Point of law: State Government is empowered to make Rules prescribing the conditions of service of officers, teachers and its employees appointed under Section 6 of the Act, 1972, the conditions of service of teachers and other employees transferred to the Board under Section 9 of the Act, 1972 and the conditions of service of persons appointed to the post of teachers and others employees of basic schools recognized by the Board.

JUDGMENT :

Salil Kumar Rai, J.

1. Heard Shri Prabhakar Awasthi, learned counsel for the petitioner as well as Shri Prashant Mathur, Advocate and Shri Bharat K. Srivastava, Advocate, representing the respondents.

2. The present writ petition has been filed challenging the order dated 30.7.2020 passed by the Chief Executive Officer, Cantonment Board, Bareilly Cantt, Bareilly (hereinafter referred to as, 'C.E.O.') retiring the petitioner w.e.f. 31.7.2020 and for a consequential mandamus not to disturb her peaceful functioning as Headmistress till 31.3.2021, i.e., till the end of the present academic session.

3. The facts of the case are that R.A. Bazar, Primary School, Bareilly (hereinafter referred to as, 'Institution') is managed by the Cantonment Board, Bareilly. It has been stated in the writ petition that the Institution was recognized w.e.f. July 1959 by order dated 24.8.1959 passed by the District Inspector of Schools, Bareilly (hereinafter referred to as, 'D.I.O.S.'), i.e., before the Uttar Pradesh Basic Education Act, 1972 (hereinafter referred to as, 'Act, 1972') was enacted and continues to be recognized by the Basic Shiksha Parishad, i.e., the Uttar Pradesh Basic Education Board (hereinafter referred to as, 'Board') after the Act, 1972 came in operation.

4. The date of birth of the petitioner is 30.7.1958. The petitioner was appointed as Assistant Teacher by order dated 18.6.1982 of the Cantonment Executive Officer, Bareilly Cantonment and joined as such on 26.7.1982. The confirmation of the petitioner as Assistant Teacher is not disputed by the respondents. Subsequently, the petitioner was promoted as Headmistress of the Institution vide order dated 10.7.2014 passed by the C.E.O. A dispute arose between the petitioner and the Cantonment Board regarding the retirement age of the petitioner. The Cantonment Board, being of the view that the petitioner was to retire at the age of 60 years, intimated through notice dated 1.2.2018 her date of superannuation to be 31.7.2018, i.e., on the last date of the month in which she attained the age of 60 years. The Cantonment Board was of the view that the service conditions of the petitioner were governed by the Cantonment Fund Servants Rules, 1937 (hereinafter referred to as, 'C.F.S Rules') which prescribed the age of retirement to be sixty years. The petitioner challenged the aforesaid notice before this Court through Writ-A No. 9831 of 2018 on the ground that by virtue of Rule 29 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 as amended by the Uttar Pradesh Basic Education Teachers Service (12th Amendment) Rules, 2011 (hereinafter referred to as, 'Rules, 1981') her age of retirement was 62 years. This Court vide its order dated 12.4.2018 passed in Writ-A No. 9831 of 2018 stayed the operation of the notice dated 1.2.2018. By virtue of the aforesaid interim order the petitioner continued in service, but vide impugned order dated 30.7.2020, the petitioner was retired w.e.f. 31.7.2020, i.e., on the last date of the month in which she attained the age of 62 years. As noted earlier, the order dated 30.7.2020 passed by the C.E.O., i.e., respondent No. 2 has been challenged in the present writ petition.

5. It has been stated in the writ petition that by virtue of the Proviso to Rule 29 of the Rules, 1981, the petitioner was entitled to session benefit, i.e., she could not be retired before the end of the academic session which starts from 1st of April and ends on 31st March in the next year. It was argued that in the circumstance, the petitioner was entitled to continue as Headmistress of the Institution till 31.3.2021 as her date of retirement falls in the mid of the academic session starting from 1.4.2020. The aforesaid ground raised in the writ petition has also been argued by the counsel for the petitioner. The counsel for the petitioner has argued that the service conditions of the petitioner are not governed by the C.F.S. Rules but are governed by 1981 Rules and Rul