Y. K. Sabharwal, J.

( 1 ) THIS application has been placed before the Full Bench in view of the order of reference dated 3/4/1987 passed by the Division Bench. The order dated 3/4/1987 reads as under :

"c. W. 446/87 Rule D. B. C. M. 736/87 It appears that different Division Benches of this Court have taken divergent views on the question whether the operation of an order retiring a person at a lower age should be stayed after rule has been granted on a petition by him claiming a higher age of retirement. In other words, whether he should be allowed to continue in service and function whilst his petition is pending. In Civil Writ Petitions Nos. 1365 of 1984 and 2798 of 1985 an interim order of stay was granted. On the other hand, in Civil Petitions Nos. 623 of 1986 and 3103 of 1985 such an interim order of stay was refused. The point is one of general importance and arises frequently. It is, therefore, desirable that it should be decided more authoritatively by a larger bench. Consequently, we refer this application for 1987 will continue till this application is finally decided. "

( 2 ). The brief facts leading to this reference are these :-

THE petitioner was appointed as an Assistant Teacher in the year 1951 ; promoted as Head Master in 1954 and further promoted as School Inspector in 1963 and Senior School Inspector in the year 1981. The petitioner was given Current Duty Charge of the post of Assistant Education Officer with effect from 8/1/1986. By order dated 23/7/1986, the petitioner was given the scale of Rs. 1200-1600 in the post of Assistant Education Officer with effect from the date on which he had taken Current Duty Charge of the said post upto 31/12/1986 or till the regular appointment was made or till further orders.

( 3 ). By office order dated 25/9/1986 passed by the respondent-corporation, the petitioner, who at that time was working as an Assistant Education Officer, was informed that he will stand retired from municipal service on attaining the age of superannuation, i. e. 58 years with effect from 28/2/1987 (AN ). On 17/2/1987 the petitioner filed Civil Writ 446/ 87 challenging the legality of the atoresaid order dated 25/9/1986. The petitioner has also sought a declaration that he is entitled to continue in service till the age of 60 years. Along with the writ petition this application (CM 736/86) was filed seeking the stay of the operation of the order dated 25/9/1986 and an order directing the respondent not to retire the petitioner from the service till the decision of the writ petition.

( 4 ). The claim of the petitioner is that even after his promotion as School Inspector, Senior School Inspector and as Assistant Education Officerhe continues to remain a teacher and is entitled to continue in service upto the age of 60 years.

( 5 ). The main basis of the claim of the petitioner is a judgment of the Division Bench of this Court delivered on 22/5/1985 in C. W. 1635/84 in Re Smt. Sheila Puri v. Municipal Corporation of Delhi, in which the Division Bench observed that:

"it seems to us that if you are a teacher to start with, you remain a teacher even if you are promoted to post which involves supervision of the schools rather than teaching in the schools. "

( 6 ). The Bench in the aforesaid case held that the petitioner before them would continue to be a teacher inspite of being promoted to the post of School Inspector. The Bench further held that even if there is any doubt in the matter, it has to be resolved in favour of the petitioner on the application of Article 14 of the Constitution and the petitioner still would be entitled to continue in service till the age of 60 years. It was held that she cannot have a different retiring age from the other School Inspectors who were transferred to Delhi Administration. The Bench noted that because of wrong fixation of seniority, the petitioner before them had not been transferred to Delhi Administration. The claim of the petitioner in that case about her seniority

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