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Judgment reserved on 08.10.2010

Judgment delivered on 12.11.2010

CIVIL MISC. WRIT PETITION NO.11111 OF 1996

Smt. Sumitra Dhuliya

vs.

Director of Education & others

Hon'ble Ferdino Inacio Rebello, Chief Justice

Hon'ble Sunil Ambwani, J.

Hon'ble Dilip Gupta, J.

1.Smt. Sumitra Dhuliya served on the post of Professor in

Central Paedological Institute, Allahabad ( in short, 'CPI, Allahabad),

upto the age of 58 years, and retired on superannuation on

31.3.1996. She claimed benefit of Government Order dated

21.3.1984, providing that those teachers, who are engaged in

teaching in Government institutions, will be entitled to continue till

the end of the academic session i.e. 30

th

June of the year during

which they are going to retire, if their date of birth falls between 2

nd

July and 29

th

June of the academic session. She was not given the

benefit of the extension of service provided by the Government

Order dated 21.3.1984. She filed the writ petition praying for a writ

of mandamus commanding the Director of Education (Madhyamik),

U.P. Lucknow-respondent no.1, and the Additional Director of

Education (Madhyamik), Education Directorate, UP Allahabad-

respondent no. 2 to extend her services upto 30.6.1996. By an interim

order dated 29.3.1996 she was permitted to continue to serve on the

post, which she was holding. The Division Bench, at the time of

hearing of the writ petition on 21.4.2009, noticed an apparent conflict

in the view taken by the two Division Benches in the same year. It

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was found that in Sarju Prasad vs. State of UP and others Civil

Misc. Writ Petition No. 896 of 1967 decided on 14.3.1997 a

Division Bench of this Court held that the Government Order is

applicable only to the teachers, who are teaching in a particular

session, and not to the training institutes. In a later Division Bench

decision in the same year in Rajpati Pandey vs. State of UP and

others Civil Misc. Writ Petition No. 20756 of 1990 decided on

02.05.1997 a Division Bench held that the Government Order dated

21.3.1998 will also apply to Central Paedological Institute,

Allahabad (CPI), as it is a Government institute and teaching takes

place in the said institute. The matter was thus referred to a larger

bench to resolve the conflict.

2.In our opinion, following questions arise for consideration by

us:-

“1.Whether the Government Order dated 21.3.1984,

providing for extension of service after superannuation to

the Teachers, Headmasters and Principals of Government

Schools and Colleges upto end of the academic session

i.e. 30

th

June, following the date on which they attain the

age of superannuation, with certain conditions, is

applicable to the staff of the training institutes such as

Central Paedological Institute, Allahabad (CPI)?

2.Whether the Division Bench judgment in Civil

Misc. Writ Petition No. 20756 of 1990 (Rajpati Pandey

vs. State of UP and others) decided on 2.5.1997 giving

extension of service after 30

th

June next following the

date of superannuation to the Professors of the Central

Paedological Institute, Allahabad was correctly decided?

and;

3.Whether the view taken by Division Bench in

Civil Misc. Writ Petition No. 896 of 1967 (Sarju Prasad

vs. State of UP and others) decided on 14.3.1997 lays

down the correct law?”

3.Brief facts giving rise to the writ petition are that the petitioner

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was selected as LT grade teacher by UP Public Service Commission

in the year 1962, and was appointed on a substantive post until she

was selected in the grade of Lecturer by the Commission and

appointed in substantive capacity as Lecturer in the year 1974. She

was confirmed on the post of Lecturer on 4.3.1987. The date of birth

of the petitioner is 11.3.1938. In the year 1996, in which she was to

attain the age of superannuation, she was serving as Professor in

CPI, Allahabad. In paragraph-4 of the writ petition, she claimed that

she was serving as Professor, in Research-cum-Teaching Institute,

and is taking classes and that she was also incharge of the Model

School under the CPI, Allahabad. The CPI is involved in research

activities, which include developments and modification of textbooks

of students upto Intermediate level. It also imparts training to make

students, known as Licentiate of Teaching (L.T.). The activities of

research and training are combined activities undertaken by the

institute. As a teacher in the institute since 1988, it is alleged, the

petitioner was doing both research and teaching work and as

incharge of a Model School, a Junior High School, imparting

education from Classes I to VIII. She was involved in day-to-day

activities of the school including the syllabus, curriculum and overall

teaching activities under her guidance. She therefore claimed to be

entitled to be given the benefit of extension of services until the end

of the academic session i.e. June 30, 1996.

4.The petitioner made a representation on 28.8.1996 to give her

three months' extension of services upto June, 1996. In her

representation she stated that she is regularly teaching in Government

CPI and that in the previous session she was teaching the subject of

Psychology to L.T. grade teachers. She has been incharge of the

Model School attached to the CPI and has, for a period of one year,

worked as Administrative Officer in the Government CPI. Her

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representation was forwarded by the Director of State Educational

Research and Training Council, Lucknow to the Directorate of

Education on 19.3.1996. The petitioner sent a reminder on 19.3.1996,

and thereafter filed the writ petition.

5.In the counter affidavit of Smt. Prema Rai, Principal of CPI,

Allahabad, it is stated that the petitioner was appointed as Assistant

Mistress in L.T. Grade on 31.10.1961 in a temporary vacancy, and

was confirmed in the said grade on 1.4.1970. She was selected on the

post of Lecturer and was appointed on 26.6.1971. She was promoted

on ad-hoc basis as Professor in the grade of Rs. 770-1670 and was

posted in Government CPI, Allahabad on 19.12.1988. She had

joined the institute on 20.12.1988, and since then she is working on

the said post. The work in CPI, Allahabad, is to conduct research on

various education systems and to develop education work. The main

work assigned to the institute is to conduct research work and to

impart training to teachers. The function of the post held by the

petitioner is not to teach the students admitted in the institute for

obtaining LT certificate. She is required to conduct educational

research for re-orientation of educational system. The petitioner does

not teach or impart education or take classes. In fact, she was

working on the post doing research work and thus the conditions laid

down in the Government Orders dated 21.3.1984 and 20.4.1995 for

extension of term, until the completion of academic session, are not

applicable to her. In paragraph-5 of the counter affidavit, it is stated

that the petitioner was not doing teaching work or imparting

education in the said institute. She was only doing research work.

The Model School attached to CPI, Allahabad was being headed by a

Headmaster and is engaged in imparting education to children from

Classes-I to VIII. Only supervision work was entrusted by the then

Principal of CPI Allahabad, and no teaching work was allotted to her.

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She was not teaching the students of the Model School. In para-10 of

the counter affidavit, it is stated that the CPI Allahabad is a non-

educational institution and is different from other Schools and

Colleges. The CPI, in which the petitioner was posted on the post of

Professor, does not have any academic session of its own, and like

any other Government office, it is open throughout the year. The

incumbents earn their leave of 31 days for rendering services

throughout the year, unlike the staff of the teaching institution, where

earned leave is admissible only for one day in a month as vacations

are availed by them.

6.In the rejoinder affidavit, the petitioner has stated that she has

been engaged as a teacher from the date of her initial appointment.

For 40 years she has been working as a teacher. The institute

undertakes both research and teaching work. It revises syllabus from

Class-I to Intermediate and makes suitable recommendation for its

revision, conduct seminars, workshops and other research orientation

work. Apart from these the institute also conducts LT training for

male. The designation of all teachers of CPI is a Professor, which

means a teacher of the highest grade. The work of revision of

syllabus, introduction of new lessons etc. are only of peripheral

nature. The petitioner is primarily a teacher. From the beginning of

her association with the institute in the year 1988, she was teaching

and was imparting teaching to LT students. The petitioner has

annexed the time tables, curriculum of training, practicals, projects

and publication to demonstrate that she was also doing teaching

work.

7.A supplementary affidavit was filed by the petitioner

reiterating that she was a teacher and that she had taught in

Government Girls Inter College Lansedown, Pauri Garhwal;

Government Girls Inter College, Dehradun; Government Girls

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School, Allahabad and is presently teaching in CPI, Allahabad. She

teaches the subjects of Methodology, Education, Psychology

amongst other subjects in the institute. In the similar circumstances,

Shri U.D. Pandey a teacher in CPI was also given extension of

service. He was allowed to teach upto 30

th

June, 1991.

8.In the supplementary counter affidavit, Shri Ram Dutt Tewari,

Professor, Government, CPI, Allahabad has reiterated that the

petitioner was not doing any teaching work. There is no session so

far as the institution CPI Allahabad is concerned. It runs for whole of

the year, and as such the petitioner is not entitled to sessions benefit.

The State has relied upon judgment in Saryu Prasad yadav s. State

of UP and others (supra) in which this Court had denied the sessions

benefit to Professors of CPI.

9.Shri Shashi Kant Shukla, learned counsel appearing for the

petitioner submits that the Division Bench in Rajpati Pandey's

case(supra) has correctly given the benefit of extension of service to

a Professor of CPI upto 30

th

June of the year in which he was retiring.

The Division Bench found that he was originally appointed on the

post of teacher in 1962, and had worked for substantial part of his

service as a teacher. For a short period the petitioner was on a non-

teaching post. When such teaching and non-teaching posts are such

that an employee can be transferred from one post to another, the

petitioner cannot be deprived with the benefit of the Government

Order dated 21.3.1984, particularly when at the time of retirement he

was holding a teaching post. The principle, on which the

Government order was issued, as it appears from the Government

order itself, does not justify the exclusion of the petitioner from the

benefit. The only conditions, which have been prescribed in the

Government Order dated 21.3.1984, are appearing from the same and

no case was made out by the respondents that any of the conditions

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was lacking. The Division Bench thereafter proceeded to observe that

the CPI is a Government institute. The Government Order itself

indicates that same applies to Government institutions in which

teaching takes place. The post held by the petitioner upto his

retirement was the post of Professor and thus he is entitled to the

benefit of extension of service.

10.Shri Shukla submits that the Government Order dated

21.3.1984 was issued to give benefit to all the teachers teaching in

educational institutions. All the conditions of the Government Order

dated 21.3.1984 are applicable to the teachers of the CPI, Allahabad.

He relies upon paragraphs 210, 211 and 226 of the Education Code

which defines 'academic session' and which also includes academic

session for training institutions under heading 'Training Sessions'. He

has relied upon a long career of the petitioner as a teacher, her

designation as a Professor, the curriculum, and the time table

annexed to the rejoinder affidavit, and submits that the petitioner was

a teacher, and was serving in a Government Training Institute for

imparting training to the teachers. She was, therefore, entitled to the

benefit of the Government Order dated 21.3.1984 for extension of

service.

Shri M.C. Chaturvedi, Chief Standing Counsel appearing for

the State, submits that the Government Order dated 21.3.1984

provides for the objects in which the extension of service as an

exception to the general rule was given to the teachers of the

Government educational institutions. In the Government Schools and

Colleges the retirement of the teacher in the middle of the academic

session disturbed the teaching work. The appointment of new

teachers, or their transfers and promotions takes some time and that

new teachers or transferred and promoted teachers take some time to

start the teaching work with the same speed. The State Government

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in supercession of its earlier Government Orders dated 8.2.1970,

12.5.1977 and 6.2.1978, issued directions in public interest as an

exception to the Fundamental Rule 56 (a) of Financial Handbook

Vol.2 Part II to IV, to provide for extension of service of those

Teachers, Headmasters and Principals, who retire in between the

academic session (i.e., 1

st

July and before 30

th

June), and are attaining

the age of 58 years upto the end of the academic session i.e. 30

th

June, subject to conditions (i) that their work and conduct during the

period of service has been satisfactory; (ii) they are physically and

mentally fit; (iii) they are teaching some subjects regularly in the

school, and further subject to the conditions that in all such cases, it

will be necessary for the competent authority to obtain order from the

State Government. Paragraph-4 of the Government Order dated

21.3.1984 provides that those officers, who are not doing any

teaching work, should not be assigned teaching work in the last year

of their service to give them benefit of extension of service upto 30

th

June. Later on the demand of the Rajkiya Shikshak Sangh, on

20.4.1995 the Government Order dated 21.3.1984 was partly

amended to give the benefit of extension upto the end of the

academic session i.e. 30

th

June, without any specific order to that

effect, unless the concerned Principal has brought to the notice of

competent authority any adverse fact prior to their retirement. The

Principal was made responsible to submit his report informing any

such fact regarding the health of the government teachers, or the

extent to which his work was unsatisfactory to deny to him the

benefit of extension of service.

12.Learned Chief Standing Counsel submits that the Government

Orders dated 21.3.1984 and 20.11.1995 were further amended by

Government Order dated 31.7.1998 by providing that the sessions

benefit will not be given automatically to the Headmaster/Principal

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unless they give written information/application one month prior to

attaining the age of superannuation to the competent authority. He

submits that the benefit of extension of service to teachers is co-

related to the academic session. The exception to the statutory rules

of superannuation, is primarily for the benefit of students and not for

the teachers. Where in the government institutions there are no

students and there is no academic session, nor the concerned teacher

is teaching any subject regularly in such academic session, the

benefit is not made applicable.

13.Shri Chaturvedi submits that in Sarju Prasad's case (supra)

the Division Bench deciding the case of Professor of CPI Allahabad

had dismissed the writ petition for giving benefit of extension of

service on the ground that he was not doing any teaching work and

further that there is no session so far as the Central Paedological

Institute, Allahabad is concerned. The institution runs for the whole

of the year. The petitioner earned leave and is not entitled for the

benefit to continue upto the end of the academic session, applicable

to the teachers engaged in teaching work for a particular session. The

Division Bench did not find anything in Paragraphs 210, 211 and 226

of the Education Code to give benefit to the petitioner.

14.The service conditions of Professors working in the

Government CPI, Allahabad are regulated by U.P. Educational

Teaching (Subordinate Gazetted) Service Rules, 1993. The Rules do

not provide for age of superannuation. Rule 17 of the Rules is in the

nature of residuary clause, provides as follows:-

“17.Regulation of other matters.- In regard to the matters not

specifically covered by these rules or by special order, persons

appointed to the service shall be governed by the rules, regulations

and orders applicable generally to Government servants serving in

connection with the affairs of the State.”

15.The age of superannuation of Government servants in UP is

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regulated by the Fundamental Rules 56 (a) falling under Chapter IX

of the Financial Hand Book Vol. II, Parts II to IV. Rule 56 (1)

provides as follows:-

“56 (a) Except as otherwise provided in this rule, every Government

servant other than a Government servant in inferior service shall

retire from service on the afternoon of the last day of the month in

which he attains the age of fifty eight years. He may be retained in

service after the date of compulsory retirement with the sanction of

the Government on public grounds which must be recorded in

writing, but he must not be retained after the age of 60 years except

in very special circumstances.”

16.The rules of superannuation prescribed in respect of public

servants are based on consideration of life expectancy, and the

capacity of the civil servant, having regard to the climatic conditions

in which they work and the nature of work, they do. The rules do not

involve the exercise of any discretion. They apply uniformally to all

public servants, under the category, in respect of which they are

framed. In Ram Deka vs. General Manager, North East Frontier

Railway AIR 1964 SC 600 the Supreme Court said that the

competent authority may frame rules under Article 309 of

Constitution which corresponds to Section 124 of the Constitution

for compulsory retirement of a government servant. All those rules as

laid down in State of Bombay v. Saubhag Chand M. Doshi AIR

1957 SC 892 will be valid provided they fix both the age of

superannuation and an age of compulsory retirement and the services

of permanent civil servants are terminated between these two points

of time. In Ram Autar Pandey v. State of Uttar Pradesh, AIR

1962 All 328 (FB) a Full Bench of our Court observed:-

“The purpose of Fundamental R. 56 is not to confer upon

Government servants any right to be retained in service up to a

particular age, but to prescribe the age beyond which they may not

be retained in service.

This shows the intention with which the rule was framed.

What to say of a vested right, not even a right was intended to be

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conferred by R. 56. The petitioner could not, therefore, say that

because at one stage 58 was the age of superannuation according to

the rule a right was conferred upon him under which he could insist

that he should be retained in service till that age and that the rule-

making authority had lost its right to change the rule and to reduce

the age of superannuation to a lower figure.”

17.In this reference, we are concerned with extension of service as

an exception to FR-56 (a), to the petitioner. Any exception to the rule

of universal application, has to be strictly construed. In State of

Assam vs. Basanta Kumar Das AIR 1973 SC 1252 the Supreme

Court held in a case of Professor and Head of Department of Physics

in Government Cotton College, Guwahati that a government servant

has no right to continue in service beyond the age of superannuation

prescribed in the statutory rules. If he is retained beyond that age it is

only in exercise of the discretion of the Government. In B.N. Mishra

vs. State of UP AIR 1965 SC 1567 it was held that the State

Government was not obliged to retain the services of every public

servant for the same length of time. The retention of public servants

after the period of retirement depends upon their efficiency, and

exigencies of public service. If the Government decides to retain the

services of some government servants after the age of retirement, it

must retain every government servant for the same length of time.

The retention of public servants after the period of retirement

depends upon their efficiency, and exigencies of public service. In

State Bank of Bikaner and Jaipur and others vs. Jag Mohan Lal

1989 Supp 1 SCC 221 the Supreme Court, considering the refusal

of the bank to grant extension to the respondent upon his completion

of 58 years, held that the retention beyond the age of superannuation

is within the discretion of employer. There is no right to continue in

service beyond the age of superannuation. The extension to some

employees does not imply discrimination against those who were not

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given extension.

18.In order to meet the difficulties faced by the students on the

change of a teacher in educational institutions in the middle of the

academic session, the State Government decided by Government

Order dated 21.3.1984, to carve out an exception for giving benefit

of extension of service to the teachers upto the end of the academic

session, subject to the conditions that their work and conduct is

satisfactory; they are fit both physically and mentally, and are

teaching any subject regularly in the school. The Government Order

provided for exemption of each case individually by the State

Government, on presentation of such facts by the competent

authorities. Later the Government Order dated 20.4.1995 removed

the condition of consideration of each case individually and

supplemented it with the condition that the extension will not be

granted if any adverse fact is reported against the teacher. The

Principals were made responsible to report at least one month before

the superannuation, any adverse fact such as unsatisfactory work, or

the unfitness of such teacher. The condition precedent of extension of

service, namely employment of the teacher in a Government

educational institution to be terminated by superannuation in the

middle of the academic session, is thus to be strictly complied with.

19.We find substance in the contention of learned Chief Standing

Counsel, on the averments in the counter affidavit and material

placed on record that CPI, Allahabad, is primarily engaged in

educational research work, for reorientation of educational system.

The institute conducts research work in comparative analysis of

educational standards, and facilities in rural and urban areas, the

difficulties faced by under-privileged children in the schools; the

recommendation for extra-curriculum activities such as debates,

organizing special lecturers and seminars. The institute is also

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engaged in preparing curriculum and publishing of books relating to

teaching. The training of LT grade teachers was also undertaken by

the institute for some time. It was later on stopped. A Model School

was being run in the premises of CPI, Allahabad in which the

teaching of Classes-I to VIII was undertaken. The school had

separate teachers with service conditions regulated by the rules

framed by Basic Education Board and the regulations applicable to

the teachers of the Board.

20.Smt. Prema Rai, Principal of the Government, CPI, Allahabad

did not recommend for extension of service of the petitioner vide her

letter dated 23.3.1996, to the Director of Education (Secondary) on

the ground that the petitioner had not performed any regular teaching

work and was engaged in the institute, in research work. The

petitioner had orally informed her that she had taught Psychology,

as a subject but that there is no proof of such teaching from the time

table of the teachers training. In para-3 of her letter she has stated

that there is no academic session in the institute. The teachers and

Professors in the institute avail 31 days earned leave and also get the

benefit of leave encashment. Smt. Dhulia-the petitioner also availed

the benefit of earned leave.

21.The object of giving benefit of extension of service beyond the

prescribed age of superannuation to the teachers upto end of the

academic session i.e. 30

th

June uniformally, without any reference of

individual case, except in case of unsatisfactory work and failing

health, is to maintain the continuity in teaching work in educational

institutions. In order to ensure that the students do not suffer, on

account of the change of teachers in the middle of the academic

session, the teachers teaching regular subjects are given extension of

service upto the end of academic session commonly known as

sessions benefit. The teaching of any subject and the incomplete

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academic session, are the twin requirements for allowing the benefit

of extension of service to such teachers. If any of these requirements

are missing, the teacher is not getting the benefit of the policy, to

continue beyond the age of superannuation.

22.The exceptions to the general rule have to be construed strictly

in order to achieve the object for which such exceptions are made.

The special benefit given to the teachers for avoiding any

inconvenience to the students and to maintain the regularity of the

academic session, can be availed by teachers only to extend their

service after the age of their superannuation, only if they fulfill such

conditions laid down in the Government order dated 21.3.1984. Smt.

Sumitra Dhulia, the petitioner, was designated as Professor in C.P.I.

Allahabad. She was not teaching any subject to the students

regularly. The CPI also imparts training to the teachers. The teachers

attend to the training sessions, mostly in the vacations. There is no

academic session in the institute. The teachers in the institute as

Government servants were required to work throughout the year and

are entitled to earned leave and also encashment of earned leave,

upto the maximum prescribed period of its accumulation. They are as

such not entitled to the benefit of extension in service to continue

upto 30

th

June, following the date of their superannuation.

23.The questions posed by us, arising out of two decisions with

conflicting opinions, are thus answered as follows:-

“1.The Government Order dated 21.3.1984 granting

extension of service to the Teachers, Headmasters and

Principals of Government Colleges and Government Degree

Colleges, till the end of the academic session i.e. 30

th

June of

the year in which such Teacher, Headmaster or Principals retire,

is not applicable to the employees including Professors working

in Central Paedological Institute, Allahabad (CPI).

2.The judgment in Rajpati Pandey vs. State of UP and

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others in Civil Misc. Writ Petition No. 20756 of 1990 dated

2.5.1997, was not correctly decided;

3.The Division Bench judgment in Sarju Prasad vs.

State of UP and others Civil Misc. Writ Petition No. 896 of

1967 decided on 14.03.1997, lays down the correct law;”

We may observe that our opinion has been rendered in respect

of the teachers, and Professors of the Central Paedological Institute,

Allahabad, and not for the teachers of the Model School, running in

the campus of the Institute, from Classes-I to VIII.

The record will be sent back to be listed before the concerned

bench to finally decide the writ petition in accordance with the

opinion, expressed as above.

Dt.12.11.2010

RKP/