IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 112 of 2008 (S/B) Raghubir Singh Bist S/o Late Pooran Singh Bist R/o Village-Sariyatal Post-Julikot (Nainital). ……Petitioner. Versus 1. The Secretary, Department of Education Government of U.P. at Lucknow. 2. Director of Education (Madhyamik) U.P. at Allahabadh. 3. District Inspector of Schools Pithoragarh. .……….Respondents. Shri B.S. Adhikari, Advocate for the petitioner. Shri Subhash Upadhyay, Advocate for respondent No. 3. Smt. Bina Pande, Advocate for respondents No. 1 and 2. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Alok Singh, J. Oral:-Hon’ble Prafulla C. Pant, J. By means of this writ petition, the petitioner has sought post retiral dues including pension, gratuity and 89 days encashment leave, treating his date of retirement 30.06.1994. 2. Heard learned counsel for the parties and perused the affidavit, and counter affidavit, filed on behalf of respondent No. 3. No counter affidavit has been filed on behalf of respondents No. 1 and 2. 2 3. Brief facts of the case are that the petitioner was a Principal of Government Inter College, Thal, in District Pithoragarh. As per the date of birth in his service record, he completed 58 years of his age on 14.07.1993. The petitioner made representation seeking extension of service till completion of academic session i.e. 30.06.1994. It is stated in the writ petition that said representation (copy of which is annexure-1 to the writ petition), was submitted with all necessary formalities and forwarded to respondent No. 2, vide letter dated 10.03.1993 (copy annexure-2 to the writ petition). However, on 10.08.1993, the petitioner received a telegram from respondent No. 2 (Director of Education Madhyamik) that as the department has received no reply from the Government for extension of his services, hence the petitioner deemed to be relieved on retirement without extension. The petitioner’s case before us is that as per the Government Order dated 21.03.1984, if a teacher in a Government school attains age of superannuation in mid of the academic session, his services can be extended till the completion of academic session. The petitioner has further stated that he earlier filed writ petition No. 32780 of 1993, before Allahabad High Court (which after it is transferred to this Court, re-numbered as 1402 of 2005) with a 3 prayer, seeking mandamus for extension of his service, as per the aforesaid Government Order. In said writ petition, Allahabad High Court, passed following interim order on 16.09.1993:- “Until further order, petitioner will be permitted to continue till 30.06.1994 and shall be paid salary regularly”. 4. In the counter affidavit, in said writ petition, the respondents stated that the request for extension of the petitioner was rejected but no reasons were assigned. Meanwhile, the petitioner had continued in service till 30.06.1994 with full salary. The aforesaid writ petition No. 32780 of 1993, which was received from Allahabad High Court to this Court and re-numbered as 1402 of 2005, was dismissed as infructuous on 07.11.2006 in view of the fact that the petitioner has already worked till 30.06.1994 i.e. the period for which he wanted his extension. A review application was moved by the petitioner in aforesaid writ petition, which was disposed of vide order dated 07.11.2006, but the same was dismissed as withdrawn, vide order dated 07.12.2007 by this Court observing that the petitioner may file fresh petition in respect of his cause of action, relating to post retiral dues. At present, petitioner is getting only Rs. 2,880/- per month, as interim/provisional pension since 30.06.1994. 4 6. Respondent No. 3 in their counter affidavit have admitted that the petitioner did work as Principal in Government Inter College, Thal, Pithoragarh, and completed his 58 years of age on 14.07.1993. It is also admitted that the petitioner sought his extension in service till the end of the academic session. However, the same was rejected. It is also admitted that he filed earlier writ petition No. 32780 of 1993, before Allahabad High Court and under interim order, he continued in service till 30.06.1984. 7. During arguments, learned counsel for the parties conceded that the petitioner was not entitled to continue in service after 31.07.1993 without approval of extension by the State Government. Admittedly, no extension was given by State of U.P. to the petitioner. It was only under the interim order of the Allahabad High Court he continued till 30.06.1994 in service. As such, legally the petitioner stood retired on completion of 58 years of age on 14.07.1993, w.e.f. 31.07.1993. That being so, he is entitled to all pensionary benefits w.e.f. 01.08.1993. Since meanwhile he had got the salary till 30.06.1994 for the work he has done under the interim order of the Allahabad High Court, legally he is required to deposit back said amount of salary, which he has received, to which he was not legally entitled after 5 31.07.1993. As such, his post retiral dues are liable to be paid, treating his date of retirement 31.07.1993 with the above condition. 8. Shri B.S. Adhikari, learned counsel for the petitioner submitted that since the petitioner is in a poor financial condition, as he is not getting due pension for last 15 years, the respondents may deduct the salary, paid to the petitioner after 31.07.1993 till 30.06.1994 from the gratuity/encashment of leave, payable to the petitioner. 9. In the above circumstances, this writ petition is disposed of with the direction that if the petitioner has submitted or if he submits his pension papers, claiming his pension w.e.f. 01.08.1993, his post retiral dues shall be cleared by the respondent authority, treating him to have retired w.e.f. 31.07.1993, after deducting the salary received by the petitioner after said date till 30.06.1994, from his gratuity/encashment of leave. The pension papers shall be cleared by the concerned respondent authority within a period of three months from the date of submission of pension papers by the petitioner. (Alok Singh, J.) (Prafulla C. Pant, J.) Dt:10.11.2009 Sweta 6 7 8 9 10 11