Allahabad High Court
Smt. Indira Daniels vs State Of U.P. And Ors. on 27 May, 2005
Equivalent citations: 2005(3)ESC1612
Author: V.K. Shukla
Bench: V.K. Shukla
JUDGMENT V.K. Shukla, J.
1. Petitioner, in the instant writ petition, is questioning the validity of order dated 3.12.2004 passed by the Secretary, Secondary Education, U.P. Government at Lucknow, refusing to extend the tenure of service of petitioner in lieu of her receiving National Award for Teachers.
2. Brief background of the case, as disclosed in the writ petition, is that in the district of Agra, there is an institution known as Queen Victoria Girls Inter College, Agra. The said institution is recognised under the provisions of U.P. Intermediate Education Act, 1921, and has been receiving grant-in-aid from the State Government. The provisions of U.P. High Schools and Intermediate College (Payment of Salary to Teachers and other Employees) Act, 1971 are fully applicable to the said institution. The institution in question is also declared Minority Institution, as such all protection as is envisaged under Article 30 of the Constitution of India, is available to it. In the said institution, petitioner was appointed as Lecturer in Economics on 7.7.1969. Permanent Principal of the institution attained the age of superannuation on 30.6.2000, and as a result of the same substantive vacancy of the post of Principal came into existence. The Committee of Management of the institution proceeded to make selection and appointment in terms of Section 16--FF of the U.P. Intermediate Education Act, 1921, and petitioner was selected as Principal in the said selection held on 3.7.2000. Appointment letter was issued to her on 5.7.2000. The work and conduct of the petitioner had been satisfactory, and due to excellent service rendered by petitioner, her name was forwarded for National Award under communication letter dated 7.12.2002. The said request of the Committee of Management had been forwarded by the District Inspector of Schools to the Joint Director of Education for further transmission of the same to the State Government. While the matter was pending and engaging attention of the Government for grant of National Award, petitioner attained the age of superannuation, and ultimately she was retired from service on 30.6.2003. The Central Government after considering the excellent work and service of the petitioner resolved to accord National Award to her on 5.9.2003. After the said award had been received, the District Inspector of Schools forwarded the papers in regard to extension of service of petitioner to the State Government. The Additional Director of Education made recommendation in favour of petitioner that petitioner was entitled to extension of two years of service with effect from 1.7.2003. As no action was being taken, petitioner preferred Civil Misc. Writ Petition No. 38846 of 2004, and this Court asked the State Government to take decision in the matter. Thereafter, communication dated 3.12.2004 has been sent by the State Government refusing to accord extension in service on the pretext that petitioner had already attained the age of superannuation before receiving the National Award, as such, it was not legally permissible to accord extension of service to a superannuated employee. At this juncture, present writ petition has been filed.
3. In the counter-affidavit filed on behalf of the Management of the institution, it has been contended that at no point of time any resolution had been passed by the Committee of Management for extension of service of petitioner on account of National Award received by the petitioner. Further, it has been contended that Additional Director of Education has no authority to make recommendation for extension of petitioner's service by two years without taking into consideration the view of the Committee of Management of the institution, especially when the institution in question is a minority institution. It has also been asserted that as substantive vacancy had fallen vacant, as such request had been made to the Joint Director of Education for according permission to fill up the vacancy, and thereafter selection proceedings had been undertaken and one Smt. Meenakshi Dass had been selected and appointed as Principal on 1.7.2003, who has been performing and discharging her duties as such. Impleadment Application as well as counter-affidavit has been filed by Smt. Meenakshi Dass to the similar effect. Counter-affidavit has also been filed on behalf of State-respondents, and the stand taken by the Management has been sought to be supported. To all these counter-affidavits, rejoinder affidavits have been filed, and the statement of fact mentioned in the counter-affidavits have been rebutted and those of writ petition have been reiterated. In respect to appointment of Smt. Meenakshi Dass, it has been contended that till date she has not acquired the status of Principal, as no approval had been accorded under Section 16-FF of the U.P. Intermediate Education Act, 1921, as such no right has accrued to her and as discrimination has been practiced by the State Government, as such writ petition deserves to be allowed.
4. After pleadings inter se parties have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.
5. Sri Anil Bhushan, learned Counsel appearing for petitioner, submitted that in the present case, work, conduct and service rendered by the petitioner had been excellent, as such petitioner was awarded National Award and in recognition said service, in all eventuality, petitioner was entitled to be offered extension in service, as various other similarly situated persons have been offered extension in service with retrospective effect, and as such petitioner has been given discriminatory treatment. Alternatively, it has been submitted that if extension cannot be granted in the capacity of Principal, then extension can be accorded in the capacity of Lecturer, and further in terms of Government Order dated 29.6.2004, petitioner can be permitted to continue as Lecturer till she attains the age of 62 years, and in this view of the matter and background, writ petition deserves to be allowed.
6. Sri A.K. Shukla, Advocate, has entered appearance on behalf of Management of the institution, Sri Sanjay Kumar has entered appearance on behalf of Smt. Meenakshi Dass, and learned Standing Counsel has entered appearance on behalf of State respondents. All these learned Counsels appearing from the side of respondents have submitted with vehemence that petitioner had already attained the age of superannuation and retired from service, as such, by no stretch of imagination, extension in service could have been given to her. As far as granting of extension to other persons is concerned, the same has been done in compliance with the interim orders passed in various writ petitions, as such no parity can be claimed by the petitioner, as there was no interim order operating in favour of petitioner. The view taken by the State Government is correct and legal view and same warrants no interference by this Court under Article 226 of the Constitution of India.
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.
12. No order as to costs.