JUDGMENT D.S. Sinha, J.
1. The petitioner, an erstwhile senior lecturer of the Government aided Institute of Engineering and Rural Technology at Allahabad, born on 4th December, 1937, was to retire on 31st December, 1997. on attaining the age of superannuation. He claims that he is entitled to continue in service till 30th June, 1998 in terms of the Government Order dated 27th June, 1988, a copy whereof is Annexure-'1' to the petition.
2. The. respondents assert that the petitioner is not entitled to the extension of service beyond the age of 60 years. To buttress this assertion, reliance is placed on the Government Order dated 15th March, 1996. This Government Order is on record as Annexure-'2' to the petition and Annexure-C.A.-III to the counter-affidavit filed on behalf of the respondent No. 2.
3. It is not disputed that the prescribed age of superannuation of teachers serving in Government aided Technical Institute is 58 years. However, the Government Order dated 15th March, 1996 (Annexure-'2' to the petition and Annexure-C.A.-III to the counter-affidavit) permits teachers to opt to retire at the age of 60 years. On such option being exercised, their pension and family pension shall be computed on the basis of pay received by them at the time of attaining the age of 60 years. But, they would not be entitled to gratuity. According to said Government Order, the teachers who opt to retire at the age of 60 years are required to give an undertaking in writing not to claim extension of service after attaining the age of 60 years. The Government Order also stipulates that option once exercised shall be irrevocable.
4. The Government Order dated 27th June. 1988. a copy whereof is Annexure-T to the petition, contemplates that services of a teacher who attains the prescribed age of superannuation, te., 58 years on a date which falls between 1st July and 30th June, his services may be extended till the end of the concerned academic session, i.e., 30th June. if.
(i) he has been actually teaching a particular subject regularly in accordance with the recommendation of the All India Technical Education Service Board ;
(ii) he has been holding the post of such teacher continuously atleast for three years and his work and conduct has been satisfactory ;
(iii) no inquiry against him regarding misconduct and integrity is pending : and
(iv) his health is sound.
5. In Ciuil Misc. Writ Petition No. 27637 of 1994, Dhirendra Singh Rqjuanshi v. State of U. P. and others, the petitioner, a lecturer of Kanhaiya Lal Polytechnic, Roorkee, a Government aided Technical Institution, whose date of birth was 1st September, 1934, was required to retire on completion of 60 years of age on 1st September. 1994. Placing reliance upon Government Order dated 27th June. 1988. the petitioner claimed to be entitled to continue as a teacher till the academic session, i.e., on 30th June 1995. and approached this Court through the said writ petition for quashing the order requiring him to retire on attaining the age of superannuation of 60 years and for direction to allow him to continue till the end of the academic session, i.e.. 30th June. 1995. Entertaining the petition on 24th August. 1994. a Division Bench of the Court called upon the opposite parties to file counter-affidavit. But, despite time being granted repeatedly no counter-affidavit was filed. Eventually, the Court decided the petition on uncontroverted averments made by the petitioners.
6. Vide its judgment and order dated 23rd March, 1995, the Division Bench allowed the petition, quashed the order requiring the petitioner to retire and directed that the petitioner be treated in service till 30th June, 1995.
7. In the aforesaid Judgment, the Court observed that "on perusal of what is contained in the Government Order dated 27th June, 1988. the petitioner is entitled to continue till 30th June, 1995 in Kanhaiya Lal Polytechnic, Roorkee. It may be again stated that according to the averments made in para 2 of the writ petition, the said Government Order is still operative and has not been superseded by any Government Order. Rules or directions. It was pointed out by Sri R. K. Saxena, learned standing counsel that he has sent repeated instructions but no one has turned up to file a counter-affidavit. However, on merit he argued that the benefit claimed by the petitioner cannot be extended to him because such an institution may not fall within the term of educational institution.
After hearing learned standing counsel we found no force in the arguments."
After observing as above, the Court straightway allowed the petition, quashed the order and directed the petitioner to be treated in service till the end of the relevant academic session, i.e., 30th June, 1995.
8. The Division Bench hearing this petition was of the view that the benefit of the Government Order dated 27th June. 1988 would be available to only those teachers who retired on attaining the prescribed age of superannuation, i.e., 58 years. It was not available to the teachers who opted to retire at the age of 60 years and gave undertaking not to claim further extension in accordance with the Government Order dated 15th March, 1996. But. the Division Bench felt that its view was dissonant with the view expressed by the other Division Bench in Dhirendra Singh Rajvanshi v. State of U. P. and others. Therefore, by means of its order dated 17th December, 1997, the Division Bench referred the following question for decision by a larger Bench :
"Whether a teacher who has given an option to be retired at the age of 60 years, after forgoing his gratuity, and giving an undertaking that he would not claim further extension, entitles him to continue as teacher till the end of academic session."
9. A meaningful reading of the Government Order dated 27th June. 1988, which is substratum of the claim for continuing in service beyond the age of superannuation till the end of the academic session, reveals that it merely enables the institution, as its discretion, to continue the service of a teacher after he attains the prescribed age of superannuation till the end of academic session. It does not confer upon the teacher any legally cognizable and judicially enforceable right to continue to hold the post. Government Order provides that services of a teacher, after he superannuates, may be continued till the end of academic session on fulfilment of, inter alia, two conditions, namely, that the superannuated teacher has been actually teaching a particular subject regularly in accordance with the recommendation of the All India Technical Education Service Board ; and that he has been holding the post of such teacher continuously atleast for three years and his work and conduct has been satisfactory. Insistence upon satisfaction of. these twin conditions for continuance of service beyond the prescribed age of retirement till the expiry of academic session clearly indicates that predominant object of the Government Order is to safeguard the Interest of the students which otherwise might suffer on account of hiatus created consequent upon the retirement of the teacher of the concerned subject, and not to create any kind of right in favour of the teacher retiring in mid of academic session.
10. In service Jurisprudence, in the absence of any statutory or contractual provision, the incumbent, on attaining the age of superannuation.
ceases to have any right to or lien upon the post held by him. The retention of the incumbent beyond the prescribed age of superannuation is at the discretion of the employer. The employer may or may not allow extension of services of the employee beyond the prescribed age of superannuation. Even if the extension of service is granted, it can be withdrawn at any time unless the right of withdrawal is curtailed by mutually agreed terms and conditions or any statutory provision. This aspect, it appears, escaped attention of the Division Bench deciding the case of Dhirendra Singh Rajvanshi v. State of U. P. and others. Therefore, the view to the effect that on the basis of Government Order dated 27th June 1988, a teacher of a Government aided Technical Institution, whose date of birth falls between the commencement and end of academic session, is entitled to continue till the end of the academic session is incorrect and unsustainable in law.
11. The Government Order dated 15th March. 1996, (Annexure-'2' to the petition and Annexure-C.A. III to the counter-affidavit of respondent No. 2). which permits option to retire at the age of 60 years, unequivocally provides that a teacher who opts to retire at the age of 60 years instead of 58 years will have to forgo the gratuity and will not be entitled to claim any extension of service after attaining the age of 60 years. Under the Government Order, the option to retire on forgoing gratuity and giving written undertaking not to claim extension of service after attaining the age of 60 years once exercised is irrevocable. Indeed, the teacher is granted the benefit of opting the retirement at the age of 60 years only on his giving undertaking in writing not to claim extension of service after attaining the age of 60 years. Thus, the teacher availing the benefit of retirement at the age of 60 years in terms of the Government Order dated 15th March. 1996 is estopped from retracting and claiming extension of service till the end of academic session, after attaining the age of 60 years, in view of the written undertaking given by him not to claim extension of service after attaining the age of 60 years. Law does not permit him to resile and retract.
12. The Government Order dated 15th March. 1996 was not before the Division Bench deciding the case of Dhirendra Singh Rajvanshi v. State of U. P. and others. Indeed, it was not in existence when the Division Bench decided the aforesaid case.
13. Thus, inevitable answer to the question referred is that a teacher of any Government aided Technical Institution, who opts to retire at the age of 60 years subject to condition of forgoing gratuity and giving undertaking not to claim extension of service after attaining the age of 60 years, is not as a matter of right entitled to continue as teacher till the end of academic session.
14. Let the above decision of the Full Bench, on the question referred to it, be placed before the concerned Division Bench.