ASSAM MADHYAMIK SIKSHAK ARU KARMACHARI SANTHA Vs. STATE OF ASSAM AND ORS.
LAWS(GAU)-1994-1-15
HIGH COURT OF GAUHATI
Decided on January 07,1994

Assam Madhyamik Sikshak Aru Karmachari Santha Appellant
VERSUS
STATE OF ASSAM And ORS. Respondents

JUDGEMENT

D.N. Baruah, J. - (1.)THIS writ application has been filed by an Association of teachers, known as "Assam Madhyamik Sikshak Aru Karmachari Santha" praying for a writ of Mandamus or any other appropriate writ or direction.
(2.)THE facts of the case may be briefly stated as follows:
The Petitioner -Association is a registered Society and is recognised by the Government of Assam, It represents teachers and other employees of the High and Higher Secondary and Madrassa Schools of Assam. The teachers of the Petitioner -association have been employed in different schools receiving grants from the State Government for maintenance. These Schools are guided and controlled by "The Assam Aided High and Higher Secondary Employees' Rules, 1960" framed by the State Government, for short the Rules. These Rules regulate recruitment and conditions of service of persons employed in Aided High and Higher Secondary Schools. However, the Rules were amended in 1965 and a new set of Rules, known as "Amended Assam Aided High and Higher Secondary School Employees Rules, 1965" were brought into force. As per these Rules, the age of superannuation of teachers is 60 years which may extend upto the age of 63 years in some case it may extend beyond the age of 63 years subject to the maximum period of one year only.

On 28.9.77 the Government of Assam promulgated an Ordinance, known as The Assam Secondary Education (Provincialisation) Ordinance, 1977, provincialising the services of the teachers and other employees of all Secondary Schools of the State. This Ordinance came into force on 1.10.77. Thereafter, it was repealed by an Act, known as "The Assam Secondary Education (Provincialisation) Act, 1977, for short the Act. As per Section 4 of the Act, all employees other than Grade -IV employees of a Secondary School coming within the purview of the Act, shall, on attaining the age of 58 years, go on superannuation. However, the Grade -IV employees shall continue upto the age of 60 years.

As per Section 4(3) of the Act, any existing employee, other than the Grade -IV employees, who does not intend to go on superannuation on attaining the age of 58 years shall have the option to continue upto the age of 60 years under the same terms and conditions which were applicable to him before the appointed day and in that event he shall not be entitled to any pension or gratuity, Such employees shall give an option in writing to that effect in the manner prescribed within a period of three months from the appointed day. The existing employees, who do not give such option in writing within the date specified above shall be deemed to have opted for going on superannuation on attaining the age of 58 years.

Further Section 4 of the Act directs the Government to prescribe the manner by which the teachers intending to continue till the completion of 60 years may express such intention. However the Government have not yet taken any step to prescribe the manner as per the said Rule. Therefore, the employees who wanted to continue in service could not submit the option in writing in the prescribed manner within the specified period. Hence the rights of the existing employees to exercise option has been denied. The Petitioner further stales that various Commissions, viz; Kothari Commission in 1964 and Chattopadhaya Commission in 1984, appointed by the Government recommended that 60 years should be the age of superannuation, But the Government of Assam have not taken any step in this regard, even though, the Central Government and some other State Governments have already implemented the recommendation.

The Petitioner -association further states that prior to provincialisation the existing employees had the right to serve upto 60 years with extension upto 63 years. By the provincialisation Act 1977, the age of superannuation has been reduced from 60 years to 58 years with an option to continue upto 60 years to under the same terms and conditions which were applicable to them before provincialisation and in such case they shall not been entitled to any pension or gratuity, Therefore, Section 4(3) of the Act is discriminatory and against public policy, as it takes away the right of those employees serving upto 60 years of age to enjoy the benefit of pension and gratuity, Hence the present petition.
Heard Mr. B.K. Das, learned Counsel for the Petitioner and Mr. B. Choudhury learned Additional Senior Government Advocate for the State. Mr. Das raised the following points:
(a) The Government have not yet prescribed the manner of exercising option as required under Section 4 of the Act, thus the existing employees have been deprived of the opportunity to exercise the option;

(b) There has been violation of equality clause of Article 14, inasmuch as, a class of teachers retiring at the age of 58 years shall be entitled to pension and gratuity etc. and the other teachers who continue to serve upto the age of 60 years of age by exercising the option are deprived of the benefit of pension and gratuity; and.

(c) In spite of recommendations of various Commission, recommending the age of superannuation of teachers at 60 years, the Government of Assam have not taken any step to raise the age of superannuation, even though, the Central Government and some of the Suite Governments have already implemented the recommendations.

(3.)MR . Choudhury, learned Additional Senior Govt. Advocate, on the other hand, submits that even though the manner has not been prescribed, the teachers can exercise their option even by simply expressing their Intention in writing to continue in service upto the age of 60 years, within a period of three months from the appointed day by the existing employees.


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