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2017 DIGILAW 353 (ALL)

Avinash Kewat v. State of U. P.

2017-01-25

MANOJ KUMAR GUPTA

body2017
JUDGMENT Manoj Kumar Gupta,J. Heard counsel for the petitioner, learned standing counsel for respondents no.1 & 2 and Sri R.C. Dwivedi, who has filed caveat on behalf of one Dahari, who claims himself to be the senior most lecturer of the institution and is now officiating on the post of Principal. The petitioner has filed the instant writ petition seeking a mandamus directing the respondents to permit him to work till the end of the academic session i.e. 31.3.2017 and to quash the order dated 3.1.2017 passed by the third respondent, whereby he was informed that according to his date of birth, he would now retire on 3 January 2017. The petitioner was the Principal of Fateh Memorial Inter College, Tamkuhiraj, Kushinagar, which is a recognised institution under the provisions of the U.P. Intermediate Education Act, 1921. The date of birth of the petitioner is 4.1.1952. Since the date of superannuation was 62 years, the petitioner attained the said age on 3.1.2014. He was permitted to work by giving him the session benefit. The petitioner being a State Teacher Awardee, he was also given the benefit of Government Orders dated 6.5.1982, 4.12.1986 and 23.10.1991 which contemplate extension of services of such teachers by a period of 2 years. On 30.12.2014, again a Government Order was issued by which the services of such teachers is to be extended upto 65 years. Giving the benefit of the said order, the service of the petitioner was also extended and thus, he would retire on attaining the age of 65 years. By the impugned notice issued by the authorised controller of the institution, the petitioner has been informed that he would retire on 3 January 2017, on attaining 65 year of age. Thereafter, he would not be entitled to work in the institution, nor would be paid his salary. Learned counsel for the petitioner submitted that under Regulation 21 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act as amended on 1.4.2015, the petitioner is entitled to remain in service till the end of the academic session i.e. upto 31 March 2017. Sri R.C. Dwivedi, learned counsel appearing on behalf of the caveator has placed reliance on a Full Bench decision of this Court in Shashi Prabha Dwivedi Vs. State of U.P. and others1. Sri R.C. Dwivedi, learned counsel appearing on behalf of the caveator has placed reliance on a Full Bench decision of this Court in Shashi Prabha Dwivedi Vs. State of U.P. and others1. He submitted that the issue has been resolved in the Full Bench decision, which holds as under: - "7. Having considered the background facts against which the Division Bench in Ramesh Chandra Tiwari took the view and considering the facts of the present case, we do find ourselves in agreement with Mr. C.B. Yadav, learned Additional Advocate General, that the questions referred by the Division Bench for our consideration, strictly speaking, do not arise in the facts and circumstances of the present case. Before the appellant could be said to be entitled to the benefit of proviso to Rule 29 and be held entitled to the benefits flowing from the principles laid down in Ramesh Chandra Tiwari, the primary issue which would be liable to be considered, would be as to whether the appellant was, in fact, retiring during the academic session on attaining the age of 62 years. Admittedly, the appellant had attained the age of superannuation (62 years) prior to 1 July 2013 and was continuing in service till 30 June 2015 only on the strength of being a Presidential Awardee. Rule 29 provides the age of 62 years as the age of superannuation. It is not possible to read the age of 62 years in Rule 29 as 64 years. The appellant attained the age of 64 years in the midst of the academic session 2015-2016. In other words, this was not a case where the appellant attained the age of superannuation, that is 62 years, post-1 April 2015. Continuance on a post on the basis of an order of extension would not have the effect of either extending or postponing the date of superannuation. The date of superannuation remains intact and unchanged, irrespective of the amendment to the academic session. Since the appellant was continuing in service only on the basis of an extension, the learned Single Judge was, in our opinion, correct in holding that she would not be entitled to the benefit under Rule 29 of the Rules. 8. In the aforesaid backdrop of the facts, we are of the considered view that the correctness or otherwise of the decision in Ramesh Chandra Tiwari did not arise at all. 8. In the aforesaid backdrop of the facts, we are of the considered view that the correctness or otherwise of the decision in Ramesh Chandra Tiwari did not arise at all. The issue as to whether the appellant would be entitled to continue till 31 March 2016 and whether the said benefit could be accorded to her, irrespective of no amendment having been made in Rule 29, would arise only if it was found that she was attaining the age of superannuation (i.e. 62 years) between 1 April 2015 to 31 March 2016. Admittedly, this was not the position insofar as the appellant was concerned. The judgment of the Court in Ramesh Chandra Tiwari, therefore, did not apply at all to the case of the appellant." He also placed reliance on another decision of this Court in Ram Prakash Awasthi Vs. State of U.P. and others2 decided on 7.4.2016, wherein similar contention raised in reference to the provisions of Chapter III, Regulation 21 was repelled by holding that once an incumbent has taken the benefit of the extension of service, he cannot be permitted to claim second extension. Learned counsel for the petitioner does not dispute the above proposition of law in the case of Ram Prakash Awasthi (supra). In view of the above, this Court does not find any merit in the writ petition. It is accordingly dismissed.