tion Civil No 7995 of 1981
Under Article 32 of the Constitution of India
Krishnamani and MKD Namboodary for the Petitioner
NC Sikri and Mrs Madhu Sikri for the Respondents
The Judgment of the Court was delivered by KULDIP SINGH J
The petitioner retired from the post of teacher in the Air Force Central School New Delhi herein after called the School  on her attaining the age of 58 years
The School is a society registered under the Socie ties Registration Act 1960
In this petition under Article 32 of the Constitution of India she claims that under the Delhi Education Code read with the Delhi Education Act 1973 hereinafter called the Act  and the Delhi Education Rules 1973 hereinafter called the Rules  the age of superannuation for the 414 teachers who joined service before the coming into force of the Act is 60 years and as such the management of the school acted arbitrarily in depriving her of two years of service and consequential benefits
The petitioner was initially appointed for a period of five years
On completion of the said period in 1961 the contract was renewed for a further period of five years
Thereafter she continued in service of the school on regular basis till the impugned retirement dated October 311981
The petitioner has averred that prior to coming into force of the Act the conditions of service of the teachers of the school provided 60 years as the age of superannua tion
The respondents have however denied the same and have stated that the school management was following the practice of retiring the teachers on attaining the age of 58 years with some exceptions where extensions were given upto the age of 60 years
The management has not produced any rules bye laws or instructions to show that the age of superannuation of the school teachers was 58 years
With a view to provide uniformity and security of serv ice to the teachers of recognised schools the Delhi Admin istration laid down model conditions of service including age of superannuation for the teachersemployees of the said schools and published the same as a code called the Delhi Education Code
It came into force with effect from February 15 1965
Section 208 of the Code is as under Section 208
The normal age of retirement of an employee of an aided school including the head of the School shall be the date on which he attains the age of 60
But an employee may be retired any time between the age of 55  60 years on grounds of inefficiency incompetence or physical unfitness after he has been given a reasonable opportunity to show cause against the proposed retirement and after his representation if any has been duly consid ered Section 81 of the Act and Rule 110 of the Rules which are relevant are as under 8i the administrator may make rules regulating the minimum qualifications for recruitment and conditions of service of employees of recognised private school
415 Provided that neither the salary nor the right in respect of leave of absence age of retirement and pension of an employee in the employment of an existing school at the commencement of this Act shall be varied to the disad vantage of such an employee Rule 110 Retirement Age 1Except where an existing employee is entitled to have a higher age of re tirement every employee of a recognised private school whether aided or not shall hold office until he attains the age of 58 years
 The school is not receiving any aid from the Government but it is recognised by the Delhi Administration
It is not disputed that the Act and the Rules are applicable to the teachers employed in the school and the management is legal ly bound to extend the protection of these provisions to them
The age of superannuation provided in Rule 110 of the Rules is 58 years except in the case of existing employees who were in service on April 1 1973 the date of coming into force of the Act and in their case the higher age of retire ment to which they were entitled has been protected
The petitioner has specifically asserted in the petition that even though the school was not an aided school it had accepted the Delhi Education Code and made it applicable to its employees
It is stated that the management of the school has been retiring the teachers at the age of 60 years in terms of Section 208 of the Code
It is also mentioned that one Mr PR Menon Head of English faculty in the school retired on December 9 1968 on attaining the age of 60 years
She has further stated that Mr Dhawan Sqdrn
Leader Lal and Mr Sharma all joined the school as teachers before the enforcement of Delhi Education Code and have retired after coming into force of the Act and the Rules
All of them retired at the age of 60 years whereas the petitioner was made to retire at the age of 58 years arbi trarily and discriminately
In the counter affidavit the Chairman Executive Committee of the school has stated as under The Delhi Administration formulated an Education Code by way of guidelines without any legal force as pro nounced by Hon ble Delhi High Court   It is further stated 416 the management of the school was adhering the service conditions inclusive of age of retirement ie 58 years and the pay scales prescribed by the Delhi Administra tion from time to time under Delhi Administration Act the past practice of serving beyond the age of 58 years had been done away rather on coming into force of the Delhi Education Act as a matter of principle but for one exception of Shri BL Sharma the then Vice Principal who was given extension as an administrative expediency
 Learned counsel for the petitioner has contended that prior to the coming into force of the Act and the Rules the management was following the Delhi Education Code which provided 60 years as the age of superannuation and as such under rule 110 of the Rules the petitioner has a statutory right to continue upto the age of 60 years
Mr N C
Sikri learned counsel appearing for the management however contends that the school is being run by a private manage ment there is no Government control in the management of the school and no aid of any kind is being given to the school
According to him the management of the school is neither State nor an authority under Article 12 of the Constitution of India and as such no writ petition against the respondent management is maintainable
On merits he contends that Delhi Education Code has no force of law and as such the petitioner has no enforceable right much less under Article 32 of the Constitution of India
The Executive Committee which manages the school is headed by Air Force Officer Incharge Administration Air Force Headquarters New Delhi and consist of all high rank ing Air Force officers of the rank of Sqdrn
Leader to Air Marshal
The said membership is in their official capacity which indicates complete control over the school by the Air Force
It is however not necessary to decide in this case as to whether or not the school is a State or an authority under Article 12 of the Constitution of India
The recognised private schools in Delhi whether aided or otherwise are governed by the provisions of the Act and the Rules
The respondent management is under a statutory obli gation to uniformly apply the provisions of the Act and the Rules to the teachers employed in the school
When an au thority is required to act in a particular manner under a statute it has no option but to follow the statute
The authority cannot defy the statute on the pretext that it is neither a State nor an authority under Article 12 of the Constitution of India
417 It is not necessary and we do not propose to go into the question in this case as to whether the petition is main tainable under Article 32 of the Constitution because this petition has been pending in this Court since 1981
The petitioner s claim is just
It will therefore be a traves ty of justice to send her to any other forum at this stage
In any case the petitioner seeks to enforce her statutory right under Section 8 of the Act read with Rule 110 of the Rules with a further contention that she has been discrimi nated in the matter of superannuation so much so that other teachers similarly situated were retired at the age of 60 years whereas the petitioner has been singled out and re tired at the age of 58 years
The respondent management has not produced any Rules or bye laws either framed by the management itself or otherwise to show that there was any uniform provision for retirement of teachers at the age of 58 years
The averments of the petitioner that Section 208 of the Delhi Education Code was being followed and the teachers were superannuated at the age of 60 years have not been specifically denied
Rather these averments have been tacitly admitted
Even otherwise every institution must frame and follow a uniform rule for superannuating its employees
The age of superannuation cannot be left to the whims of the employer to enable him to retire different employees at different ages
In the absence of any regulation Bye laws or policy decision by the re spondent management regarding the age of superannuation we accept the contention of the petitioner that prior to the coming into force of the Act and the Rules the management was following the Delhi Education Code which provided 60 years as the age of superannuation for the school teachers
In that view of the matter under Rule 110 of the Rules the petitioner being an existing employee was entitled to be retired at the age of 60 years
The writ petition is therefore allowed and the order of the respondents retiring the petitioner at the age of 58 years is quashed
She having already attained the age of 60 years we direct the respondents to pay the petitioner salary and allowances for the period of two years
We further direct that all the post retirement benefits to which the petitioner is entitled be redetermined assuming the peti tioner to have retired at the age of 60 years
The arrears of salary and allowances be paid to the petitioner within three months from today
The respondent being an educational institution we direct the parties to bear their own costs
PSS Petition allowed


Summary:
The respondent joined service in the Department of Examiner of Accounts Local Fund and in the service book his date of birth was recorded on the basis of SSLC Certifi cate
He made an application for alteration of his date of birth but the Head of Department rejected his prayer by an order dated 511968
After the coming into force of the Andhra Pradesh Public Employment Recording and alteration of date of birth Rules 1984 he made another application for alteration of his date of birth which was also rejected by the Head of Department on the ground of limitation
The respondent filed a petition before the Andhra Pra desh Administrative Tribunal challenging the order rejecting his application and also the Constitutional validity of Rules 4 and 5 of the 1984 Rules
The tribunal by its order dated 18th October 1985 directed the appellants to consider the respondent s appli cation for the alteration of his date of birth on the basis of the extracts of the entry in the births and deaths regis ter holding that the respondent s application was wrongly rejected by the Head of Department on the ground of limita tion and ii Rule 5 of the 1984 Rules was void as it was repugnant to Section 9 of the 366 
In the appeal it was contended on behalf of the State that i since the respondent s application for alteration of his date of birth had been rejected in 1968 he was not entitled to maintain any fresh application and ii there was no repugnancy between Rule 5 of 1984 Rules and section 9 of the 1886 Act
Allowing the appeal and setting aside the order of the Tribunal the Court HELD 1
Rule 4 of the Andhra Pradesh Public Employment Recording and alteration of date of birth Rules 1984 lays down a salutory principle prohibiting re opening of the question of correction of date of birth which may have become final prior to the enforcement of 1984 Rules
Since the question of alteration of the respondent s date of birth had been made on the basis of the School Certificate and his application for alteration had already been rejected in 1968 he was not entitled to claim alteration of his date of birth after the enforcement of 1984 Rules
It was not open to the respondent to claim alteration of his date of birth even on the basis of extracts of the entry contained in births and deaths register maintained under the as the question of correction of his date of birth had already been finally decided in 1968
372C D 2
Rule 5 lays down that where application of a Govern ment employee for alteration of his date of birth was pend ing on the date of the commencement of the 1984 Rules the same will be dealt with on the basis of date of birth re corded in the School and College records at the time of the entry of the employee in service
Thus if on the date of entry in service the date of birth of an employee was re corded in his service book on the basis of his age as re corded in the School and College Certificate in that event the date so recorded shall be treated to be correct date of birth
However if the date of birth recorded in the service book at the time of entry of the employee is not based on School or College records Rule 5 does not operate as a bar against consideration of other relevant materials in deter mining the date of birth of the employee 372F G In the instant case the respondent s date of birth had been recorded in his service book on the basis of his SSLC Certificate at the time of his entry into service therefore that entry had become final and he was not enti tled to reopen the correctness of that entry on the 367 basis of extract of birth register
Moreover since the respondent s application for alteration of his date of birth had already been decided prior to enforcement of Rule 5 he was not entitled to maintain application for any alteration of his date of birth
In either case the respondent was not entitled to claim alteration of his date of birth his application was rightly rejected although on different grounds 372H 373A B 3
The question of repugnancy cannot arise if the State makes law in exercise of its legislative powers in respect of an entry specified in List II of VIIth Schedule even though it may incidentally trench upon a law made by the Union in respect of a matter referable to an entry in Union List of the VIIth Schedule
373E 31 The is a central law which is referable to Union List
Section 9 of the Act merely lays down that copies of entries of the registers relating to births and deaths maintained under the Act will be admissible in evidence for the purpose of proving the births and deaths
It merely relates to admissibility of documents it does not seek to regulate conditions of service of a State employee
Rule 5 and Sec tion 9 of the Act operate in different areas and there is no question of conflict in the two provisions
There is there fore no question of repugnancy between Rule 5 and Section 9
The Tribunal s view that Rule 5 was repugnant to Section 9 of is wholly misconceived and its order dated October 18 1985 is not sustainable in law
373D E G Lingerker Vaidyanath vs Government of Andhra Pradesh and Anr Andhra Pradesh Administrative Tribunal s Judgment dated 291987 approved