IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letter Patent Appeal No. 692 of 2009 (O & M) in Civil Writ Petition No.19039 of 2008 Date of decision:- 05.08.2009. Kamlesh Jindal ...Appellant Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE J.S.KHEHAR HON'BLE MR. JUSTICE S.D.ANAND Present:- Mr. Anmol Rattan Sidhu, Senior Advocate with Mr. Nandan Jindal, Advocate for the appellant. J.S.KHEHAR J.(Oral) C.M. No.1854-LPA of 2009 Application for condonation of delay of 20 days in re-filing the appeal is condoned as prayed for. Letter Patent Appeal No.692 of 2009 Through the instant Letters Patent Appeal the appellant has impugned the judgment rendered by this Court dated 10.03.2009 collectively disposing of Civil Writ Petition No.14617 of 2008 and Civil Writ Petition No.19039 of 2008. Suffice it to notice that the appellant was the sole petitioner in Civil Writ Petition No.19039 of 2008. The issue under consideration before the learned Single Judge was the interpretation of Section 3 of the Punjab School Teachers' Re-employment Act, 2006 (hereafter referred to as “the Re-employment Act 2006”). Section 3 referred to above is being extracted hereunder:- “3. Notwithstanding anything contained Letter Patent Appeal No. 692 of 2009 (O & M) in Civil Writ Petition No.19039 of 2008 -2- in any law or service rules applicable to the teachers, all such teacher, who would have otherwise retired from service on completing fifty-eight years of normal age of superannuation on any day falling between the 1st day of April of a year and the last day of month of February of the succeeding year, shall, except in case of their otherwise voluntary option, continue in service, and shall be deemed to be re-employed after the date of superannuation upto the 31st day of the following month of March. Provided that during the aforesaid period of re-employment, the teacher shall be paid the remuneration equivalent to the difference between their last pay drawn and the pension admissible to them.” Based on the language of Section 3 of the Re- employment Act of 2006 it is the vehement contention of learned counsel for the appellant that the same is mandatory and not directory for two reasons; firstly, that it commences with the non-obstante clause; and secondly, for the reason that the mandatory effect thereof is discernible from the word “shall” used therein. It is, therefore, the contention of learned counsel for the appellant that any teacher who is to superannuate between Letter Patent Appeal No. 692 of 2009 (O & M) in Civil Writ Petition No.19039 of 2008 -3- the first date of April of a year and the last date of February of the succeeding year, would be entitled to continue to discharge duties as such, despite having crossed the age of superannuation. This right to continue in service would extend upto the 31st day of March of the following year. On account of non-obstante clause it is submitted, that the age of superannuation stipulated under the rules and regulations incorporated in the service of teachers, must be deemed to have been overridden by the instant legislative enactment, as well as, by the use of word “shall”. It is, accordingly, submitted that there is no option with the authorities but to allow a teacher, who is willing to discharge duties after the age of superannuation (which falls between the first date of April of the year in which he/she is to superannuate, and the last date of February of the succeeding year) to continue till the last date of March of the succeeding year. In so far as the present controversy is concerned, learned counsel for the appellant has pointed out that the appellant attained the age of superannuation on 30.04.2008, and as such, would be entitled to the benefit of the mandatory provisions extracted here-in-above so as to continue in service upto 31.03.2009. It is, however pointed out, that the appellant was allowed to continue in service upto 06.08.2008, and thereafter his services were dispensed with, in clear violation of the mandatory provisions of Section 3 of the Re-employment Act of 2006. It is necessary to consider the submission advanced by learned counsel for the appellant in the Letter Patent Appeal No. 692 of 2009 (O & M) in Civil Writ Petition No.19039 of 2008 -4- background of the provisions of Re-employment Act of 2006. Before adverting to the interpretation of Section 3, aforementioned, it is necessary to notice the “objects and reasons” of the enactment under reference. The notification dated 11.10.2006 publishing the provisions of Re-employment Act of 2006 is available on the record of the instant appeal as Annexure P-1. The objects thereof have been expressed in the following words:- “AN ACT to prevent disruption of studies of students in the schools on account of retirement of teachers on attaining the age of superannuation in the midst of an academic session.” It is imperative, in our view, to interpret the statutory provisions contained in the Re-employment Act of 2006, keeping in mind the objects of the said legislative enactment, namely that teachers would be allowed to render services even after superannuation, so as to prevent disruption of studies of students of schools. Keeping in mind the aforesaid object, the non-obstante clause in Section 3 of the Re-employment Act of 2006, as also, the term “shall” contained therein would be subject to pre- condition that such extension of service had been provided for, to prevent disruption of studies of students. So far as the factual background is concerned, the learned Single Judge in the impugned order dated 10.03.2009 noticed that a communication dated 01.08.2008 was conveyed to the Principal, where the appellant was posted at the Letter Patent Appeal No. 692 of 2009 (O & M) in Civil Writ Petition No.19039 of 2008 -5- time of her superannuation (i.e. where she desires to continue to serve upto 06.08.2008), directing her, to relieve teachers posted in excess (on surplus posts). The name of the petitioner was depicted in the list of excess/surplus teachers, recorded therein. It is, therefore, that the appellant was not permitted to continue after 06.08.2008. The instant aspect was not a subject matter of the dispute even at the hands of the appellant , in the present appeal. The mandate of Section 3 of the Re-employment Act of 2006 would have been applicable only (as we have concluded here-in-above), if the superannuation of the appellant would result in disruption of studies of students in the school, where she was engaged at the time of superannuation. The fact that her appointment at the school was in excess of the posts in the school, and that, the post occupied by her was surplus, leaves no doubt in our minds, that the superannuation of the appellant, would not result in disruption of studies of the students of the school, where she was posted. Thus, we are satisfied that the precondition which would make the applicability of the mandate of Section 3 available to the appellant did not exist in the facts of the present case. The instant conclusion has also been recorded by the learned Single Judge. Therefore, we find no merit in the appeal and the same is accordingly dismissed. Despite disposal of the instant appeal in the manner recorded hereinabove, it is apparent from the pleadings of the case, as also, the impugned judgment that Letter Patent Appeal No. 692 of 2009 (O & M) in Civil Writ Petition No.19039 of 2008 -6- the appellant continued to discharge her duties after her superannuation on 30.04.2008 i.e. from 01.05.2008 to 06.08.2008. Paragraph 9 of the written statement filed by the respondents reveals that the appellant has already been allowed the benefit of pay for the aforesaid period. In case the pay for the aforestated period has not earlier been released to the appellant, for any reason whatsoever, it will be open to the appellant to make a representation to the respondents to claim the same. In case such a claim is made, the pay for the period from 01.05.2008 to 06.08.2008 would be released to her without raising any objection, as the appellant was allowed to continue in service after her superannuation upto 06.08.2008. (J.S. Khehar) Judge August 5, 2009 (S.D. Anand) vj Judge