( 1. ) DURING the pendency of the petition in this Court, by an order passed on 30-10-1987, the petitioner has been relieved of her duties of the post in which she was working on that date. What is not denied is that she was holding the post of the Principal, Lady Health Visitors Promotee School (formerly known as Public health Orientation Training School, in short, PHOTC), Gwalior, and the fact also which is not denied is that in the School, training is given to the Lady Health Visitors and auxiliary Nurse-Midwives. Indeed, the only difference in the contention on two sides is that the persons receiving training in the Institution in question, according to the State, are only those persons who had been already in employment of the State for a period of five years and indeed, mainly on this basis, the case of the petitioner is sought to be taken out of the provision enacted by the State Legislature in Act No. 35 of 1984 of which relevant provision, we shall quote in due course. At this stage, suffice it to note the preliminary objection of the State that the petition has become intructuous because the petitioner has been duly retired from service with effect from 31-10-1987 and she cannot claim the benefit of the provisions of the said enactment. To dismiss summarily the unholy preliminary objection, we do not have to labour hard as the established position in law need not be stressed repeatedly on all occasions. There cannot be any doubt that no action to the prejudice of any citizen can be taken by the State during the pendency of a and in a Court of law and that such action would always be subject to the decision that would be rendered in the pending lis.

( 2. ) WE come, however, to the merits of the petitioners case. As per Section 2 of act No. 35 of 1984, sub-rule (1-a) was inserted in Rule 56 of the Madhya Pradesh shasakiya Sevak (Adhivarshiki-Ayu) Sanshodhan Adhiniyam, 1967, for short, Act No. 29 of 1967. The relevant and crucial provision, we quote :

" (1-a) Subject to the provisions of sub-rule (3), every Government teacher shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years : provided that a Government teacher whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years. Explanation.- For the purpose of this sub-rule "teacher" means a government servant by whatever designation called, engaged in teaching in an educational institution including technical or medical institutions, run by Government. " However, the Explanation aforequoted was amended by Act No. 23 of 1987 and it reads as follows :

"explanation.- For the purpose of this sub-rule "teacher" means a government servant, by whatever designation called, appointed for the purpose of teaching in an educational institution run by the Government including technical or medical education institution in accordance with the recruitment rules applicable to such appointment and shall also include the teacher who is appointed to an administrative post by promotion or otherwise and who has been engaged in teaching for not less than twenty years provided he holds a lien on a posting the concerned School/collegiate/technical/medical education service. ".

( 3. ) THE bone of contention in this matter is whether the petitioner can be regarded as a "teacher" within the meaning of provisions aforequoted and whether the "institution" in which she was serving prior to her retirement was such an "institution" as is covered by the aforequoted provisions. In this connection, we first note certain admissions of the respondents/state to be read in the records available to us in several applications, returns and annexures filed therewith. On 10-10-1987, an "additional return" was filed on behalf of the State of which at Annexure R/iii, items No. 11 we quote :

"11. Principal, P. H. O. T. C Gwalior - June 79 to Oct. 87 PHO