JUDGMENT A.P. Sahi, J.
1. Heard Sri M.A. Qadeer, learned Counsel for the petitioner, learned Standing Counsel for the respondent Nos. 1 & 2 and Ch. N.A. Khan for the respondent No. 3
2. The dispute in the present writ petition is in respect of the claim of continuance in service by the respondent No. 3 in terms of the impugned order dated 28.9.2005.
3. The undisputed facts are that the institution in question is a Madarsa and is governed by the provisions of the Uttar Pradesh Ashaskeeya Arbi Tatha Farsi Madarson Ki Manyata Niyamawali, 1987, The aforesaid Rules are, however, not statutory Rules. The Rules, however, indicate that the age of retirement of an employee of Madras shall be 60 years. Rule 35 of the said Rules provides that a person shall retire at the age of 60 years but in case his date of retirement falls after 30th June of the Session then such an employee will be given the benefit of extension of service till the end of the said Sessions.
4. The State Government recently issued Government Orders for the enhancement in the age of retirement of employees in various sectors. In respect of Madarsas, a Government order was issued on 11.8.2004, copy whereof has been appended as Annexure-3 to the writ petition. Clause 3 of the said Government Orders made a provision for extension of such benefits to Teachers who have attained the age of superannuation after 30.6.2004 but were denied benefits of their continuance in service in the next sessions. However, this Clause 3 of the said Government Order was substituted by another Government Order dated 1.2.2005 which clearly recites that the benefit of extension of services shall be available to such Teachers also who retired on or after 30.6.2004.
5. Learned Counsel for the parties agreed that since the issue involved was one of a pure legal interpretation of the said Government Order, therefore, the matter be disposed of finally and, as such, the petition is being decided finally under the Rules of the Court.
6. It is admitted to the respondent No. 3 that his date of birth is 13.12.1943, consequently the respondent No. 3 attained the age of 60 years in the mid night of 12/13.12.2003. It is also admitted that he was given the benefits of continuing till the end of Sessions i.e. till 30.6.2004. Learned Counsel for the respondent No. 3 contends that the impugned order is justified inasmuch as the Respondent No. 3 has been rightly treated to have retired on 30.6.2004 land as a consequence thereof the Government Order dated 1.2.2005 is attracted in favour of the said respondent.
7. Learned Counsel for the petitioner, however, contends that the age of retirement is 60 years and, as such, the Respondent No. 3 had already retired on 13.12.2003 and, as such on a careful perusal of the said Government order dated 1.2.2005, it is evident that the benefit of extension of service for another period of 2 years is not available to the respondent No. 3 inasmuch as the Government order dated 1.2.2005 clearly recites that the benefit of extension of services will be only available, in case the Teacher retires on or after 30.6.2004.
8. Having heard the learned Counsel for the parties, it is evident that the Government order dated 1.2.2005 nails down the benefits in favour of only such Teachers who have retired on or after 30.6.2004. It is further to be noted that the language of the said Clause-3 of the Government Order dated 1.2.2005 indicates that the benefit was not intended to be extended to such Teachers, who were retiring at the age of 60 years prior to 30.6.2004. In the instant case, the respondent No. 3 attained the age of 60 years in December, 2003, and was permitted to continue till the end of the Session on account of the provisions. contained in Rule 35 of the 1987 Rules referred to herein above.
9. The date of retirement is the date on which the Teacher attains the maximum age. The said date of retirement is not changed on account of the extension of his continuance in service by giving him the benefit of extension of services to the end of the Session. This is presumably done to maintain the continuity of the Teacher in an institution for the benefit of the students who may continue to be taught by that same Teacher so as to maintain the rhythm of the educational process. Had the intention of the rules been otherwise, then it would have clearly stated that the date of retirement would fall on the 30th of June of the coming year in case the date of retirement fell on 1st of July or thereafter of the preceding year. The provision for giving extension in service till the end of the session, therefore, in my opinion, does not change the actual date of retirement which remains unaltered and is the date on which the Teacher attains the maximum age under the Rules. In the instant case, the date of retirement of the respondent No. 3, therefore, is 13.1.2003.
10. The Government Order dated 1.2.2005 specifies that the benefit thereunder shall accrue to only such Teachers who have retired on or after 30.6.2004. The Government Order does not extend the benefit to those who have retired on 29.6.2004 or before that. The Government Order further qualifies the availability of benefit only to those Teachers who have been deprived of the benefit of extension in services. In the instant case the Respondent No. 3 has also availed the benefit of extension after 13.12.2003 and, as such, has not been deprived of any such benefit so as to make him eligible for further extension under the Government Order dated 1.2.2005.
11. The impugned order erroneously presumes the date of retirement of the respondent No. 3 to be 30.6.2004 without considering the aforesaid aspects and, as such, is clearly uasustainable.
12. Another ground on which the petition must succeed is that the Government Order dated 11.8.2004 clearly states that appropriate steps would be taken for suitably amending the Rules of 1987. There is nothing on record to indicate the same nor does the impugned order recite any such action having been taken. Learned Standing Counsel has also not been able to point out any such amendment in the Rules.
13. The respondent No. 3, in the opinion of the Count, therefore, stood retired in December 2003 and, therefore, he could not have been given the benefit of extension of services in the manner in which it has been done under the impugned order. In view of the reasons and conclusions drawn herein above, the order dated 28.9.2005 is unsustainable and is, therefore, quashed. The writ petition stands allowed with no orders as to costs.