DIRECTOR OF PUBLIC INSTRUCTION Vs. A.MOHAMMED

JUDGEMENT

(1.) THIS appeal is directed against the judgment of a learned Judge of this Court allowing the writ petition filed by the 1st respondent,and quashing Ext.P -l order which directed his retirement on superannuation on complet­ing the age of 55 years,and issuing consequential directions for his reinstatement and continuance in service till the attainment of 60 years of age.The 1st respondent was a craft teacher appointed on 26th November 1956 in the Malabar area of this State,which,till the coming into force of the Kerala Education Act and the Rules on 1st June 1959,was governed by the Madras Elementary Education Rules.The 1st respondent was a part -time teacher during the years 1953 -64 and 1954 -65 and became a full -time teacher only on 20th July 1965.According to the Madras Rules,by which he was governed,the age of superannuation was the attainment of 60 years of age. According to the Kerala Education Rules,it is said that the petitioner's age of superannuation would be 55 years of age,and it was on this basis that the impugned order,Ext.P -1,was passed.The petitioner challenged it on the ground that his age of superannuation would not be shortened or affected by the provisions of the Kerala Education Rules.It is this question that fails for examination.Section 39 of the Kerala Education Act repeals the Madras Elementary Education Act,1920,as in force in the Malabar District.Section 12(1)of the Act enacts that the conditions of service of the teachers in the aided schools shall be such as may be prescribed by the Government.Chapter XIV(C)Rule 1 reads: œChapter XIV(C)1."The Rules in this Chapter shall apply to " (i)Teachers of aided schools who are in service on 1st October 1964 and who opt under Rule 2 to be governed by these Rules;and (ii)Teachers appointed after 1st October 1964. (Provided that nothing contained in this Chapter shall apply to teachers who continue in service after attaining the age of 55 on or before 4th May 1967 ). Rule 2 of the above Chapter is to the following effect: œ2.Subject to the provisions of Rule 1 teachers who are in service on 1st October 1964 shall be given the option either to con­tinue under the Rules in Chapter XIV(B)or to come under these Rules.Such option shall be exercised within a period of three months from the commencement of these Rules,or within such further time as Government may specify in this behalf.The option once exercised shall be final.Teachers who have not exercised any option within1 the prescribed period shall be deemed to have opted these Rules. The Rules came into force on 1st June 1959.The time limit for exercise of the option was extended by notification till 15th June 1965.Chapter XXVII(B)Rule 4 provides,that the date of compulsory retirement on superannuation applicable to teachers of Government schools shall apply to teachers of aided schools.Rule 2 of the same Chapter pro­vides that these Rules shall apply to teachers,in aided schools to whom the Rules in Chapter XIV(C)of the Kerala Education Rules apply.

(2.) ON the basis of the above provisions,the learned Government Pleader argued with force that whatever be the service conditions of the petitioner at the inception and till the coming into force of the Kerala Education Act and the Rules,after the said Act and the Rules,he is governed by their provisions and had to exercise the option on or before 15th June 1965,failing which,he shall be deemed to be governed by the provisions of Chapter XIV(C ),and therefore subject to the age of retirement of 55 years as pro­vided in Rule 2A of Chapter XIV(C ).The argument is plausible and stands supported by the decision of the Supreme Court in Sankaranarayanan and others v.State of Kerala 1971 K.L.T.422.Had the provisions of the Act stood alone,and were they free to operate in the case before us,we would have little difficulty to accept and apply the same.But the difficulty that we feel,and which was felt also by the learned Judge,is that the first respondent before us did not have a free volition and was not given a volition to opt or not to opt under the provisions of Rule 2 Chapter XIV(C)of the Kerala Education Rules.This is clear from Exts.P -4 and P -1.Ext.P -4 dated 20th April 1965,refers to an order dated 10th March 1965 from the Director of Public Instruction.Ext.P -4 itself is from the Assistant Educational Officer,Palghat,to the Headmasters of ail aided institutions.The Headmasters were requested to obtain the option forms from the eligible teachers in quadruplicate and submit the same before the 30th of April 1965 in respect of the staff of full -time qualified hands who were on the establish­ment on 1st October 1964.It proceeded to state:œpart -time teachers and retired re -employed teachers are not eligible for the benefit " ;.A copy of the order dated 10th March 1965 recited in Ext.P -4 has been filed with the counter -affidavit of the State as Ext.R -3.Ext.P -1 gives sufficient indication that the first respondent was one who had not exercised his option.In the face of Ext.P -4 which prevented the receipt of option from part -time teachers,we are of the opinion that Rule 2 of Chapter XIV(C)of the Kerala Education Rules cannot have application to the first respondnet.The teachers whose options are con­templated by Rule 2 and who shall be deemed to have opted for this Rule under the closing part of the said Rules should,it appears to us,be persons who have an option to opt or not to opt,and not those whose volition to opt stood foreclosed by departmental instructions not to receive options from them.The Government Pleader referred to Ext.R -1 G.O.dated 10th April 1974 which refers to a Government letter dated 20th August 1966 that the Kerala Education Rules make no distinction between full -time œand part -time teachers œin respect of conduct " ;.For the one thing the Government letter referred to,is dated 20th August 1966,after the last date for exercise of options,and no explanation is forth -coming how the respondent could exercise his option in the face of the prohibition in Ext.P -4.For another,not even a copy of the Government's letter dated 20th August 1966,was produced.Therefore,in our view,in respect of the 1st respondent Rule 2 of Chapter XIV(C)had no application. Ex hypothesi he was not governed by Chapter XIV(C)and therefore not governed also by the Rule of superannuation prescribed by Chapter XXVII(B)Rules 2 and 4.The decision of the learned Judge that the 1st respondent could not be retired on the completion of 55 years of age,appears to be correct,and the consequential directions that he issued are also justified and proper.The decision of the Supreme Court,on the facts and circumstances,has no application.We see no ground to interfere.We dismiss this appeal with no order as to costs.