service till the end of the academic session i.e. up to 31.3.2016 has been denied to the petitioner.

The facts in short relevant for deciding the controversy are as under:-

That the date of birth of the appellant is 01.05.1951, she was working as Assistant Teacher in a primary institution, the service condition whereof are regulated by Uttar Pradesh Basic Education Teacher Service Rules, 1981 (herein after referred as Rules, 1981). These rules have been framed under Section 19 of the U.P. Basic Education Act, 1972 and, therefore, the Rules answer the description of the subordinate legislation. 

Rule 29  of the Rules, 1981, provides for the age of retirement of the teachers and reads 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."

The petitioner should have normally retired on attaining the age of 62 years as per Rule 29 of 1981 Rules but since she was awarded Presidents National Award, two years extension in service was given to her and, therefore, her age of retirement stood extended upto 64 years. The petitioner attained the age of superannuation i.e. age of 64 years on 30.4.2015.

According to the petitioner, the academic session for the year 2015-16 under the Government order dated 9.12.2014 was directed to commence from 1.4.2015 and to end on 31.3.2016. It was her case that since her date of retirement falls in the midst of the said academic session 2015-16, she was entitled to extension in service till 31.3.2016 and she had wrongly been retired on 30.6.2015.

Learned Single Judge has held that since the petitioner had taken benefit of extension in the service of two years she was not entitled  for session benefit i.e. till 31.3.2016.

Learned counsel for the petitioner has relied upon the Division Bench judgment in the case of State of U.P. and others Vs. Ramesh Chandra Tiwari and others reported in 2015 (4) UPLBEC 2900  wherein the Division Bench has held as under:-

"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 clarification of the decision which has already been taken of the dates of commencement and conclusion of the academic session."

Thereafter, the Division Bench has gone on to hold that all those teachers whose age of retirement falls between the academic session 2015-16 i.e. (1.4.2015 to 31.3.2016) and who have not taken benefit of extension of service under proviso to Rule 29 of Rules, 1981, earlier would retire on 31.3.2016. The Division Bench has held that the Government orders issued on 9.12.2014 and 29.6.2015 have to be necessarily brought in line of the mandatory requirement of the Proviso to Rule 29 of the Rules, 1981. The power to alter the academic session undoubtedly vests with the State Government and once the academic session has been altered, the consequence of it envisaged under the Proviso to Rule 29 of Rules, 1981, must ensue.

We find it difficult to accept the legal proposition as laid down in the said judgment. It is settled law that subordinate legislation framed in exercise of the statutory powers cannot be altered by the executive orders of the State. For any alteration in the subordinate legislation, the procedure for amendment in the rules is to be followed which is the same as in the case of framing of the rules itself.

It is also settled law that if the words of statute admit of one meaning on simple reading then no interpretation is required, the Court has to give literal and simple meaning without any further addition or subtraction.

The legal position in this regard has already been settled by the Apex Court and this Court in various pronouncements. One of which is 2003 (2) SCC 111 (Bhav Nagar University Vs. Palitana Sugar Mill Pvt. Ltd and others) paragraphs 23, 24 and 25 from the aforesaid judgment are quoted as under:-

23. It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant.

24. True meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law.

25. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute."

From a simple reading of the proviso to Rule 29, of the Rules, 1981, it is apparently clear that it contemplates that the academic session for the purpose of retirement of the teachers would be 1st July to the 30th June of the succeeding year. So long as the proviso to Rule 29 stands as it is, no teacher can claim benefit of the extension of service beyond what has been provided under the said proviso.

We may record that the proviso is only an exception to the main Section. The main Section i.e. Rule 29 provides for the age of retirement as 62 years, the actual day on which the teacher would demit the office is the end of the month in which he/she attains the age of superannuation. It is only under the proviso that a teacher gets the benefit of extension of service till the end of the academic session. The proviso further specifically states that academic session shall be from 1st July to 30th June of the succeeding year such extension of the academic session would only be up to 30th June, following the date of superannuation and nothing beyond it.

We may further notice that the Division bench itself has recorded in paragraph 10 of the judgment that the State Government cannot by a Government order override the proviso to Rule 29 of Rules, 1981, which is the nature of subordinate legislation.

We are, therefore, of the opinion that either the proviso which provides for the academic session from 1st July to 30th June has become redundant because of the change of the academic session by the State Government vide Government order dated 9.12.2014 i.e. from 1st July to 30th June of the succeeding year as 1st April to 31th June of the succeeding year or else the benefit of extension of service to teacher under the proviso would continue to be governed by the dates i.e. the academic session as contained in the proviso itself i.e. upto 30th June following the date of superannuation and nothing beyond that.

We find that the Division bench of this Court in the case of State of U.P. Vs. Ram Chandra Tiwari (supra) has failed to take note of paragraph 3 of the Government order dated 9.12.2014 wherein a conscious decision has been taken by the State Government not to make any amendment in the proviso to Rule 29 of Rules, 1981. It has been especifically stated therein that the teacher of the academic institutions shall retire on 30th June in terms of the proviso to Rule 29 of Rules, 1981 even after alteration of the academic year.

We are of the view that as the State Government has a right to determine the academic session, simultaneously it also has the right to decide as to what period of extension of service after retirement is to be provided to the teacher. No teacher can claim a right to continue beyond the age of superannuation contrary to the wisdom of the State as contemplated by the statutory provisions.

We, therefore, find it difficult to agree with the legal proposition as laid down in the case of State of U.P. Vs. Ramesh Chandra Tiwari (supra).

We are of the opinion that following questions need to be answered by a Larger Bench to be constituted for the purpose:-

(a) Whether the law as laid down by the Division bench of this Court in the case of State of U.P. and others Vs. Ramesh Chandra Tiwari is the correct law or not.

(b) Whether the proviso to Rule 29 of Rules, 1981, as it stands on the statute book as on date, admits of extension of service of the teacher of retirement beyond 30th June following the date of retirement or not.

(c) Whether the conscious decision of the State Government in terms of the Government order dated 9.12.2014 providing that the teachers would still retire on 30th June, following the date of retirement can be said to be bad or arbitrary in any manner so as to require issuance of a mandate to the State Government to make the amendments in proviso to Rule 29 of Rules 1981 merely because it has altered the academic session from 1st April of the year to 31st March of the succeeding year.

Let this order be placed before Hon'ble the Chief Justice for consideration for constituting of a Larger Bench to answer the above issues.

         (Sunita Agarwal, J.)       (Arun Tandon, J.)

Order Date :- 3.8.2016

Mini/Himanshu