2013(3) ALL MR 837
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)
A.P. LAVANDE AND U.V. BAKRE, JJ.
Shri Lavu R. Konduskar Vs. The State Of Goa & Ors.
Writ Petition No. 89 of 2007
21st March, 2013
Petitioner Counsel: Mr. J. Supekar
Respondent Counsel: Mr. A.N.S. Nadkarni,Mr. S. Narvekar
(A) Goa, Daman and Diu School Education Act (1984), S.11 (Amended) - School Education Rules, R.88 - Retirement - Age of - Petitioner reached age of superannuation on 12. 04. 2006 - As per R. 88 petitioner was entitled to continue till 30.04.2008 - Amendment to S. 11 discloses that age to retirement has been increased from 58 to 60 as per notification dated 19.04.2006 - Contention that as per R. 88 petitioner was in employment on 19.04.2006 hence notification is applicable to petitioner - Continuation as per R. 88 after attaining age of superannuation is by way of re-employment and not as matter of right - Therefore notification is not applicable to petitioner - Petition liable to be dismissed. (Para 7)
(B) Goa, Daman and Diu School Education Act (1984), S.11 (Amended) - School Education Rules, R.88 - Retirement - Amendment to S. 11 discloses that age to retirement has been increased from 58 to 60 as per notification dated 19.04.2006 - Bare perusal of notification discloses that respondent has not fixed any cut off date - Notification has been published on 19.04.2006, deemed to come into force from said date and as such, question of fixing of cut off date by respondent does not arise - Contention in this regard is liable to be rejected. (Para 8)
(A) This Honourable Court be pleased to issue an appropriate writ, order or direction from this Hon'ble Court to quash and set aside the impugned communication dated 28.07.2006 issued to the petitioner by the respondent no.3.
(B) This Hon'ble Court also be pleased to issue an appropriate writ, order or direction, commanding the respondents to grant the benefits of the said amendment to the petitioner and consequently to continue the petitioner in service till the age of 60 years;
(C) In the alternative and at any rate, this Hon'ble Court be pleased to issue an appropriate writ, order and direction to strike down the cut off date of 18.04.2006, i.e. the date on which the said amendment came into force and consequently the teachers, such as petitioner whose date of birth is between 01.04.1948 and 17.04.1948 are also awarded the enhanced age of superannuation of 60 years;
(D) Pending the hearing and final disposal of this petition, this Hon'ble Court be pleased to direct the respondents to reinstate the petitioner in service as the petitioner's termination of service is based upon an artificial cut off date bearing no nexus whatsoever to the object of the said amendment.
2. The petitioner was appointed as teacher by respondent no.2 in respondent no.3 school in the year 1974 in terms of the Goa, Daman and Diu School Education Act, 1984 and the Rules framed thereunder. The date of birth of the petitioner is 12.04.1948 and in terms of the provisions of Goa, Daman and Diu Education Act, the petitioner would reach age of superannuation on 12.04.2008. In terms of Rule 88 of the School Education Rules, the petitioner was entitled to be re-employed upto 30.04.2008.
"2. Amendment of section 11.- In section 11 of the Goa, Daman and Diu School Education Act, 1984 ( Act 15 of 1985), in sub-section (1A), for the expression "every employee of a recognised private school, aided or not, shall retire at the age of 58 years.", the expression "a teacher of a recognised private school, whether aided or not, shall retire at the age of 60 years and an employee, other than a teacher, of such school shall retire at the age of 58 years." shall be substituted."
4. It is the case of the petitioner that in view of the amendment to Section 11, the petitioner was to retire on 12.04.2006. The challenge to the amendment of Section 11 is primarily on the ground that the State Government is not entitled to fix a cut off date and the date fixed i.e. 19.04.2006 as arbitrary and illegal and the classification of the school teachers who are to retire prior to 19.04.2006 and from 19.04.2006 is not based on the intelligible differentia. It is the case of the petitioner that the classification is not based upon intelligible differentia and it does not bear nexus to the object sought to be achieved by the amendment.
6. On a bare perusal of the amendment to section 11 in terms of the notification dated 19.04.2006 discloses that the age of the retirement has been increased from 58 years to 60 years and the same has come into force w.e.f. 19.04.2006.
It is the contention of the petitioner that since the petitioner was entitled to continue till 30.04.2006 even if the age of retirement was reduced from 60 years to 58 years and since the petitioner was in service as on 19.04.2006 in terms of Rule 88, the said notification was applicable to him.
7. We find no merit in the submission made by Shri J. Supekar, learned Counsel appearing for the petitioner. In terms of the amendment to Section 11, by virtue of the said notification, the date of retirement has been increased from 58 years to 60 years. No doubt, the proviso to Rule 88 provides that where a teacher attains the age of superannuation on or after the first day of November of any year, such teacher shall be re-employed upto 30th day of April of the year immediately following, if the teacher so desires. In our considered opinion, the proviso to Rule 88 does not advance the case of the petitioner inasmuch as the proviso does not confer any right on the petitioner to continue till 30.04.2006 in case he was to retire on or after the first day of November of the previous year but his continuation after the attaining the age of superannuation is by way of re-employment and as such, the benefit of notification dated 19.04.2006 is not applicable to the petitioner. In the present case, there is no serious dispute that the petitioner has attained the age of 58 years as on 12.04.2006 and he would have continued upto 30.04.2006 in terms of proviso to Rule 88 by way of re-employment and not a matter of right. Therefore, in our considered opinion, Rule 88 does not come to the rescue of the petitioner.
8. In so far as the submission of Shri J. Supekar, learned counsel appearing for the petitioner that the fixing of a cut off date by respondent no.1 is patently arbitrary and illegal is concerned, we find absolutely no merit inasmuch as on bare perusal of the notification discloses that respondent no.1 has not fixed any cut off date. The notification has been published on 19.04.2006 and in terms of the amendment to section 11, it deemed to come into force from the said date and as such, the question of fixing of a cut off date by respondent no.1 does not arise. Consequently, the argument based on fixing of a cut off date by respondent no.1 is without any basis.