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Allahabad High Court · body

1991 DIGILAW 433 (ALL)

Syed Husain v. State of U. P.

1991-03-14

S.N.SAHAY

body1991
JUDGMENT S. N. Sahay, J. - This is petition under Article 226 of the Constitution for quashing the notice dated 19th August, 1987, contained in Annexure 5 and for directing the opposite party No. 2 to extend the services of the petitioner upto the end of the Session, that is 30th April, 1988. 2. The petitioner was appointed under the National Discipline Scheme of the Central Government by order dated 7th September, 1963, for imparting physical education training to children. The services of the petitioner were transferred to the Education department of the U. P. Government in 1976 by order dated 25th August, 1976. By means of the impugned order dated 19th August, 1987 Annexure 5, the petitioner was 'informed by the District Inspector of Schools, Lucknow 'that the date of birth of the petitioner Was 15th August, 1929 and he would attain the age of 58 years 6n 15th August, 1987 and he would, therefore, be retired from service on 31st August, 1987 according to the government orders. The petitioner claims that he is entitled to remain in service upto the end of the 'academic session on the ground that there should be parity between him and other physical education teachers working in the Higher Secondary Schools. 3. The question which arises for determination is whether any discrimination can be made in the matter of fixation of date of retirement as between National Discipline Instructors and other teachers working in Higher Secondary Schools. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or equality of the law within the territory of India. It has become classic by now that Article 14 prohibits class legislation and not reasonable classification and in order to pass the test of reasonable classification, it is essential that two conditions are fulfilled, namely (i) that the classification is founded on the intelligible differentia, which distinguishes persons or things that are grouped together from other left out of the group and that the differentia most have a reasonable relation to the object sought to be achieved. What is necessary is that there must be a nexus between the basis of classification and the object under consideration. This principle has been applied in a recent case of Union of India v. K. T. Shastri, AIR 1990 SC 891 . which deals with age of retirement. What is necessary is that there must be a nexus between the basis of classification and the object under consideration. This principle has been applied in a recent case of Union of India v. K. T. Shastri, AIR 1990 SC 891 . which deals with age of retirement. In that case the respondent was recruited in 1966 as Senior Scientific Officer in Defence Science Service and was posted in Directorate, Technical Development and Production (Air). The services consisted of three units, Defence Research and Development Organisation, Director General of Inspection and Directorate of Technical Development and Production (Air). In 1979, the aforesaid service was bifurcated and DRDO was constituted into Defence Research and Development Service; DIDP was constituted into Defence Aeronautical Quality Assurance Service; and DGI was constituted as Defence Quality Assurance Service. No option was given to the employees working in different Units to opt for one or the other of the Units. It was held that the service conditions will have to run parallel and no discrimination can be made between them by a unilateral action. In the circumstances, the denial of the benefits of the enhanced age of superannuation to the members of the one Unit while the same was granted to the members of the other Unit, was held to amount to discrimination and violative of Article 16 of the Constitution. 4. The counter affidavit shows that a National Discipline Scheme was launched by the Government of India as a programme for installing discipline and imparting training in mass drill among younger generation in refugy camps & colonies. After the work habilitation ended, National Fitness Corps was set up as a successor Organisation to the National Discipline Scheme. Later on the Government of India decided in consultation with the State Government that the National Fitness Corps Scheme should be introduced in Schools and that the NDS Instructors should be transferred under the States and were to function in the Schools under the administrative control of the State Government. Later on the Government of India decided in consultation with the State Government that the National Fitness Corps Scheme should be introduced in Schools and that the NDS Instructors should be transferred under the States and were to function in the Schools under the administrative control of the State Government. The terms finally approved by the two governments for the absorption of NDS Instructors in the State Service inter alia provided that (i) the State Government would create requisite number of the posts to enable them to take over the NDS Instructors, (ii) the services rendered by the NDS Instructors in the Central Government would count for fixation of pay in the State Service and retirement benefits, and (iii) the pay and allowances drawn by the NDS Instructors under the Central Government at the time of absorption will be protected. The State Government did not agree that NDS Traning shall be considered equivalent to diploma in Physical education considered equivalent to diploma in physical education or certificate in physical education or to absorb NDA Instructors as teachers in LT or CT grade. It was accordingly provided by Government order dated 5th April, 1978 (AnnexureCA5) that NDS Instructors would not be given the benefit of retirement at the end of the session. 5. It will be deemed that the object of the State policy in permitting the teachers to be retained in service till the end of the academic session was to serve public interest and not to confer benefit on the individual teachers. The benefit which accrued to the individual teachers was merely incidential to their being retained in service inasmuch as they would be entitled to payment of salary and allowances for some time even beyond the date of superannuation. The object must be taken to be to ensure continuity in the matter of imparting instructions to students and to prevent dislocation due to retirement of a teacher during mid session. The basis of classification between physical education teachers and NDS Instructors for the purposes of the date of retitement is stated to be the educational qualifications possessed by them. The teachers who are in CT or LT grade or possess diploma or certificate in physical education have avowedly no equivalence with the NDS Instructor's Who have to their credit NDS training only. The teachers who are in CT or LT grade or possess diploma or certificate in physical education have avowedly no equivalence with the NDS Instructor's Who have to their credit NDS training only. It may be that educational qualification may afford a rational basis for classification but it has no nexus with the object sought to be achieved in the instant case. There can be no doubt that the teachers and NDS Instructors both imparted instructions in physical education to the students and it Was never considered that their performance was in any affected by the educational qualifications possessed by them. On the contrary they Were employed with eyes open to impart instructions OB the basis of their educational qualifications. It cannot stand to reason for a moment that educational qualifications can be regarded as a factor of an overriding nature Superannuation Will impair the faculty of both the teachers and NDS Instructors equally in the matter of imparting instructions on account of age factor or none at all and educational qualification will hardly have any effect on the ability or capacity to impart instructions on reaching that point of time. Therefore, educational qualification has got no rational relation to the object sought to be achieved by fixing different dates of retirement and it will be unreasonable to classify the NDS Instructors on tile basis of educational qualifications for being discriminated against for the purposes of being retired at the end of the academic session. The direction contained in the Government order dated 5th April, 1978, Annexure, CA5, is, therefore violative of Articles 14 and 16 of the Constitution and is void and unenforcible. The NDS Instructors have a right to be placed at par with other teachers for being retired at the end of the academic session. In this view of the matter, the writ petition is liable to be allowed partly. Since the1 petitioner claimed that he has a fight to continue in service upto 30th April,' 1988 and that date has already passed and the petitioner has worked under stay orders, it is not necessary to give any further direction in this behalf. 6. The writ petition is partly allowed and the direction contained. Since the1 petitioner claimed that he has a fight to continue in service upto 30th April,' 1988 and that date has already passed and the petitioner has worked under stay orders, it is not necessary to give any further direction in this behalf. 6. The writ petition is partly allowed and the direction contained. In Government order dated 5th April, 1978 (Annexure CA5), which provides that there is no justification to grant extension of service to NDS instructors till the end of the academic session that is 30th June, in case the date of superannuation falls in the mid session, is hereby quashed and the opposite parties are directed to treat NDS Instructors equally with other teachers in this respect. The parties are directed to bear their own costs. (Petition allowed partly.)