Sudhir Agarwal, J. - (1.) HEARD Sri J.J. Munir, learned counsel for the petitioners and learned Standing Counsel for the respondents.
(2.) THE petitioners have sought a writ of mandamus commanding the respondents to pay salary to petitioners from August, 2005 to July, 2006 with all consequential benefits treatim them as to have retired at the end of Session 2005- 06, i.e., 30.6.2006 from the post of Assistant Teacher in Primary Section of Hamidia Girls High School, Khair Nagar, Meerut. It is said that under the relevant rules the age of retirement of the teachers was 60 years but by the Government Order dated 4.2.2004 it was conveyed that the age of retirement is being extended to 60 where it is 58 years and to 62 where it is 60 years. THE said Government order applicable to all teachers employed in Primary and Junior High Schools of Basic Shiksha Parishad as also Government aided Junior High Schools, i.e., Senior Primary Schools. He submitted that since the petitioners were going to attain the age of superannuation of 60 years on 4.5.2004 and 4.4.2004 respectively they continued taking advantage of the aforesaid Government order and ultimately retired on 30.6.2006. It is also said that the petitioners have paid salary up to July, 2005 and thereafter were not paid salary and, therefore, entitled for the same. However, I find no force in the submission. The Government Order dated 4.2.2004 which convey the decision of the Governor for increase of age of retirement, in the last but one paragraph says as under : JUDGEMENT_510_UPLBEC1_2011Image1.jpg Learned counsel for the petitioners admits that in the case of petitioners the matter is governed by the U.P. Recognised Basic Schools 0unior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as "1978 Rules") wherein the age of retirement under Rule 14 was 60 years. It is not in dispute that Rule 14 was substituted and amended by notification dated 25.10.2005 published in U.P. Gazette, Extra., Part 4, Section (Kha), dated 25.10.2005 and after its amendment by substitution it reads as under : "2. Amendment of Rule 14.-In Uttar Pradesh Recognised Basic Schools (Junior High Schools Recruitment and Conditions of Service of Teachers) Rules, 1978 for the existing sub-rule (1) of Rule 14, the following rules shall be substituted : "Superannuation.-Every Headmaster or Assistant teacher of a recognised school shall retire in the afternoon of the last day of the month in which he attains the age of sixty-two years, provided that a Headmaster of Assistant teacher who retires during an academic session, not being Headmaster and Assistant teacher retiring on June 30, shall continue to work till June 30, following next after the date of retirement and such period of service shall be deemed as extended period of employment."
(3.) A perusal of the notification also shows that operation of the said rule has been made prospective and the teachers already retired have not given any benefit under the said rules. The Government order cannot be enforced which is otherwise contrary to the rules unless the rule is amended. The amendment -of rule is prospective having been made on 25.10.2005, obviously the petitioners were not entitled to continue beyond 60 years contrary to the statutory rules. It is well settled that an executive order cannot prevail over statutory rules. In Indra Sawhney and others v. Union of India and others, 1992 (Suppl) 3 SCC 217, the Apex Court held that though the executive orders can be issued to fill up the gaps in the rules if the rules are silent on the subject but the executive orders cannot be issued which are inconsistent with the statutory rules already framed. In Laxman Dundappa Dhamanekar and another v. Management of Vishwa Bharata Seva Smithi and another, JT 2001 (8) SC 171, also the same view was taken. In K. Kuppusamy and another v. State of T.N. and others, 1998 (8) SCC 469, the Court said that statutory rules cannot be overridden by executive orders or executive practice and merely because the Government has taken a decision to amend the rules does not mean that the rule stood obligated. So long as the rules are not amended in accordance with the procedure prescribed under law the same would continue to apply and would have to be observed in words and spirit. In Chandra Prakash Madhavrao Dadwa and others v. Union of India and others, 1998 (8) SCC 154, also the Apex Court expressed the same view holding that the executive orders cannot be conflicted and override the statutory rules of 1977. Further a mere direction issued by executive order which is otherwise not inconformity of the rules will not give any benefit to any person. Therefore, the petitioners were not entitled for such benefit.;