JIVRAMBHAI KANJIBHAI CHAUDHARY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard the learned Counsels for the parties. In the writ petition, the prayer made by the petitioner is that the decision of the respondent No. 2 that the petitioner is liable to be retired from service on completion of his 58 years age be quashed and set aside and the respondents be directed to allow the petitioner to work till he completes 65 years of age. It is not in dispute that the date of birth of the petitioner is 31/08/1925 and he attained the age of 58 years on 3 1/08/1983. Even after attaining the age of 58 years, the petitioner was continued in the services on 14-1-1986. The management of the school where he was working passed the resolution to retire him from 31/08/1983 and he was ordered to be relieved from the post on 31/01/1986. The writ petition has been admitted on 30/01/1986 and this Court has ordered to maintain status quo. The petitioner has attained the age of 65 years also on 31/08/1990. The learned Counsel for the petitioner has failed to point out any provision from the Bombay Primary Education Act, 1947 or the Primary Education Rules, 1949 which prescribes 65 years of age of retirement of a teacher. What the learned Counsel for the petitioner contended that it is a practice to continue the teachers till the age of 65 years. Practice does not give any legally enforceable right to the petitioner. On the other hand, the learned Counsel for the respondent has drawn the attention * in the matter of compulsory retirement. of this Court to Clause 34 of Schedule F to the Bombay Primary Education Rules, 1949. Clause 34 provides that an employee shall retire at the age of 58 years. It has further been provided that a review of the work will be undertaken at the age of 55 years for deciding whether he deserves to be continued till the age of 58. From a reading of this clause, it is apparent that even to continue beyond 55 years a review of the work of the petitioner has to be undertaken and in case he is considered to be fit to continue in service beyond 55 years, he could have been allowed to continue till he attains the age of 58 years and not otherwise. The service condition of the petitioner who is working in an aided institution is regulated under the Bombay Primary Education Act and Rules framed thereunder. In view of these facts, no illegality whatsoever has been committed by the respondent No. 3 in passing of the resolution dated 14-1-1986. The petitioner even has no right to continue beyond the age of 58 years but he continued beyond that period till 31/01/1986 because of the fault of the respondent No. 2. From 31/01/1986 till 31/03/1989 the petitioner continued in the service under the interim order of this Court. The interim order which has been passed by this Court reads as under :

(2.) From the reading of the aforesaid order, it is clear that on maintenance of status quo, i.e., continuing the petitioner in service, the financial liability is only of the respondent No.

(3.) The respondent Nos. 1 and 2 are not in any way made responsible for the financial liability. The institution where the petitioner was working was receiving grant-in-aid from the State Government. The petitioner filed Civil Application No. 1139 of 1996 before this Court. By this application, the petitioner has prayed for the amendment in the writ petition. I have gone through the contents of this application. The petitioner has given out that the school has received the grant on account of making payment of salary to the petitioner for the academic years 1985-86 to 1988-89 total amounting to Rs. 51,390.41 ps. but this amount has not been paid to him on the ground that this Spl. Civil Application is pending before this Court. By this amendment application, the petitioner sought to add the prayer that the respondents be directed to pay to the petitioner the arrears of the salary due and payable to the petitioner for the period 1-2-1986 to 31-3-1989. The petitioner has a right to continue in service till he attains the age of 58 years which admittedly he attained on 31/08/1983. From 1/02/1986 the petitioner has worked till 31/03/1989 under the interim orders of this Court but the salary for this period has to be paid by the management and no grant is to be made for the petitioner by the respondent No. 2. The Counsel who is appearing for the respondent-school has contended that no grant whatsoever has been paid by the respondent Nos. 1 and 2 for the period 1-2-1986 to 31/03/1989 for the salary of the petitioner. But even if it is accepted that the amount of the grant has been paid, then too, the petitioner has no right for this amount because it was not the order of this Court. On the principle of salary for the work done, the petitioner may have a right against the school but not against the respondent Nos. 1 and 2. At the time of admission of the writ petition and passing of the interim order, this fact was specifically made clear by this Court. In this view of the matter, the petitioner is not entitled whatsoever for the amount of the grant, if any, paid for the period which he worked under the order of this Court. It is made clear that if any amount of the grant for the aforesaid period is received by the school for the salary of the petitioner, it has to be returned back to the Government. The respondent Nos. 1 and 2 may make sure that in case this amount of grant is paid, the same be recovered from the school forthwith.