JUDGMENT : - N.P. Singh, C. J.: As the controversy in the appeal as well as in the writ petition is as to whether the teachers of Government Aided Higher Secondary Schools, who opted for revised scales of pay in terms of offer given to them by the State Government by orders dated 31.7.81 and 7.3.90, are entitled to be considered for extension of their services after they attain the age of 60 years, they were heard together and are being disposed of by a common judgment. 2. From time to time orders and circulars have been issued saying that the age of superannuation of the employees of the recognised Non-Government Secondary Institutions shall be 60 years; thereafter the employees may be retained in service on extension until they attain the age of 65 years subject to their physical fitness and mental alertness. As early as in the year 1949 Rule 25 of the Rules for Management of Non-Government High Schools issued by the Calcutta University, commonly known as Revised School Code of 1949 contained a similar provision. When the West Bengal Secondary Education Act, 1950 came into force a circular was issued on 25.5.1953 in which it was stated, inter alia, that the teachers over 60 years of age should retire unless their services are extended by the Board in accordance with the provisions of the Act. The West Bengal Secondary Education Act, 1950 was replaced by the West Bengal Board of Secondary Education Act, 1963. Again a circular was issued on 2.6.1969 saying that the age of superannuation of the employees of the recognised non-Government Secondary Institutions shall be 60 years and thereafter the employees may be retained in the service on extension until the age of 65 years subject to the usual conditions of physical fitness and mental alertness. The relevant part whereof is as follows: "(ii) The age of superannuation of the employee of the recognised Non-Government Secondary Institutions shall be 60 (sixty). Thereafter the employees may be retained in service on extension until they attain the age of 65 years subject to the usual condition of physical fitness and mental alertness.” 3. The relevant part whereof is as follows: "(ii) The age of superannuation of the employee of the recognised Non-Government Secondary Institutions shall be 60 (sixty). Thereafter the employees may be retained in service on extension until they attain the age of 65 years subject to the usual condition of physical fitness and mental alertness.” 3. Section 4 of the West Bengal Board of Secondary Education Act, 1963 vests power in the State Government to make rules for carrying out the purpose of the Act, Section 45(2) (d) originally was as follows: "(d) the composition of Managing Committees of Institutions." 4. Later by a Notification issued on 9th May 1969 clause (d) of sub-so (2) of s. 45 was amended and for the words "the composition of" the words; the composition, powers and functions of were substituted. 5. In exercise of the power under S. 45(2)(d), Management of Recognised Non-Government Institutions (Aided and Unaided) Rules 1969 were framed. It is an admitted position that the said Rules are statutory in nature and shall be deemed to have been framed under s. 45(2)(d), 6. Rule 28 of the Rules aforesaid prescribes the powers of the Managing Committee of Government Aided Institution. The relevant part where of is 8S follows: "28. Powers of Committee (1) In an Aided Institution the Committee shall subject to the approval of the Director, have the power- (i) *** **** (ii) *** **** (iii) to extend the services of teachers and other employees beyond the, date of superannuation, approval for such extension being thereafter sought for from the Director or any officer authorised by him ordinarily within a week from the date of decision of the Committee. (2) **** **** (3) ** ** ** ** ** **" 7. In view of the circular aforesaid dated 2.6.1969 issued by the Department of Education referred to above, read with Rule 28 (iii) even after attaining the age of 60 years, teachers of Recognised Non-Government Secondary Schools used to be considered for purpose of granting extension of their services upto the age of 65 years. 8. In view of the circular aforesaid dated 2.6.1969 issued by the Department of Education referred to above, read with Rule 28 (iii) even after attaining the age of 60 years, teachers of Recognised Non-Government Secondary Schools used to be considered for purpose of granting extension of their services upto the age of 65 years. 8. On 31.7.1981 the decision of the State Government referred to above was notified in the form of a Memorandum saying that the Pay Commission set up by the State Government had examined the structure of emoluments and conditions of service of the teaching and non-teaching staff of State Government sponsored or aided Junior High Schools/Higher Secondary Schools and after careful consideration of the recommendation, the Governor has been pleased to direct that all whole-time occupants of the pasts on the existing scale of pay as described in Annexure-1 to the said order shall be entitled to draw pay in the revised scales of pay with effect from 1st April 1981. Paragraph 6 of the said order is as follows: "6. Those who were in service on 31st March, 1981 will have the option either to retain their existing scale of pay and existing terms and conditions of service or to come under the revised scales of pay together with the revised terms and conditions of service, as may be determined by the State Government. The option will have to be exercised within 90 days from the date of issue of this order and they may come under the revised scale and revised terms and conditions of service with effect from 1st April, 1981 or any subsequent date not later than April, 1982. The form in which the Option will have to be exercised and other terms and conditions governing option will be circulated separately. The teachers in all Government aided educational institutions opting for the revised scales of pay shall retire at 60 years, provided however that who were above 54 years but below 57 years of age as on April 1, 1981 shall retire on completion of 62 years of age as on March 31, 1989 whichever is earlier, and for such teachers who were above 57 years of age on April I, 1981 retirement will be on completion of 65 years as on March 31, 1987 whichever is earlier. The non-teaching employees of all Government aided institutions shall retire at 6u years of age." 9. We are informed that several members of the teaching and non-teaching staff opted in favour of the revised scales of pay. 10. The connected writ application was filed in the year 1984 for a direction to the respondents not to change the age of retirement and/or educe the age of retirement from 65 years to 60 years by the Memo No. 372-Edn (B) dated, Calcutta the 31st day of July, 1981 and to cancel, withdraw the offending portion of the said Memo." 11. According to the petitioners although they have opted for the revised scales of pay but their statutory. right to be considered for extension upto the age of 65 years, after superannuation at the age of 60 years, neither has been taken away nor could have been taken away by the aforesaid Government order dated 31 7.1981. 12. The learned Trial Judge came to the conclusion that the State Government was within its right to modify its earlier decision to grant extension after the superannuation at the age of 60 years, while offering the revised scales of pay to the employees of such Government aided educational institutions. According to the learned Judge the impugned Government order cannot be held to be violative of Articles 14 and 16 of the Constitution so as to be liable to be quashed by this Court. 13. In the present appeal the same stand has been reiterated on behalf of the writ petitioners-appellants saying that by opting for the revised scales of pay they have not forfeited their statutory right to be considered for extension in accordance with Rule 28 of the Rules. 14. The writ application (C.O 6605 (W) of 1990) has been filed for quashing part of order dated 7.3 1990 issued by the State Government offering another revised scale of pay to such teachers with certain conditions including requiring them to retire on attaining the age of 60 years and to undertake that they shall not apply for extension of service after attaining the age of superannuation. I shall first examine the scope of the order dated 31.7.1981 in connection with the claim of the writ petitioners that by opting for the revised scales of pay offered by the said order, their right to be considered for extension after attaining the age of 60 years, in accordance with Rule 28, has not been curtailed or obliterated. 15. Mr. Saktinath Mukherjee the learned Counsel on behalf of the respondent - State, pointed out that by the order aforesaid dated 31.7.1981 the State Government came out with a scheme, offering the revised scales of pay to the employees of the Government aided schools. An option was given to such teachers of aided schools to retire at the age of 60 years after having accepted the revised scales of pay or to get extension subject to their physical fitness and mental alertness upto the age of 65 years, with the existing scales of pay. It was open to such teachers and other employees of the schools to opt for one or the other proposal. Majority of the employees knowing full well the consequence opted for the revised scales of pay. Now having exercised that option, they cannot take a stand that they' should also be considered for extension of their services after attaining the age of 60 years. 16. In the impugned order dated 31.7.1981, while offering the revised scales of pay it has simply been stated that the teachers in all Government aided educational institutions who opt for the revised scales of pay, "shall retire at the age of 60 years ............". It has not been said in the order that such teachers who opt for the revised scales of pay after superannuation/retirement, shall not be entitled to be considered for extension in accordance with the Rule 28 aforesaid. Since 1949 the age of retirement of such teachers was 60 years. As such nothing new was said in the order aforesaid. Although nothing has been said in respect of extension of service after 60 years even if it had been said in the order dated 31.7.1981 that teachers opting for revised scales of pay after retirement at the age of 60 years shall not be entitled to be considered for extension under the statutory Rule 28, it would have been not of much consequence. If right to be considered for extension after superannuation retirement at the age of 60 years, continues, under statutory Rule 28, then that could not have been taken away by any administrative order. 17. It is well known that any administrative order can only supplement and not supplant a statutory provision and if both cannot co-exist then the administrative order has to give way to the statutory provision. Reference in this connection may be made to the case of Paluru Ramkrishnaiah & Ors. v. Union of India & Ors. ( AIR 1990 SC 166 ) where it was observed: "In is thus apparent that an executive instruction could make a provision only with regard to a matter which was not covered by the Rules and that such executive instruction could not override any provision of the Rule.” 18 In the case of C.L. Verma v. State of M.P. & Anr. ( AIR 1990 SC 463 ) it was said: "An administrative instruction cannot compete with a statutory rule and if there be contrary provisions in the rule the administrative instructions must give way and the rule shall prevail." 19. Rule 28 while prescribing the power of the Managing Committees of aided institutions, says in clear and unambiguous words that such Managing Committee shall, subject to the approval of the Director, have power to extend the service of the teachers and other employees beyond the date of superannuation. That power could not be curtailed, abridged or obliterated by any administrative order. 20. On behalf of the State it was then urged that even if it is held that the administrative order shall not be deemed to have obliterated the statutory Rule 28, still the teachers opting for revised scales of pay are estopped from exercising their right under Rule 28 Reference was made to a recent judgment of the Supreme Court in the case of Indira Bai v. Nand Kishore (1990) 4 SCC 668 where it was pointed out: "Estoppel is a rule of equity flowing out of fairness striking on behavior deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetrated." 21. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetrated." 21. But in that very judgment, after referring to the case of Equitable Life Assurance Society of the United States v. Reed, (1914 A C 587,. which laid down that there could be no estoppel against statute, it was said: "Equity, usually, follows law. Therefore that which is statutorily illegal and void cannot be enforced by resorting to the rule of estoppel. Such extension of rule may be against public policy." 22. In view of the well settled principle that there cannot be estoppel against a statute, Mr. Mukherjee had to concede that the right to be considered for extension under Rule 28 being statutory in nature that right cannot be defeated on the rule of estoppel. Moreover before applying the principle of estoppel it has to be established by respondent that the teachers opted for revised scales of pay on being informed that those opting for the same shall not be considered for extension of their service after attaining the age of 60 years. 23. It was then submitted on behalf of the respondents that it is always open to a person or group of persons to waive their right conferred to them by any administrative order or statute, while opting for the new terms and conditions. It was pointed out that the Government bas been framing alternative schemes from time to time in respect of revised scales of pay, pensionary benefits and other terms and conditions even for employees of the State Government and the Union of India giving options to Such employees to out for one scheme or the other and while opting for one scheme it is open to the employee to waive any right following from any administrative order or statute. 24. Francis Bennion in the Statutory Interpretation (1984 Edition) has said: "A person entitled to the performance of a statutory duty, where the case is within the principle quilibet potest renuntiare juri pro se introduced (a person may renounce a right introduced for his benefit can effectively waive performance of the duty by the person bourd and that person can effectively contract out of performing the duty". 25. 25. In the case of Lachoo Mal v. Radhye Shyam ( AIR 1971 SC 2213 ) it was pointed out: "The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanctions the non-observance of the Statutory provision is quilibet potest renuntiare juri pro se introducto (See Maxwell on Interpretation of Statutes, Eleventh Edition, pages 375 & 376). If there is any express prohibition against contracting out of a statute in it then no question can arise of anyone entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy." 26. In Halsbury's Laws of England, Volume 8, Third Edition, it is stated in paragraph 248 at page 1143 : "As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void" 27. Section 23 of the Indian Contract Act declares an agreement as void which is forbidden by law or is of such a nature that, If permitted, it would defeat the provisions of any law; or is fraudulent or opposed to public policy. 28. In the Victorian age of laissez faire the Courts easily came to the conclusion that Parliament intended persons of full capacity to be able to give up statutory benefits if they wished. But a welfare State while enacting a law for benefit of group of persons who need protection, believes it to be for peoples own good that, they should not be exposed to any risk of being overreached. But a welfare State while enacting a law for benefit of group of persons who need protection, believes it to be for peoples own good that, they should not be exposed to any risk of being overreached. In the case of Guardians of Salford Union v. Dewhurst, (1926) AC 616, the House of Lords held that an employer could not contract out of a statutory duty to pay a pension. It was observed: ".........the public should be safeguarded from the melancholy spectacle of seeing a man who had done work and been in a responsible position during years of his life, suffering from property and distress by reason of the fact that no adequate provision had been made to enable him to spend his latter years in reasonable comfort." 29. In many enactments provisions have been made for safeguarding the interest of a class of society, who need a statutory protection so that they may not enter into contracts to waive the benefits conferred upon them by such provisions. Such provisions purport to safeguard their interest and are based on public policy. Whenever a member of such class waives his right conferred by any statute, Court has to examine whether such waiver can be upheld on the general principle that every one has the right to waive the advantage of law or rule for the benefit and protection of such person. 30. In this connection reference can be made to s. 25F of the Industrial Disputes Act. Can a workman offer to accept an order of retrenchment on a payment of consolidated amount of Rs. 500/- Even if he accepts such offer, in view of the fact that conditions prescribed in s. 25F, have not been fulfilled, no retrenchment shall take place in eye of law. In the case of The State of Bombay & ors. v. The Hospital Mazdoor Sabha & ors. ( AIR 1960 SC 610 ) it was pointed out that compliance of clause (b) of s. 25F, was a condition precedent for retrenchment and unless that condition is fulfilled no retrenchment takes place in eye of law. The Industrial Disputes Act is meant to protect the workman and many sections are mandatory in nature as such benefits of those sections cannot be waived became they are based on public policy. 31. The Industrial Disputes Act is meant to protect the workman and many sections are mandatory in nature as such benefits of those sections cannot be waived became they are based on public policy. 31. Now the question is as to whether any public policy is involved in the right conferred on the teachers and employees of the Government aided institutions when their individual cases for extension of their service after attaining the age of 60 years are to be considered by the Managing Committees of the respective schools. It cannot be disputed that Rule 28 does not confer such right in absolute terms to the teachers and employees. Their cases for extension of service is to be considered individually subject to such teacher-being found mentally and physically fit. According to me no public policy is involved so far right to be considered extension of the service under Rule 28 is concerned. The retirement is a certainty in public services and age of retirement is nothing more than a condition of service. As was pointed out in the case of K. Nagaraj & ors, v. State of Andhra Pradesh & anr. ( AIR 1985 SC 551 ) :- "If a rule of retirement can be deemed to deprive a person of his right to livelihood, it will be impermissible to provide for an age of retirement at all. That will be contrary to public interest became the State cannot afford the luxury of allowing its employees to continue in service after they have passed the point of peak performance. Rules of retirement do not take away the right of a person to his livelihood, they limit his right to hold office to a stated number of years." 32. In that case the reduction of age of retirement from 58 to 55 years by the State Government was upheld by the Supreme Court, If the age of retirement can be reduced unilaterally by the State Government, then it cannot be urged that a statutory right conferred individually to Such teachers to be considered for extension of their service after retirement cannot be waived. Any such individual right can be waived because no public policy is involved. 33. Any such individual right can be waived because no public policy is involved. 33. In this background it has to be examined as to whether in the facts and circumstances of the present case the teachers and employees opting for revised scales of pay have waived their individual right under the statutory Rule 28. 34. In support of assertion that teachers opting for the revised scales of pay have waived their right to be considered for extension after retirement at the age of 60 years under Rule 28. reference was made to some of the paragraphs of the writ petition to show that the writ petitioners knew full well the scope of the aforesaid order dated 31.7.1981 including that those who shall out for the revised scales of pay shall not be considered for extension as used to be done in past. In this connection our attention was drawn to paragraphs 5 and 28 of the writ petition which are as follows: "5. That prior to the issue of the Memorandum No 372-Edn(B) dated 31.7.81, the age of superannuation of the teaching and non-teaching staff of the schools in the State of West Bengal was 60 years and that after attainment of the age of superannuation, there was provision for extension of service year by year for another period of 5 years on condition that the incumbent concerned was mentally and physically fit. True copy of the said Memorandum No. 372-Edn B) dated 31.7.81 is annexed hereto and marked with the letter 'A'. 28. That the option was exercised by the teaching and non-teaching staff of the schools on whose behalf the writ application is being made, had exercised their option for new pay scale with the revised terms and conditions, in ignorance of their legal right and/or under duress cannot bind the said employees". 35. It was pointed out that in the prayer portion a direction has been sought for "commanding" the respondents not to change the age of retirement and/or reduce the age of retirement from 65 years to 60 years by the Memo No. 372-Edn(B) dated. 35. It was pointed out that in the prayer portion a direction has been sought for "commanding" the respondents not to change the age of retirement and/or reduce the age of retirement from 65 years to 60 years by the Memo No. 372-Edn(B) dated. Calcutta, the 31st day of July 1981 and to cancel, withdraw the offending portion of the said Memo." 36 On the basis of the principle that parties are bound by their pleadings it was urged on behalf of the State that it should be held that the petitioners have admitted in the writ application that when they opted for the revised scales of pay they knew that they are not going to get extension of their services after retirement. Reference was made to the cases of Shivabasaya Kom Amingavda v. Sangappa Bin Amngavda (31 I A 154), Mati Lal Poddar v. Judhistir Das Tear & Ors. (AIR 1916 Cal. 658), Sheodhari Rai & Ors. v. Suraj Prasad Singh & Ors. ( AIR 1954 SC 758 ), Deoki Nandan v. Murlidhar &. Ors, ( AIR 1957 SC 133 ) and Wigmore on Evidence (Third Edition), Vol. 4 page 1964 in support of the contention that the parties are bound by their pleading and the Court should not travel beyond pleadings of the parties. 37. If the strict rules of pleadings in suits are made applicable even to the writ application, then by that rule even the State is also bound. In the affidavit-in-opposition filed on their behalf, it is remarkable, that no plea of waiver of the statutory right under Rule 28 by the teachers concerned, has been taken. Even the expression "waiver" has not been used in any of the paragraphs of the said affidavit-in-opposition. 38. It is well-known that waiver is a question of fact and it has to be properly pleaded and proved. It nerd not be pointed out that the onus of proving waiver of a statutory right shall be on the party taking plea of waiver on the part of the other party. In the case of M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh & Ors. ( AIR 1979 SC 621 ) it was pointed out: "It is elementary that waiver is a question of fact and it must be properly pleaded and proved. In the case of M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh & Ors. ( AIR 1979 SC 621 ) it was pointed out: "It is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it is common ground that the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of writ petition. That was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. If waiver were properly pleaded in the affidavit in reply, the appellant could have an opportunity of placing on record facts showing why and in what circumstances the appellant came to address the letter dated 25th June, 1970 and establishing that on these facts there was no waiver by the appellant of its right to exemption under the assurance given by the 4th respondent. But in the absence of such pleading in the affidavit in reply, this opportunity was denied to the appellant. It was, therefore, not right for the High Court to have allowed the plea of waiver to be raised against the appellant and that plea should have been rejected in limine." 39. This plea of waiver was not taken on 'behalf of State either in the affidavit in opposition or during the arguments before the learned Trial Judge. It ha, been taken before the appellate Court for the first time. 40. Learned Counsel for the State had to admit that in the affidavit-in-opposition there is no specific plea of waiver but according to him the following statements in the affidavit-in-opposition read in its proper context can be held to be a plea of waiver. The relevant parts of paragraphs 8 and 11 of the affidavit-in-opposition are as follows: "8. 40. Learned Counsel for the State had to admit that in the affidavit-in-opposition there is no specific plea of waiver but according to him the following statements in the affidavit-in-opposition read in its proper context can be held to be a plea of waiver. The relevant parts of paragraphs 8 and 11 of the affidavit-in-opposition are as follows: "8. * * * * * But once he exercises his option it is to be assumed that he had opted to the revised scale after giving due thought to the consequences of his such option and once option is given he is estopped from going back on it. II. * * * I repeat and reiterate that they cannot go back on their option which, when exercised is final. The petitioners are barred by the law of estoppel from disclaiming the option once exercised by them after due consideration and thought." 41. I n my opinion, reading the statements referred to above in the affidavit-in-opposition filed on behalf of the State it cannot be held to be a plea of waiver rather it shall amount to a plea of estoppel. Rules of waiver and estoppel both are based on the principle that no person should be allowed to approbate and reprobate at the same time. But waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right, estoppel is a rule of evidence. 42. In the case of Basheshar Nath v. Commissioner of Income-Tax, Delhi and Rajasthan & anr. ( AIR 1959 SC 149 ) it has been said: "Waiver is a troublesome term in the law. The generally accepted connotation is that to constitute 'waiver', there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege." "Waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be an intentional act with knowledge per Lord Chelmsford L C. in Earl of Darnley v. London, Chatham & Dover Rly. Co, (1867) 2 HL 43 at page 57. Co, (1867) 2 HL 43 at page 57. There can be no waiver unless the person who is said to have waived is fully informed as 10 his right with full knowledge of such right, he intentionally abandons it. It is pointed out in Halsbury's Laws of England (4th Ed) Vol. 16 in para 1472 at page 994 that for a 'waiver' to be effectual it is essential that the person granting it should be fully informed as to his rights" and Isaacs. J. delivering the judgment of the High Court of Australia in Craine vs. Colonial Mutual Fire Insurance Co. Ltd. (1920) 28 CLR 305 has also emphasized that waiver "must be with knowledge, an essential supported by many authorities." (emphasis added) 44. There h no dispute that either by the aforesaid order dated 31.7.1981 or by any other order, the teachers to whom the revised scales of pay were offered, were never informed that those opting for the revised scales of pay shall not be entitled to be considered for extension of their service after retirement in accordance with Rule 28. 45. It is true that whether a right has been waived, can be determined even on basis of conduct of the party in question, Reference may be made to a passage in "The Law Relating to Estoppel by Representation", by George Spencer Bower, (Third Edition) at page 47 : "54. It is a question of fact, where there is evidence both ways, whether the particular acts alleged took place, or not, and whether in virtue thereof the party made the particular representation alleged. It is a question of law, however, whether there is any evidence of the alleged acts and conduct, and also whether proved or admitted conduct does or does not amount to an unequivocal and conclusive representation of the precise character alleged." (emphasis added) 46. It was pointed out on behalf of the State that as the teachers and employees opted for the revised scales of pay it should be held on basis of their admitted conduct that they have waived their right for being considered for extension. It was pointed out on behalf of the State that as the teachers and employees opted for the revised scales of pay it should be held on basis of their admitted conduct that they have waived their right for being considered for extension. In this connection reference was made to Mulla's The Indian Contract and Specific Relief Acts (9th edition), page 451 where it has been said: "The word waiver was confined to its own legal connotation, i.e. waiver is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent position. It is a conclusion of law when the necessary facts are established." (emphasis added) 47. But in the same book at the same page in respect of law of waiver it has been stated as follows: "Waiver is the abandonment 'of a right which normally every body is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. Waiver must be an intentional act With knowledge. Firstly some distinct act ought to be done to constitute a waiver; next it must be intentional, and lastly it must be with knowledge." 48. When the necessary facts relating to waiver of a right are established or admitted, the conclusion is question of law only. But as has bleu repeatedly pointed out by English Courts as well as the Supreme court, the abandonment of a right more so when it is statutory in nature, then it must be established on evidence or by admission that such right has been waived intentionally and with knowledge. It has been said in the Halsbury's Laws of England (Fourth Edition Vol. 9 paragraph 574 : "Waiver may be express or implied from conduct, but in either case it must amount to an unambiguous representation arising as the result of a positive and intentional act done by the party granting the concession with knowledge of all the material circumstances. Furthermore, it seems that for a waiver to operate effectively the party to whom the concession is granted must act in reliance of the concession." 49. Furthermore, it seems that for a waiver to operate effectively the party to whom the concession is granted must act in reliance of the concession." 49. In the present case merely on basis of the statements in paragraphs 5 and 28 of the writ application filed in the representative capacity, can it be held that all the teachers and employees for getting the revised scales of pay have waived their statutory right individually under Rule 28? Similarly because many of the teachers and employees, accepted the offer of the revised scales of pay, can it be held that the acceptance of the offer amounted to waiver by conduct when while offering the revised scales of pay, it was not said in that order or any other order that those opting for the same shall not be entitled to be considered for extension of service after retirement in terms of Rule 28? In that order it was simply said the persons opting for revised scales of pay shall retire at the age of 60 years. This was nothing new. That was the age of retirement fixed for such teachers since 1949 under different circulars and orders. I fail to understand as to why while offering the revised scales of pay to the teachers, Rule 28 was not suitably amended saying that it shall be applicable thereafter only to those who have not opted for the revised scales of pay, if that was the intention of the State Government. 50. It was also urged that Rule 28 does not confer any right to any of the teachers to get extension, it only prescribes the procedure for consideration of the applications for extension it is not the stand of the writ petitioners that they are to get extension as a matter of right under Rule 28. But once power has been vested in the Committees of the aided institutions to consider the applications for extension of the services of such teachers that power can be exercised, subject to the conditions and restrictions prescribed in the Rule itself and that right shall continue till Rule 28 exists. 51. But once power has been vested in the Committees of the aided institutions to consider the applications for extension of the services of such teachers that power can be exercised, subject to the conditions and restrictions prescribed in the Rule itself and that right shall continue till Rule 28 exists. 51. Apart from the stand that the administrative order dated 31.7.1981 can co-exist with the statutory Rule 28, taken by the writ petitioners, an alternative stand has been taken saying that the last part of paragraph 6 of the order dated 31.7.1981 is violative of Articles 14 and 16 of the Constitution. It was questioned as to what was the object of saying in paragraph 6 of the impugned order that teachers opting for the revised scales of pay shall retire at 60 years "provided however that who were above 54 years but below 57 years of age as on April 1, 1981 shall retire on completion of 62 years of age or on March 31, 1989 whichever is earlier, and for such teachers who were above 57 years of age as on April 1, 1981 retirement will be on completion of 65 years or on March 31, 1987 whichever is earlier". The teachers in all the Government aided educational institutions belong to one class. But for purpose of retirement, they have been put in three classes with reference to their age. A teacher who had crossed 54 years of age by a day on April 1, 1981 shall continue in the service of the State Government for 8 years till he attains the age of 62 years. Similarly, a teacher who had crossed the age of 57 years on April 1, 1981 by a day will also continue up to 65 years and as such shall get about 8 years; whereas a teacher who was to complete 54 years of age on April 2, 1981 shall retire at 60 years, and as such will get only 6 years. Why the teachers were put in three classes with reference to their age for fixing their date of retirement has not been explained. Why the teachers were put in three classes with reference to their age for fixing their date of retirement has not been explained. Another remarkable aspect is that in the order dated 31.7.1981, 60 years, 62 years and 65 years were fixed as the age of retirement of the three classes of teachers with reference to their age but later an order was issued on 12.91983, by the Department of Education in the name of the Governor saying : "The Governor is pleased to direct that according to this provision the age of retirement of the teacher is 60 years but the person who were above 54 years but below 57 years of age on April 1, 1981 and above 57 years of age on April 1, 1981, are exempted category. In their case the period of service up to 62 years of age or 65 years of age, as the case may be, is to be considered as extension of service and such extension is to be guided by the conditions laid down in G.O. No, 863-Edn(S) dated 2.6.69". 52. By the aforesaid order dated 12.9.1983, again the order dated 2.6.1969 referred to above saying that "the age of superannuation of the employee of the recognised non-Government Secondary Institution shall be sixty. Thereafter the employees may be retained in service on extension until they attain the age of 65 years subject to the usual condition of physical fitness and mental alertness" was made applicable to teachers who were above 54 and 57 years of age on April 1, 1981. Once, the Government order dated 2.6.1969 aforesaid was made applicable, it shall be deemed that even Rule 28 was made applicable, in their cases. In this background can it be said that after issuance of the order dated 31.7.1981 there was no scope for consideration of question of extension of the services of the teachers in terms of Rule 28 aforesaid. 53. That is why a grievance has been made on behalf of these teachers who were below 54 years of age On April 1,1981 that they have been put in a separate class without any rational basis and have been discriminated in the matter of retirement. 53. That is why a grievance has been made on behalf of these teachers who were below 54 years of age On April 1,1981 that they have been put in a separate class without any rational basis and have been discriminated in the matter of retirement. It has been repeatedly pointed out that Article 14 does not forbid reasonable classification far the purposes of special treatment but any such order must fulfill two conditions namely, (i) that the classification is funded on an intelligible differentia which distinguishes persons who are grouped together from others left out of the group and (ii) that the differentia has a rationale relation to the object sought to be achieved by the order in question. In the instant case all teachers in Government aided educational institutions formed a class. What was the intelligible differentia far putting them in three groups, with reference to their age being be law 54 years, above 54 years and above 57 years, far the purpose of fixing their age of superannuation ? 54. It was pointed out an behalf of the State that those who were above 54 or 57 years of age would have retired within next few years therefore special treatment was given to them. This explanation cannot be accepted. As already painted out above a teacher who was to complete 54 years within I next twentyfour hours from 1.4.1981 will retire at 60 years by remaining in service only far six years, whereas a teacher who an 1.4.1981 had crossed the age of 54 years by twentyfour hours will be in service .of the State Government upta 62 years and in this process shall get eight years. The same benefit will accrue to a teacher who had crossed the age of 5; years by twentyfour hours on 1.4.1981. He will also remain in service of the State Government far about eight years, till he attains the age of 65 years After the aforesaid order dated 129.1983 this group will get extension upto 62 years and 65 years respectively, whereas the teachers who were to complete 54 years of age within twentyfour hours or few days will retire at 60 years, there being no scope far them for being considered far extension. 55. 55. The classification of retired Government servants with reference to the years of their retirement, was considered by a Constitution Bench of the Supreme Court in the well-known case of D.S. Nakara & ors. v. Union of India ( AIR 1983 SC 130 ) and it was pointed out: "if it appears to be undisputable, a, it does to us that the pensioners far the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on same rational principle? The classification has to be based, as is well settled, an same rational principle and the rational principle must have nexus to the objects Sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalize the pension scheme, we find no rational principle behind it far granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalization was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worse off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension ?" 56. Same is the position here. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension ?" 56. Same is the position here. If teacher is to complete his age of 54 years within the next 24 hours of April 1, 1981 then he is deprived of about two years of his service, on the other hand one who has completed 54 years only 24 hours before 1.4.1981 he either gets two years continuation of service or is to be considered for extension for the next two years after attaining 60 years of age. 57. On behalf of the State reference was made to the judgment in the case of Krishena Kumar v. Union of India & ors. ( AIR 1990 SC 1782 ). In that case a question of discrimination had been raised in connection With Provident, Fund Scheme. While distinguishing the case of D.S. Nakara & ors. v. Union of India (supra) it was observed at page 1797 : "Thus, on the retirement of an employee Government's legal obligation under the Provident Fund account ends while under the Pension Scheme it begins. The rules governing the Provident Fund and its contribution are entirely different from the rules governing pension. It would not, therefore, be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to P.F. retirees. This being the legal position the rights of each individual P.F. retiree finally crystallized on his retirement where after no continuing obligation remained while, on the other hand, as regards pension retirees, the obligation continued till their death" 58. It was held on the facts of that case that there was a reasonable classification and there was a nexus with the object sought to be achieved. In my opinion, in matter of continuation in service or extension of service the principle laid down in the case of D.S. Nakara & Ors v. Union of India (supra; will be applicable. There is no question of Government's legal obligation coming to an end in matters of extension of service of an employee if that right is available to such an employee under some Government order or a statutory rule. 59. There is no question of Government's legal obligation coming to an end in matters of extension of service of an employee if that right is available to such an employee under some Government order or a statutory rule. 59. Reference was also made on behalf of the State to the judgment of the Supreme Court in the case of B. Narayana Murthy & Ors. v The State of Andhra Pradesh ( AIR 1971 SC 1716 ). From the facts of that case it shall appear that by Government order issued on November 8, 1968 it was directed (a) teachers whose services has been extended upto the age of 60 years by specific individual orders should be retained in service unit they attain that age. (b) Teachers who attained that age of 55 years before 30.11.1967 and in whose favour there woe specific individual orders extending their services upto 58 years were to be retained in service until they attained the age of 58 years and thereafter their cases for further extension up to the age of 60 years was to be considered by the competent authority. (c) The cases of teachers who attained the age of 55 years before 30.11.1967 but in whose favour there were no specific individual orders of extension of service were to be considered by the competent authority in accordance with the earlier orders mentioned therein. (d) Teachers who attained the age of 55 years after 30.11.1967 had to be dealt with under Government order dated 3.11.1967 and they were to be retired on attaining the age of 55 years. This classification was challenged as being violative of Article 14 of the Constitution. It was held that the impugned Government order fixing November 30, 1967 as the date for founding the classification of teachers who should retire at the age of 55 years and those who should get the benefit of the interim order extending the age of retirement to 58 or to 60 years cannot be considered to be either irrational, or unreasonable or having no nexus with the object to be achieved by reducing the age of retirement. " 60. The facts of that case are not similar to the case with which we are concerned, In that case classification was made with reference to a fixed date i.e. 30.11.1967. " 60. The facts of that case are not similar to the case with which we are concerned, In that case classification was made with reference to a fixed date i.e. 30.11.1967. The teachers who had retired before that date and in whose favour individual orders of extension of their services had been passed or had not been passed by that date were treated as a separate class. The rest who were to attain the age of 55 years after 30.11.1967 were treated as a separate class for purpose of retirement. In this background it was held that those who had attained the age of 55 years before 30.11.1967 they formed a class by themselves separate from those who were to attain the age of 55 years after 30.11.1967. So far as the present case is concerned all the teachers were in service on April 1, 1981, and as such they formed one class. By the order dated 31.7.1981 with reference to their age while in service they have been put in three classes for purpose of fixing their age of retirement or for purpose of granting extension of their services. In my view, in the facts of the present case the principle laid down in the case of D.S. Nakara & Ors. V. Union of India. (supra) is applicable. The State Government cannot put teachers similarly situated in different classes, for purpose of consideration of the extension of their services unless there is any Intelligible differentia which distinguishes one group of persons from other and that differentia has nexus with the object sought to be achieved. If teachers who had crossed the age of 57 years of 1.4.1981 can be considered for extension upto the age of 62 or 65 years, why those who were about to cross the said age should be denied the benefit of being considered, for extension after attaining the age of 60 years? If teachers who had crossed the age of 57 years of 1.4.1981 can be considered for extension upto the age of 62 or 65 years, why those who were about to cross the said age should be denied the benefit of being considered, for extension after attaining the age of 60 years? As such it has to be held that part of paragraph 6 of order dated 31.7.1981 which fixes the age of retirement of three classes of teachers with reference to their age on 1.4.1981 as well as the Government order dated 12.9.1983 applying Rule 28 for extension of the service only to teachers who had crossed the age of 54 or 57 on 1.4.1981 are per se violative of Article 14 of the Constitution by putting persons belonging to one class into three classes for purpose of fixing the age of retirement from the service or for consideration of the question of extension of their service after retirement. That part of paragraph 6 of order dated 31.7.1981 and order dated 12.9.1983 referred to above putting teachers in three classes while in service with reference to their age on April 1,1981 for purpose of continuation in service or their service after superannuation are held to be unconstitutional violative of Article 14 of the Constitution. 61 On behalf of the State a stand was taken that if last part of paragraph 6 is declared unconstitutional then rest of paragraph 6 shall tot stand because both parts are not severable. Applying the doctrine of severability of a statute, the whole paragraph 6 can be declared to be invalid only on a finding that by declaration of the last part of that paragraph unconstitutional the remaining part of paragraph 6 cannot survive. In my view, even if that part of the paragraph which provides different ages of retirement for teachers is declared invalid, it shall not affect the rest of that paragraph The paragraph as already stated above gives option to teachers either to retain their existing scales of pay and existing terms and conditions of service or to come under the revised scales of pay together with the revised terms and conditions of service as may be determined by the State Government. Those who have exercised the option for the revised scales of pay, their conditions of service may be determined in future. Those who have exercised the option for the revised scales of pay, their conditions of service may be determined in future. As such that part of paragraph 6 which remains, can survive by itself and is severable from the part declared to be invalid. It has been pointed out in connection with statute that if a part of the statute is void but {he remaining part can be enforced being severable from what it is invalid, the whole statute is not to be declared void the whole statute is to be declared invalid when valid and invalid provisions are so inextricably mixed up, that they cannot be separated from one another. Reference in this connection may be made to the judgment of the Supreme Court in the case of R. M. D. Chamarbaugwalla & Anr. v. Union of India & Anr. ( AIR 1957 SC 628 ). 62. According to me for the reasons mentioned above teachers of Government Aided Higher Secondary Schools who opted for the revised scales of pay in terms of offer given to them by the State Government by order dated 31.7.1981 have neither forfeited nor waived their right in the facts and circumstances of the present cast, for being considered for extension of their services after superannuation in terms of statutory Rule 28 aforesaid. 63. Coming to order dated 7.3.1990 which is under challenge in the writ application (C.O. 6605 (W) of 1990) by which further revised scales of pay were offend to such teachers with certain conditions including requiring them to retire after attaining the age of 60 years and to undertake not to apply for extension of service after attaining the age of superannuation, the position is different. It may be mentioned that the Finance Department by is resolution dated 30.1.1987 had constituted a Pay Commission with terms of reference which included that the Commission would also examine "the structure of emoluments and conditions of service" of the teaching and non-teaching staff of Government sponsored or aided schools. On basis of recommendation of such Pay Commission the aforesaid order dated 7.3.1990 was issued. Paragraph 4 of the said order: "4. Drawal of pay in the revised scab-Save as otherwise provided in this order, an employee shall draw pay in the revised scale applicable to the post to which he is appointed. On basis of recommendation of such Pay Commission the aforesaid order dated 7.3.1990 was issued. Paragraph 4 of the said order: "4. Drawal of pay in the revised scab-Save as otherwise provided in this order, an employee shall draw pay in the revised scale applicable to the post to which he is appointed. Provided that an employee who was in service on the 31st December, 1985 and who opts to come over to the revised scale of pay together with the revised terms and conditions of service, as may be determined by the Government, may elect to draw pay in the revised scale from any date between the 1st January 1986 and the 1st January, 1990 and continue to draw pay in the existing scale prior to that date. On electing to draw pay in the revised scale, such an employee shall draw pay in the revised scale corresponding to his existing scale. Paragraph 5 of the said order: 5 Option- (1) The option under the proviso to para 4 shall be exercised within 90 days from the date of issue of this order. (2) A teacher or a non-teaching employee of a Government Aided/ sponsored educational institution who was in service on the 31st December, 1985 may, at his discretion, retain his existing scale of pay and existing terms and conditions of service. Provided that such a teacher or a non-teaching employee who has not attained the age of superannuation, as prescribed in para 17, on the date of issue of this order and who will not attain the age of superannuation, as prescribed in para 17, within 90 days from the date of issue of this order may come over to the revised scale of pay together with the revised terms and conditions of service as may be determined by the Government, with effect from such date as he may choose in terms of the proviso to para 4, by exercising option in this regard in the appropriate form within 90 days from the date of issue of this order. On coming over to the revised scale of pay, such a teacher or a non-teaching employee shall retire on attaining the age of superannuation as prescribed in para 17. * * * * * * * * Note 3 The forms in which option shall be exercised have been set out in Annexure VIIIA, VIIIB and VIIIC. On coming over to the revised scale of pay, such a teacher or a non-teaching employee shall retire on attaining the age of superannuation as prescribed in para 17. * * * * * * * * Note 3 The forms in which option shall be exercised have been set out in Annexure VIIIA, VIIIB and VIIIC. Paragraph 17 of the said order: "17. Age of superannuation and related issues- (1) Subject to the provisions of para 5, the age of superannuation of all categories of teaching and non-teaching employees who elect to come over to revised scales of pay shall be fixed at 60 years, as per recommendation of the 3rd Pay Commission. (2) The teaching and non-teaching employees of an aided/sponsored educational institution or organisation who will out for the revised scales of pay shall be allowed to enjoy pensionary benefits including dearness relief at par with State Government employees. Maximum amount of gratuity shall be raised from 36,000/- to Rs.60,000/-. Orders in this respect will follow" 64. In view of the first proviso to paragraph 5(2) of the order aforesaid the teachers who had not attained the age of superannuation as prescribed in paragraph 11 aforesaid on the date of issuance of the aforesaid order, for getting the revised scales of pay are required to exercise their option in the appropriate form. For teachers like the writ petitioners, they have to exercise their option in form prescribed in Annexure VIIIB which is as follows: ANNEXURE-VIII B FORM OF OPTION (TO BE USED BY THOSE COVERED BY THE FIRST PROVISO TO PARA 5(2) OF THE ORDER) I ......... have read carefully the contents of Memo No. 33-Edn (B), dated 7.3 1990 and I agree to abide by the terms and conditions stipulated therein and I will not apply for extension of my service on attaining the age of superannuation prescribed in para 17 of the order." i) 1......... hereby elect for the revised scale of Rs, ............ of my substantive/officiating/temporary post with effect from 1st January, 1986. ii) 1......... hereby elect to continue in the existing scale of pay of Rs. ............... if my substantive/officiating/temporary post mentioned below till ............19............ and to come under the revised scale of Rs. ............... with effect from ............19............. Station Signature Name Date: Designation (Substantive Officiating/Temporary) Name of the Institution District Signature Head, of the Institution. 65. ii) 1......... hereby elect to continue in the existing scale of pay of Rs. ............... if my substantive/officiating/temporary post mentioned below till ............19............ and to come under the revised scale of Rs. ............... with effect from ............19............. Station Signature Name Date: Designation (Substantive Officiating/Temporary) Name of the Institution District Signature Head, of the Institution. 65. Form VIIIB aforesaid clearly says that those governed by first proviso to para 5(2) of the order have to exercise their option in that form, Paragraph 1 of the form requires each teacher to exercise his option by saying that for having opted for the revised scales of pay he shall not apply for extension of his service on attaining the age of superannuation i.e. 60 years. It may be pointed out that in the earlier order dated 31.7.1981 by which the revised scales of pay were offered on certain conditions, the poetess were not required to exercise their option in writing saying that having opted for the revised scales of pay they shall not apply for extension of service on attaining the age of 60 years. Because of that I have already held in respect of that order that neither the right to be considered for extension of service after superannuation, in terms of Rule 28 aforesaid, has been extinguished by opting for the revised scales of pay nor such right has been waived because they were not told specifically about the same in the order dated. 31.7.1981 or by any order issued later before they exercised their option for the revised scales of pay. 66. But the position, so far as 7.3.1990 order is concerned, is different. It requires each teacher to exercise his option for further revised scales of pay filling up the form prescribed in Annexure VIIIB of the order requiring such optee for revised scales of pay to undertake that he shall not apply for extension of his service after superannuation. 67. Waiver means abandonment of a right which includes a statutory right where no public policy is involved. Such relinquishment must be intentional and voluntary of a known right. There can be no waiver unless a person who is supposed to have waived is fully informed of such tight and thereafter he intentionally abandons it. 67. Waiver means abandonment of a right which includes a statutory right where no public policy is involved. Such relinquishment must be intentional and voluntary of a known right. There can be no waiver unless a person who is supposed to have waived is fully informed of such tight and thereafter he intentionally abandons it. As such if any teacher exercises his option as required by paragraph 5(2) of the order dated 7.3.1990, in form prescribed in Annexure VIIIB aforesaid saying that he has carefully read the contents of that Memo No. 33-Edn(B) dated 7.3.1990 and he agrees "to abide by the terms and conditions stipulated therein" and that he "will not apply for extension of service on attaining the age of superannuation prescribed in para 17 of the order", is there any scope for argument that such individual teacher has not been fully informed as to his right and he has not abandoned his right to be considered for extension 'of his service after superannuation intentionally? In view of the settled position by series of judgments referred to above that individual statutory right can be waived, by exercising option in the form prescribed in the order dated 7.3.1990 saying that such optee for the revised scales of pay shall not apply for extension of his service, it shall be deemed that statutory right under Rule 28 has been waived. 68. Faced with this situation learned Counsel appearing for the writ petitioners submitted that by the aforesaid order dated 7.3.1990 an artificial class is being created of teachers who opt for the revised scales of pay with an undertaking not to apply for extension of their services, whereas others are being forced to continue with the old scales of pay with the existing conditions of service. It was pointed out that those who are compelled to continue on old existing scales of pay with the existing conditions are being denied a Jiving wage which is Violative of Article 23 of the Constitution. In this connection reference was wade to the judgment of the Supreme Court in the case of Peoples Union for Democratic Rights & Ors. v. Union of India & Ors. ( AIR 1982 SC 1473 ). It was also pointed out that the order dated 7.3 1990 applies a condemned principle of "take it or leave it". In this connection reference was wade to the judgment of the Supreme Court in the case of Peoples Union for Democratic Rights & Ors. v. Union of India & Ors. ( AIR 1982 SC 1473 ). It was also pointed out that the order dated 7.3 1990 applies a condemned principle of "take it or leave it". According to the learned Counsel it is no option in its true sense; rather the teachers are being forced to abandon their statutory right by a compulsive procedure provided in the order. It was urged I hat the object of the State Government was to revise the cases of pay of all teachers on basis of the Report of the Third Pay Commission and there was no occasion to introduce option clause in the order while revising the scales of pay. Reference was also made to the case of Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr. ( AIR 1986 SC 1571 ) where it has been pointed out that in many situations one party to the agreement is not in a position to bargain and becomes victim to the principle "take it or leave it" and Courts can interfere in those situations. 69. It is an admitted position that the reference to the Third Pay Commission included examination of "the structure of emoluments and conditions of service of such teacher". While considering the question of revised scales of ply, the Commission also considered the question of fixing the age of superannuation in-depth and has recommended in its report that 60 years be fixed as the date of compulsory retirement of all teachers. In view of aforesaid recommendation an order was issued giving option to the teachers who were in service on 31st December 1985 either to opt for revised scales of pay and retire at the age of 60 years or to continue on the existing scales of pay with the benefit of being considered for extension of service in accordance with Rule 28 aforesaid. It doe, not appear that there was any element of compulsion while making such offer. It is up to individual teacher either to opt for one or the other. In this connection reference may be made to the case of N. Lakshmana Rao & Ors. etc. v. State of Karnataka & Ors. etc. It doe, not appear that there was any element of compulsion while making such offer. It is up to individual teacher either to opt for one or the other. In this connection reference may be made to the case of N. Lakshmana Rao & Ors. etc. v. State of Karnataka & Ors. etc. ( AIR 1975 SC 1646 ), where the teachers of local bodies were given option to be absorbed in the Government service by an order issued by the State Government on the terms and conditions mentioned therein In that connection it was observed by the Supreme Court: The form of option is the contract. This exercise of option is itself the contract. The option is to be absorbed or not to be absorbed. The contractual term is that the teacher will be absorbed as a Government servant. The term in the agreement between the Government and the Local Body that the conditions of service will not be varied to the disadvantage of the teachers has been read by all teachers who exercised the option 10 be absorbed. The conditions of service referred to therein are the conditions of service of the State of Mysore". 70. It was held that the teachers who exercised the option in the form were subject to change in the conditions of service. According to me the offer to exercise the option for the revised scales of pay with a condition that such optee shall not apply for extension of his service after superannuation is not violative of Article 14 of the Constitution, as such there is no question of applying the principle laid down by the Supreme Court in the case of D.S. Nakara & Ors. v. Union of India (supra) and Central Inland Water Transport Corporation Ltd. & Anr. v. Brojo Nath Ganguly & Anr. (supra). It need not be pointed out that in those cases there was no provision for exercise of any option leaving the decision to be taken by the optees concerned. On basis of the aforesaid decision of the Supreme Court in the case of D. S. Nakara (supra) part of the paragraph 6 of order dated 31.7.1981 has been held by me to be unconstitutional because even the optees for the revised scales of pay had been put in three classes for purpose of superannuation from service without there being any rational bar-is for such classification. This classification was not on basis of any option exercised by such teachers. But in the order dated 7.3.1990 the decision has been left to the teachers concerned to exercise their option for one or the other. Unless both the options are held to be unreasonable, arbitrary as such violative of Article 14 of the Constitution there is no scope for quashing the order dated 7.3.1990 or any part thereof. 71. We are informed that during the pendency of the writ application by an order passed by this Court teachers were directed to exercise their option in form prescribed in Annexure VIIIB aforesaid without prejudice to their rights and contentions raised in the writ application. Now in view of the present judgment it is only just and proper that a fresh Opportunity should be given to such teachers to exercise their option in accordance with paragraph 5(2) in the form prescribed in Annexure VIIIB within a specified time to be fixed by the Stale Government. Thereafter the State Government shall take a decision on basis of option so exercised. Those teachers who exercise their option in the form aforesaid, shall be deemed to have waived their statutory right under Rule 28 for being considered for extension of their service after superannuation. Those who do not exercise their option in the form and out to continue in service with the existing scale of pay shall be considered for extension of their service in accordance with Rule 28 after superannuation at the age of 60 years. 72. In the result the appeal No. F.M.A.T. No. 1425 of 1990 is allowed. The judgment of the learned Trial Judge is set aside. The connected writ application is allowed. 73. So far the writ application No. C.O. 6605 (W) of 1990 in which the validity of the aforesaid order dated 7.3.1990 of the State Government had been questioned is dismissed subject to direction given above to give fresh opportunity to each teacher to exercise his option in the form prescribed in the order in question. In the facts and circumstances of the case, each parties shall bear their own costs. Taruu Chatterjee, J.- I agree. F.M.A.T. No. 1425 of 1990. allowed; Writ application No. C.O. 6605(W) of 1990, dismissed subject to direction to give fresh opportunity to each teacher to exercise his option in the form prescribed in the order in question.