SHASHI PRABHA DWIVEDI Vs. STATE OF U.P.

JUDGEMENT

(1.) The following questions of law have been referred by a Division Bench of this Court, vide its order dated 3 August 2016, for resolution by the Full Bench:

(2.) The Division Bench, while referring the questions, found itself unable to accept the view expressed by another Division Bench of this Court in State of U.P. & Ors. Vs. Ramesh Chandra Tiwari & Ors., (2015) 4 UPLBEC 2900. The controversy which stood raised before the Division Bench in Ramesh Chandra Tiwari was, whether the amendment to the academic session as effected by Government Order dated 9 December 2014 would enable Assistant Teachers in primary institutions, whose age of superannuation was to fall between April 1 to March 31, to continue till the end of the session, in light of the proviso appended to Rule 29 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (for short, 'the Rules'). It appears that the issue in Ramesh Chandra Tiwari arose on account of the fact that no corresponding amendments had been made to Rule 29 which continued to refer to the academic session with reference to the dates July 1 and June 30 as being the dates of commencement and termination thereof. The issue itself arose in view of the fact that on 9 December 2014, the Government had issued an order which amended the academic session for the year 2015-16 to commence from 1 April 2015 and end on 31 March 2016. This Government Order was subsequently further elaborated upon and clarified by a Government Order dated 8 October 2015. The subsequent Government Order, while maintaining the amendment to the academic session, further held that the Government of Uttar Pradesh was in the process of making necessary amendments in the Rules. Another aspect, which needs to be taken note of, is that the Government Order dated 8 October 2015 carries a recital to the effect that the Government is in the process of taking steps to amend Rule 29 so as to bring it in tune with the policy decision taken by it, to change the academic session. Before us, it is not disputed that in compliance of the directions contained in Government Orders dated 9 December 2014 and 8 October 2015, the academic session of primary educational institutions has and had, in fact, been changed and they consequently commenced on 1 April 2015 and ended on 31 March 2016. Further, it is also not in dispute that though the Government, in its order dated 8 October 2015, stated that it is in the process of taking steps to amend Rule 29, in fact, it did not amend the proviso appended to Rule 29 of the Rules and Rule 29, as it stood then, continued to remain unamended on the statute book. In this backdrop, the Division Bench, in the instant appeal, after referring to the relevant paragraphs in Ramesh Chandra Tiwari, observed that Ramesh Chandra Tiwari has failed to take note of paragraph 3 of the Government Order dated 9 December 2014, wherein a conscious decision had been taken by the State Government not to make any amendment in the proviso to Rule 29 of the Rules. The Division Bench further observed that the Government Order dated 9 December 2014 embodied a conscious decision of the Government not to make any amendment in the proviso to Rule 29 of the Rules, 1981. Thus, the Division Bench took the view that as long as Rule 29 had not been amended, no Assistant Teacher could be permitted to continue till the end of the amended academic session. It also expressed the view that Rule 29, which was in the nature of subordinate legislation, could not be amended by an executive order. It has, accordingly, found itself unable to sustain the view expressed in Ramesh Chandra Tiwari and, accordingly, framed the questions for resolution by the Full Bench.

(3.) Before we proceed further, it would be relevant to refer to the factual matrix, against which the questions have been referred to the Full Bench. The factual matrix, sans unnecessary details, are as follows : the date of birth of the appellant is 1 May 1951. She was an Assistant Teacher, working in a primary institution of the respondents. Admittedly, her service conditions were and are regulated by the Rules, framed under Section 19 of the Uttar Pradesh Basic Education Act, 1972 (for short, 'the Act'). She should have normally retired on attaining the age of 62 years, as per Rule 29 of the Rules, but since she was awarded the President's National Award, two years' extension in service was given to her and, therefore, her age of retirement stood extended upto 64 years. She attained the age of 64 years on 30 April 2015. According to the appellant, the academic session for the year 2015-16, under the Government Order dated 9 December 2014, was directed to commence from 1 April 2015 and to end on 31 March 2016, and in view thereof, the appellant contends that since her date of retirement falls in the midst of the academic session 2015-16, she was entitled to extension in service till 31 March 2016 and she had been wrongly retired on 30 June 2015. The learned Single Judge held that since she had already availed the benefit of the Government Order, being a Presidential Awardee, she could not be granted a double benefit and be held to be entitled to continue upto 31 March 2016. It was the correctness of this view taken by the learned Single Judge which fell for consideration before the Division Bench which has made the present reference to the Full Bench.