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Judgment
Regard being had to the similitude of the questions involved, these matters were analogously heard on the joint request of the parties and are decided by this common order.
The spinal issue to be decided in these petitions is that whether the petitioners being blind/handicapped candidates have any right to continue in employment upto the age of 65 years. Admittedly, as per the relevant Adhivarshiki Ayu Adhiniyam, the age of retirement of teachers is 62 years. The petitioners are claiming their right to continue beyond 62 years i.e., upto 65 years on the basis of circular of Panchayat and Social Welfare Development dated
03.02.1990 (Annexure-P/4). It is submitted that recommendations in favour of the petitioners were made by the Joint Director on 29.09.2016 (Annexure-P/7).
Per-contra, learned counsel for the respondents submits that the age of retirement of petitioners are governed by the statutory provision of Adhivarshiki Ayu Adhiniyam. The petitioners age of retirement is 62 years as per the statutory provision. An executive instruction cannot supplant/override the statutory provision. Mere recommendations will not create any right whatsoever in favour of the petitioners.
No other point has been pressed by the learned counsel for the parties.
This is trite law that statutory provision prevails over an executive instruction. Executive instruction can supplement the law but it cannot supplant the same. The executive instruction was issued prior to the amendment which has taken place in the Adhivarshiki Ayu Adhiniyam. The executive instruction dated 03.02.1990 does not create any enforceable right in favour of the petitioners to continue upto the age of 65 years. This Court in the case of Sikandar Sabana vs. State of M.P . reported in 2012 (1) MPLJ 386, opined that pursuant to the Adhiniyam only certain categories of teachers can continue upto the age of 65 years. In the present case, petitioners are unable to show that their case falls within the ambit of the said provision. Thus, I am unable to hold that petitioners can be permitted to remain in employment upto the age of 65 years pursuant to circular dated 03.02.1990 & recommendation dated 29.09.2016. In absence of showing any statutory and enforceable right to remain in employment till 65 years of age, interference is declined. However, in the interest of justice, it is observed that if pursuant to interim order passed by this Court, petitioners have continued in employment and received the salary for the work performed by them, the said amount shall not be recovered from them. The respondents shall also calculate the retrial dues of the petitioners by treating their age of retirement as 62 year and provide the same to them.
Accordingly, petitions are dismissed.