# State of U.P. & Ors v. Ramesh Chandra Tiwari & Ors

- **Citation:** (2015) 2 ILRA 896
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-08-20
- **Case number:** Special Appeal Defective No. 360 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-ramesh-chandra-tiwari-ors-43232
- **Pages:** 7

## Headnote

U.P. Basic Education Act-Rule 29-Age of
superannuation-by
G.O.
15.10.2014academic session 2015-16-start from April to
March 2016-such teachers retiring between
mid session of academic session- entitled to
continue
upto
31.03.2016-G.O.-15.06.15
being contrary to proviso of Rule 29-quashed.
Held: Para-11
On the facts of the present special appeal,
the dates of superannuation of the four
respondent teachers would respectively be
1 June 2015, 27 May 2015, 4 June 2015 and
30 June 2015. All these teachers worked in
academic session 2015-16 commencing
from 1 April 2015 in the normal course,
without taking the benefits of the proviso to
Rule 29. Since the dates of their retirement
fell in the midst of the academic session,
they would plainly be entitled to continue in
service until the end of the academic
session, as envisaged in the proviso to Rule

## Text

896
 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.08.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE SHRI NARAYAN SHUKLA, J.
Special Appeal Defective No. 360 of 2015
State of U.P. & Ors.
 ...Appellants
Versus
Ramesh Chandra Tiwari & Ors.
...Respondents
Counsel for the Appellants:
C.S.C.
Counsel for the Respondents:
Manoj Kumar Dwivedi
U.P. Basic Education Act-Rule 29-Age of
superannuation-by
G.O.
15.10.2014academic session 2015-16-start from April to
March 2016-such teachers retiring between
mid session of academic session- entitled to
continue
upto
31.03.2016-G.O.-15.06.15
being contrary to proviso of Rule 29-quashed.
Held: Para-11
On the facts of the present special appeal,
the dates of superannuation of the four
respondent teachers would respectively be
1 June 2015, 27 May 2015, 4 June 2015 and
30 June 2015. All these teachers worked in
academic session 2015-16 commencing
from 1 April 2015 in the normal course,
without taking the benefits of the proviso to
Rule 29. Since the dates of their retirement
fell in the midst of the academic session,
they would plainly be entitled to continue in
service until the end of the academic
session, as envisaged in the proviso to Rule
29.
The
Secretary,
Basic
Education,
Government of U P, who decided upon the
issue on 15 June 2015 has taken a view
clearly contrary to the mandate of the
proviso to Rule 29.
Case Law discussed:
Special Appeal (D) No. 492 of 2015; Special
Appeal No. 483 decided on 24 July 2015;
Special Appeal No. 227 of 2015, decided on 9
June 2015.
(Delivered by Hon'ble DR. D.Y. Chandrachud,
C.J.)
1.
The respondents, who are the
original petitioners in writ proceedings
instituted before the learned Single Judge
under Article 226 of the Constitution, are
working as Assistant Teachers or, as the
case may be, Head Masters of primary
institutions conducted and managed by
the Uttar Pradesh Basic Education Board
at
Allahabad.
The
institutions
are
recognized under the Uttar Pradesh Basic
Education Act, 19721. The Uttar Pradesh
Basic Education Teachers Service Rules,
19812 framed
under the
Act,
are
applicable to teachers of primacy schools.
Rule 29 provides 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."
2. For convenience of reference, we
are referring to the parties by their
description in the original writ petition.
The dates of birth of the four petitioners
are respectively 1 June 1953, 27 May
1953, 4 June 1953 and 30 June 1953.
Consequently, the dates of retirement of
the four teachers on attaining the age of
superannuation of 62 years were 1 June
2 All] State of U.P. & Ors. Vs. Ramesh Chandra Tiwari & Ors.
897
2015, 27 May 2015, 4 June 2015 and 30
June 2015. Until 2013-14, the academic
session of primary schools and junior high
schools conducted by the Uttar Pradesh
Basic Education Board commenced on 1
July and would end on 30 June of the
succeeding year. Under Rule 29, a teacher
is liable to retire on the last day of the
month in which he attains the age of 62
years. Consequently, the four teachers in
question would have continued in the
normal course until the last day of the
respective months in which they attained
the age of 62 years. However, the proviso
to Rule 29 postulates that a teacher who
retires during an academic session would
continue to work till the end of the
academic session. Since the academic
session was between 1 July to 30 June, a
teacher
who
attained
the
age
of
superannuation within that period would
continue until the following 30 June and
such period of service would be deemed
to be an extended period of employment.
3. On 9 December 2014, a
Government Order was issued by which it
was resolved that with effect from
academic year 2015-16, the academic
session would commence from 1 April
and would end on 31 March following
year. The Government Order stipulated
that the benefit of this would be available
for the purposes of admission, promotion
of students and for conducting the
institutions.
However,
it
was
contemplated that this would not affect
any change in the grant of 'sessional
benefits' to teachers who, in consequence,
would be granted the same benefit as
before. The State Government issued
another Government Order on 29 June
2015 clarifying certain directions which
had been issued in the meantime on 15
June 2015 and 19 June 2015.
4. The teachers in the present case
filed a writ petition3 in order to challenge
a decision which was taken by the
Secretary, Basic Education on 15 June
2015, relying upon the terms of the
Government Order. The view of the
Secretary, Basic Education was that the
teachers in question would not be entitled
to the sessional benefit beyond 30 June
2015. The learned Single Judge, by an
interim order dated 30 June 2015 held that
since the dates of superannuation of the
petitioners were respectively on 1 June
2015, 27 May 2015, 4 June 2015 and 30
June 2015, which fell in the midst of the
academic session that had commenced on
1 April 2015 and was to end on 31 March
2016, the petitioners would be allowed to
continue till the end of the academic
session, i e until 31 March 2016 subject to
the verification of their dates of birth. The
learned Single Judge noted that the
petitioners in the present case had not
already availed of the benefit of Rule 29
earlier. Accordingly, an interim order was
passed in the aforesaid terms. The State is
in appeal.
5. Since the issue which arose before
the Court is a pure question of law and in
the interest of rendering finality and
certainty, we have by consent of all
counsels taken up the writ petition for
hearing and final disposal. No issue of
fact is to be resolved in these proceedings
and the entirety of the matter turns on an
appreciation of the relevant Rules and
Government Orders.
6. Rule 29 of the Rules provides that
a teacher shall retire from service upon
attaining the age of superannuation of 62
years on the last day of the month in
which the age of superannuation is
attained. However, the purpose of the
898
 INDIAN LAW REPORTS ALLAHABAD SERIES
proviso to Rule 29 is to enable a teacher
who has retired during the academic
session to continue to work until the end
of the academic session. The benefit of
this extended period of employment under
the proviso of Rule 29 is to ensure that the
educational needs of students are not
disturbed as a result of the retirement of a
teacher in the midst of an academic
session. Originally, the academic session
was to commence from 1 July every year
and to end on 30 June of the following
year.
Consequently,
a
teacher
who
attained
the
age
of
superannuation
between 1 July and 30 June of the
following year would continue in service
until 30 June when the academic session
would end. The State Government took a
decision that with effect from 2015-16,
the academic session would commence
from 1 April (instead of 1 July) and would
end on 31 March of the following year
(instead of 30 June). The issue which
arose before the Court in several cases
was whether, and to what extent, teachers
who
had
attained
the
age
of
superannuation in the previous academic
session would be entitled to the sessional
benefit upon the change in the academic
session. This issue was considered by a
Division Bench of this Court at Allahabad
in two cases which arose in relation to
intermediate institutions governed by the
Uttar Pradesh Intermediate Education
Act, 19214. On 12 June 2015, the State
Government had amended Regulation 21
of Chapter III of the Regulations framed
under the Act of 1921. As a result of the
amendment, the academic session was
similarly altered so as to commence in
April and end on 31 March of the
following year. In Bhajan Lal Diwakar Vs
Bani Singh Thakurela5, the teacher in
question had a date of birth of 12 July
1952 and would have attained the age of
62 years on 12 July 2014. Since the date
of superannuation fell in the midst of
academic
session
2014-15,
he
was
allowed to continue until 30 June 2015.
The
State
Government
issued
a
Government Order on 15 October 2014
by which the academic session was
changed to 1 April-31 March. The teacher
in that case contended that since he had
been allowed to continue until 30 June
2015 which fell within the re-designated
academic year of 1 April-31 March, he
would be entitled to continue until 31
March 2016. Rejecting that contention,
the Division Bench by its judgment dated
20 July 2015 observed as follows:
"In the present case, the first
respondent attained the age of sixty two
years in the month of July 2014. Under
the unamended Regulation 21, since the
date of retirement of the first respondent
fell within the midst of the academic
session, he was allowed to continue as a
Lecturer until 30 June 2015. The first
respondent continued on that basis until
30 June 2015. What the first respondent
seeks, essentially is a further extension in
service until 31 March 2016 which, in our
opinion, would be impermissible. The
benefit of such an extension under the
amended regulation would clearly not be
available to a teacher in the position of the
first respondent who had already attained
the age of superannuation prior to 1 April
2015. The first respondent had already
availed of the continuance in service until
the end of the academic session, which
according to the unamended regulation,
was to come to an end on 30 June 2015.
The State Government by a Government
Order dated 25 May 2015, clarified that
such an employee would continue until 30
June 2015. In other words, the first
respondent would not be entitled to a
2 All] State of U.P. & Ors. Vs. Ramesh Chandra Tiwari & Ors.
899
further extension in service until 31
March 2016."
In that case, the learned Single Judge
had granted an interim order allowing the
teacher to continue to work until 31
March 2016. The petition was heard
finally by the Division Bench since
questions of law had arisen and both the
State and the counsel for the petitioner
had stated that the matter may be heard
and disposed of finally. The principle
which was laid down in the judgment of
the Division Bench is that a teacher, who
had already taken the benefit of an
extended period of employment until 30
June 2015, would not be entitled to a
further extension until 31 March 2016.
7. The same view was reiterated in
another judgment of a Division Bench of
this Court at Allahabad on 24 July 2015 in
Dulare Lal Vs State of U P6. In that case
also,
Assistant
Teachers
of
an
intermediate college whose dates of birth
were 3 January 1953 and 14 January 1953
attained the age of superannuation on 3
January 2015 and 14 January 2015. Since
the dates of their superannuation fell in
the midst of the academic session 201415, the teachers were allowed to continue
until 30 June 2015 which was the end of
the academic session 2014-15. In this
background, the Division Bench held that
having once availed of an extension of
service until the end of the academic
session, the teachers would not be entitled
to a further extension until 31 March
2016. The Division Bench observed as
follows:
"The basic issue before the Court is
whether a person who had already
attained the age of superannuation prior to
1 April 2015 and who had availed of an
extension of service until the end of the
academic session would be entitled to a
further extension of service until 31
March 2016. In answer to this question,
what must be emphasized is that the
purpose of granting an extension of
service until the end of the academic
session is to protect the interest of
education of the students so that the
retirement of a teacher during the midst of
an academic session does not result in
disrupting the cause of education. This
was also adverted to in a judgment of a
Division Bench of this Court in Surendra
Prasad Agnihotri vs. State of U.P. and
ors.7 upon which reliance has been placed
by the learned Single Judge.
In the case of the appellants, it is
clear that they attained the age of
superannuation in January 2015 during
the midst of academic year 2014-15.
Hence, they were granted an extension of
service until the end of the academic
session which then stood as 30 June 2015.
The date of superannuation is not
postponed as a result of Regulation 21 but
employees are only granted an extension
until the end of the academic session.
Once having availed of the extension of
service until 30 June, the appellants
would not be entitled to a further
extension of service until 31 March 2016.
The appellants would not be entitled to
claim that as a result of the change in the
academic year now to 1 April - 31 March,
their date of superannuation falls in the
midst of the academic year thereby
entitling them to a further extension of
service. The appellants have already
availed of an extension of service and
there would be no occasion granting them
a further extension."
8. The same view has been taken by
a Division Bench of this Court at
Lucknow in Krishna Chandra Pal Vs State
900
 INDIAN LAW REPORTS ALLAHABAD SERIES
of U P8. In that case, the teachers had
already attained the age of superannuation
between 14 July 2014 and 31 December
2014 which was within the academic
session 2014-15 and were, therefore,
continued until 30 June 2015. The
Division Bench held that Regulation 21
would not entitle them to a further
extension until 31 March 2016.
9. Primary schools are governed by
the provisions of the Uttar Pradesh Basic
Education Act, 1972 and the service
conditions of the teachers are governed by
the Rules framed under the Act. Rule 29
lays down (i) the age of superannuation
which is 62 years; (ii) the principle that a
teacher who attains the age of 62 years
will retire from service on the last day of
the
month
in
which
the
age
of
superannuation is attained; and (iii) the
principle that a teacher who has retired
during
an
academic
session,
shall
continue to work till the end of the
academic session and that such period of
service will be deemed to be an extended
period of employment. The proviso to
Rule 29 enacts a legal fiction through the
subordinate legislation, the effect of
which is that though a teacher has attained
the age of superannuation, the teacher,
notwithstanding the fact that he or she had
retired during the academic session, will
continue to work until the end of the
academic session and that such period of
service will be deemed to be an extended
period of employment. Rule 29 refers to
the academic session as being 1 July to 30
June, since this was the academic session
which prevailed right until academic
session 2013-14. The reason why a
special provision is made in the proviso to
Rule 29 is to ensure that the educational
needs of students are not disrupted by the
retirement of a teacher in the midst of an
academic session. In other words, the
benefit is extended not so much for
teachers (though the teachers would
obviously also receive the benefit of an
extended period of employment) but
primarily to protect the students whose
education would be disturbed by the
absence of a teacher for the academic
session. 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 clarificatory of the decision
which has already been taken of the dates
of commencement and conclusion of the
academic session.
10. In the present case, we find from
the diverse Government Orders which
have been issued by the State Government
that there has been a considerable degree
of ambiguity and a lack of application of
mind which could have best been
avoided. The State Government issued a
Government Order on 9 December 2014
stating that a decision has been taken to
alter the academic session from the
erstwhile 1 July-30 June to 1 April-31
March. This change in the academic
2 All] State of U.P. & Ors. Vs. Ramesh Chandra Tiwari & Ors.
901
session was to take effect from 2015-16.
In other words, on and from 1 April 2015,
the new academic session has taken effect
and which will continue until 31 March
2016. A teacher whose normal date of
retirement upon attaining the age of
superannuation of 62 years falls within
the academic session would be entitled to
the benefit of an extension of service until
31 March 2016. Obviously, as the two
judgments of the Division Bench of this
Court at Allahabad and the judgment of
the Division Bench at Lucknow have
held, a teacher who has continued in
service until 30 June 2015 by virtue of the
operation of the proviso to Rule 29 and
who has already taken a benefit of the
proviso, would not be entitled to a further
extension of service till 31 March 2016.
Consequently, as we have noted earlier,
the teachers in the cases which were
decided by the Division Bench at
Allahabad had already attained the age of
superannuation in July 2014 or, as the
case may be, in January 2015. These
teachers had been continued until 30 June
2015 which was the earlier academic
session, in pursuance to the proviso to
Regulation 21 (applicable in the case of
intermediate institutions). However, a
teacher
who
attains
the
age
of
superannuation during academic session
2015-16, as modified, and who has not
taken the benefit of the proviso to Rule
29, would be entitled to continue in
service until the end of the academic
session which would be 31 March 2016.
The Government Orders which have been
issued
from
time
to
time,
more
particularly on 9 December 2014 and 29
June 2015 have to be necessarily brought
in line with the mandatory requirements
of the proviso to Rule 29. As we have
observed earlier, the power to alter the
academic year undoubtedly vests with the
Government but having once altered the
academic year, the consequence which is
envisaged under the proviso to Rule 29
must ensue. The State Government cannot
by a government order override the
proviso to Rule 29. That is part of
subordinate legislation which cannot be
simply disregarded by an administrative
order.
11. On the facts of the present
special
appeal,
the
dates
of
superannuation of the four respondent
teachers would respectively be 1 June
2015, 27 May 2015, 4 June 2015 and 30
June 2015. All these teachers worked in
academic session 2015-16 commencing
from 1 April 2015 in the normal course,
without taking the benefits of the proviso
to Rule 29. Since the dates of their
retirement fell in the midst of the
academic session, they would plainly be
entitled to continue in service until the
end of the academic session, as envisaged
in the proviso to Rule 29. The Secretary,
Basic Education, Government of U P,
who decided upon the issue on 15 June
2015 has taken a view clearly contrary to
the mandate of the proviso to Rule 29.
12. For these reasons, the order
dated 15 June 2015 passed by the
Secretary,
Basic
Education
shall
accordingly stand quashed and set aside.
13. We have taken up the writ
petition by consent for final hearing at
this stage having due regard to the need to
resolve the question of law and to ensure
that a measure of certainty is established
as a result of the alteration in the
academic session as notified by the State.
In that view of the matter, we have taken
up Writ Petition No 3653 (S/S) of 2015
for hearing and final disposal. Since no
902
 INDIAN LAW REPORTS ALLAHABAD SERIES
further issue would survive in the writ
petition filed by the respondents (original
petitioners), both the special appeal and
the writ petition shall be governed by the
present judgment and are accordingly
disposed of. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.08.2015
BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.
Consolidation No. 567 of 2015
Nand Lal
...Petitioner
Versus
D.D.C, Dist. Hardoi & Ors.
Respondents
Counsel for the Petitioner:
Dharmendra Kumar Singh, Ankit Kumar
Singh, Vinod Kumar
Counsel for the Respondents:
C.S.C., Yogendra Nath Yadav
U.P. Consolidation of Holdings Act-Jurisdiction
of
Consolidation
Authorities-benefits
of
Section 122-B (4-f) of U.P.Z.A.L.R. Actprovision of Section 122-B-except Collector,
the Consolidation authorities no jurisdictionany direction conferring any rights-null and
void.
Held: Para-12
Section 122-B 4 (f) of U.P.Z.A. & L.R. Act
is in fact a proviso to Section 122-B of
U.P.Z.A. & L.R. Act, it provides that
where
any
agricultural
labourer
belonging to a Scheduled Caste or
Scheduled
Tribe
category
is
in
occupation of the land veted in a Gaon
Sabha
under
Section
117
having
occupied it from before 13.05.2007 and
the land so occupied does not exceed
1.26 hectares, then no action under this
section shall be taken by the Land
Management Committee or the Collector
against such labourer and he shall be
admitted
as
bhumidhar
with
nontransferable rights of the land under
Section 195.
(Delivered by Hon'ble Ritu Raj Awasthi, J.)
1. The legal question involved in this
writ petition, which requires consideration
is whether consolidation authorities during
consolidation proceedings have any power
or authority to decide that a person is
entitled to get the benefit of Section 122-B 4
(f) of U.P.Z.A. & L.R. Act and accordingly
confer such benefit upon him.
2. Notice on behalf of opposite
parties no.1 and 2 has been accepted by
learned Chief Standing Counsel, whereas
Mr. Yogendra Nath Yadav, Advocate has
accepted notice on behalf of opposite
party no.6.
3. For the orders proposed, there is no
need to issue notice to opposite parties no.3
to 5, as such, notice to opposite parties no.3
to 5 have been dispensed with.
4.
The instant writ petition has been
filed challenging the impugned order dated
29.5.2015, passed by Deputy Director of
Consolidation,
Hardoi
in
Revision
No.188/14-15 filed under Section 48 of
U.P.C.H. Act and the order dated 3.10.2012
passed by Settlement Officer Consolidation
in Appeal No.243, under Section 11 (1) of
U.P.C.H. Act, as contained in Annexures-1
and 2 respectively to the writ petition.
5. As per given facts of the case in
the writ petition when the consolidation
proceedings were initiated in the village
in question, the petitioner had preferred
objection under Section 9-A (2) of
U.P.C.H. Act before the Consolidation