Decided on December 14,1983



S.L.TALATI,J. - (1.) This appeal is directed against the order of the Chamber Judge of City Civil Court (Court No. 29) passed on 30-8-1983 in Civil Suit No. 2001 of 1983.
(2.) Plaintiff No. 1 is the primary teacher and the only question which was required to be decided was as to whether the retiring age of this primary teacher is 58 years or is 60 years. Now when this plaintiff joined the service the appellant-society had with them their own Leave Rules. Rule 29 was as under : "The age of retirement for servants of the society will ordinarily be 60 years, but the Governing Body may require a medical certificate of fitness after the age of 55." Now because of this rule the retirement age of plaintiff No. 1 would have been 60 years. Now what intervened was that the Bombay Primary Education Act was passed in the year 1947 and thereafter the rules were framed under that Act and the rules came to be amended by the Bombay Primary Education (Guj. Amendment) Rules, 1978. Now Schedule-F provided as many as 44 Rules. The relevant rule on which reliance is placed by plaintiff No. 1 is Rule 34 and particularly Rules 34(1) and (3). They are as under : "34. Age of superannuation of Teacher - (1) An employes shall retire at the age of 58 years. However a review of the work will be undertaken at the age of 55 years deciding whether he deserves to be continued beyond the age of 55." "(3) These rules shall not apply to employee who are already employed on a contract basis for a definite period. However, the management shall not make any appointments on contract which would defeat the provisions of these rules." Now reliance was placed on Rule 34(3) and it was argued by the learned Advocate Shri Raju that this primary teacher was employed on a contract basis and as at the time of his appointment the retiring age was 60 years and as his age was known on the date of the appointment he was appointed for a definite period by which he would retire when he attains the age of 60 years. Such an interpretation is not possible. The reasons are that Rule 34(3) begins with the words "These rules shall not apply". This would mean that the rules were not to be applied to the employees who were already employed on contract basis for a definite period. Now on the date of the appointment every employee would have a different age and, therefore, though he is employed he is neither employed on contract basis nor employed for a definite period. The meaning should be given as under : There should be a contract between an employer and employee for a period which must be definite meaning thereby 5 years, 10 years, 15 years, 12 years or any period which is a fixed period and for that period a contract is made. The contract must be for a definite period between an employer and an employee and further qualifying clause makes it more clear which says that in future the management shall not make any appointments on contract which would defeat the provisions of these rules, meaning thereby that the management shall not fix any definite period for a new employee which might defeat the provisions of these rules meaning thereby that if a person is to be employed at the age of 55 for a definite period he shall not be employed for a period more than three years because otherwise it would defeat the provisions of these rules.
(3.) The learned Civil Judge did not apply Rule 34 to plaintiff No. 1 as at that particular point of time by several writ petitions filed in this Court interim stay was granted to the effect that Schedule-F shall not be operative. There were as many as 40 petitions, one of them being Special Civil Application No. 305 of 1979. All these 40 applications came to be disposed of by the Division Bench of this Court on 1-9-1983 and Schedule-F and all rules are held valid and the interim relief is vacated. Under these circumstances Rules 34(1) and (3) were required to be read.;

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