# Km. Madhuri Mathur v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-07-22
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-madhuri-mathur-v-state-of-u-p-and-others-39622
- **Pages:** 3

## Text

1All] Km. Madhuri Mathur V. State of U.P. and others
326
17. Since the petition has become
redundant, it requires no orders.

The writ petition no. 37230 of 1998
is, therefore dismissed as redundant.

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By the Court

This petition relates to change of
option by a teacher. The petitioner was
Lecturer in Hindi since 1975 in Gyan
Bharati Balika Inter College, Birhana,
Kanpur Nagar is a recognised and aided
institution. Her date of birth is 25.3.199.
She gave an option to retire at the age of
58 years on 1.12.90 in pursuance of
government
order
dated
6.10.1990
circulated by Director on 31.10.1990. She
withdrew her option on 26.2.1997. The
management recommended on 15.3.1997
to the District Inspector of Schools-II,
Kanpur
Nagar
for
permitting
the
petitioner to change her option. The
District Inspector of Schools on 19.4.1997
returned the papers that it should again be
sent alongwith the government orders.
The petitioner filed civil misc. writ
petition no. 16401 of 1997. She claimed
that since her option has not been
accepted, she could change it. A counter
affidavit was called and interim order was
passed on 16.5.1997 and the petitioner
was allowed to continue to work till 60
years. The petitioner was disposed of on
22.7.1998 with the direction to the
concerned
authorities
to
decide
the
petitioner's representation. The District
Inspector of Schools on 1.4.1999 rejected
the representation of the petitioner and
held that the petitioner that she having
exercised option once could not change it.
The petitioner has challenged this order
dated 1.4.1999 passed by the District
Inspector of Schools in this petition.

I have heard Shri Yogesh Kumar
Saxena the learned counsel for the
petitioner and Shri K.K. Chand the
learned standing counsel appearing for
respondents no. 1 to 5. Notice was issued
to respondent no. 6 by registered post.
Service on respondent no. 6 is deemed to
be sufficient.

The learned counsel for the petitioner
has urged that the option given by the
petitioner was not accepted by the
respondents, therefore, she could change
the option exercised by her earlier to
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
327
retire at the age of 58 years and give fresh
option to retire at the age of 60 years. On
the other hand, the learned standing
counsel urged that the option exercised by
the petitioner and counter signed by the
District Inspector of Schools became final
and could not be changed by the
petitioner. Therefore, the age of the
retirement of the petitioner would be 58
years and not 60 years. In the counter
affidavit filed by the District Inspector of
Schools it has been stated that the option
given by the petitioner was received
through the manager of the institution. It
was accepted and returned back through
the management. If the option exercised
by the petitioner has not been mentioned
in the service book of the petitioner, then
it was the fault of the management. The
option once exercised could not be
changed and petitioner retired at the age
of 58 years at the end of academic session
on 30.6.1997.

The question whether option counter
signed by the District Inspector of
Schools has to be treated as final and
binding has been considered by the full
Bench of this court in Prabha Kakkar
(Smt.) v. Joint Director of Education,
Kanpur and others (2000) 2 UPLBEC
1378. The Full Bench after considering
the various government orders issued by
the respondents held that the option
exercised by the employee has to be made
in the prescribed format and it had to be
accepted by the Regional Deputy Director
of Education and the fact of acceptance or
non-acceptance of the option exercised by
the
employee
was
required
to
be
communicated by the Regional Deputy
Director of Education to the concerned
employee within the specified time. Mere
counter signing of the option by the
District Inspector of Schools could not be
taken as acceptance of the option. It held
that the act of acceptance of option by the
Regional Deputy Director of Education
and its communication to the employee
was necessary to make the option final.
The counter signature by the District
Inspector of Schools on such option could
nether be taken as an acceptance nor it
could attach any finality to the option.
The facts of this case demonstrates that
option exercised by the petitioner on
31.12.1990 was never accepted by the
Regional Deputy Director of Education
nor it was communicated by him to the
petitioner, therefore, the option exercised
by the petitioner on 31.12.1990 could not
be given effect to and it remained a dead
letter. Therefore, the option given by the
petitioner on 26.2.1997 that she would
continue in service till the age of 60 years
has to be accepted because under
Regulation 21 of Chapter-II of the
Regulations
framed
under
U.P.
Intermediate Education Act 1921 the age
of superannuation of a teacher is provided
to be 60 years and the teacher is entitled
to continue till the end of academic
session. Thus the age of retirement of the
petitioner would be 60 years and not 58
years as held by the District Inspector of
Schools. She would have retired on
30.6.1999. The impugned order passed by
the District Inspector of Schools on
1.4.1999 cannot be maintained.

In the result this writ petition
succeeds and is allowed. The order dated
1.4.1999 passed by the District Inspector
of Schools, Kanpur Nagar Annexure-11 to
the writ petition is quashed. The age of
superannuation of the petitioner is held to
be sixty years at the end of academic
session
on
0.6.1999,
therefore,
the
respondents are directed to calculate her
arrears of salary and her post-retiral
1All] Santosh Kumar Srivastava V. M.D., U.P. Rajkiya Nirman Nigam and others
328
benefits and pay the same to the petitioner
treating the age of the retirement of the
petitioner to be sixty years, within a
period of four months from the date a
certified copy of this order is produced
before respondent no. 4.

Parties shall bear their own costs.

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By the Court

1. These are petitions under Section
12 of the Contempt of Courts Act for
initiating contempt proceeding against the
respondents for the alleged defiance of
Division Bench judgment and order dated
24.5.1996 of this Court in Special Appeal
No. 384 of 1993 and Writ Petition No.
16816 of 1993. Both the contempt
petitions arise out of the common
judgment and therefore, they were heard
together and are being disposed of by this
judgment

2. Heard Sri K.M.L. Hajela assisted
by Sri S.M.A. Kazmi, learned counsel for
the Petitioner and Sri Sunit Kumar,
learned
counsel
appearing
for
the
respondents.

3. The Short fact of the case giving
rise to the contempt petition is that U.P.
Rajkiya Nirman Nigam advertised 70
posts of Sub Engineers (Civil) in the year
1988 inviting application for appointment.
The vacancy was subsequently increased
from 70 to 146. The Petitioners were
diploma holders in civil engineering and
being eligible applied in the prescribed
proforma for selection and appointment.
They also appeared in the written test as
well as interview conducted in the year
1989. However, when their results were
not declared, the Petitioner, Santosh