Judgment

KULDIP SINGH, J.:- The petitioner retired from the post of teacher in the Air Force Central School, New Delhi (hereinafter called the School) on her attaining the age of 58 years. The School is a society registered under the Societies Registration Act, 1860. 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 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.

2. The petitioner was initially appointed for a period of five years. On completion of the said period in 1961 the contract its 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.

3. 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 superannuation. 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 up to 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.

4. With a view to provide uniformity and security of service to the teachers of recognised schools, the Delhi Administration 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 Feb. 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 and 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 considered."

5. Section 8(l) of the Act and Rule 110of 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.

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 disadvantage of such an employee

"Rule 110 - Retirement Age:- (1) Except where an existing employee is entitled to have a higher age of retirement, every employee of a recognised private school, whether aided or not shall hold office until he attains the age of 58 years."

6. 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 legally 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 retirement to which they were entitled has been protected.

7. 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 sta