# Hari Om Saran Srivastava v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 1047
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-21
- **Case number:** Spl. Appl. No. 1552 of 2012
- **Bench:** Surya Prakash Kesarwani, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-om-saran-srivastava-v-state-of-u-p-ors-46458
- **Pages:** 9

## Headnote

A. Service Law - Education - Superannuation -
Extension - Uttar Pradesh High School and
Intermediate College (Payment and Salary to
Teachers and other Employees) Act, 1971 - U.P.
Intermediate Education Act, 1921 - Regulation
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
21 of Chapter 3 under Section 16-G - A
Government servant has no right to continue in
service after his retirement from service. The
appellant/petitioner
having
retired
from
service much before the grant of National
Award for Teachers to him, has no right for
extension of service. The appellant retired from
service on 30.6.2009 after attaining the age of
superannuation on 01.01.2009. He was awarded the
National Award to Teachers-2008 on 5.9.2009, i.e.,
after his retirement from service. Thus, at the time of
his retirement, he was not in service. There is no
provision for extension of service of a teacher after
his retirement from service or extension of service
with retrospective effect. Thus, once the contract of
service has come to an end, then no extension of
service can be accorded. Therefore, denial of
extension of service of the appellant/petitioner does
not deprive him of his any fundamental rights,
guaranteed under the Constitution or any of his
statutory rights. (Para 16, 19)

The petitioner-appellant was an Assistant Teacher, LT
Grade, who had superannuated on 30.6.2009 after
attaining the age of 62 years. The basic ground
sought to be raised by the learned counsel for the
appellant is w.r.t. the fact that the appellant is
entitled to extension of services for a period of 2
years in the light of the provisions contained
u/Regulation 21 Chapter 3 of the U.P. Intermediate
Education Act, 1921 and the GOs dated 6.5.1982,
4.12.1986, 4.2.2004, 29.6.2004 and 30.6.2005, as the
appellant has been awarded with National Award to
Teachers-2008. (Para 7, 8)

Government Order dated 04.02.2004 - Two
conditions have to be fulfilled, namely, (a) The
concerned Teacher should be possessed with an
award on the date of consideration for extension of 2
years; (b) He or she (Teacher) should be on duty and
performing on the post, so assigned to him/her. (Para
9 to 11)

On the date, the appellant was awarded the National
Award to Teachers-2008, he stood superannuated as
the award was granted to him on 5.9.2009, whereas
the date of his superannuation was 30.6.2009. Thus,
the appellant on the date of being considered for
extension of 2 years had already superannuated.
(Para 12)

B. Order as to extension of service made on a
date when servant has ceased to be in service,
then order of extension is nullity. Order of
extension cannot be passed after petitioner has
attained the age of superannuation. (Para 14)

Contract of service came to an end with petitioner's
attaining age of superannuat

## Text

11 All. Hari Om Saran Srivastava Vs. State of U.P. & Ors.
1047
exercise of power of issuance of mandamus
could not have said anything contrary to that on
the ground that the earlier judgment in favour of
the respondents became final, not being
challenged. The impugned mandamus issued by
the Division Bench of the Andhra Pradesh High
Court in the teeth of the declaration made by the
Supreme Court as to the constitutionality of the
amendment Act would be an exercise of power
and jurisdiction when the respondents did not
have the subsisting legally enforceable right
under the very Act itself. In the aforesaid
circumstances, we have no hesitation to come to
the conclusion that the High Court committed
serious error in issuing the mandamus in
question for enforcement of the so-called right
which never subsisted on the date, the Court
issued the mandamus in view of the decision of
this Court in Venkatagiri's case. In our view,
therefore, the said conclusion of the High Court
must be held to be erroneous."

22. A Division Bench of this Court in
which one of us (Justice Surya Prakash
Kesarwani) is one of the member, had
considered the power of the High Court for
issuance
of
high
prerogative
writ
for
enforcement of fundamental rights, and held as
under:-

"18. It is settled law that writ of mandamus
can be issued if the petitioner has a legal right
to the performance of a legal duty by the party
against whom the mandamus is sought and such
right must be subsisting on the date of the
petition. Similar view has also been taken by
Hon'ble Supreme Court in Kalyan Singh vs.
State of U.P.13. Applying the principles of
issuance of writ of mandamus on the facts of the
present case, we find that the petitioners have no
legal right for protection on the facts of the
present case inasmuch as such the protection as
being asked, may amount to protection against
commission of offence under Section 494/495
I.P.C. It is well settled law that writ of
mandamus can not be issued contrary to law or
to defeat a statutory provision including penal
provision. The petitioners do not have legally
protected and judicially enforceable subsisting
right to ask for mandamus."

Therefore, the learned Single Judge has not
committed any error of law in dismissing the
writ petition by refusing to issue mandamus as
prayed for.

23. It is also well settled law that this Court
in exercise of its extraordinary, equitable and
discretionary jurisdiction under Article 226 of
the Constitution of India has no power to rewrite contract or to compel the State to enter into
an agreement.

24. For all the reasons aforestated, we do
not find any merit in this special appeal.
Consequently, the Special Appeal is dismissed.
----------
(2021)12ILR A1047
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.10.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Spl. Appl. No. 1552 of 2012

Hari Om Saran Srivastava ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Yogesh Kumar Saxena, Sri Siddhartha Srivastava

Counsel for the Respondents:
C.S.C.

A. Service Law - Education - Superannuation -
Extension - Uttar Pradesh High School and
Intermediate College (Payment and Salary to
Teachers and other Employees) Act, 1971 - U.P.
Intermediate Education Act, 1921 - Regulation
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
21 of Chapter 3 under Section 16-G - A
Government servant has no right to continue in
service after his retirement from service. The
appellant/petitioner
having
retired
from
service much before the grant of National
Award for Teachers to him, has no right for
extension of service. The appellant retired from
service on 30.6.2009 after attaining the age of
superannuation on 01.01.2009. He was awarded the
National Award to Teachers-2008 on 5.9.2009, i.e.,
after his retirement from service. Thus, at the time of
his retirement, he was not in service. There is no
provision for extension of service of a teacher after
his retirement from service or extension of service
with retrospective effect. Thus, once the contract of
service has come to an end, then no extension of
service can be accorded. Therefore, denial of
extension of service of the appellant/petitioner does
not deprive him of his any fundamental rights,
guaranteed under the Constitution or any of his
statutory rights. (Para 16, 19)

The petitioner-appellant was an Assistant Teacher, LT
Grade, who had superannuated on 30.6.2009 after
attaining the age of 62 years. The basic ground
sought to be raised by the learned counsel for the
appellant is w.r.t. the fact that the appellant is
entitled to extension of services for a period of 2
years in the light of the provisions contained
u/Regulation 21 Chapter 3 of the U.P. Intermediate
Education Act, 1921 and the GOs dated 6.5.1982,
4.12.1986, 4.2.2004, 29.6.2004 and 30.6.2005, as the
appellant has been awarded with National Award to
Teachers-2008. (Para 7, 8)

Government Order dated 04.02.2004 - Two
conditions have to be fulfilled, namely, (a) The
concerned Teacher should be possessed with an
award on the date of consideration for extension of 2
years; (b) He or she (Teacher) should be on duty and
performing on the post, so assigned to him/her. (Para
9 to 11)

On the date, the appellant was awarded the National
Award to Teachers-2008, he stood superannuated as
the award was granted to him on 5.9.2009, whereas
the date of his superannuation was 30.6.2009. Thus,
the appellant on the date of being considered for
extension of 2 years had already superannuated.
(Para 12)

B. Order as to extension of service made on a
date when servant has ceased to be in service,
then order of extension is nullity. Order of
extension cannot be passed after petitioner has
attained the age of superannuation. (Para 14)

Contract of service came to an end with petitioner's
attaining age of superannuation, and extension could
have been accorded only when contract of service
have been in subsistence and not at the point of time
when contact of service has come to an end.
According extension of service prerequisite
condition is subsistence of contract of service,
and once contract of service has come to an
end by operation of law on account of the
incumbent
having
attained
the
age
of
superannuation,
then
same
cannot
be
permitted to be revived by according extension
with retrospective effect. (Para 14)

C. The date, on which an award is granted, is a
determining factor for the grant of benefits - In
the present case, the award was with regard to the
public recognition of valuable services in the
community, as a Teacher of outstanding merit
referable to National Award to Teacher-2008, but the
same was granted to the appellant on 5.9.2009, i.e.,
after the date of superannuation i.e., 30.6.2009.
Scheme/event, which pertains to the conferring an
award is one thing and grant of award is
another thing. Consideration and decision might be
taken to award a particular incumbent referable to a
particular scheme or a policy, but the crucial factor for
determining the date vis-a-vis the eligibility is the
date, when the award is being granted to the
beneficiary. Therefore, the crucial date, relevant for
the purposes of considering the claim of the appellant
for grant of extension is the date, when the appellant
became eligible under the provisions of Regulation 21
Chapter 3 of the U.P. Intermediate Act, 1921 and the
Government Orders issued from time to time. (Para
15)

Appeal dismissed. (E-4)

Precedent followed:

1. St. of Assam & ors. Vs Padma Ram Borah, AIR
1965 SC 473 (Para 13)

2. Smt. Indira Daniels Vs St. of U.P. & ors., 2005 (3)
ESC Alld 1612 (Para 14)

3. St. of Assam & ors. Vs Basanta Kumar Das, AIR
1973 SC 1252 (Para 16)
11 All. Hari Om Saran Srivastava Vs. State of U.P. & Ors.
1049
4. State Bank of Bikaner and Jaipur & ors. Vs Jag
Mohan Lal, AIR 1989 SC 75 (Para 17)

5. P. Venugopal Vs U.O.I., (2008) 5 SCC 1 (Para 18)

Present Special Appeal assails judgment and
order dated 20.10.2010, passed by Hon'ble Mr.
V.K.Shukla, J.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J. & Hon'ble Vikas Budhwar, J.)

1. Present intra-court appeal, purported to
be under Chapter 8 Rule 5 of the Rules of the
High Court 1952, has been instituted by the
appellant challenging the valildity and the
correctness of the judgment and order dated
20.10.2010 passed by the learned Single Judge
in Civil Misc. Writ Petition No. 62959 of 2010,
Hariom Sharan Srivastava Vs. State of U.P. and
others.

2. Though the present appeal was filed
with delay condonation application, and the
delay was condoned by virtue of the order dated
28.8.2012. Today, when the matter came up
before this Court, then the learned counsel for
the appellant as well as the learned Standing
Counsel appearing for the Respondent nos.1 to 5
requested the Court to decide the present appeal
at the admission stage itself. Though, notices
were issued to Respondent no.6, but no response
has been filed by it. Hence in the circumstances,
this Court is proceeding to decide the appeal on
the basis of the material available on record.

3. Heard Sri Siddhartha Srivastava holding
brief of Sri Yogish Kumar Saxena, learned
counsel for the petitioner and Smt. Shubhra
Singh, learned counsel for the State respondents
and carefully perused the records.

4. As per the case, set up by the
petitioner- appellant before the Writ-Court and
in the present appeal, the petitioner-appellant,
has pleaded that Respondent no.6 is an
Institution by the name and the nomenclature of
the K.K. Inter College, Kannauj, recognized
under the provisions of U.P. Intermediate Act,
1921 and is receiving grant-in-aid from the
State
Government.
Consequently,
the
provisions contained under the Uttar Pradesh
High
School
and
Intermediate
College
(Payment and Salary to Teachers and other
Employees Act, 1971 are fully applicable to
Respondent no.6, Institution. It appears that the
petitioner- appellant, was appointed as an
Assistant
Teacher
in
Respondent
no.6/
Institution in the year 1967 and thereafter he
was promoted to CT Grade Teacher in the year
1972 and further promoted as LT Grade
Teacher on 8.7.1995. As the date of birth of the
petitioner-appellant was 2.1.1947, therefore, he
attained the age of superannuation, i.e, 62
years, on 1.1.2009, but the petitioner-appellant
was granted an extension till the end of the
academic Session. Thus his date of retirement
of service became 30.6.2009. However, it
appears that the petitioner-appellant was
awarded with National Award to Teachers,
2008 by the Ministry of Human Resource
Development, Department of School Education
and Literacy on 5.9.2009, which is already on
record at Page-47 of the paper-book. It further
transpires from the record that when the
petitioner was not allowed extension of his
services while granting the benefit of 2 years
and not being allowed to function as Assistant
Teacher in Respondent no.6/ Institution till
30.6.2011, i.e, after 2 years of his actual
retirement, 30.6.2009, on the strength of the
Government Orders dated 6.5.1982, 4.12.1986,
4.2.2004, 29.6.2004 and 30.6.2005, then the
petitioner instituted Civil Misc. Writ Petition
No. 36334 of 2010, Hariom Sharan Srivastava
Vs. State of U.P. seeking relief to the extent
that in terms of the Government Order dated
6.6.1982 recommendation had already been
made by the Regional Joint Director of
Education,
Kanpur
Nagar
for
grant
of
extension, so a suitable decision be taken by the
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government in the light of the same. The
said writ petition was eventually disposed of on
5.7.2010 with an appropriate direction to the
State Government to take appropriate decision
on the recommendation of the Joint Director of
Education, Kanpur Nagar strictly in accordance
with law, as early as possible, preferably within
4 weeks from the date of submission of the
certified copy of the order.

5. In compliance of the order dated
5.7.2010 passed in Writ Petition No. 38339 of
2010, Hariom Sharan Srivastava vs. State of
U.P, the respondent no.1, has proceeded to pass
an order, whereby claim set up by the petitionerappellant for extension of the services for a
period of 2 years has been declined. The said
order has been made the subject matter of
challenge at the instance of the petitionerappellant, by filing Writ Petition No.62959 of
2010, Hariom Sharan Srivastava Vs. State of
U.P, which came to be dismissed on 20.10.2010,
which is subject matter of challenge in the
present Special Appeal.

6. We have heard learned counsel for the
appellant, as well as the learned Standing
Counsel appearing for the State-respondents and
carefully considered their submissions.

7. It is undisputed that the petitionerappellant was an Assistant Teacher, LT Grade,
who had superannuated on 30.6.2009 after
attaining the age of 62 years. Admittedly,
Respondent no.6 is a recognized Institution
under the provisions of U.P. Intermediate
Education Act, 1921 and is also receiving
grant-in-aid from the State Government. So far
as the service condition of the appellant is
concerned, with reference to the date of his
superannuation and extension, the same is
clearly providing under Regulation 21 of
Chapter 3 under Section 16-G. Regulation 21
of Chapter 3 for the ready reference is being
quoted hereunder: -

"21. vkpk;Z] iz/kkuk/;kid] v/;kidksa dk vf/ko"kZ o;
62 o"kZ gksxkA QyLo:i 58 o"kZ dh vf/ko"kZrk ij feyus
okys lsokfuo`frd ykHk vc 60 o"kZ dh vf/ko"kZrk vk;q ij
rFkk 60 o"kZ dh vf/ko"kZrk vk;q ij feyus okys lsokfuo`frd
ykHk 62 o"kZ dh vf/ko"kZrk vk;q ij vuqeU; gksxkA ;fn fdlh
vkpk;Z] iz/kkuk/;kid vFkok v/;kid dk mi;qZDr vf/ko"kZ
o; 2 tqykbZ vkSj 30 twu ds e/; esa fdlh frfFk dks iM+rk
gS rks mls] ml n'kk dks NksM+ dj tcfd og Lo;a lsok
foLrj.k u ysus gsrq fyf[kr lwpuk vius vf/ko"kZ o; dh
frfFk ls 2 ekg iwoZ ns nsa] 30 twu rd lsok foLrj.k Loeso
iznku fd;k x;k le>k tk;sxk] rkfd xzh"ekodk'k ds
mijkUr tqykbZ esa izfrLFkkuh dh O;oLFkk gks ldsA blds
vfrfjDr lsok foLrkj.k dsoy mUgha fof'k"V n'kkvksa esa iznku
fd;k tk ldsxk tks jkT; ljdkj }kjk fu/kkZfjr dh tk;sA

vU; deZpkfj;ksa ds fo"k; esa vf/kfu;e esa fn;s x;s
izkfo/kku ;Fkkor jgsaxsA"

8. It is not in dispute that Regulation 21 of
Chapter 3 of the U.P. Intermediate Education
Act, 1921 will govern the controversy in
question. The basic ground sought to be raised
by the learned counsel for the appellant is with
regard to the fact that the appellant is entitled to
extension of services for a period of 2 years in
the light of the provisions contained under
Regulation
21
Chapter
3
of
the
U.P.
Intermediate Education Act, 1921 and the
Government Orders dated 6.5.1982, 4.12.1986,
4.2.2004, 29.6.2004 and 30.6.2005, as the
appellant has been awarded with National
Award to Teachers-2008.

9. A bare reading of the Government Order
dated 4.2.2004, which is at page-51 of the paperbook, itself provides in paragraph-2 as under: -

" ........

2- vr% Jh jkT;iky egksn; rkRdkfyd izHkko ls
v'kkldh; lgk;rk izkIr mPprj ek/;fed fo|ky;ksa esa
'kklu }kjk l`ftr inksa ij fu;ekuqlkj dk;Zjr v/;kidksa
dh orZeku vf/ko"kZrk vk;q dks 60 o"kZ ls c<~kdj 62 o"kZ
fd;s tkus dh lg"kZ Lohd`fr iznku djrs gSaA QyLo:i vk;q
ij rFkk 60 o"kZ dh vf/ko"kZrk vk;q ij feyus okys lsok
uSo`fRrd ykHk 62 o"kZ dh vf/ko"kZrk vk;q ij vuqeU; gksaxsA

3.
 ....."
11 All. Hari Om Saran Srivastava Vs. State of U.P. & Ors.
1051

10. In the Government Order dated
4.2.2004,
purposely
the
word
"Karyarat
Adhyapak" has been employed, which itself
implies that on the date of superannuation for
extension for a period of 2 years, the respective
teacher has to be on duty, i.e, he should be
serving on the post in question and performing
the duty so assigned to him.

11. Thus two conditions have to be
fulfilled, namely, (a) The concerned Teacher
should be possessed with an award on the date
of consideration for extension of 2 years; (b) He
or she (Teacher) should be on duty and
performing on the post, so assigned to him / her.

12. After analysing the facts of the present
case with regard to the aforesaid requirement as
reproduced hereinabove, the net conclusion is
that on the date, the appellant was awarded the
National Award to Teachers-2008, he stood
superannuated as the award was granted to him
on
5.9.2009,
whereas
the
date
of
his
superannuation
was
30.6.2009.
Thus,
the
appellant on the date of being considered for
extension of 2 years had already superannuated.

13. Now, a question arises as to whether in
law, it is permissible to grant extension to an
officer or employee, once he / she stood
superannuated. The issue is no more res integra,
as the Hon'ble Apex Court in the case of State
Of Assam & Ors vs Padma Ram Borah, AIR
1965 SC 473 has clearly observed as under:

"We do not think that the State Government
had any jurisdiction to pass such an order on
May 9, 1961. According to the earlier order of
the State Government itself, the service of the
respondent had come to an end on March 31,
1961. The State Government could not by
unilateral action create a fresh contract of
service to take effect from April 1, 1961. If the
State Government wished to continue the service
of the respondent for a further period, the State
Government should have issued a notification
before March 31, 1961. In R. T. Rangachari v.
Secretary of State 64 Ind App 40 : 1937 AIR(PC)
27, their Lordships of the Privy Council were
dealing with a case in which a Sub-Inspector of
Police was charged with certain irregular and
improper conduct in the execution of his duties.
After the Sub-Inspector had retired on invalid
pension and his pension had been paid for three
months, the matter was re-opened and an order
was made removing the Sub-Inspector from
service as from the date on which he was
invalided. Lord Roche speaking for the Board
said :

"It seems to require no. demonstration that
an order purporting to remove the appellant from
the service at a time when, as their Lordships
hold, he had for some months duly and properly
ceased to be in the service, was a mere nullity
and cannot be sustained.""

14. Following the judgment in the case of
State of Assam (supra), a learned Single Judge
of this Court in the case of Smt. Indira Daniels
Vs. State of U.P. and others, reported in 2005
(3) ESC Alld 1612 in paragraph-7, 8, 9, 10 and
11 has observed as under:-

"7. After respective arguments have been
advanced, the undisputed factual position, which
is emerging is to the effect that as far as
petitioner
is
concerned,
she
had
been
performing and discharging her duties as
Principal of the institution in question, and on
account of commendable job performed by her,
recommendation was made for giving her
National Award, but before any decision could
be taken in the matter of grant of National
Award, she attained the age of superannuation
and retired from service on 30.6.2003. In fact
said National Award was given to her on
5.9.2003 i.e. much after attaining the age of
superannuatipn. Therefore, the Government has
chosen not to extend the service of petitioner. As
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
to whether the action of the State Government in
not extending service of petitioner by two years
is correct or incorrect decision has to be seen in
the context of relevant Regulations and
Government Orders. Regulation 21 of Chapter
III of the Regulations framed under U.P.
Intermediate Education Act, 1921, provides that
an incumbent shall retire after he/she attains the
age of 60 years and in case the age of
superannuation falls in between the academic
session
then
benefit
is
extended
and
superannuation takes place on the last date of
academic session. Government Orders dated
23.10.1991
with
reference
to
previous
Government Order dated 6.5.1982, 27.7.1983,
4.12.1986. 2.8.1984, 3.9.1985 and 10.5.1988,
provides for two years' extension of service to
those teachers who have been recipient of
National Awards/State Awards, and one year to
those, who; had participated in the freedom
struggle of 1942, and thereafter, re-appointment
for further period of one year. As per the said
Government Order earlier procedure has been
sought to be simplified, and precise time
schedule has been provided for so that decision
is taken before the end of academic session.
Director of Education by the first week of April
is obliged to furnish full particulars in
prescribed proforma along with requisite
testimonials to the Committee constituted in this
respect. The said Committee will forward its
recommendation to State Government in the
second or third week of April, and thereafter,
State Government would take final decision by
the first week of May. Said schedule is
purposive, so that before any incumbent attains
his/her age of superannuation, decision is taken
qua him/her for extension of service. There is
provision of extension of service of teachers, but
the question is as to whether extension can be
provided for with retrospective effect or not?
Hon'ble apex Court in the case of State of Assam
and Ors. v. Padma Ram Borah, AIR 1965 SC
473, has taken the view that order as to
extension of service made on a date when
servant has ceased to be in service, then order of
extension is nullity. Relevant extract of the
aforementioned judgment is being extracted
below :

"We do not think that State Government
had any jurisdiction to pass such an order on
May 9, 1961. According to the earlier order of
the State Government itself, the service of the
respondent had come to an end on March 31,
1961. The State Government could not by
unilateral action create a fresh, contract of
service of the respondent for a further period;
the State Government should have issued a
notification before March 31, 1961. In R.T.
Rangachari v. Secretary of the State, 64 Ind App
40 : AIR 1937 PC 27, their Lordships of the
Privy Council were dealing with a case in which
a Sub-Inspector of Police was charged with
certain irregular and improper conduct in the
execution of his duties. After the Sub-Inspector
had retired on invalid pension and his pension
had been paid for three months, the matter was
reopened and an order was made removing the
Sub-Inspector from service as from the date on
which he was invalided. Lord Roche speaking
for the Board said:

"It seems to require no demonstration that
an order purporting to remove the appellant
from the service at a time when as their
Lordships hold, he had for some months duly
and properly ceased to be in the service was a
mere nullity and cannot be sustained."

The position is the same here The
respondent had ceased to be in service on
March 31, 1981 by the very order of the State
Government. An order of retention in service
passed more than a month thereafter, was a
mere nullity and cannot be sustained."

8. Testing the facts of the present case on
the touchstone of the principles as laid down in
the aforementioned judgment that once the
contract of service has come to an end, then by
no stretch of imagination, any extension can be
accorded to the same, here it is clearly reflected
that petitioner had attained her age of
11 All. Hari Om Saran Srivastava Vs. State of U.P. & Ors.
1053
superannuation and continued till 30.6.2003,
with session benefit. Contract of service came to
an end with petitioner's attaining age of
superannuation, and extension could have been
accorded only when contract of service have
been in subsistence and not at the point of time
when contract of service has come to an end.
Re-employment could not have been offered to
petitioner, as in case of teachers, who are
recipients of National Award, there is no scheme
for re-employment and the scheme is only in
respect to grant of extension. For according
extension of service prerequisite condition is
subsistence of contract of service, and once
contract of service has come to an end by
operation of law on account of the incumbent
having attained the age of superannuation, then
same cannot be permitted to be revived by
according extension with retrospective effect.
Scheme which provides for final decision for
extension of service by first week of May clearly
intended that decision for extension of service be
taken during subsistence of contract of service
and not when incumbent had attained age of
superannuation. The precise view taken by the
State Government in the present case is that as
the petitioner had already attained the age of
superannuation on the date when National
Award had been given to him, as such extension
cannot be accorded to her does not appear to be
unreasonable or arbitrary view.

9. The Hon'ble apex Court in the case of
Prem Dutta Chamoli v. State of U.P., (S.L.P.)
(C) No. 16808 of 1993, has taken the view that
teachers with National/State Awards can be
given extension both in the interest of the
institution and the public to utilise their services
as teachers. However, Hon'ble apex Court has
precluded the said extension for according
Principalship or any other higher post. The said
judgment has been followed by this Court in the
case of Committee of Management, Indian Girls
Inter College, Allahabad v. State of U.P. and
Ors., (C.M.W.P. No. 50031 of 2003, decided on
26.2.2004), wherein extension as teachers has
been provided for. In the aforesaid judgment, the
view taken in Five Judge Bench judgment of the
apex Court (supra) referred to above that order
of extension cannot be passed after petitioner
has attained the age of superannuation, has not
been noticed, as such no advantage or benefit
can be extended of the aforesaid two judgments
to the petitioner.

10. As far as question of parity is
concerned, here in the present case teachers
who are alleged to have been accorded benefit
of extension with retrospective effect same has
been made, that was in compliance to the
interim orders passed by this Court. As far as
petitioner is concerned, there has been no
interim order in her favour, and that is why the
State Government has proceeded to exercise its
discretion independently and as claim of
petitioner was not legally sustainable, same has
been refused by giving valid reasons, in support
of the same. Incorrect decision cannot be made
foundation and basis for asking the Court to
take similar view, inasmuch as parity is not
extendable qua illegal acts. As petitioner had
already attained the age of superannuation, then
by no stretch of imagination, extension could
have been accorded to the petitioner.

11. In view of what has been stated above,
present writ petition lacks merit and is
dismissed."

15. The issue as to whether the date, on
which an award is granted, is a determining
factor for the grant of benefits? In the present
case, the award was with regard to the public
recognition
of
valuable
services
in
the
community, as a Teacher of outstanding merit
referable to National Award to Teacher-2008,
but the same was granted to the appellant on
5.9.2009, i.e, after the date of superannuation i.e,
30.6.2009. Scheme/ event, which pertains to the
conferring an award is one thing and grant of
award is another thing. Consideration and
decision might be taken to award a particular
incumbent referable to a particular scheme or a
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
policy, but the crucial factor for determining the
date vis-a-vis the eligibility is the date, when the
award is being granted to the beneficiary.
Therefore, the crucial date, relevant for the
purposes of considering the claim of the
appellant for grant of extension is the date, when
the appellant became eligible under the
provisions of Regulation 21 Chapter 3 of the
U.P.
Intermediate
Act,
1921
and
the
Government Orders issued from time to time.

16. Even otherwise, the issue that an
officer or employee has no unfettered and
absolute right to continue in service beyond the
age of superannuation, is no more res integra in
view of the law laid down by the Hon'ble Apex
Court in the case of State of Assam and others
vs. Basanta Kumar Das, AIR 1973 SC 1252
held as under: -

"A Government servant has no right to
continue in service beyond the age of
superannuation and if he is retained beyond that
age it is only in the exercise of the discretion of
the Government."

17. Following judgment in the case of
Basanta Kumar Das (supra), the Hon'ble Apex
Court in the case of State Bank of Bikaner and
Jaipur and others Vs. Jag Mohan Lal reported
in AIR 1989 SC 75 in paragraph 9 and 10 has
observed as under:-

"9. What do we have here in this case to
distinguish those principles or not to apply those
principles? In our opinion, there is none. In the
scheme provided herein the respondent or any
other officer of the Bank has a legitimate right to
remain in service till he attains the age of
superannuation. But beyond that age, he has no
such right unless his service is extended by the
Bank. The further rights of parties are regulated
by the proviso to Regulation 19(1). It reads:

"Provided that the competent authority may
at its discretion, extend the period of service ot
an officer who has attained the age of fifty eight
years or has completed thirty years' service as
the case may be, should such extension be
deemed desirable in the interest of the Bank. "

10. Look at the language of proviso and the
purpose underlying. The Bank may in its
discretion extend the service of any officer. On
what ground? For what purpose?

That has been also made clear in the
proviso itself. It states "should such extension be
deemed desirable in the interest of the Bank".
The sole purpose of giving extension of service
is, therefore, to promote the interest of the Bank
and not to confer any benefit on the retiring
officers. Incidentally the extension may benefit
retired officials. But it is incorrect to state that it
is a conferment of benefit or privilege on
officers. The officers upon attaining the age of
superannuation or putting the required number
of years of service do not earn that benefit or
privilege. The High Court has completely
misunderstood the nature of right and purpose
of the proviso. The proviso preserves discretion
to the Bank. It is a discretion available with
every employer, every management, State or
otherwise. If the Bank considers that the service
of an officer is desirable in the interest of the
Bank, i~ may allow him to continue in service
beyond the age of superannuation. If the Bank
considers that the service of an officer is not
required beyond superannuation, it is an end of
the matter. It is no reflection on the officer. It
carries no stigma."

18. Yet the Hon'ble Apex Court in the case
of P. Venugopal vs. Union of India, reported in
(2008) 5 SCC 1, in paragraph-8 has observed as
under:-

"It is true that in establishments like AIIMS,
there is an age of superannuation governing the
length of service of its officers and employees.
Such age of superannuation may be suitably
altered by way of reducing the age so as to
affect even the serving employees under
11 All. Shiksha Prachar Tatha Prasar Samiti & Anr. Vs. State of U.P. & Ors.
1055
appropriate circumstances and no exception can
be taken to such course of action. Similarly
under the Service Rules, there may be provision
for extension of service after the attainment of
the age of superannuation and it is well settled
that in the event of refusal by an employer to
grant an extension, the employee cannot
justifiably claim to be deprived of any right or
privilege. The view taken is that the employer
has a discretion to grant or not to grant such
extension having regard to the interest of the
employer or the establishment. This view is
expressed by this Court in the Case of State
Bank of Bikaner and Jaipur and Ors. vs. Jag
Mohan Lal (AIR 1989 SC 75). In this case, at
para 12, this Court observed as follows :

"13. ...The Bank has no obligation to extend
the services of all officers even if they are found
suitable in every respect. The interest of the
Bank is the primary consideration for giving
extension of service. With due regard to
exigencies of service, the Bank in one year may
give extension to all suitable retiring officers. In
another year, it may give extension to some and
not to all. In a subsequent year, it may not give
extension to any one of the officers. The Bank
may have a lot of fresh recruits in one year. The
Bank may not need the services of all retired
persons in another year. The Bank may have
lesser workload in a succeeding year. The
retiring persons cannot in any year demand that
"extension to all or none". If we concede that
right to retiring persons, then the very purpose
of giving extension in the interest of the Bank
would be defeated. We are, therefore, of opinion
that there is no scope for complaining
arbitrariness in the matter of giving extension of
service to retiring persons.""

19. The discussion made above leads to the
conclusion that the appellant retired from service
on 30.6.2009 after attaining the age of
superannuation 01.01.2009. He was awarded the
National
Award
to
Teachers-2008
on
05.09.2009, i.e, after his retirement from service.
Thus, at the time of his retirement, he was not in
service. There is no provision for extension of
service of a teacher after his retirement from
service or extension of service with retrospective
effect. Thus, once the contract of service has
come to an end, then no extension of service can
be accorded. Therefore, denial of extension of
service of the appellant/ petitioner does not
deprive him of his any fundamental rights
guaranteed under the Constitution or any of his
statutory rights. A government servant has no
right to continue in service after his retirement
from service. The appellant / petitioner having
retired from service much before the grant of
National Award for Teachers to him, has no
right for extension of service.

20. Learned counsel for the appellant has
miserably failed to show any illegality or
manifest error in the impugned judgment passed
by the learned Single Judge.

21. No other point has been raised by the
learned counsel for the appellant.

22. For all the reasons aforestated, the
present intra-court appeal lacks merit and is,
therefore, dismissed.

23. Cost made easy.
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(2021)12ILR A1055
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.12.2021

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.
THE HON'BLE VIVEK VARMA, J.

Spl. Appeal No. 490 of 2021

Shiksha Prachar Tatha Prasar Samiti & Anr.
 ...Appellants
Versus
State of U.P. & Ors. ...Respondents