Shashi Prabha Dwivedi vs State Of U.P. And 2 Others
2016 Latest Caselaw 7364 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

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

 
Appellant:- Shashi Prabha Dwivedi 
 

 
Respondents:- State of U.P. & 2 Ors.

Counsel for Appellant:- Rishikesh Tripathi

Counsel for Respondents :- CSC, Ashok Kumar, C.B. Yadav, Addl. Advocate General, Shashank Shekhar Singh, Addl CSC

Hon'ble Dilip B Bhosale, Chief Justice

Hon'ble Yashwant Varma, J

Hon'ble Pratyush Kumar, J

(Per Dilip B Bhosale, CJ)

The following questions of law have been referred by a Division Bench of this Court, vide its order dated 3 August 2016, for resolution by the Full Bench:

"(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."

2. The Division Bench, while referring the questions, found itself unable to accept the view expressed by another Division Bench of this Court in State of U.P. & Ors. Vs. Ramesh Chandra Tiwari & Ors., (2015) 4 UPLBEC 2900. The controversy which stood raised before the Division Bench in Ramesh Chandra Tiwari was, whether the amendment to the academic session as effected by Government Order dated 9 December 2014 would enable Assistant Teachers in primary institutions, whose age of superannuation was to fall between April 1 to March 31, to continue till the end of the session, in light of the proviso appended to Rule 29 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (for short, 'the Rules'). It appears that the issue in Ramesh Chandra Tiwari arose on account of the fact that no corresponding amendments had been made to Rule 29 which continued to refer to the academic session with reference to the dates July 1 and June 30 as being the dates of commencement and termination thereof. The issue itself arose in view of the fact that on 9 December 2014, the Government had issued an order which amended the academic session for the year 2015-16 to commence from 1 April 2015 and end on 31 March 2016. This Government Order was subsequently further elaborated upon and clarified by a Government Order dated 8 October 2015. The subsequent Government Order, while maintaining the amendment to the academic session, further held that the Government of Uttar Pradesh was in the process of making necessary amendments in the Rules.

Another aspect, which needs to be taken note of, is that the Government Order dated 8 October 2015 carries a recital to the effect that the Government is in the process of taking steps to amend Rule 29 so as to bring it in tune with the policy decision taken by it, to change the academic session. Before us, it is not disputed that in compliance of the directions contained in Government Orders dated 9 December 2014 and 8 October 2015, the academic session of primary educational institutions has and had, in fact, been changed and they consequently commenced on 1 April 2015 and ended on 31 March 2016. Further, it is also not in dispute that though the Government, in its order dated 8 October 2015, stated that it is in the process of taking steps to amend Rule 29, in fact, it did not amend the proviso appended to Rule 29 of the Rules and Rule 29, as it stood then, continued to remain unamended on the statute book. In this backdrop, the Division Bench, in the instant appeal, after referring to the relevant paragraphs in Ramesh Chandra Tiwari, observed that Ramesh Chandra Tiwari has failed to take note of paragraph 3 of the Government Order dated 9 December 2014, wherein a conscious decision had been taken by the State Government not to make any amendment in the proviso to Rule 29 of the Rules. The Division Bench further observed that the Government Order dated 9 December 2014 embodied a conscious decision of the Government not to make any amendment in the proviso to Rule 29 of the Rules, 1981. Thus, the Division Bench took the view that as long as Rule 29 had not been amended, no Assistant Teacher could be permitted to continue till the end of the amended academic session. It also expressed the view that Rule 29, which was in the nature of subordinate legislation, could not be amended by an executive order. It has, accordingly, found itself unable to sustain the view expressed in Ramesh Chandra Tiwari and, accordingly, framed the questions for resolution by the Full Bench.

3. Before we proceed further, it would be relevant to refer to the factual matrix, against which the questions have been referred to the Full Bench. The factual matrix, sans unnecessary details, are as follows : the date of birth of the appellant is 1 May 1951. She was an Assistant Teacher, working in a primary institution of the respondents. Admittedly, her service conditions were and are regulated by the Rules, framed under Section 19 of the Uttar Pradesh Basic Education Act, 1972 (for short, 'the Act'). She should have normally retired on attaining the age of 62 years, as per Rule 29 of the Rules, but since she was awarded the President's National Award, two years' extension in service was given to her and, therefore, her age of retirement stood extended upto 64 years. She attained the age of 64 years on 30 April 2015. According to the appellant, the academic session for the year 2015-16, under the Government Order dated 9 December 2014, was directed to commence from 1 April 2015 and to end on 31 March 2016, and in view thereof, the appellant contends that since her date of retirement falls in the midst of the academic session 2015-16, she was entitled to extension in service till 31 March 2016 and she had been wrongly retired on 30 June 2015. The learned Single Judge held that since she had already availed the benefit of the Government Order, being a Presidential Awardee, she could not be granted a double benefit and be held to be entitled to continue upto 31 March 2016. It was the correctness of this view taken by the learned Single Judge which fell for consideration before the Division Bench which has made the present reference to the Full Bench.

4. We have heard Mr. C.B. Yadav, learned Additional Advocate General, for the State-respondents. After inviting our attention to the reference order and the provisions contained in Rule 29 as also to the judgment in Ramesh Chandra Tiwari, he submitted that the questions framed and referred to the Full Bench, as a matter of fact, in the facts of the present case, do not arise for determination. He invited our attention to Rule 29 of the Rules and submitted that, under any circumstances, the benefit of this Rule cannot be extended to the appellant, since she had attained the age of 62 years, as contemplated by Rule 29 in 2013-14 itself and, as has been rightly observed by the learned Single Judge that, in any case, she would not be entitled to a double benefit.

5. In this backdrop, it would be relevant to have a glance at Rule 29 of the Rules, which reads thus:

"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."

This rule 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. It lays down the age of superannuation to be 62 years; 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 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, as observed in Ramesh Chandra Tiwari, enacts a legal fiction through 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, which was the then academic session. It is, thus, clear that a teacher is entitled to the benefit given under this provision whose normal date of retirement upon attaining the age of superannuation of 62 years, falls within the academic session until 30 June or, for that matter, 31 March of the following year.

6. In Ramesh Chandra Tiwari, the Division Bench, after considering the provisions contained in Rule 29 of the Rules, and the Government Orders, referred to above, as also the judgments of the Division Bench in Bhajan Lal Diwakar Vs. Bani Singh Thakurela & 4 Ors., Special Appeal (D) No. 492 of 2015; Dulare Lal & Anr. Vs. State of U.P. & 7 Ors., Special Appeal No. 483 of 2015; and Krishna Chandra Pal & 8 Ors. Vs. State of U.P. & 2 Ors., Special Appeal No. 227 of 2015, observed thus:

"...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."

(emphasis supplied)

In this case (Ramesh Chandra Tiwari), the Division Bench in special appeal was dealing with a case of four petitioners who attained the age of superannuation of 62 years in May and June 2015. Until 2013-14, the academic session of primary schools and junior high schools established and administered by the Uttar Pradesh Basic Education Board, commenced on 1 July and ended on 30 June of the succeeding year. Under Rule 29, a teacher, as observed earlier, is liable to retire on the last day of the month in which he attains the age of 62 years. Consequently, the four petitioner - Assistant Teachers in question would have continued, in normal course, until the last day of the respective months in which they attained the age of 62 years. However, in view of the provisions of Rule 29, a teacher, who retires during an academic session, would continue to work till the end of the academic session. Since the academic session was 1 July to 30 June, a teacher, who attained the age of superannuation within that period, would continue upto the following 30 June and such period of service would be deemed to be an extended period of employment. The petitioner-teachers (in Ramesh Chandra Tiwari), in view of the Government Orders dated 9 December 2014 and 29 June 2015, filed a writ petition in order to challenge a decision which was taken by the Secretary, Basic Education. 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 order dated 30 June 2015, held that since the dates of superannuation of the petitioners were falling respectively in May and June 2015 and therefore, 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 that academic session, i.e. 31 March 2016, subject to the verification of their dates of birth. The learned Single Judge, noted that the petitioners in that case had not already availed the benefit of Rule 29 earlier. Accordingly, an interim order was passed, against which the State had preferred appeal.

7. Having considered the background facts against which the Division Bench in Ramesh Chandra Tiwari took the view and considering the facts of the present case, we do find ourselves in agreement with Mr. C.B. Yadav, learned Additional Advocate General, that the questions referred by the Division Bench for our consideration, strictly speaking, do not arise in the facts and circumstances of the present case. Before the appellant could be said to be entitled to the benefit of proviso to Rule 29 and be held entitled to the benefits flowing from the principles laid down in Ramesh Chandra Tiwari, the primary issue which would be liable to be considered, would be as to whether the appellant was, in fact, retiring during the academic session on attaining the age of 62 years. Admittedly, the appellant had attained the age of superannuation (62 years) prior to 1 July 2013 and was continuing in service till 30 June 2015 only on the strength of being a Presidential Awardee. Rule 29 provides the age of 62 years as the age of superannuation. It is not possible to read the age of 62 years in Rule 29 as 64 years. The appellant attained the age of 64 years in the midst of the academic session 2015-2016. In other words, this was not a case where the appellant attained the age of superannuation, that is 62 years, post-1 April 2015. Continuance on a post on the basis of an order of extension would not have the effect of either extending or postponing the date of superannuation. The date of superannuation remains intact and unchanged, irrespective of the amendment to the academic session. Since the appellant was continuing in service only on the basis of an extension, the learned Single Judge was, in our opinion, correct in holding that she would not be entitled to the benefit under Rule 29 of the Rules.

8. In the aforesaid backdrop of the facts, we are of the considered view that the correctness or otherwise of the decision in Ramesh Chandra Tiwari did not arise at all. The issue as to whether the appellant would be entitled to continue till 31 March 2016 and whether the said benefit could be accorded to her, irrespective of no amendment having been made in Rule 29, would arise only if it was found that she was attaining the age of superannuation (i.e. 62 years) between 1 April 2015 to 31 March 2016. Admittedly, this was not the position insofar as the appellant was concerned. The judgment of the Court in Ramesh Chandra Tiwari, therefore, did not apply at all to the case of the appellant.

9. One last issue which needs mention is the observation of the Division Bench that paragraph 3 of the Government Order dated 9 December 2014 evidenced a conscious decision of the State Government not to make any amendment in the proviso to Rule 29 of the Rules. As noted above the Government Order dated 8 October 2015 and more particularly paragraph 4 thereof categorically extended the benefit of extended period of service even to those teachers whose age of superannuation fell between 1 April and 31 March 2015. It then clarified that the Government Order dated 9 December 2014 would be treated as being amended to the above extent. The State Government further held out that a formal amendment to Rule 29 was in the process. The observation of the Division Bench obviously, therefore, appears to have been made without noticing the stand of the State Government as embodied in paragraph 4 of the subsequent Government Order dated 8 October 2015.

10. Consequently and in light of the above, we find that the questions referred for our consideration do not arise at all in the facts of the present case. The correctness of the judgment rendered by the Division Bench in Ramesh Chandra Tiwari must, therefore, necessarily be left for resolution in an appropriate case or where it actually falls for consideration and application. We, therefore, return the reference made to the Full Bench, leaving it open for resolution of the questions formulated by the Division Bench, in an appropriate case.

December 02, 2016

AHA

(Dilip B Bhosale, CJ)

(Yashwant Varma, J)

(Pratyush Kumar, J)