Supreme Court of India
MISS RAJ SONIversusAIR OFFICER INCHARGE ADMINISTRATION & ANR.
- Citation
- 1990 INSC 131
- Decided
- 10 April 1990
- Disposal
- Appeal(s) allowed
- Bench
- KULDIP SINGH
Holding
The Court held that the petitioner, as an existing employee, was entitled to retire at age 60 under Section 208 of the Delhi Education Code and Rule 110, and the management could not lawfully vary this statutory right despite claiming non‑state status.
Summary
The petitioner, a teacher who joined before the Delhi Education Act, 1973, claimed she was entitled to retire at age 60 under Section 208 of the Delhi Education Code, which was protected for existing employees by Section 8(1) of the Act and Rule 110 of the Rules. The school management, a society run by Air Force officers, retired her at 58 and argued it was not a State or authority under Article 12, and that the Education Code had no force of law. The Supreme Court held that the management was statutorily bound to apply the Act and Rules uniformly and could not vary the retirement age to the petitioner’s disadvantage. It rejected the contention that the school was outside Article 12 jurisdiction for the purpose of the writ. Consequently, the Court ordered the school to pay arrears of salary, allowances and post‑retirement benefits for the two years she was denied, effectively granting her retirement at 60. The petition was allowed.
Issues considered
- Whether an employee who was in service before the Delhi Education Act, 1973 is entitled to the higher retirement age of 60 years under Section 208 of the Delhi Education Code and Rule 110 of the Delhi Education Rules.
- Whether the school management, being a private society run by Air Force officers, qualifies as a "State" or "authority" under Article 12 of the Constitution for the purpose of issuing a writ under Article 32.
- Whether the Delhi Education Code, 1965 has the force of law and is enforceable against the school management.
- Whether Section 8(1) of the Delhi Education Act, 1973 bars the variation of conditions of service to the disadvantage of existing employees.
Legislation cited
Subjects
retirement agesuperannuationDelhi Education ActArticle 12state authoritywrit jurisdictionstatutory rightsdiscriminationexisting employee
Judgment
A MISS RAJ SONI
v.
AIR OFFICER INCHARGE ADMINISTRATION & ANR.
APRIL 10, 1990
B
[KULDIP SINGH AND P.B. SAWANT, JJ.]
Delhi Education Code, 1965: S. 208/Delhi Education Act,
1973: S. 8(1)/Delhi Education Rules, 1973: Rule 110-Employee of
pre-existing recognised school-Whether entitled to superannuate at 60 ).
C years-Authority under statutory obligation-Whether can defy statute I
on the ground that it·is not covered by the definition of 'State'· under
Article 12 of the Constitution.
The normal age of retirement of an employee of an aided school
prescribed under s. 208 of the Delhi Education Code, 1965 was 60
D years. The proviso to s. 8(1) of the Delhi Education Act, 1973, pro-
hibited the administrator from varying the conditions of service of an
employee of an existing school at the commencement of that Act to his
disadvantage. While fixing the retirement age of employees of recog-
nised private schools at 58 years sub-rule (1) of rule 110 of the Delhi
Education Rules, 1973 protected the entitlement of existing employees
E to higher age of retirement.
I
The petitioner-teacher, who had joined service before the coming _.-I
into force of the Act, assailed her reitrement on attaining the age of 58
years on the ground that under s. 8 of the Act read with rule 110 of the
Rules she had a statutory right to continue upto the age of 60 years in
F terms of s. 208 of the Code and that the management had acted
arbitrarily and discriminately in depriving her of two years of service
and consequential benefits. For the respondents it was contended that
°'
the management of the school was neither a State nor an authority
under Article 12 of the Constitution and as such no writ petition against ~
the respondent-management was maintainable, and that the Education
G Code had no force of law and as such the petitioner had no enforceable
right much less under Article 32 of the Constitution.
Allowing the writ petition, the Court,
HELD: I. The petitioner's claim is just. She was entitled to he )"
H retired atthe age of60years. [4I7A, E]
412
RAJ SONI v. AIR OFFICER [KULDIP SINGH, J.J 413
2. Prior to the coming into force of the Act and the Rules the
A
management was following the Delhi Education Code which provided
60 years as the age of superannuation for the school teachers. The age of
superannuation provided in Rule 110 of the Rules is 58 years except in
the case of existing employees who were in service on April l, 1973, the
date of coming into force of the Act, and in their case the higher age of
retirement to which they were entitled bas been protected. The petitioner B
was an existing employee of the respondent management. [417E, 41SD]
3. The respondent-management was under a statutory obligation
to uniformly apply the provisions of the Act and tbe Rules to the teachers
employed in the school. When an authority is required to act in a
particular manner under a statute it has no option but to follow the
statute. The authority cannot defy the statute on the pretext that it is c
neither a State nor an "authority" under Article 12 of the Constitution
of India. [416G-HJ
4. The petitioner having already attained the age of 60 years the
respondents are directed to pay her salary and allowances for the D
period of two years. The post-retirement benefits to which she is
entitled be redetermined assuming her to have retired at the age of 60
years. The arrears of salary and allowances be paid to her within three
months. [417F-G]
\..-._ ORIGINAL JURISDICTION: Writ Petition (Civil} No. 7995 E
of 1981.
(Under Article 32 of the Constitution of India).
Krishnamani and M.K.D. Namboodary for the Petitioner.
F
N.C. Sikri and Mrs. Madhu Sikri for the Respondents.
The Judgment of the Court was delivered by
KULDIP SINGH, J. The petitioner retired from the post of
teacher in the Air Force Central School, New Delhi (hereinafter called G
the 'School'} on her attaining the age of 58 years. The School is a
society registered under the Societies Registration Act, 1960. In this
petition under Article 32 of the Constitution of India she claims that
under the Delhi Education Code read with the Delhi Education Act,
1973 (hereinafter called the 'Act') and the Delhi Education Rules,
1973 (hereinafter called the 'Rules') the age of superannuation for the H
414 SUPREME COURT REPORTS [1990] 2 S.C.R.
•
teachers who joined service before the coming into force of the Act is
A 60 years and as such the management of the school acted arbitrarily in
depriving her of two years of service and consequential benefits. ··r-
The petitioner was initially appointed for a period of five years.
On completion of the said period in 1961 the contract was renewed for
B a further period of five years. Thereafter she continued in service of
the school on regular basis till the impugned retirement dated
October 31, 1981.
The petitioner has averred that prior to coming into force of the
Act the conditions of service of the teachers of the school provided 60
years as the age of superannuation. The respondents have, however,
c denied the same and have stated that the school management was
following the practice of retiring the teachers on attaining the age of 58
years with some exceptions where extensions were given upto the age of
60 years. The management has not produced any rules, bye-laws or
instructions to show that the age of superannuation of the school
D teachers was 58 years.
With a view to provide uniformity and security of service to the
teachers of recognised schools, the Delhi Administration laid down
model conditions of service including age of superannuation for the
teachers/employees of the said schools and published the same as a
E code called the Delhi Education Code. It came into force with effect
from February 15, 1965. Section 208 of the Code is as under:
"Section 208. The normal age of retirement of an
employee of an aided school (including the head of the
School) shall be the date on which he attains the age of 60.
F But an employee may be retired any time between the age
of 55 & 60 years on grounds of inefficiency, incompetence,
or physical unfitness after he has been given a reasonable
opportunity to show cause against the proposed retirement
and after his representation, if any, has been duly con-
sidered.''
G
Section 8( 1) of the Act and Rule 110 of the Rules which are
relevant are as under:
8(i) "the administrator may make rules regulating
the minimum qualifications for recruitment and conditions
H of service of employees of recognised private school.
RAJ SONI v. AIR OFFICER [KULDIP SINGH. J .] 415
Provided that neither the salary nor the right in A
respect of leave of absence, age of retirement and pension
of an employee in the employment of an existing school at
the commencement of this Act shall be varied to the disad-
vantage of such an employee."
"Rule 110-Retirement Age: (1) Except where an B
existing employee is entitled to have a higher age of retire-
ment, every employee of a recognised private school,
whether aided or not shall hold office until he attains the
age of 58 years."
The school is not receiving any aid from the Government but it is c
recognised by the Delhi Administration. It is not disputed that the Act
and the Rules are applicable to the teachers employed in the school
and the management is legally bound to extend the protection of these
provisions to them. The age of superannuation provided in Rule 110 of
the Rules is 58 years except in the case of existing employees who were
in service on April 1, 1973 the date of coming into force of the Act and D
in their case the higher age of retirement to which they were entitled
has been protected.
The petitioner has specifically asserted in the petition that even
though the school was not an aided school it had accepted the Delhi
Education Code and made it applicable to its employees. It is stated E
that the management of the school has been retiring the teachers at the
age of 60 years in terms of Section 208 of the Code. It is also
mentioned that one Mr. P.R. Menon, Head of English faculty in the
schooiretired on December 9, 1968 on attaining the age of 60 years. She
has further stated that Mr. Dhawan, Sqdrn. Leader Lal and Mr.
Sharma all joined the school as teachers before the ehforcement of F
1
Delhi Education Code and have retired after coming into force of the
~ Act and the Rules. All of them retired at the age of 60 years whereas
the petitioner was made to retire at the age of 58 years arbitrarily and
discriminately. In the counter affidavit the Chairman, Executive Com-
mittee of the school has stated as under:
G
"The Delhi Administration formulated an Education
Code by way of guidelines without any legal force as pro-
nounced by Hon'ble Delhi High Court ...... "
It is further stated:
H
416 SUPREME COURT REPORTS [1990] 2 S.C.R.
"the management of the school was adhering the
A
service conditions inclusive of age of retirement i.e. 58
years and the pay-scales prescribed by the Delhi Adminis-
tration, from time to time under Delhi Administration Act,
the past practice of serving beyond the age of 58 years had
been done away rather-on coming into force of the Delhi
B Education Act as a _matter of principle but for one excep-
tion of Shri RL Sharma the then Vice Principal who was
given extension as an administrative expediency."
Learned counsel for the petitioner has contended that prior to
the coming into force of the Act and the Rules, the management was
following the Delhi Education Code which provided 60 years as the
c age of superannuation and as such under rule 110 of the Rules the
petitioner has a statutory right to continue upto the age of 60 years.
Mr. N.C. Sikri, learned counsel appearing for the management, how-
ever, contends that the school is being run by a private management,
there is no Government control in the management of the school and
D no aid of any kind is being given to the school. According to him, the
management of the school is neither State nor an authority under
Article 12 of the Constitution of India and as such no writ petition
against the respondent-management is maintainable. On merits he
contends that Delhi Education Code has no force of law and as such
the petitioner has no enforceable right much less under Article 32 of
E the Constitution of India.
The Executive Committee which manages the school is headed
by Air Force Officer Incharge Administration, Air Force Headquar-
ters, New Delhi and consist of all high ranking Air Force officers of the
rank of Sqdrn. Leader to Air Marshal. The said membership is in their
F official capacity which indicates complete control over the school by
the Air Force. It is, however, not necessary to decide in this case as to
whether or not the school is a State or an authority under Article 12 of -4.
the Constitution of India.
The recognised private schools in Delhi whether aided or other-
G wise are governed by the provisions of the Act and the Rules. The
respondent-management is under a statutory obligation to uniformly
apply the provisions of the Act and the Rules to the.teachers employed
in the school. When an authority is required to act in a particular . l"-
manner under a statute it has no option but to follow the statute. The
authority cannot defy the statute on the pretext that it is neither a State
H nor an "authority" under Article 12 of the Constitution oflndia.
RAJ SONI v. AIR OFFICER [KULDIP SINGH, J.] 417
It is not necessary and we do not propose to go into the question
A
in this case as to whether the petition is maintainable under Article 32
of the Constitution, because this petition has been pending in this
Court since 1981. The petitioner's claim is just. It will, therefore, be a
travesty of justice to send her to any other forum at this stage. In any
case the petitioner seeks to enforce her statutory right under Section 8
of the Act read with Rule 110 of the Rules with a further contention B
that she has been discriminated in the matter of superannuation so
much so that other teachers similarly situated were retired at the age of
60 years whereas the petitioner has been singled out and retired at the
• age of 58 years .
The respondent-management has not produced any Rules or
bye-laws either framed by the management itself or otherwise to show c
that there was any uniform provision for retirement of teachers at the
age of 58 years. The averments of the petitioner that Section 208 of the
Delhi Education Code was being followed and the teachers were
superannuated at the age of 60 years have not been specifically denied.
Rather these averments have been tacitly admitted. Even otherwise D
every institution must frame and follow a uniform rule for superannua-
ting its employees. The age of superannuation cannot be left to the
whims of the employer to enable him to retire different employees at
different ages. In the absence of any regulation, Bye-laws or policy-
decision by the respondent-management regarding the age of superan-
~- nuation, we accept the contention of the petitioner that prior to the E
coming into force of the Act and the Rules the management was fol-
lowing the Delhi Education Code which provided 60 years as the age
of superannuation for the school teachers. In that view of the matter
under Rule 110 of the Rules, the petitioner being an existing employee
was entitled to be retired at the age of 60 years.
F
The writ petition is, therefore, allowed and the order of the
~ respondents retiring the petitioner at the age of 58 years is quashed.
She having already attained the age of 60 years we direct the respon-
dents to pay the petitioner salary and allowances for the period of two
years. We further direct that all the post retirement benefits to which
the petitioner is entitled be redetermined assuming the petitioner to G
have retired at the age oof 60 years. The arrears of salary and allo-
wances be paid to the petitioner within three months from today. The
-f · respondent being an educational institution we direct the parties to
bear their own costs.
P.S.S Petition allowed. H
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