- (1.) J. C. Gupta, J. This is a petition under Article 226 of the Constitution of India seeking a direction to the effect that the respondents the directed not to interfere in the functioning of the petitioner as the Principal of Merchant Inter College, Chit-bara 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.
(2.) THE institution in question, accord ing 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 sub stantive vacancy on the post of Principal of the institution. Against this substantive vacancy, the petitioner was appointed as officiating Principal and he started dis charging functions as Principal of the in stitution from 1. 7. 88 and he continuously functioned till 31. 7. 90, on which date Sri Subhash Mitra Pandey, a candidate recom mended by the Secondary Education Ser vice 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 In spector 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 be ad hoc appointment of the petitioner as Principal vide Annexure 1 of the writ petition. That under Regulation 21 of Chap ter 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 op ting retirement benefits and retirement at the age of 58 years. Copy of the 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 institu tions. It was in pursuance of the aforesaid G. O. of the year 1990 the petitioner sub mitted an option to retire him at the age of 58 years ana 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 op tion given by him earlier and intimated that the petitioner intended to retire only at the age of 60 years. True copy of the said repre sentation, 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 what soever 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 ser vice only at the end of academic session 1997-98 i. e. on 30. 6. 98. The respondents 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 respondents 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.
(3.) SRI Ashok Khare, learned counsel for the petitioner vehemently argued that since the petitioner had withdrawn his op tion 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 Regulation 21 the normal age of retirement of teachers is prescribed to be 60 years. He submitted that an option to retire voluntary retire ment resignation becomes effective only on the date on which the retirement resigna tion 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 v. Gopal Chand Misra and others, AIR 1978 SC 694, it was held that the general principle regard ing resignation is that ir the absence of a legal, contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effectiveand it becomes effective when it operates to ter minate 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 Government servant/or functionary who cannot, under the conditions of his service or office, by his own unilateral act of tender ing 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 com petent authority.;