Hariom Sharan Srivastava vs State Of U.P. And Others
2021 Latest Caselaw 11219 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 46
 
Case :- SPECIAL APPEAL No. - 1552 of 2012
 

 
Appellant :- Hariom Sharan Srivastava
 
Respondent :- State of U.P. and Others
 
Counsel for Appellant :- Yogish Kumar Saxena
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Vikas Budhwar,J.

1. Present intra-court appeal, purported to be under Chapter 8 Rule 5 of the Rules of the High Court 1952, has been instituted by the appellant challenging the valildity and the correctness of the judgment and order dated 20.10.2010 passed by the learned Single Judge in Civil Misc. Writ Petition No. 62959 of 2010, Hariom Sharan Srivastava Vs. State of U.P. and others.

2. Though the present appeal was filed with delay condonation application, and the delay was condoned by virtue of the order dated 28.8.2012. Today, when the matter came up before this Court, then the learned counsel for the appellant as well as the learned Standing Counsel appearing for the Respondent nos.1 to 5 requested the Court to decide the present appeal at the admission stage itself. Though, notices were issued to Respondent no.6, but no response has been filed by it. Hence in the circumstances, this Court is proceeding to decide the appeal on the basis of the material available on record.

3. Heard Sri Siddhartha Srivastava holding brief of Sri Yogish Kumar Saxena, learned counsel for the petitioner and Smt. Shubhra Singh, learned counsel for the State respondents and carefully perused the records.

4. As per the case, set up by the petitioner- appellant before the Writ-Court and in the present appeal, the petitioner-appellant, has pleaded that Respondent no.6 is an Institution by the name and the nomenclature of the K.K. Inter College, Kannauj, recognized under the provisions of U.P. Intermediate Act, 1921 and is receiving grant-in-aid from the State Government. Consequently, the provisions contained under the Uttar Pradesh High School and Intermediate College (Payment and Salary to Teachers and other Employees Act, 1971 are fully applicable to Respondent no.6, Institution. It appears that the petitioner- appellant, was appointed as an Assistant Teacher in Respondent no.6/ Institution in the year 1967 and thereafter he was promoted to CT Grade Teacher in the year 1972 and further promoted as LT Grade Teacher on 8.7.1995. As the date of birth of the petitioner-appellant was 2.1.1947, therefore, he attained the age of superannuation, i.e, 62 years, on 1.1.2009, but the petitioner-appellant was granted an extension till the end of the academic Session. Thus his date of retirement of service became 30.6.2009. However, it appears that the petitioner-appellant was awarded with National Award to Teachers, 2008 by the Ministry of Human Resource Development, Department of School Education and Literacy on 5.9.2009, which is already on record at Page-47 of the paper-book. It further transpires from the record that when the petitioner was not allowed extension of his services while granting the benefit of 2 years and not being allowed to function as Assistant Teacher in Respondent no.6/ Institution till 30.6.2011, i.e, after 2 years of his actual retirement, 30.6.2009, on the strength of the Government Orders dated 6.5.1982, 4.12.1986, 4.2.2004, 29.6.2004 and 30.6.2005, then the petitioner instituted Civil Misc. Writ Petition No. 36334 of 2010, Hariom Sharan Srivastava Vs. State of U.P. seeking relief to the extent that in terms of the Government Order dated 6.6.1982 recommendation had already been made by the Regional Joint Director of Education, Kanpur Nagar for grant of extension, so a suitable decision be taken by the State Government in the light of the same. The said writ petition was eventually disposed of on 5.7.2010 with an appropriate direction to the State Government to take appropriate decision on the recommendation of the Joint Director of Education, Kanpur Nagar strictly in accordance with law, as early as possible, preferably within 4 weeks from the date of submission of the certified copy of the order.

5. In compliance of the order dated 5.7.2010 passed in Writ Petition No. 38339 of 2010, Hariom Sharan Srivastava vs. State of U.P, the respondent no.1, has proceeded to pass an order, whereby claim set up by the petitioner-appellant for extension of the services for a period of 2 years has been declined. The said order has been made the subject matter of challenge at the instance of the petitioner-appellant, by filing Writ Petition No.62959 of 2010, Hariom Sharan Srivastava Vs. State of U.P, which came to be dismissed on 20.10.2010, which is subject matter of challenge in the present Special Appeal.

6. We have heard learned counsel for the appellant, as well as the learned Standing Counsel appearing for the State-respondents and carefully considered their submissions.

7. It is undisputed that the petitioner-appellant was an Assistant Teacher, LT Grade, who had superannuated on 30.6.2009 after attaining the age of 62 years. Admittedly, Respondent no.6 is a recognized Institution under the provisions of U.P. Intermediate Education Act, 1921 and is also receiving grant-in-aid from the State Government. So far as the service condition of the appellant is concerned, with reference to the date of his superannuation and extension, the same is clearly providing under Regulation 21 of Chapter 3 under Section 16-G. Regulation 21 of Chapter 3 for the ready reference is being quoted hereunder: -

"21. vkpk;Z] iz/kkuk/;kid] v/;kidksa dk vf/ko"kZ o; 62 o"kZ gksxkA QyLo:i 58 o"kZ dh vf/ko"kZrk ij feyus okys lsokfuo`frd ykHk vc 60 o"kZ dh vf/ko"kZrk vk;q ij rFkk 60 o"kZ dh vf/ko"kZrk vk;q ij feyus okys lsokfuo`frd ykHk 62 o"kZ dh vf/ko"kZrk vk;q ij vuqeU; gksxkA ;fn fdlh vkpk;Z] iz/kkuk/;kid vFkok v/;kid dk mi;qZDr vf/ko"kZ o; 2 tqykbZ vkSj 30 twu ds e/; esa fdlh frfFk dks iM+rk gS rks mls] ml n'kk dks NksM+ dj tcfd og Lo;a lsok foLrj.k u ysus gsrq fyf[kr lwpuk vius vf/ko"kZ o; dh frfFk ls 2 ekg iwoZ ns nsa] 30 twu rd lsok foLrj.k Loeso iznku fd;k x;k le>k tk;sxk] rkfd xzh"ekodk'k ds mijkUr tqykbZ esa izfrLFkkuh dh O;oLFkk gks ldsA blds vfrfjDr lsok foLrkj.k dsoy mUgha fof'k"V n'kkvksa esa iznku fd;k tk ldsxk tks jkT; ljdkj }kjk fu/kkZfjr dh tk;sA

vU; deZpkfj;ksa ds fo"k; esa vf/kfu;e esa fn;s x;s izkfo/kku ;Fkkor jgsaxsA"

8. It is not in dispute that Regulation 21 of Chapter 3 of the U.P. Intermediate Education Act, 1921 will govern the controversy in question. The basic ground sought to be raised by the learned counsel for the appellant is with regard to the fact that the appellant is entitled to extension of services for a period of 2 years in the light of the provisions contained under Regulation 21 Chapter 3 of the U.P. Intermediate Education Act, 1921 and the Government Orders dated 6.5.1982, 4.12.1986, 4.2.2004, 29.6.2004 and 30.6.2005, as the appellant has been awarded with National Award to Teachers-2008.

9. A bare reading of the Government Order dated 4.2.2004, which is at page-51 of the paper-book, itself provides in paragraph-2 as under: -

" ........

2- vr% Jh jkT;iky egksn; rkRdkfyd izHkko ls v'kkldh; lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa 'kklu }kjk l`ftr inksa ij fu;ekuqlkj dk;Zjr v/;kidksa dh orZeku vf/ko"kZrk vk;q dks 60 o"kZ ls c<~kdj 62 o"kZ fd;s tkus dh lg"kZ Lohd`fr iznku djrs gSaA QyLo:i vk;q ij rFkk 60 o"kZ dh vf/ko"kZrk vk;q ij feyus okys lsok uSo`fRrd ykHk 62 o"kZ dh vf/ko"kZrk vk;q ij vuqeU; gksaxsA

3. ....."

10. In the Government Order dated 4.2.2004, purposely the word "Karyarat Adhyapak" has been employed, which itself implies that on the date of superannuation for extension for a period of 2 years, the respective teacher has to be on duty, i.e, he should be serving on the post in question and performing the duty so assigned to him.

11. Thus two conditions have to be fulfilled, namely, (a) The concerned Teacher should be possessed with an award on the date of consideration for extension of 2 years; (b) He or she (Teacher) should be on duty and performing on the post, so assigned to him / her.

12. After analysing the facts of the present case with regard to the aforesaid requirement as reproduced hereinabove, the net conclusion is that on the date, the appellant was awarded the National Award to Teachers-2008, he stood superannuated as the award was granted to him on 5.9.2009, whereas the date of his superannuation was 30.6.2009. Thus, the appellant on the date of being considered for extension of 2 years had already superannuated.

13. Now, a question arises as to whether in law, it is permissible to grant extension to an officer or employee, once he / she stood superannuated. The issue is no more res integra, as the Hon'ble Apex Court in the case of State Of Assam & Ors vs Padma Ram Borah, AIR 1965 SC 473 has clearly observed as under:

"We do not think that the State Government had any jurisdiction to pass such an order on May 9, 1961. According to the earlier order of the State Government itself, the service of the respondent had come to an end on March 31, 1961. The State Government could not by unilateral action create a fresh contract of service to take effect from April 1, 1961. If the State Government wished to continue the service of the respondent for a further period, the State Government should have issued a notification before March 31, 1961. In R. T. Rangachari v. Secretary of State 64 Ind App 40 : 1937 AIR(PC) 27, their Lordships of the Privy Council were dealing with a case in which a Sub-Inspector of Police was charged with certain irregular and improper conduct in the execution of his duties. After the Sub-Inspector had retired on invalid pension and his pension had been paid for three months, the matter was re-opened and an order was made removing the Sub-Inspector from service as from the date on which he was invalided. Lord Roche speaking for the Board said :

"It seems to require no. demonstration that an order purporting to remove the appellant from the service at a time when, as their Lordships hold, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained.""

14. Following the judgment in the case of State of Assam (supra), a learned Single Judge of this Court in the case of Smt. Indira Daniels Vs. State of U.P. and others, reported in 2005 (3) ESC Alld 1612 in paragraph-7, 8, 9, 10 and 11 has observed as under: -

"7. After respective arguments have been advanced, the undisputed factual position, which is emerging is to the effect that as far as petitioner is concerned, she had been performing and discharging her duties as Principal of the institution in question, and on account of commendable job performed by her, recommendation was made for giving her National Award, but before any decision could be taken in the matter of grant of National Award, she attained the age of superannuation and retired from service on 30.6.2003. In fact said National Award was given to her on 5.9.2003 i.e. much after attaining the age of superannuatipn. Therefore, the Government has chosen not to extend the service of petitioner. As to whether the action of the State Government in not extending service of petitioner by two years is correct or incorrect decision has to be seen in the context of relevant Regulations and Government Orders. Regulation 21 of Chapter III of the Regulations framed under U.P. Intermediate Education Act, 1921, provides that an incumbent shall retire after he/she attains the age of 60 years and in case the age of superannuation falls in between the academic session then benefit is extended and superannuation takes place on the last date of academic session. Government Orders dated 23.10.1991 with reference to previous Government Order dated 6.5.1982, 27.7.1983, 4.12.1986. 2.8.1984, 3.9.1985 and 10.5.1988, provides for two years' extension of service to those teachers who have been recipient of National Awards/State Awards, and one year to those, who; had participated in the freedom struggle of 1942, and thereafter, re-appointment for further period of one year. As per the said Government Order earlier procedure has been sought to be simplified, and precise time schedule has been provided for so that decision is taken before the end of academic session. Director of Education by the first week of April is obliged to furnish full particulars in prescribed proforma along with requisite testimonials to the Committee constituted in this respect. The said Committee will forward its recommendation to State Government in the second or third week of April, and thereafter, State Government would take final decision by the first week of May. Said schedule is purposive, so that before any incumbent attains his/her age of superannuation, decision is taken qua him/her for extension of service. There is provision of extension of service of teachers, but the question is as to whether extension can be provided for with retrospective effect or not? Hon'ble apex Court in the case of State of Assam and Ors. v. Padma Ram Borah, AIR 1965 SC 473, has taken the view that order as to extension of service made on a date when servant has ceased to be in service, then order of extension is nullity. Relevant extract of the aforementioned judgment is being extracted below :

"We do not think that State Government had any jurisdiction to pass such an order on May 9, 1961. According to the earlier order of the State Government itself, the service of the respondent had come to an end on March 31, 1961. The State Government could not by unilateral action create a fresh, contract of service of the respondent for a further period; the State Government should have issued a notification before March 31, 1961. In R.T. Rangachari v. Secretary of the State, 64 Ind App 40 : AIR 1937 PC 27, their Lordships of the Privy Council were dealing with a case in which a Sub-Inspector of Police was charged with certain irregular and improper conduct in the execution of his duties. After the Sub-Inspector had retired on invalid pension and his pension had been paid for three months, the matter was reopened and an order was made removing the Sub-Inspector from service as from the date on which he was invalided. Lord Roche speaking for the Board said:

"It seems to require no demonstration that an order purporting to remove the appellant from the service at a time when as their Lordships hold, he had for some months duly and properly ceased to be in the service was a mere nullity and cannot be sustained."

The position is the same here The respondent had ceased to be in service on March 31, 1981 by the very order of the State Government. An order of retention in service passed more than a month thereafter, was a mere nullity and cannot be sustained."

8. Testing the facts of the present case on the touchstone of the principles as laid down in the aforementioned judgment that once the contract of service has come to an end, then by no stretch of imagination, any extension can be accorded to the same, here it is clearly reflected that petitioner had attained her age of superannuation and continued till 30.6.2003, with session benefit. Contract of service came to an end with petitioner's attaining age of superannuation, and extension could have been accorded only when contract of service have been in subsistence and not at the point of time when contract of service has come to an end. Re-employment could not have been offered to petitioner, as in case of teachers, who are recipients of National Award, there is no scheme for re-employment and the scheme is only in respect to grant of extension. For according extension of service prerequisite condition is subsistence of contract of service, and once contract of service has come to an end by operation of law on account of the incumbent having attained the age of superannuation, then same cannot be permitted to be revived by according extension with retrospective effect. Scheme which provides for final decision for extension of service by first week of May clearly intended that decision for extension of service be taken during subsistence of contract of service and not when incumbent had attained age of superannuation. The precise view taken by the State Government in the present case is that as the petitioner had already attained the age of superannuation on the date when National Award had been given to him, as such extension cannot be accorded to her does not appear to be unreasonable or arbitrary view.

9. The Hon'ble apex Court in the case of Prem Dutta Chamoli v. State of U.P., (S.L.P.) (C) No. 16808 of 1993, has taken the view that teachers with National/State Awards can be given extension both in the interest of the institution and the public to utilise their services as teachers. However, Hon'ble apex Court has precluded the said extension for according Principalship or any other higher post. The said judgment has been followed by this Court in the case of Committee of Management, Indian Girls Inter College, Allahabad v. State of U.P. and Ors., (C.M.W.P. No. 50031 of 2003, decided on 26.2.2004), wherein extension as teachers has been provided for. In the aforesaid judgment, the view taken in Five Judge Bench judgment of the apex Court (supra) referred to above that order of extension cannot be passed after petitioner has attained the age of superannuation, has not been noticed, as such no advantage or benefit can be extended of the aforesaid two judgments to the petitioner.

10. As far as question of parity is concerned, here in the present case teachers who are alleged to have been accorded benefit of extension with retrospective effect same has been made, that was in compliance to the interim orders passed by this Court. As far as petitioner is concerned, there has been no interim order in her favour, and that is why the State Government has proceeded to exercise its discretion independently and as claim of petitioner was not legally sustainable, same has been refused by giving valid reasons, in support of the same. Incorrect decision cannot be made foundation and basis for asking the Court to take similar view, inasmuch as parity is not extendable qua illegal acts. As petitioner had already attained the age of superannuation, then by no stretch of imagination, extension could have been accorded to the petitioner.

11. In view of what has been stated above, present writ petition lacks merit and is dismissed."

15. The issue as to whether the date, on which an award is granted, is a determining factor for the grant of benefits? In the present case, the award was with regard to the public recognition of valuable services in the community, as a Teacher of outstanding merit referable to National Award to Teacher-2008, but the same was granted to the appellant on 5.9.2009, i.e, after the date of superannuation i.e, 30.6.2009. Scheme/ event, which pertains to the conferring an award is one thing and grant of award is another thing. Consideration and decision might be taken to award a particular incumbent referable to a particular scheme or a policy, but the crucial factor for determining the date vis-a-vis the eligibility is the date, when the award is being granted to the beneficiary. Therefore, the crucial date, relevant for the purposes of considering the claim of the appellant for grant of extension is the date, when the appellant became eligible under the provisions of Regulation 21 Chapter 3 of the U.P. Intermediate Act, 1921 and the Government Orders issued from time to time.

16. Even otherwise, the issue that an officer or employee has no unfettered and absolute right to continue in service beyond the age of superannuation, is no more res integra in view of the law laid down by the Hon'ble Apex Court in the case of State of Assam and others vs. Basanta Kumar Das, AIR 1973 SC 1252 held as under: -

"A Government servant has no right to continue in service beyond the age of superannuation and if he is retained beyond that age it is only in the exercise of the discretion of the Government."

17. Following judgment in the case of Basanta Kumar Das (supra), the Hon'ble Apex Court in the case of State Bank of Bikaner and Jaipur and others Vs. Jag Mohan Lal reported in AIR 1989 SC 75 in paragraph 9 and 10 has observed as under:-

"9. What do we have here in this case to distinguish those principles or not to apply those principles? In our opinion, there is none. In the scheme provided herein the respondent or any other officer of the Bank has a legitimate right to remain in service till he attains the age of superannuation. But beyond that age, he has no such right unless his service is extended by the Bank. The further rights of parties are regulated by the proviso to Regulation 19(1). It reads:

"Provided that the competent authority may at its discretion, extend the period of service ot an officer who has attained the age of fifty eight years or has completed thirty years' service as the case may be, should such extension be deemed desirable in the interest of the Bank. "

10. Look at the language of proviso and the purpose underlying. The Bank may in its discretion extend the service of any officer. On what ground? For what purpose?

That has been also made clear in the proviso itself. It states "should such extension be deemed desirable in the interest of the Bank". The sole purpose of giving extension of service is, therefore, to promote the interest of the Bank and not to confer any benefit on the retiring officers. Incidentally the extension may benefit retired officials. But it is incorrect to state that it is a conferment of benefit or privilege on officers. The officers upon attaining the age of superannuation or putting the required number of years of service do not earn that benefit or privilege. The High Court has completely misunderstood the nature of right and purpose of the proviso. The proviso preserves discretion to the Bank. It is a discretion available with every employer, every management, State or otherwise. If the Bank considers that the service of an officer is desirable in the interest of the Bank, i~ may allow him to continue in service beyond the age of superannuation. If the Bank considers that the service of an officer is not required beyond superannuation, it is an end of the matter. It is no reflection on the officer. It carries no stigma."

18. Yet the Hon'ble Apex Court in the case of P. Venugopal vs. Union of India, reported in (2008) 5 SCC 1, in paragraph-8 has observed as under:-

"It is true that in establishments like AIIMS, there is an age of superannuation governing the length of service of its officers and employees. Such age of superannuation may be suitably altered by way of reducing the age so as to affect even the serving employees under appropriate circumstances and no exception can be taken to such course of action. Similarly under the Service Rules, there may be provision for extension of service after the attainment of the age of superannuation and it is well settled that in the event of refusal by an employer to grant an extension, the employee cannot justifiably claim to be deprived of any right or privilege. The view taken is that the employer has a discretion to grant or not to grant such extension having regard to the interest of the employer or the establishment. This view is expressed by this Court in the Case of State Bank of Bikaner and Jaipur and Ors. vs. Jag Mohan Lal (AIR 1989 SC 75). In this case, at para 12, this Court observed as follows :

"13. ...The Bank has no obligation to extend the services of all officers even if they are found suitable in every respect. The interest of the Bank is the primary consideration for giving extension of service. With due regard to exigencies of service, the Bank in one year may give extension to all suitable retiring officers. In another year, it may give extension to some and not to all. In a subsequent year, it may not give extension to any one of the officers. The Bank may have a lot of fresh recruits in one year. The Bank may not need the services of all retired persons in another year. The Bank may have lesser workload in a succeeding year. The retiring persons cannot in any year demand that "extension to all or none". If we concede that right to retiring persons, then the very purpose of giving extension in the interest of the Bank would be defeated. We are, therefore, of opinion that there is no scope for complaining arbitrariness in the matter of giving extension of service to retiring persons.""

19. The discussion made above leads to the conclusion that the appellant retired from service on 30.6.2009 after attaining the age of superannuation 01.01.2009. He was awarded the National Award to Teachers-2008 on 05.09.2009, i.e, after his retirement from service. Thus, at the time of his retirement, he was not in service. There is no provision for extension of service of a teacher after his retirement from service or extension of service with retrospective effect. Thus, once the contract of service has come to an end, then no extension of service can be accorded. Therefore, denial of extension of service of the appellant/ petitioner does not deprive him of his any fundamental rights guaranteed under the Constitution or any of his statutory rights. A government servant has no right to continue in service after his retirement from service. The appellant / petitioner having retired from service much before the grant of National Award for Teachers to him, has no right for extension of service.

20. Learned counsel for the appellant has miserably failed to show any illegality or manifest error in the impugned judgment passed by the learned Single Judge.

21. No other point has been raised by the learned counsel for the appellant.

22. For all the reasons aforestated, the present intra-court appeal lacks merit and is, therefore, dismissed.

23. Cost made easy.

Order Date :- 21.10.2021

N.S.Rathour