# Suman Lata v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 825
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-26
- **Case number:** Writ-A No. 7699 of 2020
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suman-lata-v-state-of-u-p-ors-46965
- **Pages:** 10

## Headnote

A. Civil Law - UP Basic Education Act, 1972
- UP Basic Education (Teachers) Service
Rules, 1981 - Rule 29 - Cantonment Fund
Servants Rules, 1937 (C.F.C. Rules) -
Assistant
Teacher
in
Primary
School
managed by Cantonment Board - Age of
retirement - 60 years or 62 years -
Session
benefit
-
Entitlement
-
Applicability of the Rules, 1937 - There
are no statutory Rules prescribing the
retirement age or granting session benefit
to a teacher of a Primary School which
does not belong to or is not maintained by
the Board or a local body as defined in
Section 2(e) of the Act, 1972 - C.F.S.
Rules do not grant session benefit to a
teacher who retires in the mid of the
academic session - Held, the retirement
age of the petitioner as well as her claim
for session benefit can be decided only in
terms of the C.F.S. Rules. (Para 32).

Writ Petition dismissed. (E-1)

Cases relied on :-

## Text

3 All. Suman Lata Vs. State of U.P. & Ors.
825
statement made by the learned Additional
Chief Standing Counsel as afore-noted.
Therefore, this order, to the extent of
direction for re-measurement of height
and chest; shall not be treated as
precedent. The entire exercise shall be
completed by the Appellant No.2 namely
U.P. Police Recruitment and Promotion
Board, expeditiously, preferably within a
period of two months from the date of
production of self
attested computer
generated copy of this order downloaded
from the official website of the High Court
Allahabad by the petitioners-respondents
before appellant No.2.

22. With the aforesaid directions, all
these Special Appeals are disposed off.
----------
(2021)03ILR A825
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2021

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ-A No. 7699 of 2020

Suman Lata ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prabhakar Awasthi

Counsel for the Respondents:
C.S.C., Sri Anuj Srivastava, Sri Prashant Mathur

A. Civil Law - UP Basic Education Act, 1972
- UP Basic Education (Teachers) Service
Rules, 1981 - Rule 29 - Cantonment Fund
Servants Rules, 1937 (C.F.C. Rules) -
Assistant
Teacher
in
Primary
School
managed by Cantonment Board - Age of
retirement - 60 years or 62 years -
Session
benefit
-
Entitlement
-
Applicability of the Rules, 1937 - There
are no statutory Rules prescribing the
retirement age or granting session benefit
to a teacher of a Primary School which
does not belong to or is not maintained by
the Board or a local body as defined in
Section 2(e) of the Act, 1972 - C.F.S.
Rules do not grant session benefit to a
teacher who retires in the mid of the
academic session - Held, the retirement
age of the petitioner as well as her claim
for session benefit can be decided only in
terms of the C.F.S. Rules. (Para 32).

Writ Petition dismissed. (E-1)

Cases relied on :-

1. St. of U.P. Vs Ramesh Chandra Tiwari & ors.;
2015 (8) ADJ 509

2. Writ A No. 44835 of 2013; Usha Bunkar Vs
General Officer, Commanding in Chief, Central
Command & 2 ors. decided on 1.3.2017

3. Triloki Nath Saxena Vs Rookee's High School,
Bareilly & ors.; 1997 AWC (Supp.) 422

4. Brahma Dayal Mehta Vs Senior Personnel
Executive, Indian Drugs; 1990 (2) AWC 1121

5. Shailendra Kumar Srivastava & anr. Vs
District Inspector of Schools,
Chandauli & ors.; 2013 (2) ESC 1016

6. Shyam Lal & anr. Vs St. of U.P. & ors.; 2011
(3) ADJ 640

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. Heard Shri Prabhakar Awasthi,
learned counsel for the petitioner as well as
Shri Prashant Mathur, Advocate and Shri
Bharat
K.
Srivastava,
Advocate,
representing the respondents.

2. The present writ petition has been
filed challenging the order dated 30.7.2020
passed by the Chief Executive Officer,
Cantonment Board, Bareilly Cantt, Bareilly
(hereinafter referred to as, 'C.E.O.') retiring
826 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner w.e.f. 31.7.2020 and for a
consequential mandamus not to disturb her
peaceful functioning as Headmistress till
31.3.2021, i.e., till the end of the present
academic session.

3. The facts of the case are that R.A.
Bazar,
Primary
School,
Bareilly
(hereinafter referred to as, 'Institution') is
managed
by
the
Cantonment
Board,
Bareilly. It has been stated in the writ
petition that the Institution was recognized
w.e.f. July 1959 by order dated 24.8.1959
passed by the District Inspector of Schools,
Bareilly
(hereinafter
referred
to
as,
'D.I.O.S.'), i.e., before the Uttar Pradesh
Basic Education Act, 1972 (hereinafter
referred to as, 'Act, 1972') was enacted and
continues to be recognized by the Basic
Shiksha Parishad, i.e., the Uttar Pradesh
Basic Education Board (hereinafter referred
to as, 'Board') after the Act, 1972 came in
operation.

4. The date of birth of the petitioner is
30.7.1958. The petitioner was appointed as
Assistant Teacher by order dated 18.6.1982
of the Cantonment Executive Officer,
Bareilly Cantonment and joined as such on
26.7.1982.
The
confirmation
of
the
petitioner as Assistant Teacher is not
disputed by the respondents. Subsequently,
the
petitioner
was
promoted
as
Headmistress of the Institution vide order
dated 10.7.2014 passed by the C.E.O. A
dispute arose between the petitioner and the
Cantonment Board regarding the retirement
age of the petitioner. The Cantonment
Board, being of the view that the petitioner
was to retire at the age of 60 years,
intimated through notice dated 1.2.2018 her
date of superannuation to be 31.7.2018, i.e.,
on the last date of the month in which she
attained the age of 60 years. The
Cantonment Board was of the view that the
service conditions of the petitioner were
governed by the Cantonment Fund Servants
Rules, 1937 (hereinafter referred to as,
'C.F.S Rules') which prescribed the age of
retirement to be sixty years. The petitioner
challenged the aforesaid notice before this
Court through Writ-A No. 9831 of 2018 on
the ground that by virtue of Rule 29 of the
Uttar Pradesh Basic Education (Teachers)
Service Rules, 1981 as amended by the
Uttar Pradesh Basic Education Teachers
Service (12th Amendment) Rules, 2011
(hereinafter referred to as, 'Rules, 1981')
her age of retirement was 62 years. This
Court vide its order dated 12.4.2018 passed
in Writ-A No. 9831 of 2018 stayed the
operation of the notice dated 1.2.2018. By
virtue of the aforesaid interim order the
petitioner continued in service, but vide
impugned order dated 30.7.2020, the
petitioner was retired w.e.f. 31.7.2020, i.e.,
on the last date of the month in which she
attained the age of 62 years. As noted
earlier, the order dated 30.7.2020 passed by
the C.E.O., i.e., respondent No. 2 has been
challenged in the present writ petition.

5. It has been stated in the writ
petition that by virtue of the Proviso to
Rule 29 of the Rules, 1981, the petitioner
was entitled to session benefit, i.e., she
could not be retired before the end of the
academic session which starts from 1st of
April and ends on 31st March in the next
year.
It
was
argued
that
in
the
circumstance, the petitioner was entitled to
continue as Headmistress of the Institution
till 31.3.2021 as her date of retirement falls
in the mid of the academic session starting
from 1.4.2020. The aforesaid ground raised
in the writ petition has also been argued by
the counsel for the petitioner. The counsel
for the petitioner has argued that the service
conditions of the petitioner are not
governed by the C.F.S. Rules but are
3 All. Suman Lata Vs. State of U.P. & Ors.
827
governed by 1981 Rules and Rule 29 of the
1981
Rules
prescribe
the
age
of
superannuation of the Teachers appointed
in the Basic Schools recognized by the
Board. It has been argued that under Rule
29 as amended in 2011, the age of
retirement of teachers of Basic Schools is
62 years and the Proviso to Rule 29
provides for extension of service till the
end of academic session if the concerned
teacher retires in the mid of academic
session.
Further,
through
Government
Orders
and
notifications
dated
15th
October, 2014 and 9th December, 2014, the
academic session which previously started
from 1st April and ended on 30th June next
has been changed and now the academic
session in a Basic Schools starts from 1st
April and ends on 31st March in the next
year. It has been argued that in pursuance
to the judgement of this Court in State of
U.P. Vs. Ramesh Chandra Tiwari &
Others, 2015 (8) ADJ 509 a Government
Order dated 8th October, 2015 was issued
which in effect provided that a teacher who
retires during an academic session shall be
entitled to extension of service till the end
of the academic session, i.e., till 31st
March. It was argued by the counsel for the
petitioner that the controversy regarding
applicability of C.F.S. Rules on employees
and teachers of Basic Schools recognized
by the Board is no more res-integra and has
already been resolved by this Court in
Usha
Bunkar
Vs.
General
Officer,
Commanding in Chief, Central Command
& 2 Others Writ A No. 44835 of 2013 in
which this Court vide its judgement and
order dated 1.3.2017 held that C.F.S. Rules
were not applicable on teachers of the
Institutions recognized by the Board and
the service conditions of the said teachers
shall be governed by the Rules framed
under the Act, 1972. The judgement and
order dated 1.3.2017 passed in Usha
Bunkar (Supra) was affirmed by the
Division Bench of this Court in Special
Appeal No. 230 of 2017 vide its judgement
and order dated 24.7.2018. It was also
stated that the Special Leave Petition No.
22464 of 2018 (Cantonment Board,
Kanpur & Another Vs. Usha Bunkar &
Another) challenging the aforesaid two
judgements of this Court was dismissed by
the Supreme Court vide its judgement and
order dated 14.9.2018. The said judgements
of this court and the order of the Supreme
Court have been annexed with the rejoinder
affidavit. In support of his argument, the
petitioner has also relied on the judgements
referred by this Court in its judgement in
Usha Bunkar (Supra).

6. It was argued that in view of the
aforesaid, the order dated 30.7.2020 passed
by the C.E.O. is contrary to law and liable
to be quashed.

7. In their short counter affidavit, the
respondents have stated and it has been
argued by the counsel for the respondents
that the petitioner was appointed under the
C.F.S. Rules and under Rule 22 of the
C.F.S. Rules, the age of retirement is 58
years and vide letter dated 4th June, 1998
issued by the Ministry of Defence the
concerned officers have been permitted to
grant extension in service up to the age of
60 years to all Cantonment Fund Servants
who were due to retire on 31.5.1981 or
thereafter. It was argued that the petitioner
was liable to retire in 2018, but continued
till 30.7.202 by virtue of the interim order
passed by this Court in Writ-A No. 9831 of
2018. It has been further stated in the
counter affidavit that there was no
provision in the C.F.S. Rules to grant
extension of service till the end of
academic session if the teacher retires in
the mid of academic session and, therefore,
828 INDIAN LAW REPORTS ALLAHABAD SERIES
the claim of the petitioner to continue up to
31st March, 2021 even though she attained
the age of 62 years on 30.7.2020 is not
tenable. It has been argued that the
appointment letter was issued to the
petitioner under the C.F.S. Rules and her
service conditions are not governed by the
1981 Rules but by the C.F.S. Rules and
therefore there is no statutory provision
entitling the petitioner to continue till the
end of the academic session even though
her date of retirement falls in the mid of
academic session. It has been stated in the
counter affidavit and it has also been
argued by the counsel for the respondents
that in any case by virtue of Article 254 of
the Constitution of India, the C.F.S. Rules
override any Rule or Regulations framed
by the Board under the Act, 1972 and also
because the C.F.S. Rules being Special
Rules framed under the Cantonment Act,
1924 override the General Rules framed by
the Board under the Act, 1972 and thus the
petitioner can not claim the benefit of the
Proviso to Rule 29 of the Rules, 1981. It
was argued that for the aforesaid reasons,
the writ petition is liable to be dismissed.

8. I have considered the rival
submission of the counsel for the parties.

9.

The
Uttar
Pradesh
Basic
Education Board was constituted by the
State Government exercising its power
under Section 3 of the Act, 1972. Under
Section 19 of the Act, 1972, the State
Government is empowered to make
Rules, by notification, for carrying out
the purposes of the Act and such Rules
may provide for the recruitment and
conditions
of
service
of
persons
appointed to the post of teachers and
other
employees
of
basic
schools
recognized by the Board. Section 19 of
the Act, 1972 is reproduced below :-

"19. Power to make Rules. -[(1) The
State Government may, by notification,
make rules for carrying out the purposes of
this Act.

(2) In particular, and without prejudice
to the generality of the foregoing power,
such rules may provide for all or any of the
following matters, namely -

(a) the recruitment, and the conditions
of service of persons appointed to the posts
of officers, teachers and other employees
under Section 6;
(b) the tenure of service, remuneration and
other terms and conditions of service of
officers, teachers and other employees
transferred to the Board under Section 9;

(c)
the
recruitment,
and
the
conditions of service of the persons
appointed, to the posts of teachers and
other
employees
of
basic
schools
recognized by the Board;

(d) any other matter for which
insufficient provision exists in the Act and
provision in the rules is considered by the
State Government to be necessary;

(e) any other matter which is to be or
may be prescribed.]"

(Emphasis added)

10. A perusal of Section 19(2) of the
Act, 1972 would show that the under the
said provision, the State Government is
empowered to make Rules prescribing the
conditions of service of officers, teachers
and its employees appointed under Section
6 of the Act, 1972, the conditions of service
of teachers and other employees transferred
to the Board under Section 9 of the Act,
1972 and the conditions of service of
persons appointed to the post of teachers
and others employees of basic schools
recognized by the Board. It is not the case
of the petitioner that he is an officer or
employee of the Board appointed under
Section 6 of the Act, 1972. It is also not the
3 All. Suman Lata Vs. State of U.P. & Ors.
829
case of the petitioner that he is an officer,
teacher or an employee transferred to the
Board under Section 9 of the Act, 1972.

11. In exercise of its power under
Section 19(2)(c) of the Act, 1972, the State
Government framed Rules, 1981. Rule
2(1)(b) of the Rules, 1981 defines the
"Appointing
Authority"
to
mean
the
District
Basic
Education
Officer
for
teachers referred in Rule 3. Rule 2(1)(c) of
the Rules, 1981 defines the "Basic School"
as a school where instructions are imparted
from classes I to VIII and Rule 2(1)(h)
defines "Junior Basic School" as a Basic
School where instructions from classes I to
V are imparted. Rule 2(1)(n) defines
"Service" to mean the Uttar Pradesh Basic
Education Teachers' Service and Rule
2(1)(o) defines "Teacher" as a person
employed for imparting instructions in
Nursery Schools, Basic Schools, Junior
Basic Schools, or Senior Basic Schools.

12. Rule 29 of the 1981 Rules
prescribes the age of superannuation of
teachers and is reproduced below :

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 60 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.

13. Rule 3 of the Rules, 1981 states
that the Rules shall apply to all teachers of
local bodies transferred to the Board under
Section 9 of the Act, 1972 and also to all
teachers employed in the Basic and
Nursery Schools established by the Board.

14. Rule 3 of the Rules 1981 are
reproduced below :-

"3. Extent of application. - These
rules shall apply to :

(i) All teachers of local bodies
transferred to the Board under Section 9
of the Act; and

(ii) all teachers employed for the Basic
and Nursery Schools established by the
Board."

(Emphasis added)

15. It is pertinent to note that the
Rules, 1981 do not define the term local
body, but in accordance with Rule 2(2) of
the Rules, 1981 the expression local body
used in Rules 1981 shall have the same
meaning as defined in Section 2(1)(e) of
the Act, 1972. Section 2(1)(e) of the Act,
1972 defines "local body" to mean Zila
Panchayat or Municipality as the case may
be. Thus, Rules, 1981 govern the services
conditions only of a teacher, who is either a
teacher of a Zila Panchayat or Municipality
transferred to the Board under Section 9 of
the Act, 1972 or is a teacher in a Basic
School established by the Board. The
Cantonment Board is not a local body as
defined in Section 2(1)(e) of the Act, 1972
and, the petitioner is not a teacher of a local
body transferred to the Board under Section
9 of the Act, 1972, therefore, the petitioner
is not covered by Rule 3(i) of the Rules,
1981. The Institution of the petitioner is not
established by the Board. The Institution of
the petitioner has been established and is
being managed by the Cantonment Board.
It is evident that the Institution is not
covered by Rule 3(ii) of the Rules, 1981
also and thus the service conditions of the
petitioner are not governed by the Uttar
Pradesh
Basic
Education
(Teachers)
Service Rules, 1981. Consequently, Rule
29 of the Rules, 1981 is not applicable on
830 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner and the petitioner can not
seek benefit of the Proviso of the said Rule
which provides for extension of service of a
teacher in case his age of superannuation
falls in the mid of academic session, i.e.,
between 1st April and 31st March of the
next year.

16. The State Government in exercise
of its power under Section 19 of the Act,
1972 has also framed The Uttar Pradesh
Recognized Basic Schools (Recruitment &
Conditions of Service of Teachers and
Other Conditions) Rules, 1975 (hereinafter
referred to as, 'Rules, 1975'). Rule 3 of the
Rules, 1975 states that every recognized
school shall be bound by the conditions and
restrictions specified in the said Rules. Rule
3 of the Rules, 1975 is reproduced below :-

"3. Applicability. - Every recognised
school shall be bound by the conditions and
restrictions hereinafter specified."

Rule 2(b) of the Rules, 1975 defines
Junior Basic School to mean an Institution
other than High Schools or Intermediate
Colleges imparting Education upon Vth
Class.

17. Rule 2(e) of the Rules, 1975
defines recognized schools as follows :-

"2(e). "Recognised School" means
any Junior Basic School, not being an
institution
belonging
to
or
wholly
maintained by the board or any local
body, recognised by the Board before the
commencement of these rules for imparting
education from Class I to V."
(Emphasis added)

18. Local body has not been defined
in the Rules, 1975 also but as the Rules,
1975 are delegated legislation framed by
the State Government in exercise of its
powers under Section 19(2)(c) of the Act,
1972, therefore, words or phrases used in
the Rules but not defined would have the
same meaning as defined in the Act, 1972.
In view of the aforesaid, local body in Rule
2(e) of the Rules, 1975 would have the
same meaning as defined in Section 2(1)(e)
of the Act, 1972, i.e., Zila Panchayat or
Municipality, as the case may be. The
Institution neither belongs to nor is wholly
maintained by the Board or any local body.
However, it has been stated by the
petitioner
that
the
Institution
was
recognized before commencement of the
Rules for imparting education from class I
to V. In view of the aforesaid, on the
averment of the petitioner, the 1975 Rules
govern the service conditions of the
petitioner.

19. A perusal of Rules, 1975 indicates
that though Rule 10 of the Rules, 1975
ensures that even recognized schools shall
undertake to pay to every teacher and
employee the same scale of pay, dearness
allowance
and
additional
dearness
allowance as are paid to the teachers and
employees of the Board possessing similar
qualifications and Rule 11 of the said Rules
provide that no order dismissing, removing
or terminating the services of a teacher or
other employee of a recognized school
shall be passed without prior approval in
writing of the Basic Shiksha Adhikari, but
there is no provision in the Rules, 1975
regarding superannuation of the teachers
and the employees of recognized basic
schools, i.e., Basic Schools which are not
established and wholly maintained by the
Board or local body as defined in Section
2(1)(e) of the Act, 1972. Rule, 13 of the
Rules, 1975 merely provides that it would
be the duty of the managing body to
comply with the provisions of the Act and
the Rules, 1975 and other lawful directions
3 All. Suman Lata Vs. State of U.P. & Ors.
831
as may from time to time be issued from a
person authorized by the Board. The
petitioner has not brought anything on
record to show that any directions were
issued by the Board to the Management of
the Institution asking it to modify the
service conditions of its employees to
confirm with Rule 29 of the Rules, 1981.
At this stage, it is clarified that the Court is
not expressing any opinion on the validity
of such direction, if any, issued by the
Board as the same is not in issue before this
Court.

20. The outcome of the above
discussion is that the benefit of the Proviso of
Rule 29 of Rules, 1981 is available only to
teachers specified in Rule 3 of Rules, 1981
and the service conditions of teachers of
Junior Basic Schools recognized by the board
but not wholly maintained by the Board or
any local body, i.e., a Zila Panchayat or a
Municipality, shall be governed by the Rules,
1975. The Rules, 1975 do not prescribe the
age of superannuation of such teachers, i.e.,
teachers whose service conditions are
governed by Rules, 1975. The age of
superannuation of such teachers and claim for
extension of service beyond the age of
superannuation
would
depend
on
the
provision in the rules prescribed by the
managing body of the school. In the present
case it is the C.F.S. Rules which, admittedly,
do not provide for extension of service
beyond the age of superannuation.

21. Before dealing with the different
cases referred by the counsel for the
petitioner wherein orders have been passed
granting session benefit to the teachers, it
would be appropriate to refer to the Service
Rules applicable in the said cases.

22. The service conditions of the
teachers of recognized Junior High Schools
are
governed by
the
Uttar
Pradesh
Recognized Basic Schools (Junior High
Schools)(Recruitment and Conditions of
Service
of
Teachers),
Rules,
1978
(hereinafter referred to as, 'Rules, 1978').
The said Rules have been made by the
State Government in exercise of its power
under Section 19(2) of the Act, 1972. Rule
2(h)
of
the
Rules,
1978
defines
"Recognized Schools" to mean any Junior
High School, not being an institution
belonging to or wholly maintained by the
Board or any local body, recognized by
the Board as such. Local body has not been
defined in the Rules, 1978, and therefore,
the term would have the same meaning as
given in Section 2(1)(e) of the Act, 1972. A
Junior High School recognized by the
Board but not maintained by the Board or
any local body would be a recognized
school under Rule 2(h) of the Rules, 1978.
Thus, a Junior High School managed and
maintained by the Cantonment Board, but
recognized by the Board, i.e., the Uttar
Pradesh Board of Basic Education shall be
a recognized school under the Rules, 1978
and the Rules, 1978 shall govern the
service conditions of teachers of a Junior
High School managed and maintained by
the Cantonment Board.

23. Rule 14 of the Rules provide as
follows :-

"14.
Superannuation.
-Every
Headmaster or Assistant Teacher of a
recognised school shall retire in the
afternoon of the last day of the month in
which he attains the age of sixty two years,
provided that a Headmaster or Assistant
Teacher who retires during an academic
session,
not
being
Headmaster
and
Assistant Teacher retiring on June 30, shall
continue to work till June 30, following
next after the date of retirement and such
832 INDIAN LAW REPORTS ALLAHABAD SERIES
period of service shall be deemed as
extended period of employment."
(Emphasis added)

24. A reading of the Rule 14 of the
Rules, 1978 shows that it is applicable on
recognized school and the benefit of the
said Rule is available to every Headmaster
or Assistant Teacher of a recognized
school. Rule 14 of the Rules, 1978 grant
session benefit to a teacher of a recognized
school who retires in the mid of the
academic session.

25. Similarly, The Intermediate
Education Act, 1921 (hereinafter referred
to as, 'Act, 1921'), defines "Institution" in
Section
2(b)
to mean
a
recognised
Intermediate College, Higher Secondary
School or High School, and includes,
where the context so requires, a part of an
institution. Section 2(d) of the Act, 1921
defines "Recognition" to mean recognition
for the purpose of preparing candidates for
admission to the Board's examinations.
"Board" in Section 2(a) of the Act, 1921 is
defined to mean Board of High School and
Intermediate Education. Section 2(e) of the
Act,
1921
defines
Regulations
as
'Regulations made by the Board under the
Act.' Section 15 empowers the Board to
make Regulations for the purpose of
carrying into effect the provisions of the
Act and Section 15(2)(k) empowers the
Board to make Regulations on all matters
which by the Act are to be or may be
provided for by the Regulations. It is
relevant to note that 'local body' has not
been defined in the Act, 1921. Section
16G of the Act, 1921 provides that every
person, which includes teachers and Head
of
the
Institution,
employed
in
a
recognised institution shall be governed
by such conditions of service as may be
prescribed
by
Regulations
and
any
agreement between the management and
such employee insofar as it is inconsistent
with the provisions of the Act, 1921 or the
Regulations framed thereunder shall be
void. Section 16G(1) of the Act, 1921 is
reproduced below :-

"16G.[Conditions of service of Head
of
Institutions,
teachers
and other
employees]. - (1) Every person employed
in a recognised institution shall be
governed by such conditions of service as
may be prescribed by Regulations and
any agreement between the management
and such employee insofar as it is
inconsistent with the provisions of this
Act or with the Regulations shall be
void." (Emphasis added)

26. Section 16H of the Act, 1921
exempts from the operation of Section 16G
of the Act, 1921 recognized institutions
maintained by the State Government or the
Central Government as well as recognized
institutions maintained by a local body who
have been declared to be so exempted by
the State Government.

27. A joint reading of the different
sub-clauses of Section 2 with Sections 16G
and 16H of the Act, 1921 shows that the
service conditions of teachers and the Head
of
a
Intermediate
College,
Higher
Secondary
School
or
High
School
recognized by the Board of High School
and Intermediate Education shall be such
as may be prescribed by the Regulations
except where the Institution is maintained
by the Central or State Government or is
maintained by a local body and the State
Government exempts the Institution from
operation of Section 16G of the Act, 1921.
Apparently
the
Act,
1921
and
the
Regulations framed thereunder shall apply
on the recognized Intermediate Colleges
3 All. Suman Lata Vs. State of U.P. & Ors.
833
and High Schools managed and maintained
by a Cantonment Board or any other local
body till the State Government exempts the
said schools as stipulated in Section 16H.

28. Chapter III of the Regulations
framed under the Act, 1921 prescribes the
conditions of service of the employees of
the Institution governed by Act, 1921.
Regulation 21 of the said Chapter III
prescribes the age of retirement of the
Principal, Headmaster and Teachers of
such Institutions and also provides for
extension of service till the end of
academic session in case the age of
retirement of any such employee falls in the
mid of academic session. Regulation 21 is
reproduced below :-

"21- vkpk;Z iz/kkuk/;kid] v/;kidksa dk vf/ko"kZ
o; 62 o"kZ gksxh QyLo:i 58 o"kZ dh vf/ko"kZrk vk;q
ij feyus okys lsok uSo`fRrd ykHk vc 60 o"kZ dh
vf/ko"kZrk vk;q ij rFkk 60 o"kZ dh vf/ko"kZrk vk;q ij
feyus okys lsok uSo`fRrd ykHk 62 o"kZ dh vf/ko"kZrk
vk;q ij vuqeU; gksaxsA ;fn fdlh vkpk;Z]
iz/kkuk/;kid vFkok v/;kid dk mi;qZDr vf/ko"kZ o;
2 tqykbZ vkSj 30 twu ds e?; esa fdlh frfFk dks
iM+rk gS rks mls ml n'kk dks NksM+dj tcfd og
Loa; lsok foLrj.k u ysus gsrq fyf[kr lwpuk vius
vf/ko"kZ o; dh frfFk ls 2 ekg iwoZ ns nsa] 30 twu rd
lsok foLrj.k Lo;eso iznku fd;k x;k le>k tk;sxk]
rkfd xzh"ekodk'k ds mijkUr tqykbZ esa izfrLFkkuh dh
O;oLFkk gks ldsA blds vfrfjDr lsok foLrkj.k dsoy
mUgha fof'k"V n'kkvksa esa iznku fd;k tk ldsxk tks
jkT; ljdkj }kjk fu/kkZfjr dh tk;A"
 (Emphasis added)

29. Regulation 21 was subsequently
amended through notifications dated 12th
June, 2014 and 15th October, 2014
providing that the academic session shall
begin from 1st April and end on 31st
March next year and consequently the
extension of service shall be granted to the
teachers
whose
retirement
age
falls
between 2nd April and 31st March next.

30. The above discussion shows that
age of superannuation and session benefit
is prescribed in the Rules governing the
service conditions of teachers of recognized
Junior High Schools as well as recognized
Intermediate Colleges, Higher Secondary
Schools and High Schools, which includes
such schools managed by the Cantonment
Board. Similarly, age of superannuation
and provision of extension of service is also
provided in Rule 29 of Rules, 1981 which
govern the service conditions of teachers of
basic schools of Zila Panchayat and
Municipality transferred to the Board and
also of teachers employed for Basic
Schools established by the Board. The
Rules, 1981 do not govern the service
conditions of Basic Schools managed and
maintained by the Cantonment Board.
However, Rules, 1975 which govern the
service conditions of teachers of recognized
Junior Basic Schools, which includes such
schools managed by the Cantonment
Board, does not prescribe the age of
superannuation of teachers of Junior Basic
Schools and also does not provide for
extension of service in case the teacher
retires in the mid of academic session. It is
this oddity in Rules, 1975, i.e., the
omission
to
prescribe
the
age
of
superannuation and for extension of
service till the end of academic session,
which distinguishes it from Rules, 1981,
Rules 1978 and the Regulations framed
under the Act, 1921 and has to be kept in
mind while considering the different
judgements referred by the counsel for
the petitioner.

31. In Writ-A No. 44835 of 2013, i.e.,
the Usha Bunkar (Supra) case, the issue
related to extension of service till the end
of academic session to an Assistant
Teacher of a Junior High School. A Junior
High School managed or maintained by a
834 INDIAN LAW REPORTS ALLAHABAD SERIES
Cantonment Board would be governed by
the Rules, 1978 and therefore the benefit of
Rule 14 would be available to the teachers
of such an Institution. Similarly, the
judgements of this Court in Triloki Nath
Saxena
Vs.
Rookee's
High
School,
Bareilly & Others 1997 AWC (Supp.) 422,
Brahma
Dayal
Mehta
Vs.
Senior
Personnel Executive, Indian Drugs, 1990
(2)
AWC
1121,
Shailendra
Kumar
Srivastava
&
Another
Vs.
District
Inspector
of
Schools,
Chandauli
&
Others, 2013 (2) ESC 1016 and Shyam
Lal and Another Vs. State of U.P. &
Others, 2011 (3) ADJ 640, relate to
applicability of Section 16G of the Act,
1921 and benefit of Regulations 21 to the
teachers
employed
in
recognized
Institutions as defined in the Act, 1921. In
Ramesh Chandra Tiwari (Supra) the issue
was regarding the benefit of Rule 29 of the
Rules, 1981. It is apparent from paragraph
1 of the reports that the case related to
Head Master of Schools conducted and
managed by the Uttar Pradesh Basic
Education Board and it was not disputed
that the teachers in the Institutions in
question were governed by Rules, 1981
and, therefore, the benefit of Rule 29 was
available
to
the
said
teachers.
The
judgement does not consider the case of
teachers of Basic Schools, whose service
conditions are not governed by Rules, 1981
and is, thus not a precedent for the present
case. Thus, the judgements referred above
do not help the case of the petitioner and
are not applicable in the present case.

32. It is the prerogative of the
employer
to
prescribe
the
service
conditions of its employees. The said
prerogative can be superseded by statutory
rules which may prescribe the service
conditions of the employees. There are no
statutory Rules prescribing the retirement
age or granting session benefit to a teacher
of a Primary School which does not belong
to or is not maintained by the Board or a
local body as defined in Section 2(e) of the
Act, 1972. In view of the aforesaid, the
retirement age of the petitioner as well as
her claim for session benefit can be decided
only in terms of the C.F.S. Rules. It is the
admitted case of the petitioner that the
C.F.S. Rules do not grant session benefit to
a teacher who retires in the mid of the
academic session.

33. It is clarified that I have not
expressed any opinion on the argument of
the counsel for the respondents regarding
Article 254 and the power of the Board or
the State Government to enact rules
governing the service conditions of the
teachers of Schools managed by the
Cantonment Boards but recognized by the
respective Education Boards as they were
not necessary to decide the present case.

34. For the reasons stated above, the
petitioner is not entitled to the relief
claimed by her.

35. The writ petition is accordingly
dismissed.
----------
(2021)03ILR A834
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.03.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 56 of 1994

Jagram ...Petitioner
Versus
D.D.C. & Ors. ...Respondents

Counsel for the Petitioner: