M K BAJPAI Vs. STATE OF U P

JUDGEMENT

(1.) -Heard Sri R. K. Ojha, assisted by Sri Alok Dwivedi, learned counsel for the appellant and Sri P. S. Baghel, learned counsel for the respondent No. 6 as well as learned standing counsel representing the respondents No. 1 to 4.

(2.) THIS is an appeal against the order dated 25.6.2008, passed by the learned single Judge in writ petition filed by the appellant petitioner. The brief facts giving rise to this appeal are ; that L. P. Inter college, Kanpur Nagar is a recognised aided Intermediate College. The Principal of the institution retired on 30.6.2003. The appellant was appointed as Officiating Principal of the institution being senior-most Lecturer and started functioning. The District Inspector of Schools passed an order dated 13.1.2004, declaring the respondent No. 6 as senior-most Lecturer and directing that respondent No. 6 will function as Officiating Principal. The appellant filed Writ Petition No. 1979 of 2004, which was allowed by this Court on 27.2.2004, declaring the appellant senior to respondent No. 6 and holding the appellant to be entitled to work as Officiating Principal. The appellant was thereafter permitted to function as Officiating Principal. However, the Committee of Management in the year 2006 suspended the appellant and initiated disciplinary proceedings. The suspension was subsequently withdrawn by the Committee of Management and it was resolved that appellant shall not function as Officiating Principal but will function as Lecturer. The District Inspector of Schools passed an order dated 2.3.2007, directing the Committee of Management to permit the appellant to function as Officiating/ad hoc Principal . The Committee of Management filed Writ Petition No. 14860 of 2007, challenging the order of the District Inspector of Schools, which writ petition was dismissed by this Court vide its judgment and order dated 15.6.2007, holding that till the resolution of the Committee of Management relieving the appellant from the post of Officiating/ad hoc Principal was approved by U. P. Secondary Education Service Selection Board, the appellant was entitled to function as Officiating Principal of the institution. The date of birth of appellant is 8.7.1947. Normal age of retirement of a teacher is 62 years provided, a teacher whose date of birth falls during an academic session, is entitled to continue till the end of academic session. The Government orders including the Government order dated 17.2.1999 provides an option for those teachers who want to retire at the age of 60 years so as to be entitled to gratuity, may submit option one year before the retirement by 1st July of the academic session in which date of retirement falls. The appellant made an application on 24.5.2007, opting for retirement at the age of 60 years as Officiating Principal of the institution. The option was forwarded by the Committee of Management which was countersigned by the District Inspector of Schools on 13.7.2007. The appellant wrote a letter on 16.7.2007, praying for withdrawal of his option so as to permit him to continue till 62 years, i.e., till 30.6.2010. An order was passed by the District Inspector of Schools on 23.4.2008, taking the view that since the appellant's option of retirement at the age of 60 years has been accepted and further the resolution of reversion of appellant has been sent to the U. P. Secondary Education Service Selection Board, the respondent No. 6 is approved as Officiating Principal of the institution. The order dated 23.4.2008 was challenged by the appellant by means of Writ Petition No. 23150 of 2008 which was disposed of by this Court on 8.5.2008 directing the Deputy Director of Education to decide as to whether the option of the appellant for retirement at the age of 60 years was accepted in accordance with law and in accordance with the judgment of the Full Bench of this Court in the case of Smt. Prabha Kakkar v. Joint Director of Education, Kanpur, 2000 (2) UPLBEC 1378. In pursuance of the order of this Court dated 8.5.2008, the Joint Director of Education after hearing the parties passed an order on 5.6.2008, holding that the option of the appellant having been accepted by the District Inspector of Schools on 13.7.2007, the said option is acceptable and appellant is to retire at the age of 60 years and the representation of the appellant was rejected. Against the said order of the Joint Director of Education, Writ Petition No. 28602 of 2008 was filed by the appellant in which an interim order was passed on 25.6.2008, against which order the present special appeal has been filed.

(3.) SRI P. S. Baghel, learned counsel for the respondent No. 6, in whose favour the order has been passed by the District Inspector of Schools to work as Officiating/ad hoc Principal, refuting the submission of learned counsel for the appellant contends that option of the appellant for retirement at the age of 60 years given on 24.5.2007, having been accepted by the District Inspector of Schools on 13.7.2007, it was not open for the appellant to withdraw the option on 16.7.2007. He further submits that the appellant's option of retirement at the age of 60 years having been accepted by the District Inspector of Schools, it is respondent No. 6 who is to function as Officiating/ ad hoc Principal. SRI P.S. Baghel further contends that power to accept the option vests in the District Inspector of Schools according to the 1981 Rules.