C.S. Jayalakshmi vs The State Government of Karnataka Department of Personnel and Administrative Reforms

H.N. Nagamohan Das

In this writ petition the petitioner has prayed for a writ to declare the Government notification dated 28.07.2008 Annexure-G prescribing the age of retirement at 60 years for teaching staff would be applicable to all private unaided schools and to quash the letter dated 21.3.2012, Annexure-H retiring the petitioner from service on completion of 58 years of service. On 27.5.1980 petitioner joined as Teacher in the third respondent school. From time to time petitioner was promoted. As on March 2012, petitioner was working as Head Mistress in the third respondent High school division. Under the impugned letter Annexure-H dated 21.3.2012 the third respondent informed the petitioner that she will be retiring from service on 31.3.2012 on completion of 58 years of service. The Government of Karnataka issued the impugned order Annexure-G increasing the age of superannuation from 58 years to 60 years. Since the third respondent educational institution is recognised by the Government the impugned order is to be applied to it and all other private unaided educational institutions. Petitioner being aggrieved by the impugned letter Annexure-H is before this court.

Learned counsel for the petitioner, Jayna Kothari contends that third respondent school is a private unaided school. The Government of Karnataka recognised the third respondent school. Therefore the third respondent school has to function in accordance with the provisions of Karnataka Education Act and the relevant Rules. The Government of Karnataka in its order dated 28.7.2008, Annexure-G increased the age of superannuation from 58 years to 60 years in all the "Government schools and Government aided private schools. Therefore, the third respondent private unaided school is also bound by the Government Order at Annexure-G. Hence the benefit of the Government order at Annexure-G is to be extended to the petitioner who is working in third respondent private unaided school. Reliance is placed on number of decisions.

Per contra Sri T.N. Raghupathy, learned counsel for respondent no. 3 contends that the Government Order Annexure-G specifies that it is applicable to Government schools and Government aided schools. Admittedly, the third respondent is a private unaided school and therefore the Government Order Annexure-G is not applicable to them. Though the third respondent school is recognized by the Government of Karnataka, they are not bound by all the orders passed by the Government unless it is specifically made applicable. In the instant case in the Government Order, Annexure-G excludes the private unaided schools. Therefore the third respondent are legally correct in retiring the petitioner on attaining the age of 58 years. Reliance is placed on number of decisions.

Heard arguments on both the side and perused the entire writ papers. Relevant decisions relied on by the parties are referred.

It is not in dispute that third respondent is a private unaided school recognised by the Government of Karnataka. The Government of Karnataka passed the impugned order Annexure-G extending the age of superannuation from 58 years to 60 years. This order Annexure-G specifies that it is applicable only to the Government schools and Government aided schools. In the impugned order the private unaided schools are not included. Therefore the impugned Government Order Annexure-G is not applicable to the third respondent private unaided school.

The Supreme Court in Mrs. Satimbla Sharma and Others Vs. St. Paul''s Senior Secondary School and Others, held as under:

In our considered opinion, the Division Bench the High Court has rightly held in the impugned judgment that the teachers of private unaided minority schools had no right to claim salary equal to that of their counter parts working in Government schools and Government aided schools. The teachers of Government schools are paid out of the Government funds and the teachers of Government aided schools are paid mostly out of the Government funds, whereas the teachers of private unaided minority schools are paid out of the fees and other resources of the private schools. Moreover, unaided private minority schools over which the Government has no administrative control because of their autonomy under Article 30(1) of the Constitution are not State within the meaning of Article 12 of the Constitution. As the right to equality under Article 14 of the Constitution is available against the State, it cannot be claimed against unaided private minority schools. Similarly, such unaided private schools are not State within the meaning of Article 36 read with Article 12 of the Constitution and as the obligation to ensure equal pay for equal work in Article 39(d) is on the State, a private unaided minority school is not under any duty to ensure equal pay for equal work.

A Division Bench of this court in State of Karnataka Vs. Dr. R. Halesha and Others held as under:

The Division Bench of the High Court of Judicature at Patna has in STATE OF BIHAR vs. PROF. DR. JAGDISH PRASAD SHARMA, similarly opined that the "UGC has also made it clear that there is no guideline, no notification or Regulation which relates to the age of superannuation of the University teachers other than those of the centrally funded educational institutions and, thus, to read something else into the same would not be appropriate". Since we have also arrived at the same conclusion, the result is that five Division Benches of High Courts of the same number, share a similar understanding. It seems to us that it was essential for the Central Government to clarify that in the event that any State Government were to decide to increase the age of superannuation to 65 years effective for all College Teachers, the financial burden of the faculty already in harness would be shared by the Central Government to the extent of eighty percent of the additional expenses on salaries. This is indeed an incentive of no mean dimensions and should have been readily welcomed by the State of Karnataka. Especially so keeping in perspective the recommendation of the Chadha Commission that the age increase would not adversely impact employment avenues; and that this measure would be favourable to harmonizing and improving educational standards. Even though we unreservedly share this persuasion, it is not for us to issue directions for its adherence when the State Governments possess the ultimate call. Courts must function within the parameters delineated form them by the Constitution. Courts neither legislate nor prescribe policy.

In View of the above dictum of the Supreme Court and the Division bench of this court, the petitioner is not entitled for the benefit of Government Order, Annexure-G. Therefore the impugned letter Annexure-H issued by the third respondent school is in accordance with law.

Learned counsel for the petitioner relying on a judgment of Kerala High Court in Sr. Cleta vs State of Kerala disposed on 8.3.2001 contend that service conditions applicable to the teaching staff in Government schools/aided schools are applicable to teaching staff in unaided schools. I decline to accept this contention of learned counsel for the petitioner. In Sr. Cleta''s case the High Court of Kerala considered the Kerala Education Rules. Rule 1(c) of Chapter XIV(AA) of these Rules stipulates that age limit and the relaxation thereof, candidates for appointment under Government schools/aided schools shall "mutatis mutandis apply to the candidates for appointment as members of staff of unaided schools". There is no such provision either under the Karnataka Education Act or under the Karnataka Educational Institutions (Certain Terms and Conditions of Service of Employees in Private Unaided Primary and Secondary and Pre-University Educational Institutions) Rules 2005. Therefore the law laid down by the Kerala High court in Sr. Cleta''s case has no application to the facts in the present case. The other decisions relied on by the learned counsel for the petitioner there is no consideration with regard to the question relating to applicability of Government order to unaided schools in the matter of increasing the age of superannuation. Even otherwise the ratio in these decisions will not help the petitioner.

Section 41 of Karnataka Education Act specifies that no recognised private educational institutions shall be managed except in confirmity with the Rules framed by the State Government. Section 41(2) specifies the qualification, manner of recruitment, scale of pay, leave pension etc, maintenance of discipline, functions and power of management, duties and responsibilities of secretary and maintenance of school records. There is no reference with regard to the age of superannuation. Further there is no reference in the rules with regard to age of superannuation. In the absence of any provision under the Act or under the Rules, petitioner is not entitled to seek the benefit of impugned Government Order Annexure-G which is restricted to the teaching staff in the Government schools/aided schools.

After independence we have made some progress in the matter of food security, providing good drinking water, housing, sanitation and promoting health of people. As a result the death rate has come down and the average life span is increased. Almost every sector particularly in the field of teaching the age of superannuation is increased. In principal, both the. Governments at the Centre and the States have increased the age of superannuation of its employees. Even the private sector is increasing the age of superannuation. Further under the impugned order Annexure-G the Government of Karnataka increased the age of superannuation to all the Government servants and also the teaching staff in the Government schools and aided schools. Every society shall try to exploit every iota of energy and experience in every person to the greatest advantage of the society. Retiring a teacher in an unaided institution at 58 years and retiring a similarly situated teacher in Government schools/aided schools at 60 years is unjust and not in the larger interest of society. The private unaided schools including the third respondent herein on their own have to consider the issue relating to increase in the age of superannuation of its employees.

Sub Rule 4 of Rule 3 of the Karnataka Educational Institution (Control of Private educational institutions) Rules 1999 stipulates that the Governing Council of private educational institutions to adhere to and act in accordance with the provisions of the Act, the Rules and Orders made or instructions given by the head of the Education Department. Further Sub-Rule 2(a) and (g) of the Karnataka Education Institutions (Recognition of Primary and Secondary Schools) Rules, 1999 stipulates that every registered institution shall abide by the Act, Rules and the conditions imposed by the competent authority from time to time. Therefore, the Government is competent to amend the Act, Pules or issue orders extending the age of superannuation of employees in unaided institutions from 58 years to 60 years. The Government of Karnataka to consider making Rules or amending the existing Rules or to issue orders in this regard.

Registry is hereby directed to send a copy of this judgment to the Chief Secretary and Principal Secretary to Education Department, Government of Karnataka for needful action in the matter. With the above observation, the writ petition is hereby dismissed.