Calcutta High Court
Srimanta Kumar Mondal And Ors. vs The State Of West Bengal And Ors. on 2 July, 1998
Equivalent citations: (1999)1CALLT63(HC), 1998(2)CHN276
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. The petitioners who are five in numbers, three of whom are working in different Schools situate in the District of North 24-Parganas, have filed the writ application praying for the following reliefs :--
"(A) Leave be granted to the petitioners under Order 1 Rule 8 of the Code of Civil Procedure to move this present writ application and to prosecute the same, on behalf of or for the benefit of all persons having the same Interest as that of the petitioners and further direction be given at the expense of the petitioners to give notice of institution of the present writ application to all persons having the same Interest as that of the petitioners by public advertisement in any newspapers or papers circulating in the State of West Bengal.
(B) A writ of and/or in the nature of mandamus commanding the respondents, their men and agents and/or servants and/or subordinates and/or assigns to rescind and/or to withdraw and/or to cancel the G.O No. 367-End(P) dated 27.4.1992 and G.O No. 196-Edn(B) dated 27.4.1992 and all other orders, circulars and notifications and/or directions to which the extension of service of the Primary Teachers have been withdrawn and further commanding the respondents authorities not to give any effect to the order dated 16.5.1996 issued by the respondent No. 1 and further commanding the respondents authorities to withdraw the salary of Primary Teachers/petitioners who are working in extension beyond the age of 60 years and who opted for revised pay scale as per notification No.33-Edn (B) dated 7.3.1990 and further commanding the respondents not to interfere with the discharge to salaries of Primary Teachers/petitioners who are working in extension beyond the age of 60 years till the attaining the age of 65 years not to take coercion measure against such teacher.
(C) A writ of and/or in the nature of mandamus commanding the respondents authorities to rescind and/or to cancel clause 17 of relating to acceptance of revised pay in terms of G.O.33-Edn(B) dated 7.3.1990 so far as the Primary Teachers are concerned and not to give any effect and/or further effect to the said clause 17 relating to acceptance of revised pay in terms of G.O.33-Edn (B) dated 7.3.1990 by the Primary Teachers.
(D) A writ of and/or in the nature of certiorari directing the respondent authority to transmit all the records relating to the present case before this Hon'ble Court so that consclonable justice may be administered by quashing the Notification No. 196-Edn (B) dated 27.4.1992 and No. 367-Edn (P) dated 27.4.1992 and clause 17 of 33-Edn (B) dated 7.3.1990 and order dated 16.5.1996 till the disposal of the writ application."
2. Before adverting to the questions involved in this writ application it is necessary to consider the background of the case. The State of West Bengal enacted West Bengal (Rural) Primary Education Act, 1930 (hereinafter referred to as 1930 Act), which came into force with effect from 22nd January 1931 with a view lo provide for an extension of Primary Education in rural areas in Bengal.-The said Act had no application in relation to the town of Calcutta and any area where a Municipality under the provision of Bengal Municipality Act, 1932 would be constituted. In respect of the areas which were not covered by 1930 Act, the State enacted West Bengal Urban Primary Education Act The scheme laid down under the 1930 Act was required to be Implemented by the District School Board, a body corporate constituted thereunder. Under the scheme, elementary education had been divided into two categories, viz. education imparted through the Schools managed by the private bodies and the schools established and/ or managed under private management. The Prlmar Schools under 1930 Act are those Schools or departments of the school which had been giving instruction in Primary Education in such subject and upto such standard as may be prescribed, either managed by the Board or recognised as a Primary School in terms of section 54 thereof. In terms of the power conferred upon it under section 66 of the said Act the State Government framed rules for carrying out the purposes of the said Act. The Rules so framed, inter alia, provided for the conditions of appointment of teachers in Primary Schools maintained by the District School Board as also to provide for the conditions of appointment, fixation of payment of salaries referred to in Clause (g) of sub-section (2) of section 66 of the said Act. The said Rules came into force with effect from 25.7.1940 which was substituted, added and amended or new rule was inserted therein from time to time (hereinafter referred to as the said rules).
3. The age of retirement of the teaching staff of the Schools under public management was 60 years. However, in terms of the notification dated 31.7.1965 Rule 4(A) was inserted for the purpose of grant of extension of service, which reads thus :--
"A teacher appointed by the Board may be retained in service upto the age of 60 (sixty) years, but the Board may, if it thinks IK, grant re-employment to a teacher on a year-to-year basis upto the age of 65 (sixty-five) years, provided the teacher continues to be physically fit and mentally alert."
4. On or about 4th March, 1970, the State Government Issued a notification as a result whereof Rule 4(A) was substituted in the following term :--
"4A. A teacher appointed by the Board may be retained in service upto (he age of 60 years but the Board may if it thinks fit grant thereafter extension of service of a teacher on a year basis upto the age of 65 years provided the teacher continues to be physically fit and mentally alert.
Explanation--The continuous period of service extended beyond the age of 60 years of the teacher will court towards increment in the scale of pay, terminal benefits and other benefits with the approval of the Government."
5. The State, however, enacted the West Bengal Primary Education Act, 1973 to make better provision for the development, expansion, management and control of Primary Education with a view to making it universal, free and compulsory. The said Act is applicable in the entire State of West Bengal including town of Calcutta (hereinafter referred to as the 1973 Act). The 1973 Act received the assent of the President on 20th September, 1974 and was published in Calcutta Gazette on the said date. In terms of the provisions of the sa(d Act the State Government was empowered, by notification to appoint different areas or different provisions of the Act. 1.1.1975 was the date appointed by the State Government by a notification dated 30th September, 1974 bringing into force all the sections except sections 77, 78. 79 and 105 of the 1973 Act in the whole of the State of West Bengal. On 1.4.81 the provision of section 78 was brought into force throughout West Bengal by notification dated 27.3.81. Section 105 was brought into force by a notification dated 30th June, 1990 with effect from 2.7.90 in the whole of West Bengal except the District of North and South 24-Parganas and the hill areas as dinned in 1973 Act.
6. Section 105 of 1973 Act which contains the provision for repeal and continuance reads thus :--
"Section 105. Repeal and continuance.--(1) The Bengal (Rural) Primary Education Act, 1930. the West Bengal Urban Primary Education Act, 1963. and the West Bengal (Rural) Primary Education (Temporary Provisions) Act, 1969, are hereby repealed.
(2) Upon such repeal,--
(a) all properties and assets vested in the District School Board established for a district shall vest in. and all rights, liabilities and obligations acquired or incurred by such District School Board before such repeal shall stand transferred to, the Primary School Council established for the district :
Provided that until such Primary School Council is established such properties and assets shall be deemed to be vested in, and such rights, liabilities and obligations shall be deemed to be transferred to, the ad-hoc committee appointed under section 93 in relation to the district.
(b) all legal proceedings instituted or remedies enforceable by or against the District School Board established for a district before such repeal may be continued or enforced, as the case may be, by or against the Primary School Council is established by or against the ad-hoc committee appointed under section 93 in relation to the district.
(c) All officers and other persons employed by the District School Board established for a district and continuing in office Immediately before such repeal shall be deemed to be employed by the Primary School Council established for the district on such terms and conditions as may be determined by the State Government :
Provided that until such Primary School Council is established such officers and other persons shall be deemed to be employed by the ad-hoc committee appointed under section 93 in relation to the district (3) All Primary Schools recognised under the Bengal (Rural) Primary education Act, 1930 or the West Bengal Urban Primary Education Act, 1963, shall be deemed to have been recognised under this Act until the expiration of the period of recognition subject, however, to the power of the Primary School Council having jurisdiction to withdraw recognition in accordance with the provisions of this Act.
(4) Notwithstanding the repeal of the Bengal (Rurat) Primary Education Act, 1930, all rules, orders and notifications made or issued from time to time under the said Act, applicable to a District School Board and continuing in force immediately before such repeal shall continue in force in so far as they are not Inconsistent with the provision of this Act, until they are repealed or amended."
7. Thus, although the 1930 Act stood repealed except in North and South 24-Parganas and the Hill areas but the rules under the 1930 Act continued to remain in force in view of the provisions or section 105(4) of the 1973 Act. The State Government thereafter framed rules under section 106(1) for the purpose of section 60(1) (k) of the 1973 Act being rules regulating the recruitment and Leave of Teachers in Primary Schools in West Bengal which came into force with effect from 25.11.91.
8. By a notification dated 31.7.81 the Government of West Bengal, Education Department provided that Teachers in all Government Aided Educational Insltution would be entitled to the revision of pay subject to their undertaking to retire on completion of 60 years of age. It was further provided that the teachers who were above 54 years of age on 1st April, 1981 would retire on completion of 62 years or on 31st March, 1989 whichever is earlier and for such Teachers who were above 57 years of age on completion of 65 years or on 31st March, 1987 whichever is earlier.
9. It is accepted that the said notification was Issued in the context of ROPA Rules, 1981 which came into force with effect from 1.4.81 and the condition as to the retiring age of the Primary Teachers was co-related with the revision of pay by the Government of West Bengal. The vires of the said notification was questioned by West Bengal Primary Teachers' Association in a writ proceeding which was marked as C.O. No. 5253 (w)/84 and an interim order was passed therein in 3.7.84 restraining the respondent from giving any effect or further effect thereto. Keeping in view the aforementioned interim order: another notification was Issued on 31.3.86 which was subject to the ultimate result of the writ petition to the effect that teachers in all Government aided Educational Institution opted for the revised scale will retire at the age of 60 years but they would be allowed extension of service on year-to-year basis upto the age of 65 years subject to their physical fitness and mental alertness and other conditions laid down therein. The said notification is contained in annexure 'D' to the writ petition.
10. In the year 1986 the recommendations of the third Pay Commission were made and accepted by the State. While extending the benefit of the said recommendations by a notification dated 7.3.90 being Notification No. 33 EDN(E) dt. 7.3.90 it was stated that who would opt for the revised scale of pay would have to accept the age of superannuation as 60 years as per the recommendation of the Third Pay Commission. The said notification was subject matter of another writ application by the West Bengal Headmasters' Assoctattonv. State of West Bangal and by a judgment dated 8th May, 1990 (reported in 1990 (v) CLJ 518) a learned single Judge of this court while upholding the said notification in relation to the Teachers of Secondary Schools Inter alia, Interpreting the Rule 4A held that if the said rule is allowed to stand there would certainly be discrimination between persons belonging to one and the same group and that would be unconstitutional and against the principles of natural justice. However, while upholding Memorandum No. 372-Edn. (B) dates 31st July, 1981 whereby and whereunder the teachers were granted leave to exercise their option in relation to the Secondary Teachers the learned Judge observed :-
"The aforesaid Memorandum dated 31st July, 1981 shall not be operative in case of those Primary Teachers who are covered by the Bengal (Rural) Primary Education Act, 1930 until the existing Rule 4A framed under the said Act of 1930 is suitably amended, and If already amended, the Memorandum of 31st July, 1981 shall be applicable to them as well with all its force."
11. On 26.8.91 Rule 4A was substituted by the State Government which is to the following effect :--
"4A. (1) A teacher appointed by the Primary School Council (or the District School Board, as the case may be) shall retire at the age of 60 years.
(2) The Primary School Council (or the District School Board, as the case may be) if it thinks fit, extend the service of a teacher, who was in service on the 31st March, 1981, but did not opt for the revised scales of pay Introduced with effect from the 1st April, 1981 on a year to year basis, beyond the age of 60 years, but not beyond the age of 65 years.
Provided that the teacher concerned is physically fit and mentally alert.
Provided further that such teacher may opt for the revised scale of pay under any subsequent pay revision scheme if he agrees to retire in accordance with the rule of such scheme or at the age of superannuation then in force where there is no such term."
However, prior thereto a contempt application was filed for alleged disobedience of the court's order and in the said contempt petition K.M. Yusuf, J. Passed an order restraining the said respondent from giving any effect amendment dated 30.8.91 relating to Rule 4A.
Rule 27 of the 1991 Rules provides that a Primary Teacher shall retire on completion of his 60 years of age. However, on 27.4.92 a notification was Issued amending Rule 4A along with a consequential memorandum for withdrawal of option.
Rule 4A so amended by the notification dated 27.4.92 reads thus :--
"AMENDMENTS In the said rules,--
(1) for the word "Board", wherever it occurs, substitute the words "Primary School Council or the District School Board, as the case may be";
(2) for rule 4A, substitute the following rule :--
"4A. (1)A Teacher appointed by the Primary School Council or the District School Board, as the case may be, shall retire at the age of 60 years.
(2) The Primary School Council or the District School Board, as the case may be, may, if it thinks fit, extend the service of a teacher, who was in service on the 31st December, 1985, but did not opt for the revised scales of pay introduced with effect from the 1st January, 1986. or having opted for such revised scales of pay, subsequently withdraws such option in terms of any order of the State Government in this behalf, beyond the age of 60 years, being the age of superannuation, on a year to year basis, but not beyond the age of 65 years :
Provided that the Teacher concerned is physically fit and mentally elert :
Provided further that notwithstanding anything contained in this sub-rule, such teacher may opt for, any revised scale of pay under any subsequent pay Revision Scheme, if he agrees to retire in accordance with the terms of such scheme or at the age of superannuation for the time being in force, where there is no such term".
2. This notification shall be deemed to have come into force on the 26th day of August, 1991.
The Memorandum dated 27.4.1992 reads thus :--
"1. The undersigned is directed to say that in view of the judgment delivered by the Hon'ble High Court at Calcutta on 6.8.91 in F.M.A.T. No. 1425 of 1990 and C.O. No. 6605(W) of 1990 some of the teaching and non-teaching staff of the Educational Institutions mentioned in the Memo No. 33-Edn (B) dt. 7.3.90 who opted for the revised scales of pay introduced with effect from 1.1.86 may feel inclined to withdraw their option and revert to their pre-1986 scales of pay with a view to enjoying the benefit of the extension of service on year-to-year basis subject to fulfilment of other conditions.
2. In view of the above noted judgment, the State Government in the Education Department has been considering the question for some time past as to whether such staff as aforesaid will be permitted to revert to the scale of pay prevalent prior to 1.1.86.
3. In the circumstances, after careful consideration of the matter, the Governor is pleased to order that such teaching and non-teaching staff as aforesaid be permitted to withdraw their option and revert to the scales of pay prevalent 1.1.86, subject to the condition that they will have to refund to the Government the excess amount, if any, drawn by them consequent upon fixation of their pay in the revised scales of pay introduced with effect from 1.1.86. Such withdrawal of option may be effected by submission of a written statement to the concerned authorities to that effect in the enclosed form within 90 days from the date of issue of this order and also of an undertaking to refund the excess amount, if any, drawn by them as stipulated above within 60 days from the date of submission of the written statement and undertaking.
4. The Memo No. 33-Edn (B) dated 7.3.90 stands amended to that extent.
5. This order Issues with the concurrence of the Finance Department vide their u.o. No. Gr.P No. 1193 dated 27.4.92.
6. All concerned may be informed accordingly."
12. The aforementioned notification and memorandum dated 27.4.92 were questioned by the West Bengal Primary Teachers' Association in a writ petition which was marked as C.O. No. 1561(W)/92 and other cases. By a Judgment dated 27th June, 1995 and 5th July, 1995 the said writ application were allowed. Appeals were preferred against the said judgments by the State of West Bengal.
13. A Division Bench comprising of B.P. Banerjee and D.B. Dutta, JJ. by a judgment dated 12.2.96 held that Rule 4A aforementioned was intra vires. It was observed :
"We are also of the view that this% is not a case of taking away or changing the terms and conditions of service and Introducing something which is prejudicial to the Interest of the teachers concerned and accordingly the decisions referred to by Mr. Chatterjee in the peace of AIR 1972 SC 620, , have no application in the facts and circumstances of the case. It is not a case of unsettling the settled conditions, as held by the Supreme Court in the case of AIR 1988 SC 987. It is not a case where some of the existing rights and privileges have been sought to be curtailed.
Ordinarily, the teachers who were governed by the old terms and conditions, they are entitled to keep and preserve the same in full and there was no difficulty and accordingly we are clearly of the view that the learned Judge was wrong in holding that the said Rule 4A would not be applicable as the same has prejudicially affected the Interest of the Teachers and/or taken away some of the said rights and/or privileges. The Teachers cannot be allowed to put their luck on two different boats. They cannot ride on parallel horse as they have to choose any one of the horses.
14. Under such circumstances, when two different systems have been introduced and permissible under the law. we do not find that the same is in any way illegal, arbitrary or Inoperative." The writ application filed by the Association was, therefore, dismissed.
15. The West Bengal Primary Teachers' Association filed a special leave application before the apex court which was marked as SLP No. 5943/96 and by an order dated 11.4.96 the said application was summarily dismissed.
16. The writ petitioners, however, claiming that they were not members of the West Bengal Primary Teachers' Association, filed an application under Article 32 of the Constitution of India before the Supreme Court but the said writ application was dismissed with a bar to hear this court under Article 226 of the Constitution. The instant writ application was filed, thereafter.
17. The matter was placed before the Hon'ble The Chief Justice V.N. Khare (as His Lordship then was) and B. Ghosh, J. and by an order dated 24.2.97 keeping in view the statements made by the learned counsel for the writ petitioner to the effect that they were not members of Bengal Primary Teachers' Association which is a registered body, the writ petition was directed to be confined to the writ petitioners alone. The writ application was, however, admitted and by an administrative order the matter was directed to be placed before a bench presided over by B.P. Banerjee, J. The learned Judge, however, declined to hear the matter by an order dated 24.1.97 in view of the fact that His Lordship was a party in the decision in F.M.A.T. No. 1997/95 and other analogous cases, the matter was thereafter placed before a bench presided over by A.N. Roy and B. Ghosh, JJ and by an order dated 21.8.97 this matter was directed to be placed before a larger bench.
18. Mr. S. Pal, the learned Senior Counsel appearing on behalf of the writ petitioners primarily raised the following contentions in support of the writ application :--
1. The power of extension in Rule 4A of 1940 Rules as substituted by notification No 191-Edn (B) dated 4th March, 1970 has not been taken away by any subsequent legislative process. The Division Bench Judgment is not correct, as firstly it did not advert itself to the aforementioned question and in any event its attention was not drawn to the rules framed under 1973 Act which came into force on 22nd November. 1991.
2. The notification dated 26th August, 1991 could not have been given effect to as no leave was obtained from the court and thus, the same remained inoperative. The 1991 Rules does not contain any provision which affects the power of extension in Rule 4A of 1940 rules and Rule 27 of 1991 Rules is merely reiterative in nature and being silent on the point of extension, the amended rule 4A which is the subject-matter challenged in the writ application must be held to be bad in law. According to the learned counsel by reason of Rule 35 of 1991 rules only such rules have been repealed which are contrary to 1940 rules and the power of extension continued in rule 4A is not contrary to the provision of 1991 Rules, Rule 4A could not have been amended. According to the learned counsel as no leave was contained from this court, rule 4A as amended must be held to be bad in law, and in support of the said submission reliance have been placed on Satyobrata Biswas and Ors. v, Kalyan Kumar Kishu and Ors. . Ctarke, and Ors. v. Chandburn and Ors. reported in 1985(1) All ER 211 and Century Flour Mills Ltd. v. S. Supplah and Ors. .
(3) The order of the appeal court was not interlocutory order in the sense that it terminated wilh the final order and thus, a final order passed in the appeal dated 6.8.91 did not vacate the order dated 13th September, 1990. According to the learned counsel the question as to whether an interlocutory order would remain operative even after passing of the final order or not would depend upon the nature and purport thereof. The 1992 Rules cannot be given a retrospective effect and in any event the confirmation of power of extentlon of 1970 must be presumed to be in public interest without having any nexus of pay. Reliance in this connection has been placed on K. Narayanan and Ors. v. State of Karnataka and Ors. and K. Ravindranath Pal & am: v. State of Karnataka and anr. reported in 1995 Supp(2) SCC 246.
(4) As regard the factual position it was submitted that the petitioner Srlmanta Mondal attained the age of 60 years on 1.1.94 but despite filing of application for grant of extension, no formal extension was granted but the had been continuing as teacher and is still working. He has received salary upto 31.5.96 only.
The petitioner No.5 Abhlmunna Ghosh appears to have reached the age of 65 years on 31.10.96. He was granted salary during the extended period upto 31.10.93 and not salary was paid thereafter. The petitioner No.2 Uthan Pada Das completed 65 years in 1997 but his pay had been held up since August, 1992 upon grant or extension, petitioner No.3 Ranjan Kumar Ghosh reached the age of 60 years in 1995 but allegedly although he is still working, the had not been paid his salary after July 1996. The petitioner No. 4 Khagendra Chandra Dutta attained the age of 60 years in 1994 and allegedly he is still working but no salary has been paid to him from May, 1996.
19. Mr. Saktlnath Mookherjee. the learned Senior Counsel appearing on behalf the appellant submitted that the Division Bench Judgment and order dated 12.2.96 in F.M.A.T. No. 1997/95 and other analogous appeals cannot be subject matter of the review or reconsideration except on permissible ground. The learned counsel submitted that from the Judgment of K.M. Yusuf, J. dated 8.5.90 an appeal was preferred by the Secondary School Teachers which included by Implication and consequences of the above was that option was required to be exercised by the School Teachers Involving similar notifications Issued by the State and the same was dismissed in F.M.A.T. No. 1425/90. It is stated that in the aforementioned appeal only the State expressed its desire to amend Rule 4A of the 1940 Rules and Their Lordships also expressed their desire that before publishing the said amendments, the same should be placed before the court; pursuant whereto two applications were made. It was pointed out that the appeal court's order was prohibitive in nature which are to the following terms :--
"Leave is granted merely to publish the notification annexed to the application and to receive objections or suggestions with respect thereto; no other or further steps or actions shall be taken thereafter except with the prior leave of the court."
The learned counsel contends that such prohibitive order merges with the final judgment. Reliance in this connection has been placed on Arjun Singh v. Mohindra Kumar & Ore. . It is submitted that as the appeal Involved the age of retirement of the secondary teachers, the question of passing any prohibitive order in relation to the making of rule in respect of Primary Teachers does not arise. It was submitted that in relation to the retirement of the Secondary School Teachers Rule 28(1) of the rule made on 27.4.92 was considered and upheld by a bench of this court in Ttie West Bengal Headmasters' Associaiton v. The State of West Bengal & Ore. reported in 1995 LIC 1919.
The learned counsel next contended that keeping in view the factual background of the case, Rule 4A had to be amended in the year 1992 as both in 1940 Rules and 1991 Rule were in operation side by side. The learned counsel submitted that Rule 27 of 1991 rules after 11.3.94 comes into full play and the Rule 4A therefor may be construed only as an executive. The right under rule 4A, If any. Is a precarious right merely to consider for extension nor there can be no claim for extension de hors the statute. The learned counsel submits that any mistake arising out of administrative order, cannot create any right which can be claimed to remained even after the cessation of the anomaly and in spite of the clear and contrary provision in the Rules enforceable.
According to the learned counsel as the petitioners were optees to the 1990 scheme and they had remained in the service upto 60 years on the revised scale, there can be no question of loss or prejudice to them so as to make their grievance maintainable in writ Jurisdiction under the liberty granted by the Hon'ble Supreme Court of India.
20. It was, however, submitted that now such option cannot be permitted to be withdrawn. According to the learned counsel keeping in view the order passed at the time of admission the scope and ambit of the writ application cannot be enlarged. Mr. Mookherjee would contend that in any event as the petitioners themselves are not members of the West Bengal Primary Teachers' Association, they cannot take any benefit of the interim orders passed in the said case and thus, the writ petition must be held to have been filed after a long time particularly when the same questions which were raised by the Association have been raised in this application also.
21. According to the learned counsel the petitioner cannot be permitted to approbate and reprobate. As regard the letter dated 13.10.95 it is submitted that the same did not attain finality having not been passed in terms of Article 166 of the Constitution of India and thus, not binding on the State. Reliance in this connection has been placed on Gufafarao Keshaurao Paid & Ors. v. State of Gujarat . Our attention has further been drawn to a recent Supreme Court decision in Radha Kushan v. Union of India & Ors. for the proposition that the writ petitioners are also not entitled to any salary for the period during which they had worked without their being a former extension.
22. The principal question which, therefore, arises for consideration is as to whether Rule 4A as amended on 27.4.1992 is inlra vires or not.
23. The submission of Mr. Pal to the effect that impugned Rule 4A as published in the notification dated 27.4.92 and as contained in annexure 'W' cannot be given effect to as prior thereto no leave of the court has been obtained cannot be accepted as an order of prohibitive injunction normally applies during the pendency of the proceedings. It cannot have any effect after the litigation is over.
24. In High on Injunction. 4th Edn. pages 6 & 7, it is stated that a temporary restraining order is distinguished from an Interlocutory injuction in that it is ordinarily granted merely pending the hearing of a motion for a temporary injunction and its life ceases with the disposition of that motion and without further order of the court, while, as we have seen, an Interlocutory injunction is usually granted until the coming in of the answer or until the final hearing of the case cause and stands as a binding restraint until rescinded by the further action of the court.
25. To the same extent observations have been made in Kerr on the Law and Practice of Injunction. 6th Edn. pages 1 & 2.
At page 664 of the said treatise, it is stated :--
"An injunction which has been granted upon an interlocutory application is superseded by judgment in the action. If it is Intended that it should remain in force it must expressly continued. Injunctions are continued after the trial of the actions either provisionally or permanently."
26. In Joyce on Injunctions. vol-I. section III, page 199-200, the law is stated in the following terms :--
"A restraining order is limited in its operation and extends only to such reasonable time as may be necessary to have a hearing on another to show cause why an injunction should not Issue. And in this connection Jt is said that it is the plain duty of a court to set the order to show cause at a very early day. and, upon the application of the defendant to shorten the time, to the end that, of the facts on the hearing warrant it, the restraining order may be discharged.
A restraining order or interim injunction becomes on the denial of a motion to vacate it, a temporary injunction."
27. The said view has also been taken by different High Courts of this country. See Ayissa Umma v. Puthiya Purayil reported in AIR 1924 Mad 178, Balbhaddar v. Balla reported in AIR 1930 Allahabad 387 at 388. Ram Niwas v. Prem Prakash . The very same question in relation to the retirement age of the Secondary School Teachers came up for consideration before a Division Bench of this court in West Bengal Headmasters' Association & Ors. v. Stare of West Bengal reported in 1995 L1C 1919 and one of us (S.B. Sinha, J.) speaking for the Division Bench repealing a similar argument held :
"The submissions of the learned counsel is that in view of the interim order passed by this court from time to time, the tenure of service of the aforementioned classes of teachers who attained the age of 60 years during the pendency of the writ application must receive enhance scale till 6th August, 1991. Such a contention cannot be accepted. No right accrues in terms of an interim order. A final judgment is binding on all concerned. Moreover all interlocutory orders merge with the final Judgment."
28. In this case on Mr. Pal's own argument the matter relating to the Primary School Teachers was not a subject matter of appeal. Thus any application for leave filed by the state to Issue any notification in respect of the Primary Teachers have been done under a mis-conception and thus, any order passed on such misconception cannot by any stretch of imagination be held to be continuing despite dismissal of the appeal preferred by the concerned Teachers. In any event the petitioners being not parties to the said appeal cannot take any advantage of the said order as the same was not passed at their instance nor can they claim any right thereunder. Framing of rule is a legislative act, no court can normally grant an injunction against the State to take recourse to legislative action. It is permissible for a High Court to take recourse to Judicial review on legislation. But it is not permissible for the High Court to issue an order of injunction restraining the State from making the legislation itself.
29. Both in terms of 1930 Act as also 1973 Act the State Government had the power to make rules. It has not been disputed that the age of superannuation is one of the conditions of service. The State has the Jurisdiction to change a the age of retirement is no longer in doubt or dispute.
The order dated 13th September, 1990 passed in F.M.A.T. No. 1425/ 90 reads thus :--
"1. Leave is granted merely to. publish the notification annexed to the application and to receive objections or suggestions with respect thereto, no other or further steps or action shall be taken thereafter except with the prior leave of the court;
2. The grant of leave in the aforesaid terms in without prejudice to the rights and contentions of the parties and is not to be treated as the court expressing any opinion, directly or Indirectly, on the power to frame the Rule or as the validity thereof;
3. Such other or further directions, which may be required to be Issued in the interest of justice, may be given by the court upon motion by any of the parties.
30. A bare perusal of the said order would clearly show that even assuming that the court had Jurisdiction to pass the said order, what was prohibited was to take other or further steps or action upon publication of the Notification and to receive objection and suggestion with respect thereto. Such an order, in our considered view, cannot survive despite dismissal of the appeal. Furthermore such an order was passed Inter alia without prejudice to the right of the parties. In the instant case, the State had the power to frame rule. Validity of Rule 4A as amended was not the subject matter of the said F.M.A.T. 1425/90.
31. The teachers of the aided Schools are not in State service. Their conditions of service are merely governed by a statute and/or by statutory rules framed by the State. The State also runs its own Schools. The State extended the benefits of the Pay Commissions to the Teachers of the aided Schools but the notifications of the years 1990 was Issued so that conditions of service of both the Teachers working in the Schools under public management and private management become the same. Despite not being the state service, the teaching staff of the non-aided School could not claim as a matter of right both higher scale of pay i.e. equal to those of the teaching staff under public management as also the superannuation age upto 65 years whereas age of superannuation in respect of teaching staff of the School under Public Management was merely 60 years. Thus, the approach of the State to bring partly in the condition of service both groups of Teachers cannot be said to be unreasonable. This aspect of the matter has been considered by this court in West Bengal Headmasters' Association v. The State of West Bengal & Ors. reported in 1995 LIC 1919. The Teachers in terms of 1990 notification had thus two options, viz. (1) To agree with the age of retirement at 60 and to opt for the new scale of pay, or (2) to agree with the old scale of pay and continue to serve the Institution upto 65 years upon obtaining extension in their service. They thus, were in fact and substance given an option to opt for the old scale of pay in the event they wanted to serve upto 65 years. The notification in question had to be issued keeping in view the various decision of this court and in particular the judgment dated 6th August, 1991 in West Bengal Headmasters' Association v. State of West Bengal reported in 1991(2) CLJ 188. B.P. Banerjee, J. in his judgment after considering the various decisions cited before him. In our opinion, has rightly held :
"It was further submitted by Mr. Mukherjee that K.M. Yusuf, J. can be had clearly held that unless rule 4A of the old rules were amended, the Primary Teachers' terms and conditions of retirement could not be altered. Or, in other words, the age of retirement could be altered by amending the rule 4A of the said rules and that the West Bengal Primary Teachers' Association could not prefer an appeal for the order and judgment of K.M. Yusuf. J., and accordingly Mr. Mukherjee submitted that the respondent West Bengal Primary Teachers' Association was bound by the determination made by K.M. Yusuf, J, which has become final and binding upon the parties and that under which as seen as rule 4A is amended, in that event, the terms and conditions of retirement would be governed by such amended provision. The provision made by the Division Bench of this court also threw a direct light on this aspect of the matter."
32. The aforementioned notification No. 33-EdnEB) dated 27.3.90 was in fact providing for a beneficent legislation in favour of the teaching staff of aided School. ROPA Rules were made under the proviso appended to Article 309 of the Constitution of India. Such a rule can also be given with retrospective effect If it is contended that such rule cannot have a retrospective effect, in that event the employees coming within the purview thereof cannot be given a higher emoluments with retrospective effect. A Division Bench of this court in West Bengal Headmasters' Association v. State of West Bengal reported in 1995 LIC 1919 has considered this aspect of the matter in the following terms :--
"74. However, Rule 28 was given a retrospective effect in order to enable such teacher who has retired in between 1991 notification and 1992 notification to exercise option in terms thereof. Prior to coming into force of the said notification, the State had earlier issued a notification on 20-8-1991. The legality of the said notification is not in question in these writ applications. It is now well known that condition of service can be changed unllaterally. In this case as noticed hereinbefore, the notification by reason of a legal fiction was directed to come into force from an earlier date. It was obviously done with a view to bring parity amongst the teaching and non-teaching staff similarly situated. The said notifications was Issued with a view to remove the defects pointed out by the Division Bench of this court The said notification is beneficient to the Teachers.
75. In State of West Bengal v. Ratan Bihari De reported in Cal LT 1994(1) SC 8 : (1993 Lab 1C 2199), it was held :--
"In this context, it may be remembered that the power of the State of specify a date with effect from which the regulations framed, or amended, as the case may be, shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. Since we have found that the prescription of the date in this case is neither arbitrary nor unreasonable, the complaint of discrimination must fall."
Now coming to the argument of Sri P.P. Rao that the regulations bring about an unreasonable classification between similarly placed empoyees is concerned, we must say that we are not impressed by it. It is not submitted that the Corporation had no power to give retrospective effect to the regulations. It was within the power of the Corporation to enforce the regulations either prospectively or with restrospective effect from such date as they might specify. Of course, as repeatedly held by this court, in such cases the State cannot, as the expression goes, pick a date out of its hat. It has to prescribe the date in a reasonable manner having regard to all the relevant facts and circumstances. Once this is done, question of discrimination does not arise. Reference in this behalf may also be had to the decision of this court in Sushma Sharma v. State of Rajasthan . a decision of the Division Bench comprising E. S. Venkataramiah and Sabyaschi Mukherjee, JJ"
76. The Supreme Court recently in Bonua Ram v. State of U.P. noticed :--
"In D.S. Nakarav. Union of India, , relle on by Shri Salve and followed in Delhi Cloth & General Mills Co. Ltd., , that a statute is not properly called a retrospective statute because a part of the requisities for its action is drawn antecedent to is passing,"
77. Thus a rule which has been made for conferring a benefit upon an employee or for the purpose of removing disparity, discrimination or anomaly and/or for rectification of a mistake can be given retrospective effects."
33. Thus, neither in law nor in principle there can be any valid objection to extend the benefits applicable to the Government servants to the teachers of aided Schools subject to certain conditions so as to bring parity amongst some employees. It was for the employees concerned either to opt for the old scale of pay or new scale of pay. Granting of such option can neither be said to be arbitrary nor unreasonable. In view of the fact that Judgment of K.M. Yusuf, J, has attained finality it is not necessary for us to go into the correctness or otherwise of the said decision relating to the interpretation made by His Lordship as regards necessity to amend Rule 4A of 1940 rules. In view of the fact that the said Judgment had been accepted by all concerned and Rule 4A stood amended. When such an amendment had taken place, in our opinion, the vires thereof cannot be questioned particularly when a statutory instrument, viz. notification Issued in the year 1991 and another notification dated 27.4.92 as contained in Annexure 'W' to the writ application in terms whereof Rule 4A came into being.
34. Such as argument also cannot be countenanced in view of the fact that in terms of notification dated 25th November 1991 the State Government in exercise of its power under section 106 of the 1973 Act made retirement rules providing that the retirement age of alt the teachers would be 60. The said rules of course did not apply only to three areas but the said rules became applicable in relation to the said areas also with effect from 11.3.94. Thus, rule 37 of 1991 rules shall prevail over the provisions of 1940 rules. Rule 4A had to be amended on 27.4.92 keeping in view the observations made by this court so as to give effect to the aforementioned notification bearing No. 33-Edn. dated 27.3.9O thus, rule 4A as amended by 27.4.92 has to be read harmoniously with Rule 27 of 1940 rules. If the rule of strict interpretation of both the rules is adhered to the same would make the cases of the petitioners Worse Inasmuch as in terms of 1991 rules the retirement age of all the teachers would be 60 years save and except the three areas namely. South and North 24-Parganas and hill areas. Only 3 writ petitioners belong to North 24-Parganas. their right also came to an end on 11.3.94 when 1991 rules stood extended in that district also. The recruitment and leave rules framed under section 106 of 1973 Act has a statutory force. Rules 27 and 31 of 1991 rules, governing conditions of service, therefore, would apply to all the teachers.
35. The submission of Mr. Pal to the effect that the administrative instructions dated 31.7.81 and 31.3.86 being in the nature of Administrative Order could not affect the statutory rules although ex facie appears to be correct but the effect thereof would be that Rule 4A would prevail over the said notification. But the State can grant higher salary to the Teachers by reason of rules framed under proviso to Art. 309 of the Constitution of India subject to certain restrictions. Thus, part of the notification could have been given retrospective effect as a result whereof the Teachers of aided Schools themselves would not have got the benefits of the revised scale of pay, the other part can also be given the same effect. The validity of the said notifications was required to be considered as a whole. However, for the reasons stated hereinbefore and in view of the judgment of K.M. Yusuf, J, it is not necessary to dwell into the matter any further. We, therefore, are of the opinion that the Judgment of the Division Bench in F.M.A.T No. 1425/90 presided over by B.P. Banerjee and D.B. Banerjee and D.B. Dutta, JJ, upholding the G.O No. 367-Edn(P) dt. 27.4.94 is a good decision. Furthermore, the said decision cannot be set aside by us by issuing a writ of certiorari. The power of tills court under Articles 226 and 227 of the Constitution of India a writ of certiorari can be issued only against a sub-ordinate court authority or a tribunal. A High Court cannot issue a writ against Itself.
36. In Naresh Shridhar Martjkar v. State of Maharashtra , the law is stated in the following terms :--
"In this connection, it is necessary to refer to another aspect of the matter and that has relation to the nature and extent of this court's jurisdiction to issue writs of certiorarl under Art. 32(2). Mr. Setalvad has conceded that if a court of competent Jurisdiction makes an order in a proceeding before it, and the order is inter parties, Us validity cannot be challenged by invoking the Jurisdiction of this court under Art. 32, though the said order may affect the aggrieved party's fundamental rights. His whole argument before us has been that the Impugned order affects the fundamental rights of a stranger to the proceedings before the court; and that, he contends, Justified the petitioners in moving this court under Art. 32. It is necessary to examine the validity of this agrument."
37. Relying upon the decision of the apex court in T.C. Basappa v. T. Nagappa. it was held :--
"This scope of the Jurisdiction of this court in dealing with writ petitions under Art. 32 was examined by a special bench of this court in Smt. Ujjam Bai V. State of Uttar Pradesh . The decision would show that it was common ground before the court that in three classes of cases a question of the enforcement of the fundamental rights may arise; and tf it does arise, an application under Art. 32 will lie. These cases are : (1) where action la taken under a statute which is ultra vires the Constitution; (2) where the statute is intra vires but the action taken is without Jurisdiction; and (3) where the action taken is procedurally ultra vires as where a quasi judicial authority under an obligation to act Judicially passes an order in violation of the principles of natural Justice."
38. However, a fresh writ application at the instance of a third party to review the order passed by the court is maintainable in terms of Article 226 of the Constitution of India in view of the decision of the Supreme Court in Shivdeo Singh and Ors. v. State of Punjab and Ors. reported in AIR 1963 SC 1909.
39. We, therefore, find no fault in the judgment of the Division Bench of this Court in F.M.A.T No. 1425/90.
40. However, there is another aspect of the matter which requires serious consideration. After Rule 4A was amended by reason of the impugned notification, a memorandum was issued on 27th April, 1992. A perusal of the said Memorandum would show that the same was prospective in nature.
41. It now stands admitted that the State Government also issued a litter dated 13th October, 1995 which is to the following term :--
"With reference to the subject mentioned above the undersigned is directed to say that both of this Deptt.'s Orders No. 202-Edn(B) dt. 7.6.94 & No. 7-Edn(B) dt. 6.1.94 apply to Secondary School Teachers whose cases regarding the age of superannuation have been finally disposed of by the High Court on 6.8.91 and primarily for whom, a chance was given to revert to pre-1986 pay scale in terms of this Deptt.'s Order No. 196-Edn(B) dt. 27.4.92.
But no final decision has yet been taken in the court goes on the age of superannuation of Primary Teachers by the High Court. Therefore, for Primary Teachers, action should be taken in terms of this Deptt.'s Order No. 328-Edn(E) dt. 3.9.90 and subject to all conditions specified therein."
42. The letter dated 6th January, 1994 is a memorandum issued by the Joint Secretary of the School Education. Both the letters referred to therein relate to grant of retiral benefits to the teachers. The validity of the said memorandum has not been nor could be questioned by the State. The Joint Secretary of State who wrote the letter on behalf of the Education Department to the Director of Education in reply to the latter's Memo, dated 22.11.94 only to the effect that no final decision had yet been taken in the court case on the age of superannuation of Primary Teachers by the High Court. It was, suggested that for Primary Teachers action should be taken in terms of the Department's Order No. 328 Edn (P) dated 3.9.90 and subject to all conditions specified therein. The State, therefore, Itself had made distinction between the cases of the secondary teachers and the Primary Teachers. The submission of Mr. Mukherjee to the effect that the said letter does not conform to the provisions of article 166 of the Constitution of India cannot be accepted. The said letter is merely a clariflcatory one and that too in answer to the letter of the Director of School Education which Itself states that no final decision has been taken by the State Government as regards grant of pensionary benefits and the consequent direction that the over payment drawn by them may be detected from such benefits. Such a letter cannot be said to be a nothing in the file as was the case of Bachillar Singh v. State of Punjab .
43. In Gufabrao Keshaurao Patll & Ors. v. State of Gujarat upon which strong reliance has been placed by Mr. Mukherjee is of no assistance. In that case in terms of Rule 15 of the business rules in case of any difference of opinion between Ministers of Revenue Department and Establishment Department the matter was finally required to be decided by the Chief Minister. As there was no decision of the Chief Minister, the decision of the Revenue Minister directing release of a land sought to be acquired under the provision of Land Acquisition Act, 1894 was held to be not a decision in terms of the rules of executive business and thus, not binding on State. Such is not the position here.
44. The said letter dated 13.10.95 is an Inter-departmental letter clarifying the position that the Government is yet to take any stand in the matter of the Primary School Teachers and the said letter evidently has been acted upon.
45. In West Bengal Headmasters' Association and Ors. v. State of West Bengal reported in 1995 LIC 1919, it has been held :--
"81. The power of the State to Impose regulatory measure on Educational Institutions is now beyond any dispute.
82. In Indra Datta Sharma v. Bihar Sanskrit Shikcha Board reported in 1994(2) PIJR 88. I have held that this State in exercise of fts execution power can lay down the academic qualification.
It was observed :--
31. "In Shri Mukta Sadguru Shree Mukherjee Vandasjtswamy Suvarna Jayantl Mahotsav Smarak Trust V. V.R. Rudanf, , the Supreme Court has held that in view of the provisions of law involved therein, the appointment of teacher could be subject to the regulations imposed thereunder. It was also held that Schools which discharge public duty are amenable to writ Jurisdiction. It was held that the terms of the body concerned is not much relevant and what is relevant is the nature of the duty Imposed on the body.
32. Similar view has been taken in the decision reported in a case of Miss Raj Sont v. Atr Officer in charge, . In All Bihar Christan Schools Assoctation v. State of Bihar, reported in 1988 PLJR 17 SC, it has been held that even minority Institutions are subject to regulatory provisions for ensuring educational excellence, conditions of employment of teachers as also ensuring health, hygiene, discipline and the other matters. Reference in this connection may be made to Alkarim Educational Trust v. State of Blhar. reported in 1992(1) PLJR 747.
3. This court in Gopaljt Sahay v. State of Bihar, CWJC No. 1409 of 1991 (R) has held that a writ petition filed by a teacher of a minority Educational Institution which had been receiving grant-in-aid from the State Government and recognised by the University, is maintainable. Laying down the qualification of a teacher in order to maintain the standard of education in an institution is, in my opinion, permissible by way of executive instructions. The word 'control' is capable of being given different meaning in different context (See Banaras Htndu. University v. Dr. Jndra Pratap Stngh, ).
In Controller and Auditor General of India v. Mohan Lal Mehrotra. , it has been held that reservations of post for Scheduled cases and Scheduled tribes being enabling provision, they can be made by administrative orders also.
34. There cannot, therefore, be any doubt whatsoever that although this court in CWJC No. 2084 of 1992 (Kasi Prasad Sharma v. State) disposed of on 10th August, 1987 which been followed in Chandra Thakur's case has held that 1976 Ruies do not have any statutory force but in any opinion the Board had the requisite competence to lay down the qualification for appointment of an Assistant Teacher/Head master of a recognised Sanskrit School. Such control over the recognised Sanskrit School by the Board, in my opinion, is permissible."
83. Reference in this connection may also be made to a recent Division Bench decision of this court in Association of Teachers in Anglo Indian School v. The Association of Aids of Anglo Indian School, reported in 1995(1) Cal LJ 351.
46. In any event the said order contains guidelines and such guidelines are binding upon the inferrior authority, it is not a case where the petitioners based their claim on the basis of such guidelines but merely as referred thereto for the purpose of showing the stand taken by the State itself at the relevant time and thus, it cannot take a contrary stand now. We, therefore, are of the opinion that it is not a case where the contents of the said letter cannot be relied upon for any purpose whatsover as the same does not stand authenticated in terms of Clause £3) of Article 166 of the Constitution of India. The decision of the apex court in Gulabrao Keshavrao Patil & Ors. v. State of Gujarat & Ore. has thus no application to the facts and circumstances of this case.
47. Before us various orders of extension of the petitioners have been placed; from a perusal whereof it appears that although in some cases reference has been made to the order passed by this court and such extension was granted provisionally and subject to the direction of the High Court, in some cases extension have been granted without referring to the court case at all.
48. It is the admitted case of the State that after the 1991 rules came into force the District Primary School Council became drawing and disbursing authority of the Teachers concerned, they, thus, having granted extension to the petitioners upto the respective dates as noticed hereinbefore it is now impermissible to them to turn round and contend that they would not pay any salary to the concerned petitioners. They had been allowed to work in the school despite non issuance of formal letter of extension but as noticed hereinbefore Initially formal letters of extension of their services had been issued. If such letters of extension had been Issued it cannot be said that they had been working illegally. The petitioners No. I to 4 had also been allowed to continue to draw salary at the old scale after 1.1.94. All of them had been paid salary at the old scale. Two of them, namely, Srimanta Mondal and Khagendra Nath Dutta had not been paid any salary after 31.5.96. The petitioner Uthan Pada Das and petitioner Abhimunna Ghosh having already attained the age of 65 years in 1997 and 31.10.96 respectively, the question of extension of their services does not arise but it stands admitted that during their extended period they still have been granted salary at the old scale. Petitioner Srlmanta Mondal, Ranjan Kumar Ghosh. Khagendra Nath Dutta are said to have been still working. We do not intend to pronounce finally as regard rival contention as to whether they are still working or not but if their statements are correct we do not find any reason as to why they should be denied their salary at the old scale in the event, they opt for the old scale of pay in terms of the aforementioned Government notifications within a period of two weeks from date. Those petitioners who had also reached the age of 65 years upon having paid their arrears of salary on the old scale of pay as if they had also opted for the unrevlsed scale of pay in terms of the Government notification.
49. This order is being passed in the light of the earlier Division Bench decision of this court in West Bengal Headmasters' Association v. State of West Bengal reported in 1991(21 CLJ 188 as also in view of the principles adumberated in section 70 of the Contract Act and Articles 21 and 23 of the Constitution of India. The ratio of the decision of the apex court in Radha Kushan v. Union of India & Ore. , a two Judges bench decision, must be understood to have been rendered in the peculiar facts of that case. In that case there was no formal grant of extension nor was any litigation pending. In that case the appellant was allowed to work despite knowledge by all concerned that he had retired on 31.5.93 but was allowed to remain in service upto 31.5,94. It was clearly as case of fraud or mistake on the part of the concerned officers. Thus in that case there was no valid contract.
50. However, in Shyam Babu Verma and Ors. v. Union of India & Ore. , a Division Bench comprises of three Hon'ble Judges although held that a higher pay scale had erroneously been granted, directed not to recover any excess amount which have already been paid to them as they were in no way responsible therefore.
51. Before parting with this case we may mention that several applications for addition of parties had been filed before this court but keeping in view the fact that at the time of admission Itself this court directed that the writ application should be confined only to the petitioners, no application for addition of the parties can be entertained by us. the same are accordingly dismissed.
52. This writ application is. therefore, disposed of with the aforementioned observations and directions but in the facts and circumstances of this case there will be no order as to costs.
P. S. Mishra, CJ.
53.I agree.
V.K. Gupta, J.
54. I agree.
55. Application disposed of