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PETITIONER: ASSAM MADHYAMIK SIKSHAK ARUKARMACHARI SANTHA, NAGAON.         Vs.          RESPONDENT: THE STATE OF ASSAM & ORS.

DATE OF JUDGMENT:       30/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (5)   613        1996 SCALE  (4)650

ACT:

HEADNOTE:

JUDGMENT:                  THE 30TH DAY OF APRIL 1996 Present:               Hon’ble Mr.Justice K. Ramaswamy               Hon’ble Mr.Justice G.D.Pattanaik P.K.Goswami, Sr.Adv., Rajiv Mehta, C.K.Sasi and Kailash Vasdev, Advs. with him for the appellant S.N.Chaudhri, Sr. Adv. and S.A.Syed, Adv. with him for the Respondents.                          O R D E R The following Order of the Court was delivered: Assam Madhyamik Sikshak Aru Karmachari Santha, Nagaon. V. The State of Assam & Ors.                          O R D E R      We have heard learned counsel on both sides.      Leave granted.      This appeal  by special  leave arises  from  the  order dated September  27, 1994 made in W.A. No. 90/94. As regards the  validity   of  Section  4(3)  of  the  Assam  Secondary Education (Provincialisation) Act, 1977 (Assam Act No.XIX of 1977) (for  short, the  ’Act’)  which  deals  with  teachers working  in   the  aided  institutions  taken  over  by  the Government  under   the  State  Act  with  effect  from  the appointed  day  who  were  recognized  to  be  the  existing employees with  reference to  the appointed day. Sub-section (3) of  Section 4 envisages that notwithstanding anything in the preceding  Section, all  employees other  than Grade  IV employees of a Secondary School coming within the purview of the Act, shall retire on superannuation of 58 years. Grade V employees on  attaining the  age  of  60  years,  shall  get superannuated. But  such of  those teachers  who  intend  to continue  on  service  beyond  58  years,  are  required  to exercise their option either to the Pension Scheme or to the payment of  C.P.F. Scheme.  Such of  the teachers who opt to retire on  attaining the  age of 58 years, shall be entitled to the payment of pension and those who opt to continue till

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the completion  of 60  years, are entitled to the C.P.F. The discrimination is  discriminable based  on policy.  No fault can be  found in this behalf. Teachers of the Provincialised Secondary Schools  who had  not exercised  their option  for either o’  the scheme,  were deemed  to have  not  exercised their option  for the  latter scheme  and  are  required  to retire on attaining the age of 58 years.      It is the case of the appellant-Association of teachers that since  Rules have  not been  made, no  option has  been given to  the teachers  and they  remained in  service  till completion of  60 years.  In the  case of  teachers who  had remained in  service after the appointed day and were yet to complete the  age of  60 years,  the State Government itself has resolved  to treat  them as Government teachers entitled to pension  on attaining  the age of 58 years but the salary paid to such teachers would not be recovered from them.      In view of the above resolution, it is contended by Mr. P.K. Goswami,  learned  senior  counsel  appearing  for  the Association, that  the same  benefit may  be  given  to  the teachers who continued as teachers on appointed day, namely, October 1,  19?7 and  those who  remained  in  service  till attaining  60  years  be  treated  as  Government  employees entitled  to  the  benefit  of  the  pension.  The  admitted position is  that they  had already  withdrawn their  C.P.F. which was  due to  them after  their attaining the age of 60 years. Such  of the  teachers who  had withdrawn  the C.P.F. should redeposit  the same  to the credit of the government. On such  deposit being  made, the State is directed to Treat them at  par with the second category of teachers as per the draft Rules  now made  and to  treat them as if they are the Government teacher  on the  appointed day and on that basis, they would  be entitled to pensionary benefits as applicable to  all   the  Government  employees  who  would  retire  on attaining the  age of 58 years and other benefits admissible to them.      The appeal is accordingly disposed of. No costs.