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IN THE HIGH COURT OF BOMBAY
(Nagpur Bench)
H.W. Dhabe G.G. Loney, JJ.
Hanumansingh s/o Laxmansingh Thakur.... Petitioner.
Versus
Municipal Council, Malkapur others.... Respondents.
Writ Petition No. 2212 of 1987, decided on 2-11-1987.
Advocate appeared :
A.P. Deshpande, for petitioner.
R.L. Khapre, for respondent.
See Maharashtra Employees of Private Schools (Conditions of Service) Regulation, 1978, Section 9.
Rule 17-Proviso-Maharashtra Employees of Private Schools (Conditions of Service) Regulation, 1978-(As Amended in 1987), Section 2 (20)-Age of retirement-Proviso to Role 17-A teacher of Municipal Council School in service on 31-12-1965 is covered by proviso to Role 17 which is statutory in nature-Age of retirement will be 60 years and not 58 years as provided in Byelaw-Statutory provision is preferable to Bye-law.
Rule 17 (1) is statutory in nature and as per the above reasoning and even otherwise as is well settled by the canon of construction of subordinate legislation Bye-Laws framed by the Municipal Council even though with the sanction of the State Government cannot prevail over the statutory rules framed by the State Government. Looking at it from another angle and applying the principle of harmonious construction keeping in mind the social objective of the Act, in matters covered by it, it will have to be held that its provisions rather than the provisions under the Municipalities Act should apply.
MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) REGULATION, 1978
Section 2 (20).
See Maharashtra Employees of Private School (Conditions of Service) Rules, 1981, Rule 17, Proviso.
Section 9- Constitution of India, Articles 12 and 226- Municipal Council is State under Article 12 amenable to writ jurisdiction.
It is true that normally the High Court does not in its discretion entertain a writ petition under Article 226 of the Constitution where there exists an adequate alternative remedy. The question, therefore, has to be decided in the facts of each case in regard to the exercise of the discretion by the High Court under Article 226 on the question whether the parties should be relegated to their statutory remedies or whether the High Court should entertain the writ petition and decide the same.
In the instant case the rights are claimed on the basis of the Amending Act No. XXX of 1987 and several complicated questions of law relating to the applicability of the condition of the age of retirement in the proviso to Rule 17 (1) of the Rules are raised which require proper consideration by this Court and, therefore, in the sound exercise of the discretion of this Court under Article 226 the petition does not deserve to be thrown out on the ground that there is an alternate remedy. The Municipal Council is a "State" within Article 12 of the Constitution of India and is amenable to writ jurisdiction of this Court under Article 226 and, therefore, by entertaining the instant writ petition the question as to the applicability of the age of retirement prescribed under the Rules framed under the Act can be settled once and for all. The above objection raised on behalf of the respondents is, therefore, rejected.
The petitioner, who is working as a teacher in the secondary school run by the respondent No. 1 Municipal Council, was given a notice of retirement on 27-5-1987 on the ground that he would be completing 58 years of age on 31-10-1987 which is the age of retirement prescribed under the bye-laws framed by the Municipal Council in that regard. The petitioner has filed the instant writ petition challenging the notice of retirement on the ground that by the Maharashtra Act No. XXX of 1987 the Maharashtra Employees of Private Schools (Conditions of service regulation ) Act, 1977 (for short, "the Act"), is amended and by the said amendment the secondary schools run by the Municipal Councils are included within the definition of the expression "private school" given in section 2(20) of the Act with the result that all the provisions of the Act and the Rules framed there under which are applicable to the "private schools" would be applicable now to the secondary schools of the Municipal Councils also. It is necessary to state that the aforesaid amendment has come into force on 7-8-1987 i.e. after the notice of retirement was given to the petitioner on 27-5-1987. However, since the actual retirement was to take place on 31-10-1987, the submission on behalf of the petitioner is that the provisions of the Act are applicable to the retirement of the petitioner working in the secondary school run by the respondent Municipal Council.
2. It may be seen that under the proviso to Rule 17(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981 (for short, "the Rules") framed under the Act, the age of retirement for the teachers in the Vidarbha region who are permanent in service on 31-12-1966 is 60 years. It is, therefore, the submission on behalf of the petitioner that since he was a teacher working in the recognised secondary school in the vidarbha region who was permanent in service on 31-12-66, he is entitled to continue upto 60 years of age as per the aforesaid rule which is applicable to him in view of the aforesaid Amending Act No. XXX of 1987.
3. The learned Counsel for the respondent Municipal Council has urged before us that the exception carved out in the proviso to Rule 17(1) of the Rules is applicable to those teachers only who were originally governed by the regulations framed under the M.P. Secondary Education Act, 1951 (for short, "the M.P. Act") and not to the teachers of the local authorities who were not governed by the above regulations framed under the M.P. Act. According to him the date 31-12-1965 has relevance to the M.P. Act applicable in the Vidarbha region till then because it stood repealed with effect from 1-1-1966 by virtue of section 40(1) of the Maharashtra Secondary and Higher Secondary Education Act, 1965 which was brought into force with effect from 1-1-1966 by a notification issued under section 1(3) of the said Act. The submission, therefore, is that after repeal of the M.P. Act with effect from 1-1-1966, the age of retirement of the school teachers governed by the said Act was protected firstly by the exception carved out under section 821 of the Maharashtra Secondary Schools Code and thereafter by the proviso to Rule 17(1) of the Rules in respect of the teachers of the Private Secondary Schools only and not the teachers of the local authorities. The learned Counsel for the respondent Municipal Council has urged that the benefit of the enhanced age of superannuation provided for in the proviso to Rule 17(1) of the Rules is not intended to be conferred upon the school teachers employed by the local authorities even though they are put on par with the school teachers of the private schools of the amendment made in the Act by the Maharashtra Act No. XXX of 1987.
4. In support of his submission the learned Counsel for the respondent has pressed into service a canon of construction that the definitions given in t
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