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2000 DIGILAW 169 (GAU)

Munindra Charan Kalita v. Dhani Ram Kalita

2000-05-05

BRIJESH KUMAR, D.N.CHOWDHURY

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Brijesh Kumar, CJ. — This appeal has been preerred against the judgment and order dated 27.9.99 passed by the learned Single Judge in Writ Petition (Civil) No. 4798 of 1999, by which a direction was given to the Director of Secondary Education, Assam, to pass orders allowing the petitioner to continue upto the age of 60 years in terms of Section 4(3) of the Assam Secondary Education (Provincialisation) Act, 1977 (Assam Act No. XIX of 1977), hereinafter be called the Act. The appellants felt aggrieved by the aforesaid order. Hence, this appeal. 2. We have heard Shri M. Bhuyan, learned counsel for the appellants, Shri B. Choudhury, learned Govt. Advocate, appearing for the State and Shri B.K. Sharma, learned counsel appearing for the petitioner/respondent No. 1. 3. The petitioner/respondent No. 1, Dhani Ram Kalita, has been working as Headmaster of Boko High School, and was due for superannuation on 31.10.1999, on attaining the age of 58 years. However, before the aforesaid date of superannuation, he gave an option dated 23.7.99, for continuance in service upto the age of 60 years, in terms of Section 4(3) of the Act. This request was, however, turned down, which gave rise to the filing of the writ petition by the petitioner/ respondent No. 1. 4. The appellant No. 1, Munindra Charan Kalita, is working as Assistant Headmaster of Boko High School. He would attain the age of 58 years in February, 2001. His grievance is that in case the petitioner/respondent No. 1 is given extension of service upto the age of 60 years, the appellant No. 1 would retire before October, 2001 and appellant No. 2, Sadeque AH, who alleges to be the seniormost Teacher in Boko High School, is due to retire on 31.5.2003, would also stand affected along with the entire chain of career progression of all the teachers of Boko High School, as their term to hold the post of Headmaster would stand curtailed. The petitioner/respondent No. 1 is not entitled under the law for being continued in service upto the age of 60 years. Any extension against the law would result in Civil consequences. 5. During the course of the argument a question which arose for consideration was as to whether the appellants would be entitled to maintain an appeal as aggrieved persons against an order passed by the learned Single Judge or not. Any extension against the law would result in Civil consequences. 5. During the course of the argument a question which arose for consideration was as to whether the appellants would be entitled to maintain an appeal as aggrieved persons against an order passed by the learned Single Judge or not. The petitioner/ respondent No. 1 was undoubtedly entitled to give his option for retention in service on the same terms and conditions as provided under Section 4(3) of the Act. The only objection raised on behalf of the appellants is about the fact that the option was not exercised within three months of the appointed date as per requirement of the law. That being the position, it is submitted that the petitioner/respondent No. 1 could not be considered for extension of his employment. Any extension, if granted, would be against the law and would deprive the appellant No. 1 of ever holding the post of Headmaster, as he would be retiring before the extended period of two years in the service of the petitioner/respondent" No. 1. So far appellant No. 2 is concerned, as indicated earlier he is not even an Assistant Headmaster; but only the seniormost teacher in the Boko High School. His retirement falls in May, 2003, that is to say, after the extended period of two years of service of the petitioner/respondent No. 1. For that matter, the case of the appellants is that career progression of all the teachers in general would stand adversely affected. 6. In our view, the consequences which are pressed into service so as to maintain the appeal are too remote to be taken into account to hold that such consequences would entitle them to maintain an appeal against the order directing the authorities to allow the petitioner/respondent No. 1 to continue upto the age of 60 years in terms of his option under Section 4(3) of the Act. In support of his contention that the appellants have locus standi to maintain the appeal, learned counsel for the appellants has placed reliance upon a case reported in AIR 1976 SC 578 , Jasbhai Motibhai Desai-Vs-Roshan Kumar, Haji Bashir Ahmed and others, in which it has been held that where a person has some special interest apart from general interest, it may be possible to maintain an action. The other decision, which has been relied upon is reported in (1993) Supp. The other decision, which has been relied upon is reported in (1993) Supp. (4) SCC 595, S. Nagaraj and others-Vs-State of Karnataka and another. Our attention has been drawn particularly to the observations made in para 18 of the judgment, where it has been observed that for the purpose of rectifying an error based on erroneous assumption of jurisdiction, there would be no barrier for the Court to examine and interfere with the order. The other two cases referred to are reported in (1996) 7 SCC 759 , V.P. Shrivastava and others-Vs-State ofM.P. and others, and AIR 1983 SC 769 , A. Janardhana-Vs-Union of India and others. They relate to dispute of inter se seniority and necessary parties to the petition. Those decisions may not have a bearing on the facts of the present case. 7. It may be pertinent to consider that it was open to all the teachers to give option, including the appellants. It is submitted that in case the petitioner/respondent No. 1 had given the option as provided under the provisions of the Act, the appellants might have at that stage also exercised their option for continuance in service upto the age of 60 years. But, that having not been done, the appellants were expecting their promotion to the higher post on the retirement of the petitioner/respondent No. 1 as the age of 58 years. In this connection, it may again be noticed that the option was exercised by the petitioner/respondent No. 1, though much belated, but when such circular was issued in the year 1998. At that stage also it was open to all to exercise any such option. The opportunity to give the option and to continue in service upto the age of 60 years on certain conditions, e.g., such persons would only be entitled for C.P.F. and not pensionary benefit, is a right which vests in the person concerned under the provisions of the statute. One may or may not opt, or one may prefer to have pensionary benefit instead of two years more of employment - all are individual consideration. The direction given by the Court to accept the prayer for extension of employment would be a matter between the employer and the employee concerned. 8. One may or may not opt, or one may prefer to have pensionary benefit instead of two years more of employment - all are individual consideration. The direction given by the Court to accept the prayer for extension of employment would be a matter between the employer and the employee concerned. 8. On behalf of the petitioner/ respondent No. 1 it has been indicated that there is a list of selected candidates for appointment to the post of Assistant Headmaster or Headmaster and the Principals. Headmasters on fulfilment of certain conditions are eligible for selection to the post of Principal. The selection list is prepared in accordance with the rules not for any particular institution, but persons selected may be posted to any school governed by the provisions of the Act and it is not necessary that the appellant No. 1 may get promotion to the post of headmaster only on retirement of the petitioner/respondent No. 1. He may be appointed in any other institution as well in case a vacancy is available. The promotion to the post of Principal is on the basis of selection by the Selection Board and not automatic on the basis of seniority alone. In this connection a reference has been made to different provisions of the Act. In our view, it is too remote an interest of the appellants, or, for that matter, as alleged, of all the teachers of the school in progression of their career, to entitle them to challenge the order directing the authorities to allow the petitioner/ respondent No. 1 to continue in service upto the age of 60 years. We, however, feel that despite the view which has been taken by us, as indicated above, it may be appropriate to consider the case of the appellants on merit as well. 9. In order to properly appreciate their case, we may peruse the relevant provisions of the Assam Secondary Education (Provincialisation) Act, 1977. We, however, feel that despite the view which has been taken by us, as indicated above, it may be appropriate to consider the case of the appellants on merit as well. 9. In order to properly appreciate their case, we may peruse the relevant provisions of the Assam Secondary Education (Provincialisation) Act, 1977. "Section 2(1) provides that - "Appointed Day" in relation to any area means the day on which the Act comes into force in that area." Sub-section (3) of Section 4 provides as follows:- "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." Sub-section (4) of Section 4 provides as follows:- "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." (Emphasis supplied) On the basis of the provision quoted above, it is submitted on behalf of the appellants that an existing employee has a right to give his option to continue upto the age of 60 years within a period of three months from the appointed day in the manner as may be prescribed. The appointed day, as indicated above, is the day on which the Act came into force in the area. The Act came into force on 1st October, 1977. Therefore, according to the appellants, it was open to the petitioner/ respondent No. 1 to give option within three months from the aforesaid date, whereas the option was given on 23.7.99, that is to say, after a period of about 22 years. 10. In connection with the above submission, it has been submitted that the option was to be given in the manner prescribed. 10. In connection with the above submission, it has been submitted that the option was to be given in the manner prescribed. Since there was no manner prescribed, the petitioner/ respondent No. 1 could not give his option earlier. In respect to the contention raised on behalf of the appellants that the manner of giving option was prescribed in Schedule II under Rule 4 of the Assam Secondary Education (Provincialisation) (Service and Conduct) Rules, 1979; hence, the petitioner/ respondent No. 1 that the Rules, though framed, had never been notified. Therefore, they never came into effect. This position has not been disputed by the appellants or by the State Counsel. It was by Circular dated 13.6.98 that option was asked for and in response whereof the petitioner/respondent No. 1 gave his option to continue upto the age of 60 years before he had attained the age of superannuation. In this light of the matter, perhaps, it may not be correct to contend that there was delay of 22 years in exercising the option. It is no doubt true that in a given case it may well be argued justifiably that Section 4(3) of the Act vests a right in a teacher to give his option to be continued upto the age of 60 years and if such an option is made, even without any manner prescribed for such option, the authorities shall not refuse the option simply for the reason that the manner has not been prescribed. Right to give option vests in an employee under Section 4(3) of the Act and correspondingly a duty is cast on the authorities to take a decision on such an option. The manner in which the option is to be exercised is a procedural matter. But, here the position seems to be different and in the reverse. Since the manner was not prescribed and the authorities called for the option only in 1998 upon which a teacher gives his option, the authority concerned may not be right in saying that since option was not given earlier, the same could not be considered at all. The rights vested in a party under the provisions of the Act cannot be whittled down by merely not providing the manner in winch a party has to express his willingness to continue upto the age of 60 years. The rights vested in a party under the provisions of the Act cannot be whittled down by merely not providing the manner in winch a party has to express his willingness to continue upto the age of 60 years. It may, though, be argued that it would have been better and prudent on the part of the petitioner/ respondent No. 1 to give out his intention to continue under Section 4(3) of the Act well within time; but, having not done so would in no way disentitle him to exercise that option when it is asked for by the authorities. It was before the date of his superannuation. It may not be prudent to wait till the manner is prescribed under sub-sections (3) and (4) of Section 4 of the Act, or the circular was issued, and then to exercise the option. But, if such a course is adopted by one who is otherwise desirous to express his option to continue upto the age of 60 years, 'this unprudent wait would not be fatal to his right to continue upto the age of 60 years. The State, though framed Rules in 1979 prescribing the manner, but did not make it effective and, therefore, it was in 1998 that a circular was issued to give option. It would be difficult to say that the State could refuse to consider such an option. The State cannot take advantage of its own inaction in not prescribing the manner and denying the right of continuance, as provided under the provisions of the Act. In absence of such manner being prescribed, if the petitioner/respondent No. 1 opted to continue upto the age of 60 years after issuance of the circular by the authorities in the year 1998, he cannot legally be denied the benefit of the provisions of the Act in the circumstances indicated above. 11. The case reported in AIR 1996 SC 2257 , Assam Madhyamik Sishak Aru Karmachari Santha, Nagaon-Vs-State of Assam and others, which has been referred to, related to the benefits which may be provided to the teachers under Section 4(3) of the Act. In that case, however, the point involved was slightly different. The question was about continuance of the teachers upto the age of 60 years, in absence of the Rules framed. In that case, however, the point involved was slightly different. The question was about continuance of the teachers upto the age of 60 years, in absence of the Rules framed. Those who had not attained the age of 60 years, they were allowed to retire and were allowed pensionary benefits. On that basis, those who had attained the age of 60 years and had already retired, they were also allowed the pensionary benefits subject to the condition that they had to refund the amount of CPF already withdrawn by them. This case will have no bearing on the merits of the present case. 12. In view of the discussion held above, in our view, the order passed by the learned Single Judge does not call for any interference. The appeal is, therefore, dismissed with costs.