Point of Law : A Government servant has no right to continue in service beyond the age of superannuation and if he is retained beyond that age it is only in the exercise of the discretion of the Government.

JUDGMENT :

Surya Prakash Kesarwani, Vikas Budhwar, JJ.

1. Present intra-court appeal, purported to be under Chapter 8 Rule 5 of the Rules of the High Court 1952, has been instituted by the appellant challenging the valildity and the correctness of the judgment and order dated 20.10.2010 passed by the learned Single Judge in Civil Misc. Writ Petition No. 62959 of 2010, Hariom Sharan Srivastava Vs. State of U.P. and others.

2. Though the present appeal was filed with delay condonation application, and the delay was condoned by virtue of the order dated 28.8.2012. Today, when the matter came up before this Court, then the learned counsel for the appellant as well as the learned Standing Counsel appearing for the Respondent nos.1 to 5 requested the Court to decide the present appeal at the admission stage itself. Though, notices were issued to Respondent no.6, but no response has been filed by it. Hence in the circumstances, this Court is proceeding to decide the appeal on the basis of the material available on record.

3. Heard Sri Siddhartha Srivastava holding brief of Sri Yogish Kumar Saxena, learned counsel for the petitioner and Smt. Shubhra Singh, learned counsel for the State respondents and carefully perused the records.

4. As per the case, set up by the petitioner-appellant before the Writ-Court and in the present appeal, the petitioner-appellant, has pleaded that Respondent no.6 is an Institution by the name and the nomenclature of the K.K. Inter College, Kannauj, recognized under the provisions of U.P. Intermediate Act, 1921 and is receiving grant-in-aid from the State Government. Consequently, the provisions contained under the Uttar Pradesh High School and Intermediate College (Payment and Salary to Teachers and other Employees Act, 1971 are fully applicable to Respondent no.6, Institution. It appears that the petitioner-appellant, was appointed as an Assistant Teacher in Respondent no.6/ Institution in the year 1967 and thereafter he was promoted to CT Grade Teacher in the year 1972 and further promoted as LT Grade Teacher on 8.7.1995. As the date of birth of the petitioner-appellant was 2.1.1947, therefore, he attained the age of superannuation, i.e, 62 years, on 1.1.2009, but the petitioner-appellant was granted an extension till the end of the academic Session. Thus his date of retirement of service became 30.6.2009. However, it appears that the petitioner-appellant was awarded with National Award to Teachers, 2008 by the Ministry of Human Resource Development, Department of School Education and Literacy on 5.9.2009, which is already on record at Page-47 of the paper-book. It further transpires from the record that when the petitioner was not allowed extension of his services while granting the benefit of 2 years and not being allowed to function as Assistant Teacher in Respondent no.6/ Institution till 30.6.2011, i.e, after 2 years of his actual retirement, 30.6.2009, on the strength of the Government Orders dated 6.5.1982, 4.12.1986, 4.2.2004, 29.6.2004 and 30.6.2005, then the petitioner instituted Civil Misc. Writ Petition No. 36334 of 2010, Hariom Sharan Srivastava Vs. State of U.P. seeking relief to the extent that in terms of the Government Order dated 6.6.1982 recommendation had already been made by the Regional Joint Director of Education, Kanpur Nagar for grant of extension, so a suitable decision be taken by the State Government in the light of the same. The said writ petition was eventually disposed of on 5.7.2010 with an appropriate direction to the State Government to take appropriate decision on the recommendation of the Joint Director of Education, Kanpur Nagar strictly in accordance with law, as early as possible, preferably within 4 weeks from the date of submission of the certified copy of the order.

5. In compliance of the order dated 5.7.2010 passed in Writ Petition No. 38339 of 2010, Hariom Sharan Srivastava vs. State of U.P, the respondent no.1, has proceeded to pass an order, whereby claim set up b