Judgment:
M. Katju, J.
1. This special appeal has been filed against the impugned interim order of the learned single Judge of this Court dated 27.5.2004.
2. We have carefully perused the impugned judgment and have heard the learned counsel for the parties.
3. The respondent (writ petitioner) filed the writ petition for quashing the order dated 4.3.2004 retiring her at the age of 58 years and for a mandamus directing the respondent appellants to continue her in service till the age of 62 years as assistant teacher in Vidyut Parishad Bal Vidyalaya Montessori School, Kasimpur, Aligarh and pay her salary.
4. The aforesaid institution is under the overall control of Harduaganj Thermal Power Project, Kasimpur, Aligarh and runs classes from class I to class V. The aforesaid school is recognised under the provisions of U. P. Recognised Ba'sic School (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975, The writ petitioners were appointed in the said school from 11.9.1980 and it was alleged that as per Rule 10 of the 1975 Rules as well as Rule 29 of the U. P. Basic Education (Teachers) Service Rules, 1981, she was entitled to continue till she attains the age of 60 years. It was further alleged in the writ petition that in view of the G.O. dated 4.2.2004 the writ petitioner was entitled to continue in service till the age of 62 years. The petitioner challenged the impugned office memorandum dated 4.3.2004 by which she was directed to retire on 30.6.2004 on attaining the age of superannuation at 58 years and on giving benefit of academic session. A copy of the office memorandum dated 4.3.2004 is Annexure-A-1 to the stay application filed along with this appeal and true copy of the G.O. dated 4.2.2004 is Annexure-A2.
5. The U. P. State Electricity Board (now known as U. P. Rajya Vidyut Utpadan Nigam Limited), established various schools and colleges basically for imparting education to the children of the employees of the Electricity Board and they have been throughout run and managed by the Board. The Principal and teachers including employees of these schools including primary schools in question were throughout employees of the U. P. State Electricity Board and their services are governed by the Regulations framed by the Board in exercise of powers conferred by Section 79(c) of the Electricity (Supply) Act, 1948. The Board framed rules known as U. P. Rajya Vidyut Parishad Shikshak Sewa Viniyamawali, 1995 (hereinafter referred to as the 1995 Rules) which is a complete Code dealing with all aspects in regard to the teachers including recruitment, service conditions, etc. The concerned primary school in question is a recognised institution which is governed by the 1995 Rules. The teachers and employees of these schools are governed by the U. P. State Electricity Board {Employees Retirement) Regulation, 1975, framed by the erstwhile U. P. State Electricity Board in exercise of its powers conferred Under Section 79(c) of the Electricity (Supply) Act. True copy of the 1995 Rules is Annexure-A-3 to the stay application. A perusal of Rule 37 of the said Rules shows that the age of superannuation of the employees of the Electricity Board including the employees in the schools run by the Board is 58 years. It is contended that the service of the writ petitioners (respondents in these appeals) is not governed by U. P. Basic Shikshak (Teachers) Sewa Viniyamawali, 1981, but by the 1995 Rules.
6. In the impugned order of the learned single Judge dated 27.5.2004, reliance has been placed on the decision of a learned single Judge of this Court in Civil Misc. Writ Petition No. 25216 of 1992. Km. Shamim Fatima v. Manager, Bal Vidyalaya Montessori School, 1994, decided on 31.10.1994. We have carefully perused the said Judgment and are unable to agree with the same.
7. The reasoning given by the learned single Judge in Km. Shamim Fatima's case (supra) is that since Rule 10 of the U. P. Recognised-Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975, provided that the teachers of a recognised school will be paid the same salary and dearness allowance as the teachers fend employees of the U. P. Board of Basic Education, hence the age of retirement of the teachers in the recognised institutions will also be the same as the age of retirement of the teachers of the schools of the U. P. Board of Basic Education.
8. It may be mentioned that there are certain schools which are directly run by the U. P. Board of Basic Education. On the other hand there are other primary/Junior High Schools which are not directly run by the U. P. Board of Basic Education but they are recognised by the U. P. Board of Basic Education. No doubt Rule 10 of the U. P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers) Rules, 1978, provides that a teacher in a recognised school shall have the same pay scale and allowance as are paid to the teacher and employees of schools run directly by the U. P. Board of Basic Education. In our opinion, however, Rule 10 cannot be .extended so as to mean that the age of retirement of the teachers of the schools run directly by the U. P. Board of Basic Education, which is 60 years, will also be the age of retirement of recognised schools merely because their pay scales are the same. In our opinion the error committed by the learned single Judge In Km. Shamim Fatima's case (supra) Is that he has unjustifiably extended the scope of Rule 10 and thereby concluded that the age of superannuation of the teachers of a recognised school will be the same as that of the teachers of the schools run directly by the U. P. Board of Basic Education. The learned single Judge in Km. Shamim Fatima's case (supra) observed :
'In case the teachers of the Board retire at the age of 60 years but the teachers of a recognised school retire on attaining the age of 58 years there will be disparity in payment of total amount of salary and other benefits on account of their length of service.'
We respectfully disagree with this reasoning. In our opinion parity in the pay scale has nothing to do with the age of superannuation.
9. It may be mentioned that the institution in question is not governed by the U. P. Intermediate Education Act nor the Regulations made under that Act. Hence Regulation 21 of Chapter III of the U. P. Intermediate Education Regulations is not applicable and the institution in question is not governed by Regulation 21 of Chapter III. The institution in question is an unaided primary school running classes from class I to class V only. There is a separate managing committee for the said school appointed by the U. P. Rajya Vidyut Utpadan Nigam Limited. The writ petitioner had throughout been getting salary from the erstwhile U. P. State Electricity Board (now know as U. P. Rajya Vidyut Utpadan Nigam Limited). The writ petitioner also enjoyed the pay scale facility and benefits etc. granted by the U. P. State Electricity Board. The U. P. State Electricity Board framed Rules Under Section 79(c) of the Electricity (Supply) Act, 1948, namely U. P. Rajya Vidyut Parishad Shikshak Sewa Viniyamawali, 1995, which is a complete Code dealing with each and every aspect in regard to teachers and employees working in the institutions run by the U. P. State Electricity Board. Rule 37 of the 1995 Rules has prescribed that the age of retirement is 58 years.
10. Apart from the fallacy in the reasoning in the decision of the learned single Judge in Shamim Fattma's case (supra) which we have pointed out above, it may be mentioned that Shamim Fatima's case (supra) is of the period prior to coming into existence of the 1995 Rules. Hence also the said judgment has no relevance. The 1995 Rules are statutory in nature and hence there was no occasion for resorting to Rule 10 of the 1975 Rules. The 1995 Rules are exhaustive and the field is occupied by these rules. Under Rule 37 of the 1995 rules the age of retirement is 58 years. The 1995 Rules are a special law regarding teachers working in the institutions run by the U. P. Rajya Vidyut Utpadan Nigam Limited. It is well-settled that the special law overrides the general law. We therefore, hold that the judgment in Shamim Fatima's case (supra) does not lay down the correct law and the teachers and employees of the schools run by the U. P. Rajya Vidyut Utpadan Nigam Limited are governed by the 1995 Rules and the age of retirement is 58 years.
11. Learned counsel for the respondent has relied on a Division Bench decision of this Court in B. D. Mehta v. Senior Personnel Executive, I.D.P.L., 1990 AWC 1121. We have carefully perused the said decision and we find that it is wholly distinguishable. In that case the question was whether teachers employed in an Intermediate College run by I.D.P.L. were to retire at 58 years or 60 years. In the scheme of administration of that college it was mentioned that the terms and conditions of service of Principal and teachers shall be the same as laid down in the various provisions of the U. P. Intermediate Education Act and the Regulations framed thereunder. It was also mentioned that in the event of conflict between the provisions of the U. P. Intermediate Education Act and the Regulations framed thereunder and any conditions of service provided elsewhere, the terms laid down in the Act and Regulations will prevail. Thus, in B. D. Mehta's case (supra) the scheme of administration of the college itself provided that the terms and conditions of service of teachers of the college will be the same as those mentioned In the U. P. Intermediate Education Act and Regulations framed thereunder. Regulation 21 of Chapter III of the Regulations framed under the U. P. Intermediate Education Act provides that the age of retirement of a Principal is 60 years, although the age of retirement of employees of I.D.P.L. under the relevant rules of the Company was 58 years. The Court held that in view of Section 16G of the U. P. Intermediate Education Act the age of retirement of a teacher of a recognised Institution shall be as provided in the Regulations.
12. The above decision is wholly distinguishable for two reasons : firstly, in that decision the scheme of administration of the college itself provided that the conditions of service of the Principal and teachers will be the same as those laid down in the Act and Regulations. Secondly, Section 16G of the U. P. Intermediate Education Act provided that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by the regulations, and any agreement which is inconsistent thereto will be void. In the present case, there is no scheme of administration providing that the age of superannuation will be the same as that mentioned in the Act for teachers in schools run directly by the U. P. Board of Basic Education. Also there is no provision similar to Section 16G of the U. P. Intermediate Education Act In the U. P. Basic Education Act.
13. For both the reasons the aforesaid decision in B. D. Mehta's case is entirely distinguishable,
14. Apart from the above in our opinion the impugned order is an interim order which gives final relief. This could not be validly done as held by the Division Bench decision of this Court in Special Appeal No. 555 of 2004, State of U.P. v. Smt. Meera Sankhwar, decided on 12.7.2004. In State of U. P. v. Smt. Meera Sankhwar (supra), the entire case law on the point has been considered and it has been held that a special appeal lies against an interim order granting final relief.
15. For the reasons given above the appeal is allowed. The impugned order dated 27.5.2004, is set aside. No order as to costs.