# Shashi Prabha Dwivedi v. State Of U.P. & Ors - **Citation:** (2016) 8 ILRA 1132 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-03 - **Bench:** Arun Tandon, Mrs. Sunita Agarwal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashi-prabha-dwivedi-v-state-of-u-p-ors-44148 - **Pages:** 7 ## Headnote C.S.C., Shri Ashok Kumar Held - Paragraph 1: Nature of the Challenge This special appeal was filed by Shashi Prabha Dwivedi (the petitioner-appellant) challenging a Single Judge order dated April 29, 2016. The Single Judge had denied her the academic "session benefit," which would have allowed her to continue teaching until the end of the newly modified academic session on March 31, ## Text 1132 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 1132 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 03.08.2016 BEFORE THE HON'BLE ARUN TANDON, J. THE HON'BLE MRS. SUNITA AGARWAL, J. Special Appeal Defective No.- 471 Of 2016 Shashi Prabha Dwivedi ...Appellant Versus State Of U.P. & Ors. ...Respondents Counsel for the Appellant: Shri Shri Rishikesh Tripathi Counsel for the Respondents: C.S.C., Shri Ashok Kumar Held - Paragraph 1: Nature of the Challenge This special appeal was filed by Shashi Prabha Dwivedi (the petitioner-appellant) challenging a Single Judge order dated April 29, 2016. The Single Judge had denied her the academic "session benefit," which would have allowed her to continue teaching until the end of the newly modified academic session on March 31, 2016. Paragraph 2-3: Factual Matrix and Statutory Framework The appellant, born on May 1, 1951, served as an Assistant Teacher in a primary school regulated by the U.P. Basic Education Teacher Service Rules, 1981. Under Rule 29 of these statutory rules, teachers normally retire on the last day of the month they turn 62. However, a specific proviso explicitly dictates that if a teacher's retirement falls within an academic session, defined in the text as "July 1 to June 30," their employment is automatically extended via a legal fiction until June 30 to prevent mid-session classroom disruption. Paragraph 4-5: Impact of the National Award and the Policy Shift Because the appellant received the prestigious President's National Award, she was granted a special twoyear service extension, moving her superannuation age to 64. She reached this age on April 30, 2015. In the meantime, the State Government issued an executive order shifting the academic calendar for 2015-16 to run from April 1, 2015, to March 31, 2016. The appellant argued that since her retirement fell inside this fresh April-March calendar, she should stay until March 31, 2016, making her involuntary retirement on June 30, 2015, illegal. Paragraph 6: The Single Judge's Rejection 8 All. Shashi Prabha Dwivedi Vs State Of U.P. 1133 The learned Single Judge dismissed her writ petition, holding that because the appellant had already enjoyed a distinct two-year extension of service courtesy of her President's National Award, she could not simultaneously claim an overlapping end-of-session rollover benefit up to March 31, 2016. Paragraph 7-8: Reliance on a Conflicting Division Bench Precedent To overturn the Single Judge's ruling, the appellant relied on a previous Division Bench judgment, State of U.P. v. Ramesh Chandra Tiwari (2015). In that case, the Bench ruled that if the State exercises its power to shift the academic session, the "session benefit" principle in Rule 29 automatically applies to the new dates. That Bench declared that any executive orders halting session extensions on March 31 must be overridden by the mandatory statutory fiction of Rule 29, requiring the State to update its text as a mere formality. Paragraph 9-10: Divergence on Subordinate Legislation and Statutory Text The current Division Bench strongly disagreed with the Ramesh Chandra Tiwari ruling. It emphasized two foundational legal principles: first, a subordinate statutory rule cannot be altered, amended, or overridden by mere executive orders; second, when the language of a statute is clear and plain, courts must apply a literal interpretation without adding or subtracting words. Paragraph 11: Application of Supreme Court Precedents on Interpretation To support this view, the Court cited the Supreme Court's ruling in Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. (2003). The apex court established that statutory language must be construed exactly as written according to its plain, literal meaning. Courts cannot expand the legislature's intent or modify plain wording unless the existing text is entirely unworkable, absurd, or internally irreconcilable. Paragraph 12-13: Examining the Plain Meaning of the Proviso Applying a literal interpretation, the Court observed that the proviso to Rule 29 specifically writes out the dates "July 1 to June 30" directly onto the statute book. The main rule caps retirement at the end of the birth month, and the proviso acts as a strict, singular exception. Because the rule explicitly ties the extension to "June 30" following the retirement date, no teacher can leverage executive policy shifts to demand a retention period stretching beyond that statutory boundary. Paragraph 14-15: Finding Flaws in the Prior Bench's Reasonings The Court highlighted a contradiction in the Ramesh Chandra Tiwari ruling: that bench acknowledged that executive orders cannot override statutory rules, yet it effectively allowed an executive policy shift to change the statutory dates in the proviso. Furthermore, the previous bench completely overlooked Paragraph 3 of the State's December 9, 2014 order, which explicitly declared a conscious administrative policy choice not to amend Rule 29, mandating that teachers continue to retire on June 30 despite the altered school year. Paragraph 16-17: State Sovereignty Over Policy and Final Disagreement The Court affirmed that while the State has the authority to adjust school terms, it holds an equal right to limit the boundaries of post-retirement extensions. Teachers possess no inherent, enforceable right to remain in service past superannuation contrary to clear statutory text. Consequently, the Bench officially recorded its formal disagreement with the law laid down in the Ramesh Chandra Tiwari case. Paragraph 18-19: Reference to a Larger Bench Finding a direct conflict between coordinate benches, the Court formulated three substantial questions of law 1134 INDIAN LAW REPORTS ALLAHABAD SERIES regarding the correctness of the Ramesh Chandra Tiwari case, the absolute boundaries of Rule 29's extensions, and the validity of the State's conscious decision to retain the June 30 retirement date. The Bench directed the case file to be placed before the Hon'ble Chief Justice to constitute a Larger Bench (Full Bench) to definitively resolve these questions. List of Case Law Citations 1. State of U.P. and others Vs. Ramesh Chandra Tiwari and others, 2015 (4) UPLBEC 2900. 2. Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd and others, 2003 (2) SCC 111. (Delivered by Hon'ble Arun Tandon, J. & Hon'ble Mrs. Sunita Agarwal, J.) 1. This special appeal has been filed by Shashi Prabha Dwivedi, the petitioner against the order of the learned Single Judge dated 29.4.2016 whereby the benefit of continuing in service till the end of the academic session i.e. up to 31.3.2016 has been denied to the petitioner. 2. The facts in short relevant for deciding the controversy are as under:- 3. That the date of birth of the appellant is 01.05.1951, she was working as Assistant Teacher in a primary institution, the service condition whereof are regulated by Uttar Pradesh Basic Education Teacher Service Rules, 1981 (herein after referred as Rules, 1981). These rules have been framed under Section 19 of the U.P. Basic Education Act, 1972 and, therefore, the Rules answer the description of the subordinate legislation. 4. Rule 29 of the Rules, 1981, provides for the age of retirement of the teachers and reads as follows:- "29. Age of superannuation-Every teacher shall retire from service in the afternoon of the last day of the month in which he attains the age of 62 years. Provided that a teacher who retires during an academic session (July 1 to June 30) shall continue to work till the end of the academic session that is, June 30 and such period of service will be deemed as extended period of employment." 5. The petitioner should have normally retired on attaining the age of 62 years as per Rule 29 of 1981 Rules but since she was awarded Presidents National Award, two years extension in service was given to her and, therefore, her age of retirement stood extended upto 64 years. The petitioner attained the age of superannuation i.e. age of 64 years on 30.4.2015. 6. According to the petitioner, the academic session for the year 2015-16 under the Government order dated 9.12.2014 was directed to commence from 1.4.2015 and to end on 31.3.2016. It was her case that since her date of retirement falls in the midst of the said academic session 2015-16, she was entitled to extension in service till 31.3.2016 and she had wrongly been 8 All. Shashi Prabha Dwivedi Vs State Of U.P. 1135 retired on 30.6.2015. 7. Learned Single Judge has held that since the petitioner had taken benefit of extension in the service of two years she was not entitled for session benefit i.e. till 31.3.2016. 8. Learned counsel for the petitioner has relied upon the Division Bench judgment in the case of State of U.P. and others Vs. Ramesh Chandra Tiwari and others reported in 2015 (4) UPLBEC 2900 wherein the Division Bench has held as under:- "The State Government can certainly alter an academic session, as it has, to 1 April-31 March. The consequence, however, of a change in the academic session as provided under Rule 29 cannot be altered so long as the proviso to Rule 29 continues to hold the field. What the proviso enacts is that a teacher who retires during an academic session will continue to work until the end of the academic session on the basis of a deeming fiction, as we have noted above. Once the academic session has been changed, the principle which has been enunciated in the proviso to Rule 29 will apply to the newly altered academic session. All that really remains now is for the State to make a consequential change in the date of the new academic session under the proviso to Rule 29 but that part is merely clarification of the decision which has already been taken of the dates of commencement and conclusion of the academic session." 9 Thereafter, the Division Bench has gone on to hold that all those teachers whose age of retirement falls between the academic session 2015-16 i.e. (1.4.2015 to 31.3.2016) and who have not taken benefit of extension of service under proviso to Rule 29 of Rules, 1981, earlier would retire on 31.3.2016. The Division Bench has held that the Government orders issued on 9.12.2014 and 29.6.2015 have to be necessarily brought in line of the mandatory requirement of the Proviso to Rule 29 of the Rules, 1981. The power to alter the academic session undoubtedly vests with the State Government and once the academic session has been altered, the consequence of it envisaged under the Proviso to Rule 29 of Rules, 1981, must ensue. 10. We find it difficult to accept the legal proposition as laid down in the said judgment. It is settled law that subordinate legislation framed in exercise of the statutory powers cannot be altered by the executive orders of the State. For any alteration in the subordinate legislation, the procedure for amendment in the rules is to be followed which is the same as in the case of framing of the rules itself. 11. It is also settled law that if the words of statute admit of one meaning on simple reading then no interpretation is required, the Court has to give literal and simple meaning without any further addition or subtraction. 12. The legal position in this regard has already been settled by the Apex Court and this Court in various pronouncements. One of which is 2003 (2) SCC 111 (Bhav Nagar University Vs. Palitana Sugar Mill Pvt. Ltd and others) paragraphs 23, 24 and 25 from the aforesaid judgment are quoted as under:- 1136 INDIAN LAW REPORTS ALLAHABAD SERIES 23. It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant. 24. True meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law. 25. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute." 13. From a simple reading of the proviso to Rule 29, of the Rules, 1981, it is apparently clear that it contemplates that the academic session for the purpose of retirement of the teachers would be 1st July to the 30th June of the succeeding year. So long as the proviso to Rule 29 stands as it is, no teacher can claim benefit of the extension of service beyond what has been provided under the said proviso. 14. We may record that the proviso is only an exception to the main Section. The main Section i.e. Rule 29 provides for the age of retirement as 62 years, the actual day on which the teacher would demit the office is the end of the month in which he/she attains the age of superannuation. It is only under the proviso that a teacher gets the benefit of extension of service till the end of the academic session. The proviso further specifically states that academic session shall be from 1st July to 30th June of the succeeding year such extension of the academic session would only be up to 30th June, following the date of superannuation and nothing beyond it. 15. We may further notice that the Division bench itself has recorded in paragraph 10 of the judgment that the State Government cannot by a Government order override the proviso to Rule 29 of Rules, 1981, which is the nature of subordinate legislation. 16. We are, therefore, of the opinion that either the proviso which provides for the academic session from 1st July to 30th June has become redundant because of the change of the academic session by the State Government vide Government order dated 9.12.2014 i.e. from 1st July to 30th June of the succeeding year as 1st April to 31th June of the succeeding year or else the benefit of extension of service to teacher under the proviso would continue to be governed by the dates i.e. the academic session as contained in the proviso itself i.e. upto 30th June following the date of superannuation and nothing beyond that. 17. We find that the Division bench of this Court in the case of State of U.P. Vs. Ram Chandra Tiwari (supra) has failed to take note of paragraph 3 of the Government order dated 8 All. Shashi Prabha Dwivedi Vs State Of U.P. 1137 9.12.2014 wherein a conscious decision has been taken by the State Government not to make any amendment in the proviso to Rule 29 of Rules, 1981. It has been especifically stated therein that the teacher of the academic institutions shall retire on 30th June in terms of the proviso to Rule 29 of Rules, 1981 even after alteration of the academic year. 18. We are of the view that as the State Government has a right to determine the academic session, simultaneously it also has the right to decide as to what period of extension of service after retirement is to be provided to the teacher. No teacher can claim a right to continue beyond the age of superannuation contrary to the wisdom of the State as contemplated by the statutory provisions. 19. We, therefore, find it difficult to agree with the legal proposition as laid down in the case of State of U.P. Vs. Ramesh Chandra Tiwari (supra). 20. We are of the opinion that following questions need to be answered by a Larger Bench to be constituted for the purpose:- (a) Whether the law as laid down by the Division bench of this Court in the case of State of U.P. and others Vs. Ramesh Chandra Tiwari is the correct law or not. (b) Whether the proviso to Rule 29 of Rules, 1981, as it stands on the statute book as on date, admits of extension of service of the teacher of retirement beyond 30th June following the date of retirement or not. (c) Whether the conscious decision of the State Government in terms of the Government order dated 9.12.2014 providing that the teachers would still retire on 30th June, following the date of retirement can be said to be bad or arbitrary in any manner so as to require issuance of a mandate to the State Government to make the amendments in proviso to Rule 29 of Rules 1981 merely because it has altered the academic session from 1st April of the year to 31st March of the succeeding year. 21. Let this order be placed before Hon'ble the Chief Justice for consideration for constituting of a Larger Bench to answer the above issues. --------- 1138 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 1138 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 04.08.2016 BEFORE THE HON'BLE BHARAT BHUSHAN, J. THE HON'BLE ALOK KUMAR MUKHERJEE, J. Criminal Appeal No.- 1497 Of 1983 Prem Lal ...Appellant Versus State Of U.P. ...Respondent Counsels for the Appellant: Shri S.B. Johari, Shri G.C. Saxena, Shri Mohit Singh Counsel for the Respondent: D G.A. Held - Paragraphs 1-3 (Introduction & Prosecution Case): The appellants challenged their conviction under Section 302 IPC and life sentences passed on 07.06.1983 by the 5th Additional Sessions Judge, Budaun (Sessions Trial No. 427 of 1981). According to the informant Savitri Devi (P.W.-10), her husband Charan Singh was murdered on 20.07.1980 at 6:30 a.m. near village Nachni because the appellants were infuriated by his alleged illicit relationship with appellant Prem Pal's sister, Susheela. The deceased, who had been bailed out from an Arms Act arrest just a day prior, was allegedly accosted and shot 5-6 times each by Prem Pal and Babu Lal using shotguns. Paragraphs 4-7 (Investigation & Trial Court Verdict): The prosecution later added a secondary motive involving appellant Babu Lal's sister, Kiran. Following an investigation by P.W.-13, a charge-sheet was submitted. The trial court framed murder charges on 27.11.1982, and the prosecution examined 13 witnesses, including seven purported eye witnesses. The accused denied the charges under Section 313 Cr.P.C., claiming false implication due to village rivalry. Appellant Babu Lal raised an alibi defence, examining two witnesses (D.W.-1 and D.W.-2) to prove he was in Sultanpur. The trial court rejected the alibi, found both guilty, and sentenced them to life imprisonment. Paragraphs 8-13 (Arguments of Both Sides): Senior counsels for the appellants argued that six out of seven eye witnesses turned hostile, and the remaining lone witness, Savitri Devi, was highly unreliable and contradicted by medical evidence. They also emphasized Babu Lal's solid alibi backed by a senior government officer (D.W.-1). Conversely, the learned AGA supported the conviction, arguing that the FIR was logged promptly within two hours despite a 5-kilometer distance, leaving no room for concoction. He maintained that the prior arrest provided immediate motive, and dismissed the defence witnesses as unreliable.