प्राथमिक और माध्यमिक विद्यालयों का बीच सत्र रिटायर हो रहे शिक्षकों को झटका : दोबारा सत्र लाभ का आदेश देने से हाईकोर्ट का इंकार ; कोर्ट का आदेश क्लिक कर देखें |

प्राथमिक और माध्यमिक विद्यालयों का बीच सत्र रिटायर हो रहे शिक्षकों को झटका : दोबारा सत्र लाभ का आदेश देने से हाईकोर्ट का इंकार |

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Court No. - 38

Case :- WRIT - A No. - 35441 of 2015

Petitioner :- Dulare Lal And Another
Respondent :- State Of U.P. And 6 Others
Counsel for Petitioner :- S.C. Tiwari
Counsel for Respondent :- C.S.C.

Hon'ble Surya Prakash Kesarwani,J.
1. Heard Shri S.C. Tiwari, learned counsel for the petitioner and Shri B.P. Singh Kachhawah, learned Standing counsel for the respondents.

2. Undisputedly, both the petitioners were Assistant Teachers in the respondent no. 8 institution. The date of birth of petitioner no. 1 is 3.1.1953 and that of petitioner no. 2 is 14.1.1953. It is stated in paragraph No.7 and 15 that their age of retirement is 62 years. Thus the petitioner no. 1 had attained the age of superannuation on 2.1.2015 and the petitioner no. 2 had attained the age of superannuation on 13.1.2015. They claim benefit of mid session as per Government order dated 15.10.2014 and allege that they are entitled for extension of employment till 31.3.2016.

3. Grievance of the petitioners is that as per earlier government order they would retire on 30.6.2015 but the benefit of the new G.O. dated 15.10.2014 changing the academic session from 1st April to 30th March of the succeeding year is not being extended to them as per which they would retire at the end of the academic session 2015-16 i.e. on 31st March, 2016.

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4. Learned counsel for the petitioners relied upon the orders passed in writ petition no. 27142 of 2015, Mithilesh Kumar Pandey Vs. State of U.P. and 4 others decided on 12.5.2015, writ petition no. 31978 of 2015, Anoop Singh Vs. State of U.P. and 3 others decided on 27.5.2015, writ petition no. 32111 of 2015, Jagdish Prasad Vs. State of U.P. and 3 others decided on 27.5.2015, writ petition no. 23291 of 2015, Rajmani Patel and 4 others Vs. State of U.P. and 3 others decided on 11.6.2015, writ petition no. 29570 of 2015, Ram Dev Vs. State of U.p. and 3 others decided on 11.6.2015, writ petition no. 32076 of 2015, Suresh Babu Sharma and 2 others Vs. State of U.P. and 4 others decided on 27.5.2015.
5. Learned standing counsel submits that the claim of petitioners for continuance till 31st March, 2016 is wholly baseless and without backing of any provision of law or any government order.
6. I have carefully considered the submissions of the learned counsel for the parties.
7. Undisputedly, both the petitioners are assistant teachers in Bapu Inter College Sadat, District Ghazipur. The date of birth of petitioner No.1 is 3.1.1953 and thus he attained the age of superannuation on 2nd January, 2015. The date of birth of petitioner No.2 is 14.1.1953 and he attained the age of superannuation on 13.1.1953. These facts are admitted to the petitioners in view of the averments made in paragraph No. 7 and 15 of the writ petition. In view of the provisions of Regulation 21 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the Act) the benefit of extension of employment is available to the petitioners till the end of the academic session i.e. 30th June, 2015. On these facts the petitioners would retired on 30th June, 2015. However, they have filed this writ petition praying for a writ, order or direction in the nature of mandamus commanding the respondents to retire the petitioners only on 31st March, 2016 on the ground that the academic session has been changed as April to March of the next year in place of 2nd July to 30th June by means of amendment in regulation 15 of Chapter I of the Regulation.
8. It is undisputed that the amended regulation for change in academic session would be applicable for the academic session 2015-16 onwards. Petitioners attained the age of superannuation in the month of January, 2015 as indicated above. But in view of the provisions of Regulation 21 of Chapter III of the Regulations their employment has been extended till the end of the academic session 2014-15 i.e. till 30th June, 2015. Thus, they have no statutory right to continue in employment as assistant teacher after 30th June, 2015.
9. Regulation 21 of Chapter III of the Regulation has been amended vide gazette notification dated 17th June, 2015. The unamended and amended provisions of Regulation 21 of Chapter III of the Regulations framed under the Act is reproduced below:

"Unamended Regulation 21"-

आचार्य ,प्रधानाध्यापक , अध्यापक तथा अन्य कर्मचारियों का अधिवेश वय वाया 2 जुलाई और 30 जून के मध्य में किसी तिथि का पड़ता है तो उसे उस दशा को छोड़कर जबकि वह स्वयं सेवा वितरण न लेने हेतु लिखित सूचना अपने अधिवर्ष वय की तिथि से दो माह पूर्व दे, 30 जून तक सेवा विस्तारण स्वयंमेव प्रदान किया गया समझा जायेगा ताकि ग्रीष्मावकाश के उपरान्त जुलाई में प्रतिस्थानी की व्यवस्था हो सके | इसके अतिरिक्त सेवा विस्तारण केवल उन्हीं विशिष्ट दशाओं में प्रदान किया जायेगा दो राज्य सरकार द्वारा निर्धारित की जाये |

यदि किसी लिपिक अथवा चतुर्थ श्रेणी कर्मचारीयों के अधिवर्ष वय की तिथि किसी माह के मध्य किसी तिथि को पड़ती है तो उसका सेवा विस्तारण उस मास की अन्तिम तिथि तक प्रदान किया गया समझा जायेगा | किन्तु यदि किसी कर्मचारी की सेवानिवृत्ति की तिथि किसी माह की पहली तारीख को पड़ता है तो उसे पूर्ववर्ती माह की अन्तिम तिथि को सेवानिवृत्ति कर दिया जायेगा |

"Amended Regulation 21"-

"आचार्य ,प्रधानाध्यापक , अध्यापक तथा अन्य कर्मचारियों का अधिवेश वय वाया 2 अप्रैल और 31 मार्च के मध्य में किसी तिथि का पड़ता है तो उसे उस दशा को छोड़कर जबकि वह स्वयं सेवा वितरण न लेने हेतु लिखित सूचना अपने अधिवर्ष वय की तिथि से 2 माह पूर्व दे, 31मार्च तक सेवा विस्तारण स्वयंमेव प्रदान किया गया समझा जायेगा ताकि ग्रीष्मावकाश के उपरान्त जुलाई में प्रतिस्थानी की व्यवस्था हो सके | इसके अतिरिक्त सेवा विस्तारण केवल उन्हीं विशिष्ट दशाओं में प्रदान किया जायेगा दो राज्य सरकार द्वारा निर्धारित की जाये |

10. As per unamended provisions the petitioners have right to continue in service till 30th June, 2015. Their age of superannuation fall in January, 2015 which is in the mid of the academic session 2014-15 i.e. from 2nd July, to 30th June. Thus petitioners have no right to continue in service after 30th June, 2015. The amended regulation 21 has no application in the case of the petitioners inasmuch as it is applicable in the academic session 2015-16 in cases of those principal/teacher/employees who may attain age of superannuation in the mid of the academic session 2015-16 i.e. between 2nd April to 31st March.
11. The petitioners have already taken the benefit of extension of employment under the existing regulation applicable to them. Regulation 21 is part of service condition, therefore, they cannot insist for further extension of their employment in view of the amended provisions which is applicable for the next academic session i.e. 2015-16. Even the amended Regulation 21 has not provided for extension of employment of those who attained the age of superannuation in the mid of the academic session 2014-15 till the end of the next academic session of 2015-16.
12. Learned counsel for the petitioners has relied upon orders passed in certain writ petitions as aforenoted. The orders passed in those writ petitions do not decide any controversy but merely a direction was issued to the concerned authority to decide the representation/claim of the petitioners. Thus those orders are of no help to the petitioners.

13. The Constitution Bench of the Hon'ble Supreme Court in State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12, held that the existence of a legal right in favour of the writ petitioner is the foundation for the exercise of jurisdiction under Article 226 of the Constitution. In Kalyan Singh v. State of U.P. AIR 1962 SC 1183, the Hon'ble Apex Court enunciated the proposition that the right to maintain a writ postulates a subsisting personal right in the claim which the petitioner makes and in the protection of which he is personally interested. The existence of a legal right is a condition precedent to approach the Court/Tribunal. (Vide Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal., AIR 1962 SC 1044; Mani Subrat Jain v. State of Haryana, AIR 1977 SC 276 ; (1977 Lab IC 52); State of Kerala v. Smt. A. Lakshmikutty, AIR 1987 SC 331 : (1987 Lab IC 447): State of Kerala v. K.G. Madhavan Pillai, AIR 1989 SC 49; Rajendra Singh v. State of M.P., AIR 1996 SC 2736 and Rani Lakshmibai Akshetriya Gramin Bank v. Chand Behari Kapoor, (1998) 7 SCC 469 : (1998 All LJ 2248).

14. In the case of Director of Settlement Vs. M.R. Appa Rao J.T. 2002 (3) SC 304 para 10 Hon'ble Supreme Court held that mandamus can be issued for enforcement of a right which subsisted on that date.
Thus it can be summarized that existence of a legally protected and judicially enforceable subsisting right is the foundation for invoking the jurisdiction under Article 226 of the Constitution of India for mandamus. Regulation 21 of Chapter III of the Regulation does not provide any legal right to petitioners who retired in the mid of academic session 2014-15, to continue till the end of academic session 2015-16. Thus the relief sought by the petitioners cannot be granted.
15. While considering the the case of an acting principal of a college, Hon'ble Supreme Court held in the case of S.K. Rathi Vs. Prem Hari Sharma and others (2001) 9 SCC 377 as under:

"2.The short question involved in the present case is whether respondent 1 is entitled to continue as an acting Principal of the college till 30.6.2000 as has been ordered by the High Court.
3.It is not in dispute that Respondent 1, who was a Teacher, had been appointed as an acting Pri9ncipal. He attained the age of 60 years sometime in December 1999. With an effort to continue in office, he filed a writ petition (Cm Writ Petition No. 54640 of 1999) and in the impugned order dated 5.1.2000, the Division Bench of the High Court observed that in view of the decision of another Division Bench in Udai Narain Pandey case,Respondent 1 could continue to function as Principal of the institution till 30.6.2000. Hence this appeal.
4.On a query raised by us, learned counsel for the respondent drew our attention to a decision of the Government contained in document dated 16.2.1999, in which it was, inter alia, stated that for Teachers like Respondent 1 the age of superannuation was 60 years. The said decision further states that no extension in service shall be granted but "if the date of superannuation of a teacher does not fall on June 30, the teacher shall continue in service till the end of the academic session i.e. June 30 following". This is the clause on which reliance is placed by the learned counsel in support of the decision of the High Court.
5.There is no doubt that the said decision would enable Respondent 1 to continue as a Teacher, which is his substantive appointment, up to 30th June following the day when he attained the age of 60 years, but this clause cannot allow him to continue as an acting Principal which is a different post altogether. It cannot be disputed that the post of Principal and of the Teacher is not the same. It is a Teacher on promotion who is appointed as a Principal and there is no decision of the Government giving extension beyond the age of 60 years to a Principal. This being so, the appeal is allowed and the decision of the High Court permitting Respondent 1 to function as Principal of the institution till 30.6.2000 is set aside."
16. In the case of Shri Nath Sahai V. Devendra Nath Dwivedi and others 2009 (1) ALJ 103 a Division Bench of this Court considered the provisions of Regulation 21 of Chapter III and held in paragraph Nos. 10,11,12 and 24 as under:
"10. The extension of service of a person in employment is a concept well known to service law. After age of superannuation no employee has any right to claim continuance in service, however, the employer as per different service rules has been empowered to grant extension to services of an employee for the benefit of the organization. It has been settled that there is no right in the employee to claim extension and it is for the employer, on fulfillment of conditions laid down, to grant extension. The Apex Court in the case of State Bank of Bikaner and Jaipur and others v. Jag Mohan Lal reported in 1989 Supp. (1) S.C.C. 221 : (AIR 1989 SC 75) had the occasion to consider the provisions of Rule 19 of the State Bank of Bikaner & Jaipur (Officers') Service Regulations, 1979, which provided that the competent authority may, at its discretion, extended the period of service of an officer who has attained the age of 58 years. The Apex court considered the purpose and object of extension of service of an employee and laid down following in paragraph 11:-
"11. Look at the language of the provision and the purpose underlying it. 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 is 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, it 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."
11. The extension of service is not a right given to an employee, rather it is an enabling power of the employer to utilize the services of an employee in the interest of the organization. The provisions of Regulations 21, Chapter-III providing for granting extension to services of a teach3er have been made for continuous teaching till the end of academic session so that teaching of the students due to retirement of a teacher in mid session be not disrupted. The object is clearly spelled out in Regulation 21 itself. While providing for extension of service till the end of academic session it has been specifically mentioned in the said regulation that extension shall be automatically treated up to 30th June so that after summer vacation an alternate arrangement be made. The object thus clearly indicates that it is not any kind of right conferred to a teacher but it has been provided for the benefit of the students and for the benefit of continuity of teaching.
12. The extension, which is automatically provided for to a teacher of continuance till the end of academic session and other kind of extension as referred to in Regulation 21, Chapter-III, which is to be granted by the State Government from time to time are extension in service, which have to be treated on same footing. The extension granted by Government orders issued from time to time to a teacher, who has been awarded by National/State award as a teacher is also a kind of extension after superannuation as contemplated under Regulations 21. The nature of extension and the privileges granted by above mentioned two kind of extensions are one and the same.
24. Thus from what has been stated above, there is no practical difference with regard to nature of right of a teacher who is continuing under extension till the end of academic session or on the basis of 3extension granted for a period of two years on the ground of National/State award. Both kind of extension has been specifically referred to in Regulation 21 Chapter-III and no difference is decipherable from the statutory scheme. If a teacher, who after attaining the age of superannuation is continued for the purposes of teaching, he cannot claim the post of ad hoc Principal during the said period. The same principle will equally apply for a teacher who is continuing on extension by virtue of he being National/state award. Several Division Benches have considered the aforesaid right and have laid down that during the period a person is continuing after superannuation on extension, he cannot claim right to work as officiating/ad hoc Principal and can continue only on his substantive post. It is well settled proposition to which we do not find any ground to take any different view in the present case. After attaining the age of superannuation, there is no right in a teacher to seek any higher post to one which he substantively holds."
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17. In the case of Surendra Prasad Agnihotri Vs. State of U.P. and others 2010 (81) ALR 596 (FB) a Full Bench of this Court also considered the provisions of Regulation 21 Chapter III of the Regulation in para 4,16,20 as under:
"4. From the plain reading of the regulation, it appears to us that a vested right is affirmed taking in account the contingency, which become integrated part and parcel of the regulation. Such contingency arose for the benefit of the Institution, shifting of Head of the institution in the mid-session obviously affect the interest of the students. Students cannot impart their education by their own accord, hence, there is necessity of continuation of the teachers too. Therefore, they are the beneficiaries provided retirement age falls within the prescribed period. If any contingency is made under the law to supplement the vested right, it creates enforceable legal right by the fiction.
16. All the aforesaid statutory provisions take care of three different aspect of service of teachers working in recognized and aided Intermediate Colleges. Date of retirement stands postponed till the end of the academic session under Regulation 21 in case where a Principal/teacher attains the age of superannuation on any date except 1st July of the year. Regulation 21 of Chapter-III does not in any way affect the seniority as determined under Regulation 3 of Chapter-II of the Regulations framed under the Intermediate Education Act.
20. As a matter of fact, Regulation 21 has the effect of postponing the date of superannuation and has to be distinguished form a case where re-employment is offered. Because of postponement of the date of superannuation, the teacher continues to draw all benefits including revision of salary, annual increment etc. which may fall due during this period. In fact it is a continuation of the same service till 30th June, following the date of superannuation."
17. The extension of service of a person in employment is a concept well known to service law. On attaining the age of superannuation, no employee has any right to claim continuance in service. However, the employer, in terms of the relevant service rules, has power to grant extension of service to an employee. The employee has no right to claim extension of service rather it is an enabling power of the employer under Regulation 21 of Chapter III of the Regulations to utilize the service of an employee in the interest of the organization so that teaching of the students due to retirement of teacher in mid session may not be disrupted. The petitioners attained the age of superannuation is the mid of academic session 2014-15 which ends on 30th June, 2015. Thus, the petitioners have no right to continue or claim continuation in service after 30th June, 2015. Unamended Regulation 21 merely has the effect of postponing the date of superannuation and continuation of the same service till 30th June following the date of superannuation. Amended regulation 21 effective from the academic session 2015-16 has no application with regard to the petitioners who attained the age of superannuation in the mid of academic session 2014-15 prior to Ist April, 2015. Thus, in the absence of any legally protected and judicially enforceable subsisting right, which is the foundation for a writ in the nature of mandamus, the jurisdiction under Article 226 of the Constitution of India cannot be invoked.