1991 Supreme(Cal) 381

CALCUTTA HIGH COURT
N.P. Singh C.J. & Tarun Chatterjee J.
West Bengal Headmasters Association
vs.
State of West Bengal & Ors.
WRIT APPEAL No. 1425 of 1990 with C.O 6605 (W) of 1990 and C.O. 6606(W) of 1990
Decided On : August 6, 1991

The right to be considered for extension of service after superannuation is a statutory right conferred on teachers of Government Aided Higher Secondary Schools by Rule 28 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules 1969. This right is not an absolute right and can be waived by the teachers concerned.

Headnote:

RIGHT TO CONSIDERATION FOR EXTENSION OF SERVICE - TEACHERS OF GOVERNMENT AIDED HIGHER SECONDARY SCHOOLS - OPTION FOR REVISED SCALES OF PAY - WAIVER OF RIGHT TO EXTENSION OF SERVICE - ARTICLE 14 OF THE CONSTITUTION - VALIDITY OF GOVERNMENT ORDER.

Fact of the Case:

Teachers of Government Aided Higher Secondary Schools were given the option to choose between the existing scales of pay and terms and conditions of service or the revised scales of pay and terms and conditions of service. Those who opted for the revised scales of pay were required to retire at the age of 60 years, while those who opted for the existing scales of pay could continue in service and be considered for extension of service up to the age of 65 years.

Finding of the Court:

1. The right to be considered for extension of service after superannuation is a statutory right conferred on teachers of Government Aided Higher Secondary Schools by Rule 28 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules 1969. 2. The right to be considered for extension of service is not an absolute right and can be waived by the teachers concerned. 3. The Government order dated 31.7.1981, which offered the revised scales of pay to the teachers, did not extinguish or obliterate the statutory right to be considered for extension of service. 4. The teachers who opted for the revised scales of pay under the Government order dated 31.7.1981 did not waive their right to be considered for extension of service, as they were not informed that opting for the revised scales of pay would result in the loss of this right. 5. The Government order dated 7.3.1990, which offered further revised scales of pay to the teachers, required them to exercise their option in a form that included an undertaking not to apply for extension of service after superannuation. 6. The teachers who exercised their option in the form prescribed in the Government order dated 7.3.1990 waived their statutory right to be considered for extension of service. 7. The Government order dated 7.3.1990 is not violative of Article 14 of the Constitution, as it does not create an artificial class of teachers who are denied the right to be considered for extension of service.

Issues: 1. Whether the right to be considered for extension of service after superannuation is an absolute right or can be waived by the teachers concerned. 2. Whether the Government order dated 31.7.1981 extinguished or obliterated the statutory right to be considered for extension of service. 3. Whether the teachers who opted for the revised scales of pay under the Government order dated 31.7.1981 waived their right to be considered for extension of service. 4. Whether the Government order dated 7.3.1990 is violative of Article 14 of the Constitution.

Ratio Decidendi: 1. The right to be considered for extension of service after superannuation is a statutory right conferred on teachers of Government Aided Higher Secondary Schools by Rule 28 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules 1969. 2. The right to be considered for extension of service is not an absolute right and can be waived by the teachers concerned. 3. The Government order dated 31.7.1981, which offered the revised scales of pay to the teachers, did not extinguish or obliterate the statutory right to be considered for extension of service. 4. The teachers who opted for the revised scales of pay under the Government order dated 31.7.1981 did not waive their right to be considered for extension of service, as they were not informed that opting for the revised scales of pay would result in the loss of this right. 5. The Government order dated 7.3.1990, which offered further revised scales of pay to the teachers, required them to exercise their option in a form that included an undertaking not to apply for extension of service after superannuation. 6. The teachers who exercised their option in the form prescribed in the Government order dated 7.3.1990 waived their statutory right to be considered for extension of service. 7. The Government order dated 7.3.1990 is not violative of Article 14 of the Constitution, as it does not create an artificial class of teachers who are denied the right to be considered for extension of service.

Final Decision: The appeal No. F.M.A.T. No. 1425 of 1990 is allowed. The judgment of the learned Trial Judge is set aside. The connected writ application is allowed. So far the writ application No. C.O. 6605 (W) of 1990 in which the validity of the aforesaid order dated 7.3.1990 of the State Government had been questioned is dismissed subject to direction given above to give fresh opportunity to each teacher to exercise his option in the form prescribed in the order in question.