Shambhu Nath Upadhyay vs Regional D.D.E. (Secondary), and Others

J.C. Gupta, J.—This is a petition under Article 226 of the Constitution of India seeking a direction to the effect that the Respondent be directed not to Interfere in the functioning of the Petitioner as the Principal of Merchant Inter College, Chitbara Gaon, District Ballia till he attains the age of 60 years and not to retire him before 30.6.98 when the Petitioner attains the age of 60 years and to pay to the Petitioner his regular monthly salary on the said post regularly every month.

The institution in question, according to the Petitioner, is governed by the provisions of the Intermediate Education Act, 1921. The Petitioner was appointed as a permanent Lecturer in English on 9.7.63. On 30.6.88 Sri. Parasu Ram Upadhyay, the permanent Principal of the institution, retired from service thereby causing a substantive vacancy on the post of Principal of the institution. Against this substantive vacancy, the Petitioner was appointed as officiating Principal and he started discharging functions as Principal of the institution from 1.7.88 and he continuously functioned till 31.7.90, on which date Sri. Subhash Mitra Pandey a candidate recommended by the Secondary Education Services Commission, Joined the institution. However, the said Sri. Pandey proceeded on leave from 5.8.90 and till date he has not resumed duties on the post of Principal and has abandoned service. The Petitioner was, therefore, again appointed as officiating/ad hoc Principal of the institution on 5.8.90 and since then he has been functioning as Principal of the institution. The District Inspector of Schools by means of the order dated 28.2.96 accorded approval from 5.8.90 till a regular appointment is made by the Commission, to the ad hoc appointment of the Petitioner as Principal vide Annexure 1 of the writ petition.

That under Regulation 21 of Chapter III of the Regulations framed under the Intermediate Education Act, the normal age of retirement of the teachers is 60 years. However, this is subject to Government Order No. 2523 dated 10.8.78 under which an option was given to the teachers for opting retiral benefits and retirement at the age of 58 yeans. Copy of the said G.O. is annexed as Annexure 2 to the writ petition. In pursuance of the aforesaid Government Order, the Petitioner did not submit any option to retire him at the age of 58 years. Subsequently, on 6.10.90 a fresh G.O. was issued by the State Government bearing No. 4376, whereby a fresh option was invited from the teachers of educational institutions. It was in pursuance of the aforesaid G.O. of the year 1990, the Petitioner submitted an option to retire him at the age of 58 years and the same was forwarded to the District inspector of Schools. The District Inspector of Schools signed the option form as submitted by the Petitioner and then returned the option form to the institution. Shortly thereafter, the Petitioner submitted an application dated 7.1.91 to the District Inspector of Schools withdrawing the option given by him earlier and intimated that the Petitioner intended to retire only at the age of 60 years. True copy of the said representation has been annexed as Annexure 5 to the writ petition. Since no orders were issued by the District Inspector of Schools on the aforesaid representation, the Petitioner sent reminders dated 12.5.91, 8.4.94 and 12.2.96. However, the District Inspector of Schools passed no orders whatsoever on the representation so filed by the Petitioner. On 10.2.96, a communication was issued by the Manager of the institution according his consent to the change of the option of the Petitioner from 58 years to 60 years and certifying that he has no objection whatsoever to the aforesaid change. The date of birth of the Petitioner is 12.7 1937 as per High School certificate and thus he would attain the age of 60 years on 11.7.97 and consequently, he would retire from service only at the end of academic session 1997-98, i.e., on 30.6.98. The Respondent authorities insist that the Petitioner would be retired on 30.6.96 in accordance with the option given by him for retiring at the age of 58 years despite the fact that the Petitioner has withdrawn his earlier option and there did not exist any rational justification for the Respondent not to act upon the withdrawal of the option submitted by the Petitioner.

On behalf of Respondent No. 4, counter-affidavit has been filed. Petitioner''s Counsel and the standing Counsel were heard at length

Sri. Ashok Khare, learned Counsel for the Petitioner vehemently argued that since the Petitioner had withdrawn his option retiring him at the age of 58 years on 6.1.91. he would be retired only on attaining the age of 60 years as under the Regulation 21, the normal age of retirement of teachers is prescribed to be 60 years. He submitted that an option to retire/voluntary retirement/resignation becomes effective only on the date on which the retirement/resignation/ voluntary retirement actually takes place and before that date the relationship of employer and employee continues to exist and before it becomes effective, it is open to the employee concerned to withdraw the option submitted by him. In support of his submission, he placed reliance on the several decisions.

In the case of Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, , it was held that the general principle regarding resignation is that in the absence of a legal, contractual or constitutional bar, a ''prospective'' resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment of the office tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant/or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office tenure terminated, when it is accepted by the competent authority.

In another decision rendered in the case of Balram Gupta Vs. Union of India (UOI) and Anr, , the Apex Court did not accept the submission that once a notice of termination of service or of retirement is communicated, the same operates without the consent of the other party and it became operative Immediately, if it was received by the Government and it automatically brings about the dissolution of contract after the expiry of the notice period. In that case, the dissolution was to be brought about only on the date indicated, i.e., 31st of March, 1981. It was held that upto that date, the Government servant remained a Government employee and there was no unilateral termination of the same prior to that date. The Government employee was at liberty and entitled independently without Sub-rule (4) of Rule 48A of the Pension Rules, as a Government servant, to withdraw his notice of voluntary retirement.

Learned Counsel for the Petitioner further placed reliance on the decision in the case of Devikrishan Goyal v. District Inspector of Schools, Ghaziabad and Ors. (1990) 13 ATC 155. In this case, the Appellants before the Apex Court was an Inter-college teacher whose normal age of superannuation was 60 years. He gave his option to retire him on attaining 58 years of age by communicating his option on February 13, 1982 in terms of the Government notification dated August 29, 1981. The Management forwarded the option of the Appellants to the District Inspector of Schools for acceptance, but there was no communication from him accepting or rejecting the same. On 20.1.1987 the teacher withdrew his option. The Management forwarded the same recommending acceptance of the subsequent revocation to the District Inspector of Schools by the letter dated 8.5.87. The District Inspector of Schools wrote to the Management that it would not be possible to accept the plea of the Management Committee as per the rules. The teacher challenged the action of the District Inspector of Schools before the High Court "but his petition was dismissed in limine" by the High Court. The Apex Court was of the view that the High Court was in error in rejecting the writ petition as it was not disputed anywhere that option stood withdrawn before it was accepted. The Hon''ble Supreme Court further held that the provision in the rule "an option once used will be decreed to be final" would not mean that when an offer is made it is not open to be withdrawn before it is accepted. The teacher was held to be entitled to withdraw the option and it was held that he would retire only on completion of 60 years of age.

In respect of the Regulation 21 of Chapter III and the relevant G. Os., there is yet another decision of the learned single Judge of this Court in the case of Km. Shakuntala Tandon v. Slate of U.P. and Ors. 1994 (2) HVD (All) 102. The learned Judge held that the contention of the District Inspector of Schools that there is no provision by which a teacher can withdraw an option to retire at 58 years so that he or she could continue until 60 years, was illogical. It was held that the very power which permits the District Inspector of Schools to accept the option simultaneously confers the discretion upon him to permit the option to be withdrawn provided it is done within a reasonable time before the date of retirement. The only matter which is to be seen is that the option must be withdrawn while the person is in service, implying thereby that if an option is attempted to be withdrawn after the teacher retires, then there is much the teacher has to explain, if the teacher intends to continue in service beyond 58 years. In that case, the Petitioner was the Principal of an institution. She first by her letter dated 2nd January, 1991 exercised option to retire at the age of 58 years, i.e., at the end of academic session on 30.6.94. However, by her letter dated 24.11.93 she intimated the District Inspector of Schools that in the matter relating to the option exercised by her earlier, she elected to withdraw the same and would like to continue until the age of 60 years, which was the normal date of retirement applicable to the teacher. The learned Judge observed as under:

There is no issue on record that even as early as 21st December, 1993 the Petitioner Km. Shakuntala. Tandon as Principal of the institution aforesaid had elected to withdraw her option to retire at the age of 58 years. The District Inspector of Schools on 21st January, 1994 could only indicate to the Petitioner that there is no provision under which she could receive the return of her earlier option by which she had declared that she would retire at the age of 58 years. The issue is not whether there is any provision to seek return of the document by which she had earlier given her consent to retire at 58 years. The question before the District Inspector of Schools was whether the teacher could change her mind while in service to tell the District Inspector of Schools that she had made a mistake and would now like to continue in service until 60 years provided she had indicated this while she continued in service. On this, the District Inspector of Schools had indicated nothing in tire impugned letter.

In support of the contention of Petitioner''s case, there is yet another decision of tills Court in the case of Ahmad Mustagani Khan v. State of U.P. and Ors. 1995 ALJ 1843.

In view of the uncontroverted facts, it is apparent that the Petitioner had withdrawn the option given earlier within a reasonable time before the date of his retirement calculated as per the option. As stated earlier, the option to retire at the age of 58 years was given by the Petitioner on 14.12.90 and he applied to the District Inspector of Schools through his letter dated 7.1.91 Annexure 5 withdrawing his option dated 14.12.90 and elected to continue in service till he reached the age of 60 years. In the counter-affidavit filed on behalf of Respondent No. 4, it has also been admitted that the Deputy Director of Education has not accepted or rejected the option given earlier by the Petitioner before the same was withdrawn by the Petitioner.

In view of the above legal position, the action of the Respondent to retire the Petitioner on his completing 58 years of age on the basis of the earlier option given by him is arbitrary and unreasonable as the Petitioner has withdrawn the said option before it could be acted upon and the Petitioner should be allowed to continue till 30.6.98.

In the result, the writ petition succeeds and is hereby allowed. A writ of mandamus be and is hereby issued commanding the Respondent to continue the Petitioner as a teacher till 30.6.98 and if no regular appointment on the post of Principal has been made by the Commission, he shall be at owed to continue as officiating/ad hoc Principal of the institution until a regular appointment is made or till he attains the age of 60 years, whichever is earlier. The Petitioner shall also be paid his regular salary as admissible to him with all consequential benefits to which he would be entitled. In the circumstances of the case, no order as to costs is made.