Ashok Bhushan, Arun Tandon - (1.) -Heard Sri R. K. Ojha, assisted by Sri Alok Dwivedi, learned counsel for the appellant and Sri P. S. Baghel, learned counsel for the respondent No. 6 as well as learned standing counsel representing the respondents No. 1 to 4.
(2.) THIS is an appeal against the order dated 25.6.2008, passed by the learned single Judge in writ petition filed by the appellant petitioner. The brief facts giving rise to this appeal are ; that L. P. Inter college, Kanpur Nagar is a recognised aided Intermediate College. The Principal of the institution retired on 30.6.2003. The appellant was appointed as Officiating Principal of the institution being senior-most Lecturer and started functioning. The District Inspector of Schools passed an order dated 13.1.2004, declaring the respondent No. 6 as senior-most Lecturer and directing that respondent No. 6 will function as Officiating Principal. The appellant filed Writ Petition No. 1979 of 2004, which was allowed by this Court on 27.2.2004, declaring the appellant senior to respondent No. 6 and holding the appellant to be entitled to work as Officiating Principal. The appellant was thereafter permitted to function as Officiating Principal. However, the Committee of Management in the year 2006 suspended the appellant and initiated disciplinary proceedings. The suspension was subsequently withdrawn by the Committee of Management and it was resolved that appellant shall not function as Officiating Principal but will function as Lecturer. The District Inspector of Schools passed an order dated 2.3.2007, directing the Committee of Management to permit the appellant to function as Officiating/ad hoc Principal . The Committee of Management filed Writ Petition No. 14860 of 2007, challenging the order of the District Inspector of Schools, which writ petition was dismissed by this Court vide its judgment and order dated 15.6.2007, holding that till the resolution of the Committee of Management relieving the appellant from the post of Officiating/ad hoc Principal was approved by U. P. Secondary Education Service Selection Board, the appellant was entitled to function as Officiating Principal of the institution. The date of birth of appellant is 8.7.1947. Normal age of retirement of a teacher is 62 years provided, a teacher whose date of birth falls during an academic session, is entitled to continue till the end of academic session. The Government orders including the Government order dated 17.2.1999 provides an option for those teachers who want to retire at the age of 60 years so as to be entitled to gratuity, may submit option one year before the retirement by 1st July of the academic session in which date of retirement falls. The appellant made an application on 24.5.2007, opting for retirement at the age of 60 years as Officiating Principal of the institution. The option was forwarded by the Committee of Management which was countersigned by the District Inspector of Schools on 13.7.2007. The appellant wrote a letter on 16.7.2007, praying for withdrawal of his option so as to permit him to continue till 62 years, i.e., till 30.6.2010. An order was passed by the District Inspector of Schools on 23.4.2008, taking the view that since the appellant's option of retirement at the age of 60 years has been accepted and further the resolution of reversion of appellant has been sent to the U. P. Secondary Education Service Selection Board, the respondent No. 6 is approved as Officiating Principal of the institution. The order dated 23.4.2008 was challenged by the appellant by means of Writ Petition No. 23150 of 2008 which was disposed of by this Court on 8.5.2008 directing the Deputy Director of Education to decide as to whether the option of the appellant for retirement at the age of 60 years was accepted in accordance with law and in accordance with the judgment of the Full Bench of this Court in the case of Smt. Prabha Kakkar v. Joint Director of Education, Kanpur, 2000 (2) UPLBEC 1378. In pursuance of the order of this Court dated 8.5.2008, the Joint Director of Education after hearing the parties passed an order on 5.6.2008, holding that the option of the appellant having been accepted by the District Inspector of Schools on 13.7.2007, the said option is acceptable and appellant is to retire at the age of 60 years and the representation of the appellant was rejected. Against the said order of the Joint Director of Education, Writ Petition No. 28602 of 2008 was filed by the appellant in which an interim order was passed on 25.6.2008, against which order the present special appeal has been filed. Learned single Judge considering the submission of the counsel for the appellant that his option of retirement at 60 years has not been accepted in accordance with law laid down by the Full Bench in the case of Smt. Prabha Kakkar (supra) and he is entitled to continue till the age of 62 years. Learned single Judge accepting the submission has directed as an interim measure that the petitioner be permitted to work as Lecturer in the institution till 14th July, 2008. The appellant is aggrieved only with that part of the interim order which permitted the appellant to work as Lecturer. The submission of the learned counsel for the appellant is that the appellant being senior-most Lecturer and having been found entitled to work as Officiating/ad hoc Principal by this Court in two earlier judgments, is entitled to continue as Officiating/ad hoc Principal till he attains the age of 62 years. It is relevant to note that in so far as the order of this Court dated 25.6.2008, directing continuance of appellant, none of the respondents have come up in appeal and the appeal has been filed by the petitioner-appellant himself who submits that his continuance till 62 years of age has to be as Officiating/ad hoc Principal and not as Lecturer. Learned counsel for the appellant submits that this Court in two writ petitions being Writ Petition No. 1979 of 2004, Mahendra Kumar Bajpai v. State of U. P. and others, decided on 27.2.2004 as well as in Writ Petition No. 14860 of 2007, Committee of Management L. P. Inter College, Kanpur Nagar and another v. State of U. P. and others, decided on 15.6.2007, held the appellant to be entitled to work as Officiating/ad hoc Principal, the interim order dated 25.6.2008 deprives continuance of appellant as Officiating/ad hoc Principal to which he is entitled under law being senior-most Lecturer in the institution. Learned counsel for the appellant submits that the option submitted by the appellant for retirement at the age of 60 years dated 24.5.2007 having not been accepted by the Deputy Director of Education,who is authority competent to accept option, the appellant has every right to withdraw his option of retirement which having been done on 16.7.2007, the appellant is entitled to continue till age of 62 years as Officiating/Aad hoc Principal.
(3.) SRI P. S. Baghel, learned counsel for the respondent No. 6, in whose favour the order has been passed by the District Inspector of Schools to work as Officiating/ad hoc Principal, refuting the submission of learned counsel for the appellant contends that option of the appellant for retirement at the age of 60 years given on 24.5.2007, having been accepted by the District Inspector of Schools on 13.7.2007, it was not open for the appellant to withdraw the option on 16.7.2007. He further submits that the appellant's option of retirement at the age of 60 years having been accepted by the District Inspector of Schools, it is respondent No. 6 who is to function as Officiating/ ad hoc Principal. SRI P.S. Baghel further contends that power to accept the option vests in the District Inspector of Schools according to the 1981 Rules. Sri P. S. Baghel, learned counsel for the respondent No. 6 further raised a preliminary objection regarding entertainability of the appeal. He submits that the impugned order in this appeal is only interim order hence, the special appeal is not maintainable under Chapter VIII, Rule 5 of the Rules of the Court. He further submits that the order dated 25.6.2008 is not a 'judgment' within the meaning of Chapter VIII, Rule 5 of the Rules of the Court. He placed reliance on a Division Bench judgment of this Court in the case of Society of Madarsa Mazahir Uloom Mubarak Shah Saharanpur v. Muzaffar Hussain, 1994 AWC 55, and the case of Brijpal Sharma v. State of U. P. and others, (2004) 3 UPLBEC 2544. Learned counsel for the appellant refuting the preliminary objection raised by learned counsel for the respondent No. 6 contends that the order impugned deprives valuable right of appellant to continue as Officiating/ad hoc Principal of the institution hence, the appellant has every right to maintain this appeal. He further contends that special appeal under Chapter VIII, Rule 5 of the Rules of the Court against the impugned order is fully maintainable.;