V.K. Khanna, C.J. — The present appeal has been filed against the judgment of the learned Single Judge dated 7th January, 1994 in Civil Rule No.2733 of 1991. 2. We have heard Mr. PK Goswami, Senior Advocate for the appellant at some length and also the counsel appearing for the respondents and the present appeal is being finally decided. 3. Civil Rule No.2733 of 1991 was filed by the appellant-petitioner, which is a society recognised by the State of Assam and representing the teachers and other employees of the High and Higher Secondary and Madrassa Schools of Assam. Admittedly the schools, whose employees the appellant-petitioner represents, where in receipt of grants from the State Government for maintenance and to the aforesaid schools and the provisions of the Assam Aided High and Higher Secondary School Employees' Rules, 1960 (hereinafter referred to as the Rules, 1960) applied. The aforesaid Rules, 1960 were later on amended in the year 1965 and a new set of Rules were framed which were known as "Amended Assam Aided High and Higher Secondary School Employees Rules, 1965" (hereinafter referred to as the Rules, 1965). As per these Rules, the age of superannuation of teachers is 60 years, which may extend upto the age of 63 years and, in some cases, it may extend beyond the age of 63 years, subject to the maximum period of one year. 4. An Ordinance, known as the Assam Secondary Education (Provincialisation) Ordinance, 1977 was issued by the State of Assam provincialising the services of the teachers and other employees of all Secondary Schools of the State. The aforesaid Ordinance was made in force from 1.10.1977. The Ordinance was thereafter repealed and was replaced by the Assam 'Secondary Education (Provincialisation) Act, 1977 (hereinafter referred to as Act, 1977). 5. Before the learned Single Judge the appellant/petitioner had challenged the provisions of section 4 (1) and section 4 (3) of the Act. 1977 as being ultra vires and unconstitutional as no guidelines were prescribed under the Act, 1977 prescribing the manner of exercising option as laid down under section 4 of the Act, 1977 to enable the employees to exercise their option to continue upto the age of 60 years. 1977 as being ultra vires and unconstitutional as no guidelines were prescribed under the Act, 1977 prescribing the manner of exercising option as laid down under section 4 of the Act, 1977 to enable the employees to exercise their option to continue upto the age of 60 years. The prayer was made for issuance of a writ of Mandamus and/ or Certiorari striking down the provisions of section 4 (1) of the Act fixing 58 years as the age of superannuation for both existing employees and employees joining service after provincialisation, and section 4 (3) of the Act providing the clause disentitling the existing employees the benefits of pension and gratuity in the event of exercising option to serve upto 60 years and directing the respondents to fix 60 years of age for superannuation of all the employees of Secondary Schools provincialised by Act, 1977; providing pension and gratuity after superannuation on completion of 60 years of age; allow the existing employees to continue upto 60 years of age irrespective of the fact that these employees have or have not exercised any option to serve upto 60 years with provision of pension and gratuity after superannuation; refrain from superannuating the existing employees or any other employee on attainment of 5 8 years of age till opportunities are given to the existing employees to exercise option according to law as laid down in section 4 (3), (4) and 8 (2) (ii) and (3) of the Act, 1977. 6. 6. It may be stated that before the learned Single Judge only three points were urged, which would be clear from the judgment, which reads as follows : "(a) The Government have not yet prescribed the manner of exercising option as required under section 4 of the Act, thus the existing employees have been deprived of the opportunity to exercise the option; (b) There has been violation of equality clause of Article 14, inasmuch as, a class of teachers retiring at the age of 58 years shall be entitled to pension and gratuity etc and the other teachers who continue to serve upto the age of 60 years of age by exercising the option are deprived of the benefit of pension and gratuity; and (c) In spite of recommendations of various Commissions, recommending the age of superannuation of teachers at 60 years, the Government of Assam have not taken any step to raise the age of superannuation, even though the {Central Government and some of the State Governments have already implemented the recommendations." 7. The learnes Single Judge held that there was no violation of the provisions of Article 14 and that even though it was true that various Commissions have recommended that the age of retirement of the teachers should be 60 years, the learned Single Judge held that the State Government would take steps to implement the recommendations of those Commissions, which have been implemented by the Central Government and some of the State Governments, as informed by the petitioner. As far as prescribing the manner of exercising option, it was held that the State of Assam shall make all endeavour to prescribe the manner as provided in section 4 (4) of the Act as expeditiously as possible, at any rate, within a period of one month from the date of receipt of the judgment. 8. The learned Single Judge, however, made it clear that the teachers who were continuing beyond 58 years shall get the benefit as stated in section 4 (3) of the Rules and they shall be deemed to have exercised their option to continue upto the age of 60 years and those who had already retired from service after 60 years, shall be paid their dues as expeditiously as possible, at any rate, within a period of two months from the date of receipt of the judgment. In terms of the aforesaid observations, the petition was disposed of. 9. At the very outset it may be stated that the dispute in the present appeal is only confined to the employees who have been treated to be 'existing employees' under the Act, 1977. It would, therefore, be of importance to take note of the provisions which were prevailing prior to the enforcement of the aforesaid Act, 1977. The existing employees of the High and Higher Secondary Schools in Assam were governed by the Rules, 1960 and their conditions of service were governed by Rule 11, which runs as follows : "Rule 11 : Superannuation - All employees of Aided High and Higher Secondary Schools shall retire on attaining age of 60 years. Provided that the Managing Committee may, for any special reasons, recommend to the Director of Public Instruction for extension of service to an employee beyond 60 years and the Director of Public Instruction may, on merit of the ease and subject to the employee being certified by a Medical Officer duly authorised for the purpose as physically and mentally fit, grant extension for a period not exceeding one year at a time. No member shall, however, be retained in service beyond the age of 63 years." 10. Thereafter came in force Rules, 1965. In these Rules, Rule 11 remained the same, however, with the addition of another clause as clause (ii), which runs , as follows: "Clause (ii) : In special circumstances the Government may allow extension of service beyond the age of 63 years subject to the maximum period of one year only." 11. Thereafter the Government of Assam promulgated the Ordinance of 1977, which came into force on 1.10.1977, and which was later on replaced by Act, 1977. For the purpose of adjudication of the present case, the relevant provisions of the aforesaid Act, 1977 would be section 2 (i), (v) and (vi), which runs as follows: "2. Definitions: In this Act unless there is anything repugnant in the subject or context; (i) 'appointed day' in relation to any area means the day on which this Act comes into force in that area;...... Definitions: In this Act unless there is anything repugnant in the subject or context; (i) 'appointed day' in relation to any area means the day on which this Act comes into force in that area;...... (v) 'employee' means a person in the employment of a school working against a regularly sanctioned post and whose appointment has been approved by the school authority wherever such approval was necessary; (vi) 'existing employee' means an employee who is, on the appointed day, in f the regular pay roll, employee against regular sanction and whose appointment has been approved by the school authority;" Section 3 of the aforesaid Act, 1977 will also have a very important bearing, which runs as follows : "3. Employees to be Government servants: Subject to the provisions of Article 30 of the Constitution of India, on and from the appointed day all employees of all Secondary Schools in the State of Assam shall be deemed to have become employees of the State Government of Assam with effect from the date of appointment on the following terms and conditions : (1) All rules including service rules and rules of conduct and discipline which are applicable to Government servants of corresponding ranks shall be applicable to all employees. (2) All employees shall get such emoluments as salary and allowances as may be prescribed: Provided that no employee shall get as emoluments any amount which is less than the amount he was getting immediately before the appointed day. (3) Service of all the employees shall be encadred in appropriate cadres in accordance with the rules framed by the State Government for this purpose. (4) The 'inter se' seniority of the employees of a cadre or class shall be determined on the basis of principle laid down in the rules framed under this Act." 12. The provisions of section 4 of Act, 1977 have been challenged specifically, which are to the following effect: "4. Superannuation and pension, etc : (1) Notwithstanding anything in the preceding section all employees other than Grade IV employees of a Secondary School coming within the purview of this Act shall, on attaining the age of 58 years, go on superannuation. Grade IV employees shall go on superannuation on attaining the age of 60 years. Superannuation and pension, etc : (1) Notwithstanding anything in the preceding section all employees other than Grade IV employees of a Secondary School coming within the purview of this Act shall, on attaining the age of 58 years, go on superannuation. Grade IV employees shall go on superannuation on attaining the age of 60 years. (2) All employees going on superannuation under the preceding sub-section shall be eligible to pension or gratuity or both in accordance with the Pension Rules applicable to the Government servants of equivalent rank. In such a case the employer's contribution along with accumulated interest therein made towards the Provident Fund of the existing employee concerned before such superannuation shall be paid back to and recovered by the State Government of Assam. (3) Any existing employee, other than the Grade IV employees, who does not intend to go on superannuation on attaining the age of 58 years shall have the option to continue upto the completion of the age of 60 years under the same terms and conditions which were applicable to him before the appointed day in which case he shall not be entitled to any pension or gratuity. (4) Any existing employee, other than Grade IV employees, who does not intend to go on superannuation on attaining the age of 58 years but wants to continue till the completion of 60 years shall give an option in writing to that effect in the manner prescribed within a period of three months from the appointed day. Any existing employee who does not give such option in writing within the date specified above shall be deemed to have opted for going on superannuation on attaining the age of 58 years." 13. A bare perusal of Rule 11 of the Rules, 1960 would show that the existing employees of the Aided High and Higher Secondary Schools would retire at the age of 60 years which could be extended upto 63 years. Under the aforesaid Rules, they are also entitled to the benefits of CCF Scheme. 14. A bare perusal of Rule 11 of the Rules, 1960 would show that the existing employees of the Aided High and Higher Secondary Schools would retire at the age of 60 years which could be extended upto 63 years. Under the aforesaid Rules, they are also entitled to the benefits of CCF Scheme. 14. The change made by the Act, 1977 as would be noticed from the appointed day, that is, 1.10.77 was that all the employees of the Higher Secondary Schools in the State of Assam shall be the employees of the Government of Assam and all rules including service rules and rules of conduct and discipline were made applicable under section 3 of the aforesaid Act. It is therefore clear that the age of superannuation of the Government servants of the State of Assam except Grade IV employees is 58 years and the same became applicable to the existing employees. 15. Provisions of section 4 of the Act 1977 are under challenge on the ground that the classification made between the existing employees and the other employees is discriminatory as according to the learned counsel appearing for the appellant the getting of pension is a right of the Government servant earned for the period he has worked and the classification could only be permissible if it has reasonable nexus with the purpose to be achieved. It has been urged that the classification made therefore is arbitrary and liable to be struck down. 16. After hearing the learned counsel for the parties we are however of the opinion that if one looks to the history of the entire legislation which governs the existing employees it would become clear that the classification cannot be said to be suffering from any vice. Under the earlier rules governing the service of the existing employees they were not entitled to any pension and were only entitled to the benefit of the CCF Scheme, of course, they were entitled to be superannuated at the age of 60. After enactment of the Act 1977 the existing employees were being given an option to either opt for the service conditions which were applicable to all the Government servants of the State of Assam or opt for the conditions of service which were applicable to the existing employees at the time when the Act of 1977 was enforced. After enactment of the Act 1977 the existing employees were being given an option to either opt for the service conditions which were applicable to all the Government servants of the State of Assam or opt for the conditions of service which were applicable to the existing employees at the time when the Act of 1977 was enforced. In our opinion, learned Single Judge has rightly held that the said classification cannot be called to be bad as for the purpose of classification one can also see the historical background. The Apex Court in the case of Roop Chand vs. Delhi Development Authority, AIR 1989 SC 307 , has held: "But then the process of classification is in itself productive of inequlity and in that sense antithetical of equality. The process would be constitutionally valid if it recognises a pre-existing inequality and acts in aid of amelioration of the effects of such pre-existent inequality. But the process cannot in itself generate or aggravate the inequality. The process cannot merely blow up or magnify insubstantial or microscopic differences on merely meretricious or plausible differences. The over emphasis on the doctrine of classification or any anxious and sustained attempts to discover some basis for classification may gradually and imperceptibly deprive the article of its precious content and end in replacing doctrine of equality by the doctrine of classification. The presumption of good faith in and of constitutionality of a classification cannot be pushed "to the point of predicating some possible or hypothetical but undisclosed and unknown reason for a classification rendering the precious guarantee of equality a mere rope of sand." In our opinion, by no stretch of imagination, it can be said that the existing employees are similarly situated. Moreover, the existing employees were being given option in case they wanted to get the benefits which were available to the Government servants they could have opted for the same. The Act of 1977 only placed before them a choice that in case they thought that the earlier conditions of service applicable to them were better the same would apply in the terms in which they were provided. Of course, there is no dispute that as far as the existing employees are concerned they were not entitled to pension. The classification, in our opinion, therefore cannot be said to be bad on any score. 17. Of course, there is no dispute that as far as the existing employees are concerned they were not entitled to pension. The classification, in our opinion, therefore cannot be said to be bad on any score. 17. As far as the argument that in view of various recommendations made by the Commissions raising the age of superannuation of the employees to 60 years is concerned, in our opinion, the learned Single Judge has taken the correct view. What should be the age of retirement is a question of policy which the concerned Government can prescribe for its employees. Learned counsel appearing for the appellants has not disputed this proposition as it has now been well settled by the Apex Court that the age of retirement by Govt. even during the continuance of service of their employees can be reduced. As the learned Single Judge observed that it will be for the Government to consider the recommendations regarding increasing of the age of superannuation in case of teachers to 60 years in view of various recommendations by the Commissions; we are of the opinion that the view expressed by the learned Single Judge is correct and requires no interference. 18. The next question which arises for consideration is as to what is the effect of the Government not prescribing the manner in which option has to be exercised by the existing employees in view of the specific provisions of section 4 (4) of the Act 1977 as it has been stated that till now no such form has been prescribed by the Government. In our opinion, if one looks to the entire provisions of the Act 1977 it becomes clear that under section 3 all the existing employees have become the employees of the State Government and all the service rules, rules of conduct and discipline applicable to the Government servants start applying. It is only under section 4 that special provision has been made in respect of existing employees. It is only under section 4 that special provision has been made in respect of existing employees. Under section 4 (3), it has been stated that in case an existing employee (other than Grade IV employees), who does not intend to go on superannuation on attaining the age of 58 years shall have the option to continue upto the completion of the age of 60 years under the same terms and conditions which were applicable to him before the appointed day in which case he shall not be entitled to any pension or gratuity. It is sub-section (4) of section 4 which provides that an existing employee who choses to give option to continue till the completion of 60 years, he shall have to give option in writing in a manner prescribed within a period of 3 months from the appointed day. 19. The crucial question which falls for determination is that admittedly the Government has not prescribed any form. However, counsel for both the parties have not disputed .this fact that some of the teachers have themselves given option and are continuing beyond 58 years in view of that option. Some of the Deputy Inspector of Schools have asked the existing employees to give their options and options have been obtained in pursuance of that direction given by the Deputy Inspector of Schools. In pursuance of the interim order granted in the appeal, the existing employees were given a choice to give option within the prescribed period and those who have given option either to retire at the age of 58 years or to continue upto 60 years are being governed by those options because of that interim order passed by this Court in the appeal. 20. This Court asked the original records to be produced before this Court and the Commissioner-cum-Secretary to the Government of Assam, Education Department to be present before the Court to explain the position. The position which emerges from the statement made by the Commissioner-cum-Secretary and also from the original records is very interesting. There are existing employees who are continuing beyond the age of 58 years but now have given option application to the Commissioner-cum-Secretary and the Commissioner-cum-Secretary has allowed their application to exercise option to retire at the age of 58 years provided they deposit their extra salary which they had received because of continuance beyond the age of 58 years. There are existing employees who are continuing beyond the age of 58 years but now have given option application to the Commissioner-cum-Secretary and the Commissioner-cum-Secretary has allowed their application to exercise option to retire at the age of 58 years provided they deposit their extra salary which they had received because of continuance beyond the age of 58 years. There cannot be any iota of doubt that the option has to be exercised by the teachers in the prescribed form within three months from the appointed day. The Commissioner-cum-Secretary has no power under the Act of 1977 to change the provisions of section 4 of the Act 1977. However, looking to the entire facts and circumstances of the case, we are of the opinion that the entire confusion in this matter has been created because of inaction on the part of the State Government. It is clear that the provisions of the Act 1977 are not being followed strictly. In these circumstances, we are of the opinion that within one month from the date of passing of its judgment, the Government will take a decision in this matter. Of course, it will be open for the Government to make proper amendments so that this confusion should no longer prevail and the provisions of the Act, 1977 may even be suitably amended so as to clear the state of confusion which is the result of the inaction of the State Government. 21. We are thus of the opinion that the view taken by the learned Single Judge is correct and the impugned judgment passed by the learned Single Judge requires no interference in this appeal. 22. Subject to the aforesaid observations, the present appeal is finally disposed of. However, looking to the facts and circumstances of the case, the parties shall bear their own costs.