Hon'ble Mrs. Sangeeta Chandra,J.
1. This intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 is directed against the order of learned Single Judge dated 19.08.2006 passed in Writ Petition No. 18340 of 2004 (Rama Shankar Singh vs U.P. Rajya Vidhyut Utpadan Nigam Ltd. and others).
2. Facts in short relevant for deciding the present special appeal are as under:
3. Uttar Pradesh Rajya Vidhyut Utpadan Nigam Ltd. a Corporation of the State of U.P. involved in generating electricity. It has established a generating that by the name of Obra Thermal Power Station at Obra. The Corporation has an institution by the name of Obra Intermediate College, which is recognized under the provision of U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act of 1921").
4. According to the writ petitioners, they were appointed as teachers in the said Intermediate College on 01.07.1969, 01.07.1969, 09.08.1972, 25.06.1967, 01.09.1971 and 01.08.1968 respectively. It is the case of the writ petitioners that their service conditions are regulated under the provisions of U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder including the Regulations 21 of Chapter III. It is, therefore, submitted that the writ petitioners should have been retired on attaining the age of 62 years as per the amended provisions of Regulation 21 and not at the age of 58 years, as is provided for under the U.P. Rajya Vidhyut Parishad Shikshak Sewa Viniyamawali, 1995 framed under section 79(C) of the Electricity (Supply) Act, 1948 (herein after referred to as "Regulation 1955").
5. Therefore, the short controversy which was raised before the learned Single Judge by means of writ petition was as to whether the teachers working in the Obra Intermediate College established by the U.P. Rajya Vidyut Vitran Nigam would be required to retire on attaining the age of 58 years in accordance with the Regulation 1995 framed under section 79(C) of the Electricity (Supply) Act, 1948 or they are to retire on attaining the age of 60/62 years in accordance with amended Regulation 21 of Chapter-III of the Regulations framed under U.P. Intermediate Education Act, 1921.
6. Learned Single Judge after examining the provisions of U.P. Intermediate Education Act, Uttar Pradesh High School & Intermediate Colleges (Payment of Salary to Teachers & other Employees) Act, 1971 as well as the communication between the Director of Education, Uttar Pradesh with the District Inspector of Schools, has recorded a finding that since the institution is recognized under the provisions of U.P. Intermediate Education Act, the service conditions of the teachers of the said Institution would be regulated by the Regulations framed under the U.P. Intermediate Education Act, and therefore they would retire as per Regulation 21 Chapter III of the Regulations framed under the U.P. Intermediate Education Act as amended up-to-date.
7. We have heard the learned counsel for the appellants and Shri Vinod Sinha, learned counsel for respondents.
8. It is no doubt true that if a teacher is appointed under the U.P. Intermediate Education Act in a recognized Intermediate College, irrespective of the fact as to whether the Institution is drawing aid from the State Government and provisions of U.P. High School & Intermediate Colleges (Payment of Salary to Teachers & other Employees) Act, 1971 are attracted to it or not, his service conditions would be regulated, in accordance with the Regulations framed under the Intermediate Education Act and in that circumstance, the teacher would definitely be entitled to continue in service till he reached the prescribed age in accordance with Regulation 21 of Chapter-III of the Regulations framed under the U.P. Intermediate Education Act. However, before such a finding can be returned, it is but necessary that it should be examined as to whether the teacher concerned had been appointed in accordance with the provision of Intermediate Education Act itself or not.
9. If the answer to the said question is in affirmative, then the benefit of the amended Regulation 21 as amended up to date would definitely be available to the teacher, but if the answer to the said question is in the negative and it is found as a matter of fact that the appointment of the teacher in the Institution run by the Electricity Department had been made in accordance with the Regulations of 1995 framed under section 79 (C) of the Electricity (Supply) Act, 1948 then the logical consequence would be that in the matter of their retirement, the provision of same Regulation of 1995 would apply.
10. Learned counsel for the petitioner respondent in this appeal admitted that no finding has been returned by the learned Single Judge on the said aspect of the matter.
11. Even assuming without admitting that if certain teachers were appointed prior to the framing of the said Regulations 1995, then too it has to be seen as to whether their appointment was in accordance with the provisions of the U.P. Intermediate Education Act and Rules and Regulations framed thereunder, inasmuch as the Intermediate Education Act is an Act of the year 1921 and appointment of all the writ petitioners is subsequent thereto.
12. Therefore, we are of the considered opinion that the minimum requested in the fact of the case was that the writ court should have examined as to what had been the source of the engagement of the writ petitioners as teachers in the institution.
13. If the writ petitioners had not been appointed under the U.P. Intermediate Education Act and Regulation framed thereunder after following the procedure prescribed therein, it does not lie in their mouth to contend that they would retire in accordance with the provisions of amended Regulation 21 of Chapter-III, inasmuch as the Regulation 21 of Chapter-III would apply only to such teachers, who have been appointed under the U.P. Intermediate Education Act and not de-hors the same.
14. Since the learned Single Judge has not examined the aforesaid aspect of the matter and issued a direction that the writ petitioners would retire in accordance with amended Regulation 21 of Chapter-III of the U.P. Intermediate Education Act, we are constrained to hold that the judgment cannot stand the test of scrutiny. The judgment of the learned Single Judge is hereby set aside.
15. The special appeal is allowed. The writ petition is restored to its original number.
16. The learned Single Judge is requested to examine the source of entry of the writ petitioners individually, and thereafter to return a finding as to whether they would be entitled to the benefit of amended Regulation 21 of Chapter-III of U.P. Intermediate Education Act or not keeping in mind the observations made by us herein-above.
17. Since, writ petition is of the year 2004, we deem it fit and proper to further direct that the writ petition shall be listed before the learned Single Judge in the second week of January, 2017 and the learned Single Judge is requested to decide the writ petition at the earliest possible without granting any unnecessary adjournment to either of the parties.
(Sangeeta Chandra, J) (Arun Tandon, J) Order Date :- 29.11.2016 Sazia