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The D.I.O.S., Budaun v. The C/M, Pandit Jawahar Lal Nehru, Budaun And Another - SPECIAL APPEAL No. 177 of 2006  RD-AH 4400 (23 February 2006)
Special Appeal No.177 of 2006
District Inspector of Schools vs. Committee of
Management & another
Hon'ble S. Rafat Alam, J.
Hon'ble Sudhir Agarwal, J.
This appeal, under the Rules of the Court, is preferred against the judgment of the Hon'ble Single Judge dated 1.10.1999 in writ petition no.42195 of 1999.
None is present on behalf of the respondent no.2 though names of Shri T.C. Agarwal and Shri P.P. Singh are shown in the cause list. However, Shri R.K. Ojha, learned counsel appearing for respondent no.1 is present.
We have heard Shri Abhinav Upadhyay, learned counsel for the appellant and Shri R.K. Ojha, learned counsel appearing for the Committee of Management-respondent no.1.
It appears that respondent no.2 preferred the aforesaid writ petition with the grievance that he should be allowed to continue in service till he attains the age of 60 years, as he exercised the option in terms of G.O. dated 10.8.1978 to retire at the age of 60 years. The Hon'ble Single Judge by the order under appeal relying on the judgment in special appeal no.1582 of 1996 allowed the writ petition and commanded the respondent to permit the petitioner-respondent to continue in service till he attains the age of 60 years.
Shri Abhinav Upadhyay, learned counsel for the appellant vehemently contended that a teacher once failed to exercise his option, cannot claim benefit of extension of service up to the age of 60 years. He further submitted that though the relief was sought against the State Government but the petitioner did not array the State Government as respondent in the writ petition. It is also pointed out that the writ petition was disposed finally, at the first instance, without affording opportunity to the respondent to file counter affidavit.
The controversy, therefore, revolves to the question as to whether a teacher, who did not exercise option pursuant to the G.O. dated 10.8.1978 read with G.O. 29.8.1981, can also be allowed to continue till the age of 60 years. A Division Bench of this Court in the case of Prakash Chandra Sharma (Since deceased) through L.R. (wife) vs. Dy. Director of Education, Bareilly Region, Bareilly and others, 1997 (2) UPLBEC 1156 wherein one of us (Hon'ble S.R. Alam, J.) was a member of the Bench has held that the option exercised by a teacher under G.O. dated 10.8.1978 and Niyamavali of 1981 becomes final and irrevocable, once it is counter-signed by the competent authority, as per the procedure prescribed in the Niyamavali of 1981 and it cannot be withdrawn by the teacher unilaterally.
In the case in hand, the petitioner-respondent, admittedly, in terms of G.O. dated 10.8.1978 gave option of retirement at the age of 58 years, which was accepted and entry was accordingly made in the service book and became final. Further, pursuant to the G.O. dated 6.10.1990 and 4.11.1991, the petitioner-respondent did not furnish any option. The management vide letters dated 4.2.1992 and 6.12.1992 informed the District Inspector of Schools, Badaun and Joint Director of Education, Bareilly Region, Bareilly that the petitioner-respondent is absent without information since 16.10.1991 and is absconding on account of his involvement in murder and kidnapping case and has also not exercised any option in terms of the aforesaid G.O. for continuance in service till the age of 60 years. It was further alleged in the aforesaid letter of the management that the document, which he annexed along with his representation before the Joint Director of Education, Bareilly Region, Bareilly, is fabricated and forged and thus, no reliance should be placed on the same.
Even before this Court no material has been placed on record to show that the petitioner-respondent exercised option pursuant to 1991 G.O. to continue in service till he attains the age of 60 years. On the contrary, it has been stated on behalf of the committee of management that the petitioner-appellant exercised option pursuant to the 1978 G.O. to retire him on attaining the age of 58 years, which was also accepted by the District Inspector of Schools. The management and the educational authorities have further said that he has not exercised any option for retirement at the age of 60 years in pursuance to 1991 G.O. and the petitioner-respondent could not place any material to controvert the aforesaid fact. Thus, in view of the judgment of the Division Bench in the case of Prakash Chandra Sharma (supra) the petitioner-respondent cannot now be allowed to exercise the option to remain in service till he attains the age of 60 years withdrawing the earlier option exercised pursuant to 1978 G.O. for continuance in service till the age of 58 years. That apart, the writ petition was liable to be dismissed on the ground of nonjoinder of necessary parties. It is well settled legal position that where the relief has been sought against the State Government it is necessary for the petitioner to add the State Government as respondent in the array of parties. Reference may be made to the case of Chief of the Army Staff and others vs. Daya Shanker Tiwari, 2003 (4) AWC 2824. Further, at least opportunity should have been granted to the respondent to file counter affidavit so that the reply on the fact alleged by the petitioner should have come on record.
For all these reasons, we are of the view that the judgment of Hon'ble Single Judge cannot sustain. We, accordingly, allow the special appeal. The order of the Hon'ble Single Judge is set aside, consequently, the writ petition is also dismissed. There shall, however, be no order as to costs.
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