WP(C) 1494/2010 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA Heard Mr. H.K. Mushary alongwith Mr. D. Borgohain, learned counsel for t he petitioner as well as Mr. M.R. Pathak, learned Standing counsel, Education De partment. I have also heard Ms. M. Bordoloi, learned Standing counsel, BTC and M r. B. Nazari, learned Sr. counsel for the respondent No. 6. Mr. L.P. Sarma, lear ned counsel argued on behalf of the respondent No. 7. The petitioner is an Assistant Teacher in the graduate scale of pay whil e the respondent Nos. 6 and 7 are Headmaster and Headmistress respectively in th eir respective schools. In the writ petition, it is the case of the petitioner t hat the extension of service granted in favour of the respondent No. 6 and allo wing him to continue as Headmaster of the school has created obstruction for the petitioner to hold the charge of the post of Headmaster. In the normal course, the respondent No. 6 would have retired from service on attaining the age of su perannuation on 31.01.2010. He was holding the post of Headmaster. The Govt. of Assam in the Education (Secondary) Department by its Annexu re-2 letter dated 31.12.09 addressed to the Director of Secondary Education and the Director of Elementary Education, Assam on the subject of reemployment in se rvice conveyed the approval of the Govt. in the Education Department for reemplo yment of teachers named in the letter who were the State awardee teachers as Sub ject Teacher/ Teacher/ Assistant Teacher as the case may be for a period of one year beyond their actual date of superannuation subject to their willingness to continue in service and also subject to physical fitness as well as mental alert ness. In terms of the said communication, the respondent No. 6 who had retired f rom service on attaining the age of superannuation on 31.01.2010 was allowed to continue as Assistant Teacher. However, by virtue of subsequent clarification vi de Anenxure-4 letter dated 05.02.2010 he is now continuing as the Headmaster of the school which post he used to hold prior to his superannuation on 31.01.2010. When the present proceeding was pending, the respondent No. 7 got hersel f impleaded. She is also beneficiary of the aforesaid Annexure-2 letter dated 31 .12.2009 and subsequent clarificatory letter dated 05.02.2010 (Annexure-4). The case of the petitioner is that as the statutory rules provide the ag e of superannuation as 60 years, the Govt. of Assam in the Education (Secondary) Department without any amendment to the said rules, could not have extended the services of the retired teachers. It is the further case of the petitioner that in view of the office memorandum dated 25.05.95 issued by the Govt. of Assam in the Department of Personnel debarring any proposal for extension of service of the employees beyond the age of superannuation as there is no provision for exte nsion of service of the employees in the State service, there could not have bee n any extension of service. While the learned counsel for the petitioner submits that even if it is conceded that the Govt. is empowered to grant extension to State awardee teachers, but i n no circumstance such extension of service could be with the benefit of the pos t of Headmaster. As per Annexure-2 letter dated 31.12.09, such teachers were to continue in service beyond the age of superannuation as the Subject Teacher/Teac her /Assistant Teacher, but not as Headmaster/ Headmistress. However, with the s ubsequent clarification issued vide Annexure-4 letter dated 05.02.2010, such tea chers are allowed to continue as Headmaster/ Headmistress. According to the pet itioner, but for such further benefit, he would have held the charge of the post of Headmaster. Mr. M.R. Pathak, learned Standing counsel, Education Department on the o ther hand submits that since the Govt. in the Education Department took a policy decision to grant extension of service by one year to the State awardee teacher s, such policy decision may not be interfered with. Both Mr. Nazari as well as Mr. L.P. Sarma, learned counsel for the respo ndent Nos. 6 and 7 supporting the impugned letters, submit that since the extens ion has been granted considering the meritorious service of the respondents, suc h extension of service must be in the substantive post they had earlier held bef ore the normal age of superannuation. Ms. M. Bordoloi, learned Standing counsel, BTC has adopted the argument advanced by Mr. M.R. Pathak, learned Standing coun sel, Education Department. I have considered the rival submissions of the learned counsel for the p arties and the materials on record. In the counter affidavit filed by the respon dent No. 1, it has been stated that since the statutory rules do not provide for extension of service beyond the age of superannuation, a proposal has been moot ed for amendment of the said rules so as to provide such extension of service an d the same is in tune with the provisions of the rules of Kendriya Vidyalay Sang athan. From the aforesaid stand of the respondents in their counter affidavit, it is seen that the rules prescribing the age of superannuation as 60 years is y et to be amended so as to grant extension of service. The respondents even befor e amendment of the rules for which a proposal has been mooted, issued impugned l etters dated 31.12.09 and 05.02.2010 granting benefit of extension of service t o the superannuated Headmasters and that too, in their original post of Headmast ers. Learned counsel for the petitioner submits that the petitioner is not oppos ed to grant of extension of service of the retired teachers, but what he has opp osed is that such extension must not in the post of Headmaster debarring the nex t senior most teachers to hold the charge. As noted above, the Govt. of Assam in the Department of Personnel has is sued office memorandum dated 25.05.95 debarring the proposal for extension of se rvice beyond the age of superannuation as there is no provision in the service r ules providing for such extension of service. The office memorandum has further envisaged that no proposal for reemployment beyond the age of superannuation sho uld be made/entertained except in exceptional cases in which special circumstanc es must exist and for that a clear proposal must be brought by the Department af ter due consideration at the proper level. The office memorandum further provi des that a proposal for reemployment beyond the age of superannuation may be con sidered only in rare and exceptional circumstances. One of the conditions for ma king such proposal is that such extension be proposed only when eligible persons /employees are not available. Clause -8 of the office memorandum provides that s uch proposal should be submitted at least three months prior to the date of sup erannuation to enable the Personnel and Finance Departments to examine the propo sal in the proper perspective. From the above office memorandum what is seen is that the extension of s ervice is an exception and not the rule and such proposal should be mooted three months prior to the age of superannuation and must be routed through the Person nel and Finance Departments. In the instant case, it is the Govt. of Assam in th e Education (Secondary) Department of its own issued Anenxures- 2 and 4 letters dated 31.12.09 and 05.02.2010 and in the process they totally ignored the afores aid office memorandum dated 25.03.95. As noted above, the petitioner is aggrieved by Annexure-4 claficatory le tter dated 05.02.2010 in terms of which the retired teachers are entitled to co ntinue as the Headmaster of the school concerned. According to the petitioner, a fter the retirement of the incumbent Headmaster it is he who is in the queue to hold the charge of the post of Headmaster. Having regard to the prayer of the pe titioner which is to set aside and quash the Annexure- 4 letter dated 05.02.2010 and also in view of the fact that the petitioner is not opposed to extension of service of the incumbents as Subject Teacher/Teacher/Assistant Teacher, but no t as Headmaster, the writ petition is allowed interfering with the Anenxure-4 le tter dated 05.02.2010 as a consequence of which the respondent Nos. 6 and 7 shal l continue as teacher, but not as Headmaster/Headmistress. The writ petition is allowed to the extent indicated above. The responde nts shall take consequential action.