Allahabad High Court
Kalu Ram Patel vs State Of U.P. And Others on 17 October, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 34 Case :- WRIT - A No. - 11850 of 2004 Petitioner :- Kalu Ram Patel Respondent :- State Of U.P. And Others Counsel for Petitioner :- Dr. G.S.D. Mishra,Gyanendra Kumar Mishra,Ramesh Kumar Mishra Counsel for Respondent :- C.S.C.,Pradeep Upadhaya,R.K.Srivastava,Ramesh Mishra Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ramesh Kumar Mishra, learned counsel for petitioner and learned Standing Counsel for respondents.
2. The writ petition is directed against order dated 28.02.2004 passed by Joint Director of Education 4th Region, Allahabad holding that petitioner has offered option for retirement at 58 years and, therefore, even if there was no communication petitioner shall be entitled to be considered to retire according to such option as he has not submitted any other option. It is said that the aforesaid order passed by Joint Director is contrary to law laid down in Yamuna Narayan MishraVs.State of U.P. and others 2009 (4) ADJ 43 wherein this Court has said as under:
?The Full Bench, after referring to the aforesaid Government Orders and the Circular dated 30th October, 1990 issued by the Director of Education pursuant to the Government Order dated 6th October, 1990, observed that in view of the specific requirement of acceptance of the option by the Regional Deputy Director of Education and communication of the same to the concerned employee, it was difficult to accept that formal acceptance of the option exercised by the teacher was not necessary. The Full Bench, accordingly observed that the act of acceptance of option by the Regional Deputy Director of Education and its communication to the employee was necessary in order to make it final. It also observed that the counter signature of the District Inspector of Schools on such option could neither be taken as acceptance nor could it attach any kind of finality to it. The observations to this effect are as follow:
".........The circular order dated 30th October, 1990 issued by the Director of Education in pursuance of the Government Order dated 6th October, 1990, clearly provided that the acceptance/non-acceptance of the option exercised shall be communicated by the Regional Deputy Director of Education to the concerned employee within the specified time hence countersigning of the option by the District Inspector of Schools could not be taken as acceptance of the same. The purpose behind the requirement of countersigning by District Inspector of Schools was perhaps to ascertain that the option was exercised by the correct persons and he satisfied other conditions which were necessary for exercise of the option. The obligation of the District Inspector of Schools was thus to authenticate the signature of executing of the option and information supplied by him in the prescribed proforma. Thus our conclusion is that the act of acceptance of the option by the Deputy Director of Education and its communication to the employee was necessary in order to make it final. The counter signature of District Inspector of Schools on such option could neither be taken as acceptance nor could it attach any kind of finality to it. The questions No.1 and 2 are answered accordingly."
?The records also indicate that subsequently the petitioner also sent a communication dated 1st July, 2003 to the District Inspector of Schools with a request that the earlier option exercised by him should be changed and that his age of superannuation should be treated as 58 years. The District Inspector of Schools by the communication dated 23rd August, 2003 addressed not only to the Manager/Principal of the College but also to the petitioner conveyed his acceptance.?
3. When questioned, learned Standing Counsel could not dispute that the issue involved in the present matter is squarely covered by the aforesaid judgment.
4. In view thereof, for the reasons stated in Yamuna Narayan MishraVs.State of U.P. and others (supra), the writ petition is allowed. Impugned order dated 28.02.2004 is hereby set aside. Respondents are directed to consider claim of petitioner in the light of law laid down in Yamuna Narayan MishraVs.State of U.P. and others (supra) and give him all consequential benefits in terms of aforesaid judgment.
Order Date :- 17.10.2019 PS