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PETITIONER: STATE OF WEST BENGAL & ORS.

       Vs.

RESPONDENT: GOPAL CHANDRA PAUL & ORS. ETC.

DATE OF JUDGMENT14/07/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  547            1995 SCC  Supl.  (3) 327  JT 1995 (5)   557        1995 SCALE  (4)420

ACT:

HEADNOTE:

JUDGMENT:           THE 14TH DAY OF JULY, 1995 Present:           Hon’ble Mr.Justice K.Ramaswamy           Hon’ble Mr.Justice B.L.Hansaria Mr.V.R.Reddy, Additional Solicitor General and Mr.Tapas Ray, Sr.Adv. and Mr.H.K.Puri, Adv, with them for the appellants. Mr.A.K.Sen, Sr., Mr.V.B.Joshi and Mr.G.S.Chatterjee, Advs. with him for the Respondents.                J U D G M E N T The following Judgment of the Court was delivered:           IN THE SUPREME COURT OF INDIA           CIVIL APPELLATE JURISDICTION           CIVIL APPEAL NO. 6191 OF 1995 [Arising out of SLP Nos.14662/95 (CC 851/95) STATE OF WEST BENGAL & ORS.                .......APPELLANTS           VERSUS GOPAL CHANDRA PAUL & ORS.                  .....RESPONDENTS                          WITH                C.A.NOS.6192-6196 OF 1995 (Arising out of SLP Nos.14664-14668/95 (CC 1585, 1576, 1571, 1098, 1150)                     J U D G M E N T K.RAMASWAMY.J.           Leave granted.      Shorn off  procedural wrangles,  the core  question  in these appeals is whether the superannuation at the age of 60 years available  to the  teaching staff  of  the  Government schools of  the Education  Department of  West Bengal  would stand  extended   to  the   inspecting  staff  of  the  said Department. The  learned single  Judge  and  Division  Bench reached their  decision  on  intertransferability,  at  some stage of  the teaching staff and the inspecting staff, which position was  not accepted  by the  State and  held that the inspecting staff  would stand  on parity  with the  teaching

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staff and  thereby the benefit of superannuation of 60 years would be  applicable to the inspecting staff. Rule 75 of the West Bengal Service Rules-Part I, (for short, the Rules’) in Chapter  x   provides  superannuation   of  the   government employees other  than a  member of  the group ‘D’ (Class-IV) service who  shall retire  from  service  compulsorily  with effect from  the afternoon  of the last date of the month in which the  employee attains  the age of 58 years. The second proviso  thereto  adumbrates  an  exception  that  "provided further that  the age  for retirement  as prescribed in this rule shall not be applicable in cases where higher age-limit upto 60  years for  retirement  has  been  fixed  under  any general  or   special  orders   of   Government."   In   the notification No.1995-Edu (A) 17A-1/81 dated October 1, 1981, it was  stated that  "notwithstanding anything  contained in the Rules, the date of compulsory retirement of a teacher of a Government  Education Institution  shall be  the  date  on which he  attains the  age of  60 years which was superseded ultimately by  notification No.0426-Education  dated May 29, 1990. Therein the Governor, while extending the last date to file  options   by  all  categories  of  teaching  staff  of Government schools  and Government  Madrashas up  to June 4, 1990, stipulated thus:      "(i)  The   age  of   superannuation  of      teaching staff of Government Schools and      Madrashas, appointed on or after 1.1.86,      is fixed at 60 years.      (ii)  The   age  of   superannuation  of      teaching staff of Government Schools and      Government Madrashas, appointed prior to      1.1.86, who  elect to  come over  to the      revised scale  of pay shall be 60 years.      They  may,  however,  retain  their  old      scale of  pay under  ROPA Rules, 1981 to      get  the   benefit   of   extension   of      services, on year to year basis, upto 65      years subject to the condition that they      are physically  fit and  mentally alert.      Such  extension  of  service  should  be      sanctioned by  the Competent Authorities      and would  be subject  to the  result of      the relevant cases now sub-judice.      (iii) The  teaching staff  of Government      School and Government Madrashas, who had      been enjoying  the extension  of service      on year to year basis on and from 1.1.86      to the  date of  issue of this order may      also come under the revised scale of pay      provided they  have already  retired  on      agree to  retire on  or before 4th June,      1990.      This order  modifies the  earlier  order      No.81-Edn(B)/1M-3/82 dated 31.3.86."      Thus, it  would be clear that the age of superannuation of teaching  staff  of  Government  Schools  and  Government Madarshas appointed  prior to  January 1, 1986, who elect to opt to  the rules,  shall be  60 years.  This would  also be applicable to those teaching staff who had been enjoying the extension of  service of  year to  year basis  on  and  from January 1,  1986 to  the date  of May 29, 1990 provided that they have already retired on agreeing to retire on or before June 4, 1990. It is manifest that Rule 75 of the Rules would be applicable  to all  Government staff except Group ‘D’ and employees covered  by the  notification issued under the 2nd proviso. The normal Rule of superannuation of all Government

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servants except the excepted class of employees is 58 years. For the teaching staff, the superannuation is 60 years.      The  question   is  whether  the  inspecting  staff  is entitled to retire on their attaining superannuation upto 60 years. The contention of Shri V.R. Reddy, learned Additional Solicitor General,  is that  the service  conditions of  the teaching staff  and the  inspecting staff  are regulated  by statutory rules  issued under  proviso to Article 309 of the Constitution. The  teaching staff  is neither a feeder post, nor transfer  of inspecting  staff as a teacher is a mode of recruitment. The  recruitment to  the respective  cadres  is either by direct recruitment or promotion from the specified feeder posts. Since the inspecting staff is neither a feeder post to  the teaching  staff nor  the  rules  prescribe  for transfer of  inspecting staff  to become  a  member  of  the teaching staff,  the inspecting  staff should be required to retire on their attaining the age of 58 years. Shri A.K.Sen, learned  Senior   counsel  for   respondents,  repelled  the contention arguing that practice has grown that the teaching staff  and   inspecting  staff   are  interchangeable  which position was  not controverted  by the  appellants either by filing an  affidavit in  opposition in  the High  Court  nor placed any contrary material in this Court. Thereby, it must be deemed  to have been admitted that the teaching staff and the inspecting  staff are  interchangeable. On that premise, the inspecting  staff stands  on parity  with  the  teaching staff. Thereby  the inspecting  staff are entitled to retire on attaining  the age  of 60  years. We find no force in the contention.      Admittedly, the  Governor exercising  the  power  under proviso to Article 309 of the Constitution, issued statutory rules  (Annex   B  of  paper  book)  prescribing  rules  for recruitment to  the posts  of District  Inspector of Schools and Additional  District Inspector  of Schools  in the  West Bengal Educational Service. The method of recruitment is (i) by selection  (direct recruitment),  departmental candidates being eligible  to apply,  or (ii)  by  promotion  from  the confirmed  Assistant  Inspectors  of  Schools.  Explanation: These posts  shall be  filled up  by  promotion  and  direct recruitment in  the ratio  of 2:1.  The  Qualifications  for direct recruitment are (i) A second class Master’s degree of a recognised  University in  India or  an equivalent degree, (ii) a  degree  in  teaching  of  an  Indian  University  or equivalent  degree.   (iii)  three   years’  experience   of Inspection work  or in teaching in a school, (iv) ability to undertakes touring.  (v) familiarity with modern outlook and method of  school inspection. (vi) capacity for planning and organisation. (vii)  good power  of expression  in  Bengali- spoken and written.      Similarly, on  December 19,  1975, the  Governor issued statutory rules  regulating recruitment to the posts of Head Master of  Government High Schools in the West Bengal Senior Educational Service  (Annex C  of Paper Book). The method of recruitment has  been specified  therein which  is by direct recruitment or  by promotion  from confirmed  Headmasters in the West Bengal Educational Service (Men’s Branch) either by selection, departmental  candidates being eligible to apply. Similarly the  ratio of  2:1 has  been prescribed  in direct recruitment. The  qualifications for direct recruitment have been provided thus:      "Qualifications for  direct  recruitment      Essential:      (i) A  second class Master’s degree of a      recognised University  or an  equivalent      degree.

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    (ii) a  first class  degree in  Teaching      and  /or   Education  of   a  recognised      University or an equivalent degree,      (iii) ten  years teaching  experience in      recognised second schools,      (iv) capacity  for developing  corporate      life  and   maintaining  discipline   in      secondary schools,      (v)   familiarity    with   the   latest      development in secondary education, and      (vi)  good   power  of   expression   in      Bengali-spoken and written.      Desirable:      (i) A  post-graduate degree in Education      or an equivalent degree, and      (ii) administrative experience."      It would  thus be clear that the statutory rules do not prescribe transfer  of the  inspecting staff or the teaching staff to  the other  service as a mode of recruitment nor is it a  feeder post for the other service. In other words, the teaching staff  and inspecting  staff are  two distinct  and independent services  and the  two streams  never mingled at any stage.  The qualifications,  the mode of recruitment and service conditions  are separate.  The cadres  are distinct. The  inspecting   staff  are  entirely  to  look  after  the inspection of  the schools  while  the  teaching  staff  are required to impart education to the students.      The question is whether the pollutant source, obviously manoeuvred at some stage without statutory amendments to the rules, can  provide legitimacy  and would form foundation to claim the  benefit of superannuation of 60 years? The answer is obvious.  When statutory rule 75 expressly prescribes the maximum  superannuation   of  58  years  to  all  Government employees excluding  the excepted  class or  classes and the teacher is  one such  class, an Inspector, a distinct cadre, by no  stretch of imagination can be taken as a teacher. The second proviso  is an exception to rule 75 which enables the State Government  to grant the benefit by a notification and pursuant thereto  the statutory  notification  and  pursuant thereto the  statutory notification  was issued  prescribing superannuation of  60  years  for  a  teacher.  Rule  75  is unequivocal  and  clear.  Stray  incidents  of  transfer  by subordinate officers  would not  give  legitimacy  to  claim parity at the stage of superannuation. Giving countenance to such  a   contention   breeds   corruption,   nepotism   and favoritism.      The High Court relied upon a judgment of a single Judge in which  the Government  had not  filed  counter  and  that judgment formed foundation as precedent for later cases. The statutory rules  were neither  referred  to  nor  construed. Another judgment  of the  High Court  of Delhi  in  which  a teacher appears  to have  been transferred to the inspecting staff, who, when sought to be superannuated on attaining the age of  58 years,  questioned the  same. The  High Court had given him  the benefit of 60 years since he was recruited as a teacher. Apart from the correctness of the jurisdiction of the Delhi  High Court  to grant  the  relief  to  a  teacher government  by   the  rules,   the  ratio   therein  has  no application to  the facts  and it  cannot form  the base  to grant the  relief of  superannuation  of  60  years  to  the members of inspecting staff.      We, therefore,  hold that  inspecting staff governed by the statutory  rules are not on par with the teaching staff. Therefore, they  are  required  to  retire  compulsorily  on attaining the  age of  superannuation of  58 years and shall

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retire in  the afternoon  of the  last day  of the  month in which he/she  attains the  age of  58 years. The appeals are accordingly allowed but in the circumstances without costs.