JUDGMENT : K.M. JOSEPH, C.J. Appellants are respondent nos. 1 and 3 in the writ petition respectively. Respondent no. 1 in the Special Appeal is the writ petitioner (from hereinafter referred to as the “writ petitioner”). He approached the writ court seeking the following prayer : “1. Issue a writ, order or direction in the nature of mandamus directing the respondents to fix the pension of the petitioner on the basis of the last pay drawn by him as per pension regulations and pay him accordingly with interest.” 2. The writ petitioner was appointed as a Clerk in the Office of the Appellant-University on 23.07.1969. Subsequently, by order dated 15.07.1970 of the Appellant-University, the writ petitioner was placed in the pay scale of Rs. 120-220 on the post of Account Clerk (Annexure No. 2). Thereafter, it is the case of the writ petitioner that he was being transferred from time to time from one office to another office of the University. He was being paid salary as admissible to the employees of the University, which was higher than the Clerks working in the recognized intermediate colleges. The writ petitioner retired on 30.09.2004. It is his case that he was getting salary as per the employees of the University. The writ petitioner was promoted by order dated 26.07.2004 on the post of Head Clerk in the pay scale of Rs. 5,000-8,000 and the Finance Controller was directed to fix the salary of the writ petitioner (Annexure No. 5). It is his further case that at the time of his retirement, his basic salary was Rs. 6,500/- and with allowances he was drawing Rs. 11,335/-. He alleged before the learned Single Judge that he came to know that the University was maintaining two service books; one service book was prepared according to the pay scale of the Education Department, in which the basic salary was Rs. 5,250/-. A photocopy of the relevant page has been produced as Annexure No. 6. He alleges that there would be a loss of Rs. 1,250/- per month. He addressed Annexure No. 7 representation to the Vice Chancellor. Annexure No. 8 is the proceeding of the second respondent fixing the pension of the writ petitioner, treating him in the basic salary of Rs. 5,250/- on the date of his retirement. The writ petitioner submitted Annexure No. 10 representation dated 13.06.2005. 1,250/- per month. He addressed Annexure No. 7 representation to the Vice Chancellor. Annexure No. 8 is the proceeding of the second respondent fixing the pension of the writ petitioner, treating him in the basic salary of Rs. 5,250/- on the date of his retirement. The writ petitioner submitted Annexure No. 10 representation dated 13.06.2005. Annexure No. 11 is order dated 19.07.2005 passed by the Appellant-University virtually rejecting the representation of the writ petitioner. It is thereupon, that the writ petitioner approached this Court. 3. The learned Single Judge found that the writ petitioner was an employee of the University. There is nothing to show that he has ceased to be an employee of the University. The contentions of the appellants that the inter college, in which the writ petitioner was appointed, had a separate Committee of Management and also that having regard to the option exercised by the writ petitioner, he ceased to be an employee of the University, were not accepted. Regarding the option exercised by the writ petitioner, the learned Single Judge found that the option nowhere states that the writ petitioner has now opted to be an employee of the State Education Department and relinquished the University of its liabilities. On this reasoning, inter alia the writ petition was allowed; the writ petitioner was found to be an employee of the University; and the Registrar of the University was directed to treat the writ petitioner as such, to fix the pension of the writ petitioner and to pay the same including the post retiral benefits within a period of three months. 4. We have heard Mr. Rajendra Dobhal, learned senior counsel on behalf of the appellants, Mr. Manav Sharma, learned counsel on behalf of the writ petitioner/respondent no. 1 and Mr. Pradeep Joshi, learned Standing Counsel on behalf of the second respondent. 5. The learned senior counsel for the appellants would contend that the learned Single Judge has not appreciated the fact that after the writ petitioner exercised his option, by which he got elongated period of service by two yeas, the writ petitioner could no longer be treated as an employee of the University. 5. The learned senior counsel for the appellants would contend that the learned Single Judge has not appreciated the fact that after the writ petitioner exercised his option, by which he got elongated period of service by two yeas, the writ petitioner could no longer be treated as an employee of the University. He would submit that the Intermediate College, to which the writ petitioner was appointed, was originally being run with funds from the fees which was being paid by the students and once it became a grant-in-aid college, the writ petitioner became an employee of the said Inter College. Moreover, the effect of the option is emphasized before us. It is submitted that as per the law applicable to the University, an employee would retire on superannuation on attaining the age of 58 years and, on the other hand, on option being exercised, an employee of the grant-in-aid College could continue for a further period of two years and, thus, could retire at the age of 60 years. The writ petitioner exercised such an option, the effect of which was that the writ petitioner continued till he attained the age of 60 years. Learned senior counsel poses a question that if the judgment of the learned Single Judge is to be maintained, this would oblige the writ petitioner to surrender the salary for the period of two years, which he had obtained on the basis that he is an employee of the college. Learned senior counsel would also point out that the representation filed by the writ petitioner has been rejected and there is no challenge to the same. 6. Per contra, learned counsel for the writ petitioner would maintain that the writ petitioner continued to be an employee of the University. He would point out the aspect of two service books being maintained. He would emphasize that actually the last drawn pay of the writ petitioner was Rs. 11,335/-, which is possible only on the basis that his basic pay was Rs. 6,500/- and adding to the said basic pay other allowances, it made a grand total of Rs. 11,335/-. It is submitted that the writ petitioner was entitled to pension on the basis of last drawn pay. He would further draw our attention to the order by which the writ petitioner was promoted in the year 2004. 6,500/- and adding to the said basic pay other allowances, it made a grand total of Rs. 11,335/-. It is submitted that the writ petitioner was entitled to pension on the basis of last drawn pay. He would further draw our attention to the order by which the writ petitioner was promoted in the year 2004. Therein, he would refer to the aspect that the order recites that with the approval of the University, the order was being passed. So as late as in 2004, in the promotion order, the control exercised by the University as an employer was evident. Moreover, he also points out that even after the writ petitioner was appointed in the said Inter College, he was transferred to the Nursery School, which is in fact run by the University. Even on the letter pad, though the name of the Inter College is mentioned, immediately underneath, there is reference to the name of the University. Also, as found by the learned Single Judge, the Office Bearers of the University were virtually running the said Inter College as Members of the Committee of Management. 7. Mr. Pradeep Joshi, learned Standing Counsel would emphasize that the writ petitioner had exercised his option and on the basis of the option the salary was fixed. 8. First thing we would notice is that the writ petitioner had represented his case before the University. The University has taken a decision by passing an order, which is produced as Annexure no. 11. Therein, reference is made to the option of the writ petitioner, which was made in terms of the Government Order dated 06.10.1990. There is reference also to the amounts lying to the credit of the Contributory Fund being transferred to the Education Department and it was found that, in essence, he cannot be treated as an employee of the University. There is no challenge to the said document. This is fatal in our view in accepting the writ petitioner’s case that he continued to be an employee of the University. This aspect has not been considered by the learned Single Judge and on this short ground, the claim of the writ petitioner as against the University was bound to fail. 9. This is fatal in our view in accepting the writ petitioner’s case that he continued to be an employee of the University. This aspect has not been considered by the learned Single Judge and on this short ground, the claim of the writ petitioner as against the University was bound to fail. 9. That apart, we would also notice that admittedly the writ petitioner though originally was an employee of the University, he was made over by way of transfer to the Inter College. The subsequent proceedings are all drawn up in the letter pad of the Inter College. There is no difference of opinion that the Inter College became an aided institution from the year 1971. Secondly, we also notice that the writ petitioner has been served with a pension payment order namely, Annexure No. 8. The learned Standing Counsel would point out that the writ petitioner has been given benefit of commutation, as provided in the said order. We notice that what is conspicuous by its absence is any pleading that the said pensionary benefits have not been received. This we say because the learned counsel for the writ petitioner would contend before us that the writ petitioner has not received any benefit. This we find difficult to accept in the absence of any plea to the contrary. 10. There is another aspect, which is that the writ petitioner has not sought any relief against the pension payment order which is apparently done on the basis of the basic pay not being treated as Rs. 6,500/-, but at a lesser amount of Rs. 5,250/-. The writ petitioner has only sought a mandamus to fix his pension on the basis of the last drawn pay, which he has received. In regard to the same, if we scan the pleadings of the second respondent, who is a Government Authority, what is stated is that the writ petitioner’s pay scale has been fixed by the Education Department on the basis of the option given by the writ petitioner, which is rightly correct. We also notice the statement that on the basis of the option for the Education Department, payment of retirement benefits to the writ petitioner has been completed according to the provisions of the Education Department. We also notice the statement that on the basis of the option for the Education Department, payment of retirement benefits to the writ petitioner has been completed according to the provisions of the Education Department. It is also stated that the writ petitioner is entitled to get the pay scale of Education Department and his pay fixation has been done by the District Education Officer and on the basis of the pay fixation by the District Education Officer, he had been granted the benefits. The case of the writ petitioner apparently is that his actual last drawn pay is Rs. 11,335/- which, as already noted, is on the basic pay of Rs. 6,500/-. Ordinarily, pension is fixed on the basis of last drawn pay. Even if the writ petitioner has exercised option, what is the reason for not giving pension on the basis of last drawn pay is not very clear. 11. We find that the learned Single Judge has erred in proceeding to hold that the writ petitioner continued to be an employee of the University and, primarily, we find that the rejection of the representation was not challenged and by asking for a mere mandamus, the learned Single Judge should not have even gone into the question whether the writ petitioner continued to be an employee of the University. 12. Accordingly, the judgment of the learned Single Judge cannot be sustained. We modify the judgment by setting aside the findings that the writ petitioner continued to be an employee of the University and also the direction, which is issued against the appellant-University. Instead, in the interest of justice, we direct the second respondent to consider and pass an order as to on what basis the pension was fixed without reference to the last pay which the writ petitioner drew (allegedly at Rs. 11,335/-). A decision will be taken in the matter in accordance with law by the second respondent within a period of two months from the date of production of a copy of this judgment. If it is found that the writ petitioner is entitled to have his pension fixed on the basis of the amount of Rs. 11,335/-, the writ petitioner will get the benefits; but we make it clear that we are not directing payment of any interest on any amount, if any, found due to the writ petitioner. 13. If it is found that the writ petitioner is entitled to have his pension fixed on the basis of the amount of Rs. 11,335/-, the writ petitioner will get the benefits; but we make it clear that we are not directing payment of any interest on any amount, if any, found due to the writ petitioner. 13. The appeal will stand disposed of.