- (1.) THIS Special Appeal arises out of judgment and order dated 14-8-1997 passed in Civil Misc. Writ Peti tion No. 18208 of 1997. It maybe observed that although by means of the said judg ment two connected writ petitions being Civil Misc. Writ Petition No. 18208 of 1997 and Civil Misc. Writ Petition 23134 of 1997 were disposed of by the learned Single Judge, but the appeal is confined to the decision in writ petition No. 18208 of 1997 as was stated by Shri Ashok Khare, coun sel for the appellant at the time of the admission of the appeal on 3-9-1997.
(2.) STATED briefly the undisputed facts are that the appellant was appointed Lec turer (Biology) on 15-7- 1964 in Maharaja Agrasen Inter College, City and District Moradabad; the post of Principal in the college fell vacant on 30-6-1990 due to retirement of the permanent incumbent; the Committee of Management hi its meeting held on 30-6-1990 passed a resolution giving ad-hoc/officiating promotion to the appellant on the post of Principal inasmuch he was the senior most Lecturer in the institution; pursuant to the resolution passed by the Committee of Management charge was handed over 10 the appellant and a formal letter of promotion was issued on 1-7-1990; signa tures were attested by the District Inspec tor of Schools on 9-7-1991; and the promotion was approved by the District Inspector of Schools vide order dated 15-4-1991. Subsequently the vacancy in the post of Principal was advertised by the Secondary Education Service Commission U. P. vide advertisement No. 1 of 1995. Pursuant to the said advertisement the petitioner also ap plied and was selected for appointment by the Commission vide notification dated 3-8-1996. The appointment letter was issued in favour of the appellant on 29-8- 1996. It may be pertinent to mention here that according to the notification issued by the U. P. Secon dary Education Service Commission, Al lahabad the appellant's name was at S. No. 1 in the panel of the selected candidates in the institution in question. His name also figured in the panel of the selected can didates in relation to two other institu tions. The petitioner, however, preferred to remain in Maharaja Arisen Inter Col lege, Moradabad. The question that arises for con sideration is as to whether the appellant alter being appointed to the post of Prin cipal was hound by the option he had exercised as Lecturer to retire at the age of 58 years. It is not disputed that the age of superannuation of teacher is 60 years as provided in Regulation 21 of Chapter III of the Regulations made under the U. P. Intermediate Education Act, 1921 and but for the option exercised by the appellant to retire at the age of 58 years he would have been allowed to continue up to the age of 60 years. It may be pertinent to observe that according to the Government orders issued from time to time teachers of Government aided private institutions were given opportunity to exercise option to retire at the age of 58 years and there by to opt for gratuity which is not available to a teacher reliring at the age of 60ycars. On a perusal of the materials on record it would appear and the learned Single Judge has also recorded a finding, that the appellant had submitted his option form on 22-12-1982 which was countersigned by the District Inspector of Schools in token of acceptance on 20-3-1986 and the appellant was informed of his option having been accepted by the District Inspector of Schools. The argument advanced by Shri Ashok Khare, learned counsel for the ap pellant is that since the appellant was ap pointed to the post of Principal by direct recruitment on the recommendation made by the U. P. Secondary Education Service Commission and not by promo tion, the option exercised by him as a Lec turer to retire at the age of 58 years lost its relevance and the appellant was entitled to continue up to the prescribed age of super annuation Le. , 60 years. The submission made by Shri Ashok Khare has no sub stance. The reason is that the appellant was initially given ad-hoc promotion to the post of Principal in 1990 and by virtue of the provisions contained in Section 33-A (1-A) he stood regularised with effect from the date of commencement of U. P. Secondary Education Service Commis sion and Selection Boards (Amendment) Act, 1990 i. e. , 6-4-1991 and we find sub stance in the submissions made by Shri V. K. Shukla, learned counsel for the respondent that the selection made by the Commission in 1996 became redundant as held by the Supreme Court in Munixtiwur Dun Pandey v. Ranjit Tiwari and others, 1997 (1) LBESR 961 (SC) inasmuch as sub-section (1-A) of Section 33-A provides that every teacher appointed by promotion on ad-hoc basis in accordance with the para 2 of the U. P. Secondary Education Service Commission (Removal of Difficulties Order), 1981, as amended from time to time, who possess the qualification prescribed or is exempted from such qualification in accordance with the provisions of Intermediate Education Act, 1921, shall, with effect from the date of commencement of U. P. Secondary Education Service Commission and Selec tion Board (Amendment) Act, 1990 "be deemed to have been appointed in sub stantive capacity provided that such teacher has been continuously serving in the institution from the date of such appointment to the date of such commence ment". It is not disputed that the appellant was given ad-hoc promotion in 1990 and he continued to serve the institution as Principal from the date of his ad-hoc ap pointment by promotion even after Amending Act came into force. By virtue of legal fiction created by the legislature under sub- section 33- A (1-A) the appel lant became permanent Principal with ef fect from 6-4-1991 and, therefore, his selection by the Secondary Education Ser vice Commission pursuant to advertise ment No. 1 of 1995-96 was a futile exercise.
(3.) SECOND reason why the appellant was bound by the option exercised by him to retire at the age of 58 years is that it is provided in the pension scheme that op tion once exercised is final and ir revocable. It is an option for the entire service career as a teacher. It cannot be said that the option exercised by a teacher as a Lecturer will not hold the field after such teacher is appointed as Principal. We are of the considered view that it would make no difference whether the appoint ment to the higher post is by direct recruit ment or by promotion for option once exercised will be valid for the entire service career of the teacher concerned. In our considered view the learned Single Judge was right in holding that the appellant was bound by the option exercised by him on 22-12-1982 which was countersigned and accepted by the District Inspector of Schools in token of having approved the option on 22-3-1986 and we find no ground for interference. Before parting with the judgment we may observe that in case the appellant had actually worked in the institution as Principal after attaining the age of 58 years he will be paid salary, if not already paid and in case the salary has already been paid, the same shall not be recovered. The period so spent of duty shall be treated to be an extension in service after retirement.;