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Allahabad High Court · body

1997 DIGILAW 926 (ALL)

HARI OM GUPTA v. D I O S

1997-08-14

S.N.AGARWAL

body1997
SUDHIR NARAIN, J. As common questions of law and facts are involved in these writ petitions, they are being dis posed of together. 2. The core question is whether the petitioner shall retire at the age of 58 years or 60 years. 3. The facts in brief are that the petitioner was appointed as lecturer in Biology on 5th July, 1964 in Maharaj Agrasen Inter College, Moradabad (hereinafter referred to as the institution ). His date of birth is 31st July, 1939. On 30-6-1990 Sri B. P. S. Agarwal, the Principal of the institution retired from service. The petitioner was appointed as officiating Principal being the senior most lecturer in the institution. The U. P. Secondan- Education Service Commission (hereinafter referred to as the (Commis sion) advertised the post of Principal treating the vacancy as substantive vacan cy. The petitioner applied for appoint ment and was selected by the Commission. On 29-8-1996 an appointment letter was issued by the Manager of the institution appointing him as Principal in pursuance of the directions of the Commission. 4. The controversy arose regarding the date of retirement of the petitioner on the ground that the petitioner had sub mitted option on 22-12-1982 to retire at the age of 58 years. According to the petitioner he had submitted option on 26th July, 1983 and according to respon dent No. 8 the petitioner submitted his option on 22-12-1982. The District In spector of Schools counter signed the op tion form on 20-3-1986. 5. It appears that a report was called by the Director of Education regarding the option exercised by the petitioner. The District Inspector of Schools submitted a report on 4lh March, 1997 to the Director of Education that the petitioner had not submitted the option form by the last date of submission of option form i. e. 31st December, 1982. The option form, of the petitioner is ineffective. Against this recommendation one shri Har Swarup Sharma alleging himself to be member Parent Teacher Association and President of U. P. Madhyamik Shiksha Sangh, filed writ petition. The writ petition was dis missed on the ground that the petitioner had no locus standi to file the writ petition. It was further observed that if the option has been rejected by the District Inspector of Schools, the teacher is entitled to con tinue till he attains the age of 60years. 6. The writ petition was dis missed on the ground that the petitioner had no locus standi to file the writ petition. It was further observed that if the option has been rejected by the District Inspector of Schools, the teacher is entitled to con tinue till he attains the age of 60years. 6. Ashok Kumar Gupta, respondent No. 8. made a representation to District Inspector of Schools stating that the petitioner had submitted the repre sentation on 22-12-1982. It was Counter signed by the District Inspector of Schopls in token of acceptance of the option form on 20th March, 1986. The acceptance of said option was received by the petitioner in his own hand wrjting on 4-1-1991. 7. After the said representation was submitted by respondent No. 8, the petitioner was given notice by the District Inspector of Schools. On 1-5-1997 after affording opportunity to the parties con cerned the District Inspector of Schools decided the representation recording the finding that the petitioner had submitted option form on 22-12-1982. It was ac cepted by the then District Inspector of Schools by countersigning it. The petitioner was communicated the decision of the District Inspector of Schools and the petitioner countersigned the option form on 4-1-1991 in token of the fact that he had received the intimation regarding acceptance of his option. 8. The petitioner challenged this order by filing writ petition No. 18028 of 1997. In the writ petition this court did not grant any interim stay order. The petitioner thereafter made a repre sentation to the Director of Education and an interim order was passed by the Assis tant Director of Education on 5-6- 1997 staying the effect of the order dated 1-5-1997 but later on this order has been revoked by the Additional Director of Education on 5th July, 1997. The petitioner has filed writ petition No. 23134 of 1997 against this order. 9. Sri Ashok Khare, learned Counsel for the petitioner submitted that the petitioner had exercised the option to retire at the age of 58 years in the year 1983 when he was only a lecturer in the institu tion but when he has been selected as Prin cipal by the Commission and a fresh letter of appointment was issued after selection, the said option cannot be taken into con sideration for determining the age of retirement of the petitioner. The petitioner relies upon the Government Order dated 29th August, 1981, Annexure 4 to the writ petition. Paragraph 4 of this order provides that the person who has been appointed after the date of notifica tion, can exercise his option within two years of his confirmation and if no option is exercised, those rules will not be ap plicable. 10. the Government Order, referred to abo^|is to be considered in the context of tie. provisions of U. P. Intermediate Edueatien Act, 1921 and the U. P. Secon dary Education Service Commission Act 1981 and Rules framed there under. Section 2 (k) of U. P. Secondary Education Hari Om Gupta v. D. I. O. S. & Ors. " Commission and Selection Boards Act, 1982 (U. P. Act No. 5 of 1982), defines teacher which means a person employed for imparting instructions in an institution and includes the Principal or a Head Master. The teacher who is appointed in L. T Grade may he appointed as Lecturer either by promc ion or by direct recruit ment. Similarly, a lecturer may be ap pointed as Principal either on ad hoc basis or by recruitment through selection as provided under the said Act. He continues to remain as a teacher as defined under Section 2 (k) of 1982 Act in all the stages. A teacher has to give his option only once in his career. 11. The Government Orders/rules do not contemplate the option to be exer cised at different stages by a teacher i. e. , when he is appionted/promoted as lec turer from the post of Assistant Teacher in L. T Grade or he is appointed as officiating or permanent Principal. If the contention of the petitioner, if accepted, it will also lead to anamolous result. A lecturer who is appointed as officiating Principal on a substantive vacancy on retirement of the Principal of an institution, if he has exer cised the option as a lecturer, he will retire at the age of 58 years on the basis of option given by him but when he is selected by the Commission to function on permanent basis, the said option becomes redundant. 12. Learned Counsel for the petitioner has placed reliance upon the decision Dr. 12. Learned Counsel for the petitioner has placed reliance upon the decision Dr. S. K, Kacker v. All India In stitute of Medical Sciences and others, 1997 (1) U. P. L. B. E. C. 360, wherein contention of the appellant therein that after com pleting his term as Director of All India Institute of Medical Sciences (In short AIIMS) he was entitled to function as a Professor and Head of ENT Department in AIIMS, was rejected. It was held that the post of Director of AIIMS was made on the basis of the selection and it was a tenure post. The appellant having been appointed after selection on the said post was not entitled to have lien on the post of Professor in ENT Department. This case has no application to the facts of the present case. A person who is appionted as Principal is treated as teacher under Sec tion 2 (k) of U. P. Act No. 5 of 1982. The option is exercised to retire at (he age of 58 years as a teacher and is not confined to a post, A teacher may function on different posts e. g. Assistant Teacher, Lecturer or Principal but in all the capacities, he remains as a teacher. The option once ex ercised by a teacher continues during the period he functions as a teacher. 13. Learned Counsel for the petitioner has further placed reliance upon the decision P. V Srinivasa Sastry v. Comptroller and Auditor General and others, 1993 (1) SCC 419 , wherein it was held that no person can be reverted byway of punishment to a post lower than that to which he was initially appointed. The petitioner is not being reverted but he is sought to be retired on attaining the age opted by him. Another decision relied upon is State of U. P. and others v. Smt. Jaya Kuddusi, AIR 1994 S. C. 2254, wherein it was held that if the leave of an incumbent was sanctioned, it would be presumed that he continued in service from the date of initial appointment. This case has no ap plication to the facts of the present case. 14. The next submission of learned Counsel for the petitioner is that the op tion form was submitted by the petitioner on 26-7-1983 after the date fixed for exer cising the option and, therefore, it was ineffective. This case has no ap plication to the facts of the present case. 14. The next submission of learned Counsel for the petitioner is that the op tion form was submitted by the petitioner on 26-7-1983 after the date fixed for exer cising the option and, therefore, it was ineffective. The District Inspector of Schools has recorded a finding that the petitioner had submitted the option form on 22-12-1982. It relates to the question of fact and there is no reason to interfere with this finding of fact. 15. The third submission of learned Counsel for the petitioner is that there is no evidence that the option submitted by the petitioner was accepted by the District Inspector of Schools and it was communi cated to the petitioner. The District In spector of Schools vide order dated 1-5-1997 has recorded a finding that the op tion form was countersigned by the then District Inspector of Schools and the petitioner had also signed the said option form thereafter on 4th January, 1991. In Special Appeal No. 289 of 1995, Prakash Chandra Sharma (since deceased) v. Deputy Director of Education, Bareilty Region, Bareilly and others, a Division Bench of this Court has held that if the option form submitted by a teacher is countersigned by the District Inspector of Schools that amounts to acceptance of the option given by the petitioner. This find ing has been attacked by learned Counsel for the petitioner that the purported counter signatures were forged. It involves a question of fact and there is no material to come to the conclusion that the signa tures were forged. 16. The last submission of learned Counsel for the petitioner is that the Dis trict Inspector of Schools passed an order on 4th March, 1987 rejecting the option of the petitioner and against that order one Har Swarup Sharma filed writ petition No. 11212 of 1997. The writ petition was dis missed. The order passed on 4th March, 1987 indicates that it was a letter written to the Director of Education in pursuance of certain queries made by him in respect of the option exercised by the petitioner. Respondent No. 5 submitted a report stat ing that the teachers of the institution had submitted the option form after prescribed date i. e. 31st December, 1982 and, therefore, they are ineffective. Respondent No. 5 submitted a report stat ing that the teachers of the institution had submitted the option form after prescribed date i. e. 31st December, 1982 and, therefore, they are ineffective. It was only a report submitted by respondent No. 5 to the Director of Education. One Har Swarup Sharma filed writ petition claim ing himself as Member, Parent Teacher Association, Maharaj Agrasen Inter Col lege, The Court dismissed the writ petition holding that he had no locus standi and further if the option was exercised after the due date, it shall be ineffective. Respondent No. 8 was not a party in this petition. He submitted representation to respondent No. 5 and on perusal of records the respondent No. 5 found that the petitioner had submitted the option form on 22-12-1982. It was countersigned by the then District Inspector of Schools and the acceptance was communicated to the petitioner. The report of respondent No. 5 dated 4-3-1997 was ex pane. In these circumstances, the ex parte report dated 4th March, 1997 and the order passed by this court on 1st April, 1997 are not bind ing on respondent No. 8 which vitally af fects his rights. 17. There is no merit in this writ peti tion. It is accordingly dismissed. Petition dismissed. .