- (1.) D. K. Seth, J. Pursuant to the order dated 22-6-1994, steps were taken for ef fecting the service on the respondent No. 1 which was duly sent on 28-6-1994. No return has come back. Since return has not come back and the notice appears to have been issued at the correct address with sufficient postage, the service on the respondent No. 1 is accepted under Chap ter 8, Rule 12, Explanation 2 and the mat ter is treated as ready as regards service.
(2.) THE petitioner had exercised op tion to retire at the age of 58 years pur suant to the Government Order dated 10-8-1978 sometimes in March, 1982. Sub sequently, pursuant to the order dated 4-11- 1991, the petitioner exercised his op tion to retire at the age of 60 years. THE said option was ultimately accepted by the District Inspector of Schools which is ap parent from the Service Book of the petitioner, which is Annexure 7 to the writ petition. It appears from the said service book that pursuant to the order dated 4-11-1991, the petitioner's option to retire at the age of 60 years was accepted by the District Inspector of Schools under his seal and signature. On the other hand, the school authority by a letter dated 11-5-1994 sought to retire the petitioner on superannuation at the age of 58 years w. e. f. 30th June, 1994, which is Annexure 9 to the writ petition. Sri Ashok Bhushan, learned Coun sel for the petitioner contends that since his earlier option was never accepted inas much as no communication was given to the petitioner accepting the said option neither anything was endorsed in the Ser vice Book of the petitioner as is apparent from the service book, therefore, it was open to the petitioner to withdraw the same before it is accepted and that the District Inspector of Schools is em powered to permit withdrawal of such op tion and accept fresh option. Since fresh option has been accepted as aforesaid by implication the earlier option is permitted to be withdrawn. According to him, there fore, the petitioner is entitled to the salary for the period after 30-6-1994 till 30-6-1996, namely on attainment of the age of 60 years and that the petitioner had worked during this period and he is also entitled to all the service benefits on the basis of such retirement. The petitioner had worked till 60 years of age by virtue of interim order granted in this v t petition on 22-6-1994. Sri R. C. Yadav, learned Standing Counsel on the other hand, contends that since the petitioner had exercised option once earlier he is precluded from exercising the second option. He relies in the decision in the case of Chandra Kishore Dubey v. Deputy Director of Education, Jhansi and others, 1994 (1) UPLBEC550, in support of his contention.
(3.) I have heard Sri Ashok Bhushan, learned Counsel for the petitioner and Sri R. C. Yadav, learned Standing Counsel. The decision in the case of Chandra Kishore Dube (supra) is distin guishable on the facts and the circumstan ces of the present case. Inasmuch as in the said case, the first option was exercised pursuant to the Government Order dated 6-10-1990 and the second option was sought to he exercised pursuant to the order dated 4-11-1991. It was held in the said case that the genuineness of the second option appears to be doubious. The Court did not come to any finding that the second option was really exercised. Then again, it was held that by the second order dated 4-11-1991 it was pointed out that those who could not give option ear lier under the Government Order dated 6-10-1990 were permitted to exercise op tion under Government Order dated 4-11-1991. In the present case, admittedly the petitioner did not exercise option under order dated 6-10-1990. Therefore, he can not be said to be precluded by reasons of the conditions contained in Government Order dated 4-11-1991. Inasmuch as the said eligibility clause is not attracted in the case of the petitioner. Sri R. C. Yadav has not been able to point out from the order dated 4-11-1991 that even those who have exercised option under the Government Order dated 10-8-1978 are also precluded. In the absence of any specific provisions in the order dated 4-11-1991, it is not pos sible to exclude those persons who have exercised option under order dated 10-8-1978. Therefore, it is not possible to preclude the petitioner from exercising his option as aforesaid. Therefore, the ratio decided in the case of Chandra Kishore Dube (supra) cannot be attracted in the facts and the circumstances of the present case.;