Allahabad High Court
Ram Niwas Tyagi S/O Shri Nathu Singh ... vs State Of U.P. Through Secretary, Basic ... on 27 April, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. The petitioner Ram Niwas Tyagi by means of this writ petition filed under Article 226 of the Constitution of India has assailed the cut-off date prescribed in the Government Order dated 25.8.2005 (hereinafter referred to as the "G.O.") as illegal and arbitrary, hence has prayed for issuance of writ of certiorari to quash the same to the extent of condition No. 1 making the said G.O. effective from 25.8.2005. He has further sought a mandamus commanding the respondents to allow the petitioner to continue on the post of clerk at Sri Nehru Vidya Peeth, Kharkhauda, District Meerut (hereinafter referred to as the "Institution") till he attain the age of 60 years i.e. 30.7.2007.
2. The facts in brief necessary for adjudication of this matter-are that the institution is a recognized Junior Basic High School managed by a committee of management i.e. a privately managed Institution. He was appointed on the post of Clerk in the said Institution on 10.7.1974 in the pay scale of Rs. 80-140. In the service book his date of birth is mentioned as 30.7.1947 and therefore he is likely to attain the age of 60 years on 30.7.2007. The State Government amended Fundamental Rule 50 vide gazette notification dated 127.6.2002 extending the age of retirement of government servants from 58 to 60 years and the said amendment was given effect from 28.11.2001. A similar demand was raised by the teachers of all the primary schools maintained by the Basic Shiksha Parishad and vide G.O. dated 4.2.2004 their age of retirement was also extended from 60 years to 62 years and those who has opted to retire at the age of 58 years to 60 years. Thereafter a cabinet decision was taken on 12/13.7.2005 to increase the age of retirement of clerical staff in non government aided basic schools from 58 years to 60 years which was published in the news paper on 13.7.2005 and the G.O. consequently was issued on 25.8.2005 extending the age of retirement of clerical staff of non government recognized and aided junior high schools to 60 years. However, the said G.O. has been applied with immediate effect meaning thereby the same would not apply to those who retired earlier. Since the petitioner attained the age of superannuation i.e. 58 years on 31.7.2007 and therefore, the benefit of the said G.O. has not been extended to him.
3. Learned Counsel for the petitioner contended that since the cabinet decision was taken already on 12/13.7.2005 therefore, the G.O. dated 25.8.2005 must be deemed to have been given effect from the dale when the cabinet has took the said decision, He further contended that the cut-off date is arbitrary and discriminatory inasmuch as the said decision creates two classes namely, those who retired prior to 25.8.2005 and those who would retire subsequently. It is also contended that Article 14 prohibits class legislation but permits reasonable classification, which must specify intelligible differentia and rational nexus with the object sought to be achieved. Where all the relevant considerations are same, persons holding identical post cannot be differentiated or treated differently. All pensioners form same class and cannot be treated differently. Moreover, there is no justification to differentiate the class of non-government aided junior high school and those, which are maintained by the Basic Shiksha Parishad.
4. I have heard Sri W.H. Khan, learned Counsel for the petitioner and perused the record.
5. In order to maintain the standard of basic education in the State of U.P., the legislature enacted U.P. Basic Education Act, 1972 (hereinafter referred to as "1972 Act") which is applicable to the institution imparting education up to 8 th class i.e. schools other than high schools and Intermediate. There are two types of basic schools, one which are owned and managed by the local bodies or the State Government or Basic Shiksha Parishad and secondly those which are owned and managed privately but recognized by the Board of Basic Education. The institution in question is of the later category. The Rules framed in respect to Basic Schools further makes a distinction between Junior Basic School and Junior High School. A Junior Basic School is an institution which imparts education up to class 5th and is other than High School or Intermediate College. Similarly a Junior High School is an institution imparting education from class 6 th to 8 th and other than the High School and Intermediate. The petitioner in para 2 of the writ petition has stated that the institution in question is a Junior Basic School meaning thereby it is an institution imparting education from class 1st to 5 thth. In respect to the ministerial or class IV staff of Junior Basic School which are privately managed but only recognized by Basic Shiksha Parishad there are no statutory rules since the matter is governed purely by contract entered into between the institution and the employee concerned. In respect to the teachers of such schools, however, the U.P. Recognized Basic Schools (Recruitment and Conditions of Service and other Conditions) Rules, 1975 (hereinafter referred to as "1975 Rules") have been enacted but there also Rule 4 provides that every recognized institution would make available adequate financial resources for management thereof in order to maintain such standard as may be specified by the Board of Basic Education and any institution who fail to comply with the provisions of the Act or the aforesaid rule is liable to face the risk of withdrawal of recognition. In respect to the Junior High Schools, however, there are certain further statutory enactments namely, the U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as "1978 Act") whereunder such Junior High Schools which are taken in grant in aid list of the State, salary of their staff is paid in accordance with the provisions thereof. For the purpose of governing conditions of service of teachers and other employees, the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers), Rules 1978 (hereinafter referred to as "1978 Rules") and U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984 (hereinafter referred to as "1984 Rules") have been enacted. Rule 14 of 1978 Rules prescribe age of retirement of teachers and headmasters of Junior High Schools as 60 years with the further rider that if such date falls on or after 2 nd July during an academic session, they shall retire on 30th June of the next years. Similarly Rule 20 of 1984 Rules provide 58 years age of retirement for ministerial staff and 60 years for Group 'D' employees provided if such date falls in the middle of the month, he would retire on the last date of the month. Since the petitioner is an employee of a privately managed Junior Basic School and therefore neither of the aforesaid rules are applicable to him and in my view the G.O. dated 25.8.2005 is also inapplicable to the petitioner since it is applicable to the I; recognized and aided Junior High Schools only. Therefore, the a petitioner has no cause of action to challenge the said G.O. and the writ petition is liable to be failed on this ground alone.
6. Learned Counsel for the petitioner, however, submitted that there appears to be some mistake inasmuch as the institution in question is governed by the G.O. dated 25.8.2005 and probably it is a Junior High School. Except of the statement of fact made orally that the institution in question is a Junior High School, there is nothing on record to support the statement of learned Counsel for the petitioner that the institution in question is a Junior High School. However, even if the institution in question is a Junior High School, in my view the G.O. dated 25.8.2005 cannot be said to be invalid to the extent it has been made effective prospectively. The reasons I provide as under:
The age of retirement having been prescribed by the statutory rules, unless the rules are amended, there cannot be any change in the age of retirement and a G.O. shall not prevail over the rule. The law is well settled that an executive order cannot modify or amend the statutory provisions and shall not prevail over the statute. (See Laxman Dundappa Dhamanekar and Anr. v. Management of Vishwa Bharata Seva Samiti and Anr. , In M.P. Housing Board and Anr. v. Manoj Srivastava , the Court held:- "The executive order made under Article 162 of the Constitution cannot prevail over an statute or statutory rules framed under proviso to Article 309 thereof." In Feroz Ahmad v. Delhi Development Authority and Ors. the Court held:- "A statutory Rule, its trite cannot be supplemented by an executive order." As already noted in respect to the non-government recognized Junior High Schools the age of retirement of clerical staff is provided under Rule 20 of 1984 Rules and so long as the rule is not amended, the same shall prevail. It is not the case of the petitioner that at the time when he attained the age of superannuation there was any amendment in the Rules which would have entitled him for retirement at a higher age. Therefore, in my view since the matter is governed by the statutory rules no benefit can be claimed by the petitioner merely on the basis of an executive order unless rule is amended.
7. Now coming to the validity of the cut-off date prescribed in the G.O., in my view even contention on this count is bound to fail. It cannot be disputed that a cut-off date can be provided in terms of the provisions of the statute or by an executive order. The choice of a date as a basis of classification cannot always be said to be arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point there must be, and there is no mathematical or logical way or fixing, precisely the decision of the legislature or its delegate must be accepted unless it can be said that it is a very wide of the reasonable mark. (Union of India and Anr. v. Parameswaran Match Works etc. and University Grant Commission v. Sadhana Chaudhary and Ors. .) In Ramrao and Ors. v. All India Backward Class Hank Employees Welfare Association and Ors. the Court held:
If a cut-off date can be fixed, indisputably those who fall within the purview thereof would form a separate class. Such a classification has a reasonable nexus with the object which the decision of the Bank to promote its employee seeks to achieve. Such classifications would neither fall within the category of creating a class within a class or an artificial classification so as to offend Article 14 of the Constitution of India. "
"Wherever such a cut-off date is fixed, a question may arise as to why a person would suffer only because he comes within the wrong side of the cut off date but, the fact that some persons or a section of Society would face hardship, by itself cannot be a ground for holding that the cut-off date so fixed is ultra fives Article 14 of the Constitution.
8. In Vinita Singh and Ors. v. State of U.P. and Ors. 2006 (2) AWC 1738 a Division Bench of this Court held:
In so far as the fixation of cut-off date is concerned, we have no doubt, that generally speaking, a cut-off date does not violate Article 14 simply because one person is distant from another by a another single day. That might often happen, and that by itself is not discriminatory.
9. The cut-off date prescribed in a G.O. being 1.7.2001 where the petitioner retired on 30.6.2001 was not held arbitrary by a Division Bench of this Court in Chandra Charu Mishra v. State of U.P. and Ors. 2003 (4) ESC 1939 and it was held that even if no reason has been given for the basis of the cut-off date, Court cannot interfere in the said matter and it is for the administration to fix the cut-off date. Some persons are bound to have a grievance of cut-off date but that by itself would not make it arbitrary. Even a cut-off date prescribed in the Government notification dated 27.6.2002 whereby Fundamental Rule 56 was amended w.e.f. 28.11.2001 was challenged before this Court in Panna Lal Singh and Anr. v. State of U.P. and Ors. 2004 (1) AWC 544 and this Court negativing the said challenge upheld the same.
10. Learned Counsel for the petitioner placed reliance on a Full Bench judgment of this Court in P.K. Malik v. State of U.P. and Ors. 2005 (6) AWC 5945 (FB) but instead of supporting him in my view it demolishes his submission. The Court held that it is open to the employer to treat its different employees equally or grant them same or different pay scale designation etc. It also held that date from which such benefit is to be provided can also be determined by the employer and if one challenges the validity of such decision, the onus lie upon such person to plead and prove the necessary facts to show that the decision is arbitrary. The next case cited on behalf of petitioner is Union of India v. Mool Chand Dasumal Pardasani . From the facts of the case it is evident that Mool Chand was retired prematurely i.e. compulsorily vide order dated 18.12.1963 w.e.f. 14.3.1964 after attaining the age of 55 years though under the rules he was entitled to continue till 58 years. The Fundamental Rule '56 as applicable to the petitioner provided that he may retire at the age of 55 years but ordinarily maintained the service up to 58 years if one continued to be efficient. The Court found that he was not held to be inefficient and therefore ought to have been allowed to continue till the normal age of retirement. The judgment does not help the petitioner to consider the validity of the cut-off date prescribed in the statute.
11. In view of the aforesaid discussion, I do not find any merit in the writ petition. It is accordingly dismissed.