D.K. Kapur, J.
(1) We had issued a show cause notice in thin Writ Petition As only a short point was involved, we decided to issue Rule D.B., and proceed to decide the case.
(2) The only point involved is whether the retirement age of the petitioner is 58 or 60. The answer to this depends on various resolutions passed by the Municipal Corporation of Delhi, and on some other circumstances.
(3) The petitioner was Headmistress of the Girls Middle School, Gandhi Nagar, Delhi, at the time the school was taken over by the Directorate of Education, Delhi, on 15th July, 1957. On 2nd September, 1960, she became an Inspectress of Schools along with four others; she was placed at No. 2 on the seniority list, but on a representation she was treated as seniormost. She was lowered in seniority on a representation by one Mrs. O.K. Singh. The school had been placed under the Municipal Corporation of Delhi and the seniority dispute was decided on a reference to the Director of Education, Delhi.
(4) The petitioner then filed a suit, being Civil Suit No. 95 of 1971 on the seniority question; this was decreed in her favor by Shri S.L. Khanna, Sub-Judge on 24th November, 19 76, as a result of which she became the senior most of the School Inspectresses appointed on 2nd September, 1960. The Municipal Corporation appeal unsuccessfully, so this judgment became final.
(5) In this background, it is to be noted that some of the educational staff which had come to the Corporation was absorbed by the Delhi Administration in 1970. The most important part of Resolution No. 127 which was passed by the Corporation at that time for the purpose of this case is clause No. 7, which states ;--
'THE present age-limit for retirement of the Officers, teachers and the other employees in the Municipal Corporation is 60 years. This age-limit of 60 years may be retained after absorption provided the Government of India accords their approval.'
As a part of this Resolution, the persons who were to be absorbed in the Delhi Administration were named. Some of the persons were Senior School Inspectresses and ordinary School Inspectresses. The four ladies who were junior to the petitioner on the above analysis were Shrimati G.K. Singh, Miss Damayanti Dutta, Mrs. Raj Rani Bhushan and Mrs. S. Chopra. These are the tour persons involved with the petitioner in the seniority dispute. All these four were transferred to the Delhi Administration, but Miss Damayanti Dutta, on her option decided to remain with the Municipal Corporation.
(6) As the oboe resolution is quite clear regarding the retirement age of the transferred persons, the petitioner's case is that she was also to retire at the age of 60.
(7) The respondent's case in the counter-affidavit is that the retirement age of persons employed in the Municipal Corporation is not 60 as stated in the above resolution, but 58 years. This claim is based on the fact that the Fundamental Rules applicable to persons working in the Central Government have also been incorporated in the Delhi Municipal Corporation Service Regulations, 1959.
(8) It is further brought to our notice that another Writ Petition, Shri B.N. Chaudharyv. The Commissioner, Municipal Corporation of Delhi and others. Civil Writ No. 205 of 1980, was dismissed on 27th March, 1980, after a show cause notice was issued and in that case the petitioner had claimed that he had to retire at the age of 60 but the Court held that under F.R. 56(a) his retirement age was 58.
(9) It was, thereforee, urged that we should also hold the retirement age of the petitioner to be 58.
(10) We do not know why this variation has appeared in the resolutions of the Corporation. As far as we can see there were five Senior School Inspectresses out of which four were directed to be transferred to the Delhi Administration. At that time it was stated that their retirement age was 60 and this should also be accepted by the Delhi Administration. We have also been informed that the petitioner would normally have been transferred to the Delhi Administration and her retirement age would also have been 60 as in the case of her other colleagues. But, she was not transferred due to the fact that on account of the seniority dispute she had been reverted to the post of School Inspectress in the meanwhile. That is why the petitioner filed the suit, but in spite of her getting seniority, she has not been transferred to the Delhi Administration.
(11) At this stage, it is necessary to reproduce the declaration granted by the Civil Court. It was on the following terms :-
'IN the result, the plaintiff succeeds, her suit is decreed. The plaintiff is declared senior to defendant Nos 2 to 5 and she is declared to have been holding the post of senior school Inspectress since 26-3-64. A decree for Rs. 240.00 is passed in favor of the plaintiff and against the defendant Corporation.'
One of the results of this decree should have been the transfer of the petitioner to the Delhi Administration as she was the Senior-most Inspectress at the time the Resolution of 1970 (No. 127) was passed. There is no doubt that if the petitioner had been transferred to the Delhi Administration) she would have retired at the age of 60 as her other colleagues. So, we cannot really find out why the petitioner is to retire at 58 if she remains in the Municipal Corporation.
(12) The counter-affidavit has reproduced Resolution No. 666 of the Corporation, which was passed on 6th November) 1978. There is a reference in this Resolution to the fact that Resolution No. 127 dated 12th May, 1970 was passed staling that officers, teachers and other employees would retire on attaining the age of 60 years. The idea was to change the age of retirement.
(13) This Resolution starts by setting out the Commissioner's letter which reproduces clause 7 and Resolution No. 127 of the Corporation which read as follows :-
'7. Age Limit for relirement. The present age-limit for retirement of the Officers, teachers and the other employees in the Municipal Corporation is 60 years. This age-limit of 60 years may be retained after absorption provided the Government of India accords their approval.'
It will be seen that this is the same Resolution which has been referred to earlier. Then there is Resolution No. 666 which is the new resolution. It reads;-
'RESOLVED that as proposed by the Commissioner in his letter No. 4444 / C & C dated 26-9-78 and recommended by the Standing Committee vide its Resolution No. 440 dated 12-10-1978, approval to the modification in condition No. 7 of the service condition of teachers) officers and other employees transferred to the Delhi Administration along with schools w.e.f. 1-7-1970 be accorded to the extent that the age-limit for retirement of officers and other employees will be 58 years and in case of teachers and class Iv servants it will .be 60 years'.
we have now to see what is the retirement age of the petitioner in terms of this Resolution. We have not been able to make out if the petitioner is to be treated as an officer or as a teacher. The counter-affidavit states that the petitioner neither belongs to the vocation staff nor to class Iv staff and as such she is not entitled for retention in service beyond 58 years. The affidavit also states that other officers similarly placed have been retired at the age of 58, but no examples have been given.
(14) We think that this problem cannot be solved by mere reference to the affidavit. The petitioner was a teacher. She was a Headmistress of a school, then she became a School Inspectress, then became a Senior School Inspectress. If she is a Senior School Inspectress, does she cease to be a teacher Does she become an officer and not a teacher It seems to us that if you are a teacher to start with, you remain a teacher even if you are promoted to a post which involves supervision of the schools rather than teaching in the schools It would be a strange result that a Headmistress promoted to the post of School Inspectress should have a lower retirement age. The position set out in the Resolution of 1970, i.e.. Resolution No. 127 did not make any distinction between teachers and School Inspectresses. We fail to understand how two sets of persons belonging to the same class should have different retiring ages if they are promoted or not promoted. Also, when some persons of that class are transferred to the Delhi Administration on the understanding that they would retain their retiring age of 60, we fail to understand why the remaining persons should not retain the same retiring age of 60. Also, there seems to be some confusion as to who is a teacher? If the interpretation of the Municipal Corporation is accepted it leads to a number of awkward complications. The ruination post of Headmistress is that of School Inspectress. Normally, seniors are promoted and they are not far from the age of retirement. So, it would be a strange result that when a Headmistress is promoted, she would immediately retire whereas if she remained Headmistress, she would retire at 60. This result could not have been desired. Furthermore, the word 'teacher' means a person in the teaching profession. The entry of such persons into service would normally be in lower grades. They would be promoted from say Assistant Teacher to Teacher and then Vice-Principal, Principal or Headmistress, and so on. They would then be promoted to the port of Inspector and there may be further posts like Senior Inspectors and so on. We cannot imagine an Inspector of Schools not being a teacher. A very concept of an Inspector is to see that the teaching is conducted in accordance with some standard practice and the progress of students is as desired. An Inspector or Inspectress must, thereforee, be a teacher. Such a person does not cease to be a teacher by becoming an Inspector. An Inspector's job is not that of looking after the up-keep of the school, but to see that the teaching is done properly. We are of the view that such a person would remain a teacher even after promotion. No doubt, the Resolution states that officers would retire at 58 and teachers at 60, presumably by officers are meant non-teachers employed in other branches of the Corporation. There is a difference between the administrative line in the Corporation and the teaching line. We would prefer to hold that the petitioner continues to be a teacher in spite of being promoted to the post of School Inspectress. The real meaning of the Resolution is that persons employed on the teaching side. or educational department of the Municipal Corporation have a retiring age of 60, whereas others have a retiring age of 58. Referring again to the judgment cited at the Bar, Shri B. N. Chaudhary v. The Commissioner, Municipal Corporation of Delhi and others.wherein it seems to have been accepted that the retiring age was 58, we think that is not a precedent, because the petition was dismissed in liming without a careful examination of the Resolutions No. 127 of 1970 and 666 of 1978. We do not think that we are bound by a petition dismissed in liming.
(15) In addition, it must be stated that if there is any doubt in the matter, it has to be resolved in favor of the petitioner on the application of Article 14 of the Constitution. The petitioner was identically placed to the other School Inspectresses in the Department. Those Inspectresses who have been transferred to the Delhi Administration were informed by Resolution No. 127 of 1970 that they would retain their retiring age of 60. This was an admission by the Municipal Corporation that the petitioner's retirement age was also 60. We cannot read the Resolution No. 666 of 1978 as a change in that retiring age because it does not clearly state anything about School Inspectresses. As we have interpreted School Inspectresses to be 'teacher's, they will continue to retire at the age of 60, but if there is any doubt, we think that the petitioner has to get the equal protection of law under Article 14 of the Constitution and, thereforee, cannot have a different retiring age from the other School Inspectresses who were transferred to the Delhi Administration. Undoubtedly, these schools and some of the teachers have from time to time been transferred either from the Delhi Administration to the Municipal Corporation or from the Municipal Corporation to the Delhi Administration. They all seem to be the same and are doing identical jobs in relation to similar schools. Being equally placed, Article 14 of the Constitution is certainly attracted, so the retirement age of the petitioner cannot be less than 60.
(16) On this analysis, we hold that the petitioner is entitled to the writ prayed for, i.e., she is to retire at the age of 60 and not at the age of 58. She should, thereforee, be retained by the respondent Corporation till she reaches the age of 60, and we direct accordingly. As our answer has depended on the interpretation of the Resolutions and the application of Article 14 of the Constitution to the peculiar facts of the case, we leave the parties to bear their own costs.