1998 Supreme(Cal) 270

High Court Of Calcutta
Prabha Shankar Mishra, Satyabrata Sinha, Vinod Kumar Gupta
SRIMANTA KUMAR MONDAL - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. O.  20735  Of  1996
Decided On : 07/02/1998

The impugned notification No. 196-Edn (B) dated 27. 4. 1992 amending Rule 4a of the 1940 Rules was held to be intra vires.

Headnote:

PRIMARY TEACHERS - AGE OF RETIREMENT - EXTENSION OF SERVICE - AMENDMENT OF RULE 4A OF 1940 RULES - VALIDITY - WRIT JURISDICTION - SCOPE - INTERIM INJUNCTION - MERGER WITH FINAL JUDGMENT - LEGISLATIVE POWER OF STATE - CONDITIONS OF SERVICE - RETIREMENT AGE - UNIFORMITY - OPTION TO TEACHERS - GRANT OF RETROSPECTIVE EFFECT TO NOTIFICATION - RETIREMENT RULES - APPLICABILITY - ADMINISTRATIVE INSTRUCTIONS - EFFECT - CLARIFICATORY LETTER - BINDING NATURE - GUIDELINES - EXTENSION OF SERVICE - PAYMENT OF SALARY - CONTRACT ACT, SECTION 70 - CONSTITUTION OF INDIA, ARTICLES 21, 23.

Fact of the Case:

The petitioners, who are five in number, three of whom are working in different Schools situate in the District of North 24-Parganas, have filed the writ application praying for the following reliefs:- (A) Leave be granted to the petitioners under Order 1 Rule 8 of the Code of Civil Procedure to move this present writ application and to prosecute the same, on behalf of or for the benefit of all persons having the same interest as that of the petitioners and further direction be given at the expense of the petitioners to give notice of institution of the present writ application to all persons having the same interest as that of the petitioners by public advertisement in any newspapers or papers circulating in the State of West Bengal. (B) A writ of and/or in the nature of mandamus commanding the respondents, their men and agents and/or servants and/or subordinates and/or assigns to rescind and/or to withdraw and/or to cancel the G. O No. 367-End (P) dated 27. 4. 1992 and G. O No. 196-Edn (B) dated 27. 4. 1992 and all other orders, circulars and notifications and/or directions to which the extension of service of the Primary Teachers have been withdrawn and further commanding the respondents authorities not to give any effect to the order dated 16. 5. 1996 issued by the respondent No. 1 and further commanding the respondents authorities to withdraw the salary of Primary Teachers/petitioners who are working in extension beyond the age of 60 years and who opted for revised pay scale as per notification No. 33-Edn (B) dated 7. 3. 1990 and further commanding the respondents not to interfere with the discharge to salaries of Primary Teachers/petitioners who are working in extension beyond the age of 60 years till the attaining the age of 65 years not to take coercion measure against such teacher. (C) A writ of and/or in the nature of mandamus commanding the respondents authorities to rescind and/or to cancel clause 17 of relating to acceptance of revised pay in terms of G. O. 33-Edn (B) dated 7. 3. 1990 so far as the Primary Teachers are concerned and not to give any effect and/or further effect to the said clause 17 relating to acceptance of revised pay in terms of G. O. 33-Edn (B) dated 7. 3. 1990 by the Primary Teachers. (D) A writ of and/or in the nature of certiorari directing the respondent authority to transmit all the records relating to the present case before this Hon'ble Court so that conscionable justice may be administered by quashing the Notification No. 196-Edn (B) dated 27. 4. 1992 and No. 367-Edn (P) dated 27. 4. 1992 and clause 17 of 33-Edn (B) dated 7. 3. 1990 and order dated 16. 5. 1996 till the disposal of the writ application.

Finding of the Court:

The impugned notification No. 196-Edn (B) dated 27. 4. 1992 amending Rule 4a of the 1940 Rules was held to be intra vires. The court also held that the petitioners were entitled to salary at the old scale in the event they opted for the old scale of pay in terms of the Government notifications within a period of two weeks from the date of the order.

Issues: 1. Whether the impugned notification No. 196-Edn (B) dated 27. 4. 1992 amending Rule 4a of the 1940 Rules was intra vires? 2. Whether the petitioners were entitled to salary at the old scale in the event they opted for the old scale of pay in terms of the Government notifications?

Ratio Decidendi: 1. The impugned notification No. 196-Edn (B) dated 27. 4. 1992 amending Rule 4a of the 1940 Rules was held to be intra vires on the following grounds: (a) The power of extension in Rule 4a of 1940 Rules as substituted by notification No 191-Edn (B) dated 4th March, 1970 has not been taken away by any subsequent legislative process. (b) The notification dated 26th August, 1991 could not have been given effect to as no leave was obtained from the court and thus, the same remained inoperative. The 1991 Rules does not contain any provision which affects the power of extension in Rule 4a of 1940 rules and Rule 27 of 1991 Rules is merely reiterative in nature and being silent on the point of extension, the amended rule 4a which is the subject-matter challenged in the writ application must be held to be bad in law. (c) The order of the appeal court was not interlocutory order in the sense that it terminated with the final order and thus, a final order passed in the appeal dated 6. 8. 91 did not vacate the order dated 13th September, 1990. (d) The 1992 Rules cannot be given a retrospective effect and in any event the confirmation of power of extention of 1970 must be presumed to be in public interest without having any nexus of pay. 2. The petitioners were held to be entitled to salary at the old scale in the event they opted for the old scale of pay in terms of the Government notifications within a period of two weeks from the date of the order on the following grounds: (a) The State had made distinction between the cases of the secondary teachers and the Primary Teachers. (b) The letter dated 13. 10. 95 is an inter-departmental letter clarifying the position that the Government is yet to take any stand in the matter of the Primary School Teachers and the said letter evidently has been acted upon.

Final Decision: The writ application was disposed of with the aforementioned observations and directions but in the facts and circumstances of this case there will be no order as to costs.