JUDGMENT Rakesh Tiwari, J.
1. Heard learned counsel for the parties and perused the record.
2. By means of this pelition, the petitioners have challenged the order, dated 23.5.1991 passed by respondent No. 2 by which they were directed to deposit Rs. 26,260 in the Government Treasury which pertains to the salary amount earned by them after they retired from service in mid-session but worked for the whole session under the order of this Court.
3. The petitioners have come to this Court for the following reliefs :
"(i) a writ, order or direction in the nature of 'certiorari' quashing the order of respondent No. 2, dated 23.5.1991 contained in Annexure-lV to the writ petition ;
(ii) a writ, order or direction in the nature of mandamus calling upon the respondents to release the pension, gratuity and other service benefits forthwith ;
(iii) a writ, order or direction in the nature of mandamus directing the respondents to make payment of interest on pension and gratuity which has not been paid and also to pay the commuted amount of 1 /3rd salary ;
(iv) any other order or direction which this Hon'ble Court may deem fit and proper ;
(v) award r.ost of the petition to the petitioners".
4. The brief facts of the case, as averred in the writ petition, are that both the petitioners started their career as teachers and discharged their duties as such continuously for 29 years, i.e., from 1959 to 1988. In the year 1988, they were transferred and directed to work as Deputy Secretary in the office of Madhyamik Shiksha Parishad, Allahabad, vide order dated 28.1.1988. In pursuance thereof, they joined their duties as Deputy Secretary in the Parishad.
5. The petitioners further state that after completing the age of 58 years, they were to retire on 31.1.1990. Since it was a case of retirement in mid-term session, they requested the Department to give them benefit of mid-session in pursuance of Government order, dated 21.3.1989. Their request was not acceded to by the respondents, hence, the petitioners filed a Writ Petition No. 2560 of 1990 in which this Court passed the following order on 30.1.1990 :
"Issue notice.
Meanwhile, the operation of the impugned orders, dated 5th January, 1990 and 2nd January, 1990, shall remain stayed".
In pursuance of the aforesaid order, dated 30.1.1990 of this Court, the petitioners continued upto June, 1990, i.e., till the end of session.
6. The aforesaid writ petition was ultimately decided and dismissed as infructuous by this Court vide order, dated 25.2.1991, which is quoted as below :
"Heard the learned counsel for the petitioners and learned standing counsel.
By means of the writ petition, the petitioners have prayed for issuance of writ, order or direction in the nature of certiorari quashing Government's order dated 21.3.1984, Annexure-4 and orders dated 5.1.1990 and 22.1.1990, Annexures-5 and 6 and also sought for issuance of a writ, order or direction in the nature of mandamus commanding respondents not to give effect to the Government order and the respondent's orders as mentioned above.
This Court while admitting the writ petition on 30.1.1990, stayed the operation of the impugned orders dated 5.1.1990 and 22.1.1990 whereby the petitioners were to retire with effect from 31.1.1990 and required to handover the charge as they have completed 58 years of their age in service.
In the writ petition, the case of the petitioners was that in pursuance of the Government order which is annexed as Annexure-4 to the petition, the petitioners were entitled to continue in service during full academic session upto 30.6.1990.
Learned standing counsel has denied the position and has submitted that the said Government order is not applicable in the case of the petitioners as they were not doing teaching job. Since the interim order dated 30.1.1990, has exhausted, there is no occasion for entering into the controversy regarding their entitlement. Apart from this, the prayer, which is claimed in the petition, has also become non-available.
In view of this, writ petition has become infructuous and is accordingly dismissed. The interim order dated 30.1.1990, is discharged".
7. In the present writ petition, following interim order was granted by this Court on 12.12,1991 :
"Standing counsel is granted a month's time to file counter-affidavit. List for admission in the first week of February, 1992.
Until further orders, the operation of the order, dated 23rd May, 1991, Annexure-4 to the writ petition, shall remain stayed."
8. The petitioners contend that at the time of filing of the present writ petition, no specific order for recovery was given to them by respondent No. 2. They further contend that a separate order of recovery, dated 1.9.1992, in the same matter has been passed against them which is appended as Annexure-SA-1 to the supplementary-affidavit filed by the petitioners.
9. It is averred that the petitioners have made a representation, dated 15.9,1992, for stay of the recovery under the order, dated 1.9.1992 but the respondents are neither making payment of pension and gratuity to them nor have they passed any order on their representation on the ground that this writ petition is pending and they will abide the order of this Court.
10. The petitioners had retired from service on 31.1.1990 on attaining the age of superannuation, i.e., 58 years and were given the benefit of mid-session in pursuance of the Government order dated 21.3.1989. They were allowed to continue in service under the interim order passed by this Court, dated 12.12.1991.
11. It is not the case that the petitioners were continued in service till the end of session by any misrepresentation. They have been permitted by this Court to continue in service in view of settled law that a teacher retiring in mid-session is entitled to continue till the end of the session.
12. In this view of the matter, the writ petition succeeds and is allowed and impugned orders dated 23.5.1991 and 1.9.1992, are quashed. The respondents are directed not to recover any amount from the petitioner and further to pay pension and gratuity to the petitioners forthwith taking the period of their services till the end of session, i.e., June, 1990, on the basis of last pay drawn by them on that date. There is no order as to costs.