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PETITIONER: MISS RAJ SONI

       Vs.

RESPONDENT: AIR OFFICER INCHARGE ADMINISTRATION & ANR.

DATE OF JUDGMENT10/04/1990

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SAWANT, P.B.

CITATION:  1990 AIR 1305            1990 SCR  (2) 412  1990 SCC  (3) 261        JT 1990 (2)   173  1990 SCALE  (1)711

ACT:     Delhi Education Code,  1965: S. 208/Delhi Education Act, 1973: S. 8(1)/Delhi Education Rules, 1973: Rule 110--Employ- ee  of pre-existing recognised school--Whether  entitled  to superannuate at 60 years--Authority under statutory  obliga- tion--Whether can defy statute on the ground that it is  not covered by the definition of ’State" under Article 12 of the Constitution.

HEADNOTE:     The normal age of retirement of an employee of an  aided school prescribed under s. 208 of the Delhi Education  Code, 1965  was  60  years. The proviso to s. 8(1)  of  the  Delhi Education  Act,  1973,  prohibited  the  administrator  from varying  the  conditions  of service of an  employee  of  an existing  school  at  the commencement of that  Act  to  his disadvantage-  While fixing the retirement age of  employees of  recognised private schools at 58 years sub-rule  (1)  of rule  110 of the Delhi Education Rules, 1973  protected  the entitlement  of existing employees to higher age of  retire- ment.     The  petitioner-teacher, who had joined  service  before the coming into force of the Act, assailed her retirement on attaining the age of 58 years on the ground that under s.  8 of the Act read with rule 110 of the Rules she had a  statu- tory right to continue upto the age of 60 years in terms  of s.  208 of the Code and that the management had acted  arbi- trarily and discriminately in depriving her of two years  of service  and consequential benefits. For the respondents  it was contended that the management of the school was  neither a  State nor an authority under Article 12 of the  Constitu- tion  and as such no writ petition against  the  respondent- management was maintainable, and that the Education Code had no  force of law and as such the petitioner had no  enforce- able right much less under Article 32 of the Constitution. Allowing the writ petition, the Court,     HELD:  1. The petitioner’s claim is just. She was  enti- tled to be ,retired at the age of 60 years. [417A, E] 413     2.  Prior  to the coming into force of the Act  and  the Rules the management was following the Delhi Education  Code

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which provided 60 years as the age of superannuation for the school teachers. The age of superannuation provided in  Rule 110 of the Rules is 58 years except in the case of  existing employees who were in service on April 1, 1973, the date  of coming  into force of the Act, and in their case the  higher age  of  retirement  to which they were  entitled  has  been protected.  The petitioner was an existing employee  of  the respondent management. [417E, 415D]     3.  The  respondent-management  was  under  a  statutory obligation to uniformly apply the provisions of the Act  and the  Rules to the teachers employed in the school.  When  an authority is required to act in a particular manner under  a statute  it  has no option but to follow  the  statute.  The authority cannot defy the statute on the pretext that it  is neither  a State nor an "authority" under Article 12 of  the Constitution of India. [416G-H]     4. The petitioner having already attained the age of  60 years  the  respondents are directed to pay her  salary  and allowances for the period of two years. The  post-retirement benefits  to which she is entitled be redetermined  assuming her  to have retired at the age of 60 years. The arrears  of salary  and allowances be paid to her within  three  months. [417F-G]

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition (Civil) No. 7995 of 1981. (Under Article 32 of the Constitution of India). Krishnamani and M.K.D. Namboodary for the Petitioner. N.C. Sikri and Mrs. Madhu Sikri for the Respondents. The Judgment of the Court was delivered by     KULDIP SINGH, J. The petitioner retired from the post of teacher in the Air Force Central School, New Delhi  (herein- after  called the ’School’) on her attaining the age  of  58 years.  The School is a society registered under the  Socie- ties Registration Act, 1960. In this petition under  Article 32  of the Constitution of India she claims that  under  the Delhi Education Code read with the Delhi Education Act, 1973 (hereinafter  called  the  ’Act’) and  the  Delhi  Education Rules,  1973  (hereinafter called the ’Rules’)  the  age  of superannuation for the 414 teachers who joined service before the coming into force  of the Act is 60 years and as such the management of the school acted  arbitrarily in depriving her of two years of  service and consequential benefits.     The  petitioner was initially appointed for a period  of five  years.  On completion of the said period in  1961  the contract  was  renewed for a further period of  five  years. Thereafter she continued in service of the school on regular basis till the impugned retirement dated October 31,1981.     The  petitioner  has averred that prior to  coming  into force  of the Act the conditions of service of the  teachers of  the school provided 60 years as the age  of  superannua- tion.  The  respondents have, however, denied the  same  and have  stated  that the school management was  following  the practice of retiring the teachers on attaining the age of 58 years with some exceptions where extensions were given  upto the  age  of 60 years. The management has not  produced  any rules,  bye-laws  or instructions to show that  the  age  of superannuation of the school teachers was 58 years.     With a view to provide uniformity and security of  serv- ice to the teachers of recognised schools, the Delhi  Admin-

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istration  laid down model conditions of  service  including age of superannuation for the teachers/employees of the said schools  and published the same as a code called  the  Delhi Education Code. It came into force with effect from February 15, 1965. Section 208 of the Code is as under:          "Section  208. The normal age of retirement  of  an employee  of  an  aided school (including the  head  of  the School) shall be the date on which he attains the age of 60. But  an employee may be retired any time between the age  of 55  & 60 years on grounds of inefficiency, incompetence,  or physical  unfitness  after he has been  given  a  reasonable opportunity  to show cause against the  proposed  retirement and after his representation, if any, has been duly  consid- ered."     Section 8(1) of the Act and Rule 110 of the Rules  which are relevant are as under:          8(i)  "the administrator may make rules  regulating the minimum qualifications for recruitment and conditions of service of employees of recognised private school. 415           Provided that neither the salary nor the right  in respect  of leave of absence, age of retirement and  pension of  an employee in the employment of an existing  school  at the  commencement of this Act shall be varied to the  disad- vantage of such an employee."          "Rule  110--Retirement  Age:  (1).Except  where  an existing  employee is entitled to have a higher age  of  re- tirement,  every  employee of a recognised  private  school, whether aided or not shall hold office until he attains  the age of 58 years."     The school is not receiving any aid from the  Government but it is recognised by the Delhi Administration. It is  not disputed  that the Act and the Rules are applicable  to  the teachers employed in the school and the management is legal- ly  bound  to extend the protection of these  provisions  to them. The age of superannuation provided in Rule 110 of  the Rules  is 58 years except in the case of existing  employees who were in service on April 1, 1973 the date of coming into force of the Act and in their case the higher age of retire- ment to which they were entitled has been protected.     The petitioner has specifically asserted in the petition that  even though the school was not an aided school it  had accepted the Delhi Education Code and made it applicable  to its  employees.  It  is stated that the  management  of  the school has been retiring the teachers at the age of 60 years in  terms of Section 208 of the Code. It is  also  mentioned that  one  Mr. P.R. Menon, Head of English  faculty  in  the school  retired on December 9, 1968 on attaining the age  of 60  years.  She has further stated that Mr.  Dhawan,  Sqdrn. Leader Lal and Mr. Sharma all joined the school as  teachers before  the  enforcement of Delhi Education  Code  and  have retired  after coming into force of the Act and  the  Rules. All  of  them  retired at the age of 60  years  whereas  the petitioner  was made to retire at the age of 58 years  arbi- trarily  and  discriminately. In the counter  affidavit  the Chairman,  Executive Committee of the school has  stated  as under:          "The  Delhi Administration formulated an  Education Code  by way of guidelines without any legal force  as  pro- nounced by Hon’ble Delhi High Court  ......  " It is further stated: 416           "the  management  of the school was  adhering  the service  conditions inclusive of age of retirement  i.e.  58 years and the pay-scales prescribed by the Delhi Administra-

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tion, from time to time under Delhi Administration Act,  the past practice of serving beyond the age of 58 years had been done away rather on coming into force of the Delhi Education Act  as a matter of principle but for one exception of  Shri B.L. Sharma the then Vice Principal who was given  extension as an administrative expediency."     Learned  counsel for the petitioner has  contended  that prior to the coming into force of the Act and the Rules, the management  was  following the Delhi  Education  Code  which provided  60 years as the age of superannuation and as  such under  rule 110 of the Rules the petitioner has a  statutory right to continue upto the age of 60 years. Mr. N .C. Sikri, learned  counsel  appearing  for  the  management,  however, contends  that the school is being run by a private  manage- ment,  there is no Government control in the  management  of the  school  and no aid of any kind is being  given  to  the school.  According to him, the management of the  school  is neither  State  nor  an authority under Article  12  of  the Constitution  of India and as such no writ petition  against the  respondent-management  is maintainable.  On  merits  he contends  that Delhi Education Code has no force of law  and as  such the petitioner has no enforceable right  much  less under Article 32 of the Constitution of India.     The  Executive  Committee which manages  the  school  is headed  by  Air Force Officer Incharge  Administration,  Air Force Headquarters, New Delhi and consist of all high  rank- ing  Air Force officers of the rank of Sqdrn. Leader to  Air Marshal.  The said membership is in their official  capacity which indicates complete control over the school by the  Air Force. It is, however, not necessary to decide in this  case as  to whether or not the school is a State or an  authority under Article 12 of the Constitution of India.     The recognised private schools in Delhi whether aided or otherwise are governed by the provisions of the Act and  the Rules. The respondent-management is under a statutory  obli- gation to uniformly apply the provisions of the Act and  the Rules  to the teachers employed in the school. When  an  au- thority  is required to act in a particular manner  under  a statute  it  has no option but to follow  the  statute.  The authority cannot defy the statute on the pretext that it  is neither  a State nor an "authority" under Article 12 of  the Constitution of India. 417     It is not necessary and we do not propose to go into the question  in this case as to whether the petition  is  main- tainable under Article 32 of the Constitution, because  this petition  has  been pending in this Court  since  1981.  The petitioner’s claim is just. It will, therefore, be a traves- ty of justice to send her to any other forum at this  stage. In  any case the petitioner seeks to enforce  her  statutory right  under Section 8 of the Act read with Rule 110 of  the Rules with a further contention that she has been  discrimi- nated in the matter of superannuation so much so that  other teachers  similarly situated were retired at the age  of  60 years  whereas the petitioner has been singled out  and  re- tired at the age of 58 years.     The respondent-management has not produced any Rules  or bye-laws either framed by the management itself or otherwise to show that there was any uniform provision for  retirement of  teachers  at the age of 58 years. The averments  of  the petitioner that Section 208 of the Delhi Education Code  was being  followed and the teachers were superannuated  at  the age  of 60 years have not been specifically  denied.  Rather these  averments have been tacitly admitted. Even  otherwise every  institution must frame and follow a uniform rule  for

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superannuating  its  employees. The  age  of  superannuation cannot be left to the whims of the employer to enable him to retire different employees at different ages. In the absence of  any regulation, Bye-laws or policy decision by  the  re- spondent-management regarding the age of superannuation,  we accept  the contention of the petitioner that prior  to  the coming  into force of the Act and the Rules  the  management was  following  the Delhi Education Code which  provided  60 years as the age of superannuation for the school  teachers. In that view of the matter under Rule 110 of the Rules,  the petitioner  being  an existing employee was entitled  to  be retired at the age of 60 years.     The  writ petition is, therefore, allowed and the  order of the respondents retiring the petitioner at the age of  58 years is quashed. She having already attained the age of  60 years we direct the respondents to pay the petitioner salary and  allowances  for  the period of two  years.  We  further direct  that all the post retirement benefits to  which  the petitioner  is entitled be redetermined assuming  the  peti- tioner  to have retired at the age of 60 years. The  arrears of  salary and allowances be paid to the  petitioner  within three months from today. The respondent being an educational institution we direct the parties to bear their own costs. P.S.S                                               Petition allowed. 418