Honble Sudhir Agarwal, J.—This intra Court appeal under the Rules of the Court has been filed against the judgment dated 9-5-2003 passed on review application of the petitioner-appellant (hereinafter referred to as the ‘appellant’) partly reviewing the judgment dated 6-3-2003. The appellant is aggrieved by the order only to the extent it has denied him arrears of salary from 1-7-1995 to 30-6-1997.

2. That facts in brief are that the appellant was working as Assistant Teacher L.T. Grade in Saraswati Inter College, Sipri Bazar, Jhansi (hereinafter referred to as the ‘Institution’). He had exercised his option for retirement at the age of 58 years but did not receive any communication from the Deputy Director of Education accepting the same. The State Government vide G.O. dated 4-11-1991 gave another opportunity to the teachers to opt for retirement at the age of 58 or 60 years pursuant whereto the appellant exercised his option on 1-2-1992 for retiring at the age of 60 years. No order was passed on the said option also by the Deputy Director of Education. On 1-12-1994 the DIOS passed an order declining to accept second option observing that the option already exercised has become final and now it cannot be changed and returned option papers to the Manager/authorised controller of the Institution. The authorized controller vide letter dated 8-12-1994 accordingly informed the appellant that he is liable to retire on attaining the age of 58 years. Aggrieved by the aforesaid order of DIOS and authorized controller, the appellant filed Writ Petition No. 2817 of 1995 which came up for admission on 2-2-1995 and this Court directed the respondents to file counter affidavit. During the pendency of the aforesaid writ petition question as to whether option once submitted could be withdrawn or not was referred to a Larger Bench and the Full Bench vide its opinion dated 13-4-2000 in the case of Smt. Prabha Kakkar v. Joint Director of Education, 2000(2) ESC 1118 (All), held that in order to make the option final acceptance thereof by the Deputy Director of Education and its communication to the employee was necessary and in the absence of such communication the option exercised by the teacher cannot be said to have attained finality. Thus such a teacher can submit a fresh option changing his earlier option so long he is not communicated acceptance of his option. Accordingly, the Hon’ble Single Judge disposed of the aforesaid writ petition of the appellant vide judgment dated 6.3..2003 holding that he was entitled to continue till the age of 60 years i.e. up to 30 3.1997 and if he had worked, would be entitled for post retiral benefits accordingly. The appellant sought review of the operative part of the said order stating that he was entitled to continue till 30-6-1997 and since he was denied opportunity to work from 1-7-1995 to 30-6-1997, he is also entitled for full salary for the said period and retiral benefits till he attained the age of 60 years. The review application was disposed of by the Hon’ble Single Judge vide its judgment under appeal observing as under :

“I find that the petitioner has not rendered any work after the age of 58 years upto 60 years and for that period the petitioner wants to get pecuniary benefit i.e. for the period he had not rendered the work. Since this Court has already taken the view that petitioner was to retire at the age of 60 years, therefore, the petitioner is entitled to retiral benefit treating him to have been retired at the age of 60 years on 30th June, 1997 treating the same the actual date of retirement and/or calculating the post retirement benefit. However, since the petitioner has not worked about two years i.e. after 58 years upto the age of 60 years, therefore, he is not entitled to be given any salary for that period i.e., between 58 to 60 years."

3. Thus though the Court held that treating the appellant to have retired on 30-6-1997 on attaining the age of 60 years he would be entitled