ACHHAIBAR MAURY v. STATE OF U.P. & ORS

Citation: [2007] 13 S.C.R. 568

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

ACHHAIBAR MAURY v. STATE OF U.P. & ORS.pdf

Judgment text

ACHHAIBAR MAURYA -;. v. STATE OF U. P. & ORS. DECEMBER 13, 2007 (S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] Service Law: Uttar Pradesh Basic Education (Teachers) Service Rules, 1981: r. 29-Age of superannuation of teacher-Claim regarding 'session benefit '-HELD: Teacher having attained age of superannuation on 30th June, would not be entitled to the benefit of extendedperiod-Fixing ofcut-offdate-Constitution ofIndia, 1950- Articles 14 and 16-Administrative Law--Principles ofnaturaljustice. r· Principles ofnaturaljustice-Superannuation-HELD: A person retires automatically on completion of age ofsuperannuation- Principles ofnaturaljustice have no application in such a case. The appellantwas an Assistant Teacher in a primary school. His date ofbirth was 1. 7. 1943. Hewas to superannuate on attaining the age of60 years. He claimed the 'session benefit' in terms ofthe proviso to r.

29 ofthe UttarPradesh BasicEducation (Teacher)ServiceRules, 1981 i contending that as he would superannuate on 1. 7. 2003, he would be entitled to the 'session benefit' and thus would continue till the end of the academic session (i. e. from Julyto 30thJune). His writ petition and writ appeal having been dismissed, he filed the instant appeal. Dismissing the appeal, the Court HELD: 1. 1. A person attains a specified age on the day preceding the anniversary of his birthday. This has to be determined on the touchstone ofstatute operating in the field and in absence thereofby common law principle. (Para 10 and 12] [572-F; 573-C] ACHHAIBARMAURYAv. STATEOFU. P. 569 Prabhu Dayal Sesma v. State ofRajasthan & Anr. , AIR (1986) SC 1948, relied on. Re Shurey Savory v. Shurey L. R. , (1918) 1Ch. 263 and Rex v. Scoffin L. R. , (1930) 1KB741, referred to. Halsbury 's Laws, 4th Edition Reissue, Page 209, referred to. 1. 2.

The terms and conditions ofservice ofan Assistant Teacher are governed by the provisions ofUttar Pradesh Basic Education Act, 1972 and the Uttar Pradesh BasicEducation (Teachers) ServiceRules, 1981 framed under sub-section (1) ofSection 19 thereof. In terms of Rule 29, a teacher is to retire on the date on which he completed 60 years and, thus, on the last day ofmonth when the person is born. [Para 7) [571-F, G] 1. 3. The benefit ofgetting an extended period ofservice must be conferred by a statute. The Legislature is entitled to fix a cut offdate. A cut off date fixed by a statute may not be struck down unless it is held to be arbitrary. What would, therefore, be an employee's last working datewould depend on thewordings ofthe Rules. The question as to whether a teacherwould obtain the benefit ofextended period of service upto 30thJune ofthe next yearwill depend upon the situation as towhether the teacher retires on or after1stJuly ornot.

Inthe instant case as the appellantwas born on 1stJuly, 1943, hewould retire on 30th June, 2003. [Para 8 and 9] [571-G; 572-A, B, CJ S. Benerjee v. Union ofIndia & Ors. , [1989] Supp. 2 SCC 486, distinguished. Khan Chandra Madhu v. Deputy Director ofEducation, 3rdDivision, Bareilly& Ors. , (1993) 2UPLBEC 1128, disapproved. 2. A person retires automatically on the day when he completes the age ofsuperannuation. Principlesofnaturaljustice,therefore,cannot be said to have any application in a case of this nature. The plea that the appellant was entitled to a hearing is not tenable as the matter relating to retirement from service depended upon the statutory provisions. [Para 10)(572-E, F] ,. ~ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5877 of 2007. From the Judgment and Order dated 08. 09. 2006 ofthe High Court ofJudicature at Allahabad in Special Appeal No. (221) of2004. S. C. Kushwaha and S. K. Nandy for the Appellant. The Judgment ofthe Court was delivered by S. B. SINHA, J. 1.

Leave granted. 2. Interpretation and application ofthe rule in regard to grant of benefit known as 'session' 'benefit' is the question involved in this appeal which arises out of a judgment and order dated 8. 9. 2006 passed by a Division Bench ofthe Allahabad High Court in Special Appeal No. 221 of2004. 3. Appellant herein was born on 1st July, 1943. He was appointed as an Assistant Teacher on 21st July, 1975 in a primary school known as Kisan Poorva Madhyamik Vidyalay, Itally Gazna, District Jaunpur. The terms and conditions ofservice ofa teacher indisputably is governed by the Uttar Pradesh Basic Education Act, 1972 (for short, 'the 1972 Act') and the rules framed under the State's rule making power contained in sub-section (1) of Section 19 ofthe Act known as Uttar Pradesh Basic Education (Teachers) Service Rules, 1981. Rule 29 ofthe said Rules i provided for age ofsuperannuation in the following terms : "29Age ofsuperannuation.

--{1) Every teacher shall retire from service in the afternoon ofthe last day ofthe month in which he attains the age of 60 years : Provided that a teacher who retires during an academic session (July l to June 30) shall continue to work till the end of the academic session, that is, June 30 and such period ofservice will be deemed as extended period ofemployment. " Academic session has been defined to mean the period from 1st July ACHHAIBARMAURYA v. STATE OF U. P. [SINHA, J. ] 571 to 30th June. 4. Contention of the petitioner before the High Court as well as before us is that as in terms of a notice dated 28. 2. 2003 issued by the Principal, Kishan Inter College, Ittailli, Gujana, Jaunpur, he was to retire from service on 1st July, 2003, and, thus, was entitled to the 'session B benefit' in terms ofRule 29 ofthe Rules. The said benefit having been denied to him, he filed a writ petition before the Allahabad High Court which was marked as writ petition No. 21758 of2003.

The said writ petition was dismissed by a learned Single Judge. A Division Bench ofthe said High Court, by reason ofthe impugned judgment, has affinned the same. 5. The appellant is, thus, before us. 6. Mr. S. C. Kushwaha, learned counsel appearing on behalfofthe • ~ appellant, at the outset, drew our attention to ajudgment and order dated 14th May, 1993 passed by a learned Single Judge ofthe said Court, which is reported in Khan Chandra Madhu v. Deputy Director ofEducation, 3rd Division, Bareilly & Ors. , (1993) 2 UPLBEC 1128, wherein purported circular letter dated 5th June, 1987 eliminating 1st July as the cut offdate for obtaining the said benefit was declared ultra vires. The learned counsel submitted that in a situation ofthis nature, the date of retirement should be held to be 1st July and not 30th June. • 'f 7. The question in regard to the determination of age of superannuation ofan employee is governed by the Rules.

Indisputably, the terms and conditions of service ofan Assistant Teacher are governed by the provisions of 1972 Act and the Rules framed under sub-section (1) of Section 19 thereof. The Rules were amended on or about 12th June, 1989. In terms of Rule 29, a teacher is to retire on the date on which he had completed 60 years on the last day of month when the person is born. 8. As the appellant was born on 1st July, 1943, he would retire on 30th June, 2003. The question as to whether he would obtain the benefit of extended period of service upto 30th June and the next year will depend upon the situation as to whether the teacher retires on or after .... . ,. -'. 1st July or not. 9. In Khan Chandra Madhu (supra), the learned Judge proceeded on the basis that the academic session starts on 2nd July and ends on 30th June. A benefit ofgetting an extended period ofservice must be conferred ol. 6 by statute? The Legislature is entitled to fix a cut off date.

A cut off date fixed by a statute may not be struck down unless it is held to be arbitrary. What would, therefore, be an employee's last working date would depend on the wordings ofthe Rules. It may seem unfortunate as some people may miss the extended period of service by a day; but therefor a valid provision may not be held to be invalid on the touchstone of Articles 14 or 16 of the Constitution of India. A statute cannot be declared unconstitutional for conferring benefit to a section ofthe people. We, therefore, do not agree with the view taken in Khan Chandra ~ • Madhu (supra). 10. In S. Benerjee v. Union ofIndia & Ors. , [1989] Supp. 2 SCC 486, whereupon reliance has been placed, the fact situation obtaining was completely different. In that case, the appellant filed an application for voluntary retirement which was accepted from the forenoon of 1st January, 1986. In that view ofthe matter, he was found to be entitled to the benefit ofparagraph 17.

3 ofthe recommendations ofthe Pay Commission. , It was urged that the appellant was entitled to a hearing as the matter 'f relating to retirement from service depended upon the statutory provisions. person retires automatically on the day when he completes the age of superannuation. Principles ofnatural justice, therefore, cannot be said to have any application in a case ofthis nature. Aperson attains a specified age on the day next before the anniversary ofhis birthday or in other words on the day preceding that anniversary. [See Re Shurey Savory v. Shurey (L. R. (1918) 1 Ch. 263) and Rex v. Sco. ffin (L. R. (1930) 1 KB 741)]. 11. This Court in Prabhu Dayal Sesma v. State ofRajasthan & Anr. , AIR 1986 SC 1948] held : ACHHAIBAR MAURYAv. STATE OF U. P. [SINHA, J. ] 573 ~~ ~ "In calculating a person's age, the day ofhis birth must be counted as a whole day and he attains the specified age on the day preceding the anniversary ofhis birthday. " 12.

lt is interesting to note, however, that the common law rule stated in Re Shurey Savory (supra) in respect of anniversaries has been abrogated by virtue ofthe Family Law Reform Act, 1969. The effect of -'-·-" the change is that, in respect ofanniversaries falling after I January, 1970, the time at which a person attains a particular age expressed in years is the commencement ofrelevant anniversary ofthe date ofhis birth. [See Halsbury 's Laws, 4th Edition Reissue, Page 209]. We do not have such statute. We have, therefore, to determine the cases on the touchstone of statute operating in the field and in absence thereof by common law principle. 13. For the reasons aforementioned, we do not find any merit in -t · this appeal. It is dismissed accordingly. However, as nobody has appeared on behalfofthe Respondent-State, there sr. all be no order as to costs. RP. Appeal dismissed.