Allahabad High Court
Smt. Shashi Bala Jain vs State Of U.P. And 4 Others on 6 May, 2020
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD (Judgment reserved on 05.02.2020) (Judgment delivered on 06.05.2020) In Chamber Case :- WRIT - A No. - 7792 of 2019 Petitioner :- Smt. Shashi Bala Jain Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ram Krishna Yadav Counsel for Respondent :- C.S.C. Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Ram Krishna Yadav, learned counsel for the petitioner and Sri Shailendra Singh, learned Standing Counsel for the State-respondents.
2. 2- This writ petition has been filed praying for the following relief:
"1. To issue a writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order dated 11.3.2019 passed by Director of Education (Secondary), Uttar Pradesh, the respondent No.2.
2. To issue a writ, order or direction in the nature of mandamus commanding the respondents to permit the petitioner to deposit the entire provident fund from the date of her appointment and to fix and grant the petition to the petitioner counting the services rendered by the petitioner from her date of appointment i.e., 8.7.1987 with the arrears and the interest thereon within the period stipulated by this Hon'ble Court.
3. To issue a writ, order or direction of the suitable nature which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
4. Award the cost of the petition to the petitioner."
Facts:-
3. Briefly stated facts of the present case are that undisputedly, the petitioner was appointed as an Assistant Teacher in Primary Section attached to "Digamber Jain Inter College, Dhuliaganj, Agra" on 8.1.1987. The aforesaid primary section came on grant-in-aid list in the year 1989. The initial appointment of the petitioner was an untrained teacher. The exemption from training was granted to her by the Joint Director of Eduction, Agra, by order dated 9.11.2004 w.e.f. 1.1.2004, which attained finality. The services of the petitioner are governed by the provisions of U.P. Basic Education Act, 1972 and the Rules framed thereunder.
4. The claim of the petitioner for inclusion of period of service as untrained teacher for the purposes of computing qualifying length of service was rejected by the impugned order dated 11.3.2019.
Submissions:-
5. Learned counsel for the petitioner submits that the petitioner is entitled for payment of pension in view of the law laid down by this Court in Mangali Prasad Verma Vs. State of U.P. and others, (2013)1 UPLBEC 285 as affirmed by the Division Bench in Special Appeal Defective No.678 of 2013 (State of U.P. Thru' Secretary Secondary Education and 5 Ors. v. Mangali Prasad Verma and 2 Ors.), decided on 13.9.2017, the judgment in Smt. Ram Chameli Devi v. State of U.P. and others, (2018)2 ADJ 262, Special Appeal Defective No.228 of 2016 (State of U.P. and 6 others v. Shri Krishna Prasad Yadav and 13 others), decided on 14.5.2017, Buddhi Ram v. State of U.P. and others, (2013) 1 ADJ 254, Hans Raj Pandey v. The state of U.P. and others, (2007)3 UPLBEC 2073, as affirmed by the Division Bench judgment dated 25.4.2008 in Special Appeal Defective No.344 of 2008 (Basic Shiksha Parishad and others v. Hans Raj Pandey and another), Shashi Srivastava v. State of U.P. and another (2019) 7 ADJ 302(Paragraph 17).
6. Learned Standing Counsel supports the impugned order and submits that the Government Order dated 5.9.1970 has no application on the facts of the present case, inasmuch as, subsequently, the U.P. Basic Education Act, 1972 was enacted and the petitioner was appointed after the enactment of the Act, 1972, as an untrained assistant teacher in primary section of the institution in question which came on grant-in-aid list in the year 1989. He submits that since the petitioner has not rendered ten years of qualifying regular as she came to be regularly appointed w.e.f. 1.1.2004 and retired on 30.6.2012. Therefore, the claim of the petitioner for pension has been rightly rejected.
7. In support of his submission learned standing counsel has relied upon a judgment in Writ-A No.3930 of 2019 (Sri Krishna Kumar v. State of U.P. and 3 others) and the interim order dated 24.2.2014 in Special Appeal Defective No.189 of 2014 (State of U.P. and 4 others v. Prem Singh Verma and another) passed by the Division Bench staying the effect and operation of the judgment of the learned Single Judge dated 30.7.2013 in Civil Misc. Writ Petition No.8876 of 2013 (Prem Singh Verma v. State of U.P. and others ), (2013) 7 ADJ 463.
Discussion and Findings:-
8. Undisputedly, the petitioner was appointed on 08.07.1987 on the post of untrained Assistant Teacher in the attached primary section of the respondent No.5 - Institution. The aforesaid attached primary section of the respondent No.5 - Institution came on grand-in-aid list in the year 1989. By order dated 09.11.2004, the Joint Director of Education, Agra granted exemption to the petitioner from training. The petitioner retired from service on 30.06.2012. Thus, according to the petitioner she has completed minimum required period of service of ten years as she was appointed on 08.07.1987 and retired from service on 30.06.2012. According to the respondents, the petitioner is not entitled for pension since she came to be regularised w.e.f. 01.01.2004 on grant of exemption and retired on 30.06.2012. Therefore, she could not complete ten years of necessary qualifying service.
9. Thus, controversy involved in the present writ petition is as to whether the period of service spent by the petitioner as untrained assistant teacher can be added to compute the length of service for the purposes of pension.
10. The petitioner has earlier filed Writ-A No.20997 of 2015 (Smt. Shashi Bala Jain vs. State of U.P. and four others), which was disposed off by this court by order dated 12.11.2018 directing the respondent to decide the claim of the petitioner by a speaking order, having regard to the law laid down by this court in Writ Petition No.17819 of 2007 (Mangali Prasad Verma and 2 others vs. State of U.P. and others) decided on 12.12.2012 {reported in 2013 (1) UPLBEC 285}. Facts in this regard have been stated by the petitioner in paragraph-14 of the writ petition and copies of the orders passed in the case of the petitioner and in the case of Mangali Prasad Verma (supra), have also been filed as Annexures-6 and 7 to the writ petition. These facts have not been denied by the respondents.
11. Perusal of the impugned order dated 11.03.2019 passed by the Director of Education (Secondary) U.P., shows that Director of Education (Madhyamik) while passing the impugned order; has not given benefit of the law laid down by this court in the case of Mangali Prasad Verma (supra) on the ground that Mangali Prasad Verma had retired from service on 30.06.1995, i.e. prior to the Government Order dated 28.01.2004.
12. In the case of Mangali Prasad Verma (supra), this court on similar set of facts considered the matter of adding length of service rendered as untrained assistant teacher so as to compute the length of service for the purposes of pension as well as the Government Order dated 28.01.2004 and while quashing the cut off date provided in the Government Order dated 28.01.2004, held as under:
"6. Considered the submission of learned counsel for the parties. There is no dispute that the petitioner was Assistant Teacher who was appointed in the year 1961 and the Primary Section is attached with Intermediate School, hence it is an integral part of the institution which is governed under the provisions of U.P.Intermediate Education Act 1921 and U.P.Act No. 24 of 1971. The Primary Section was also included in the grant-in-aid which was at Serial No. 176 in the Government Order dated 6.9.1989 and the same came in the grant-in-aid w.e.f. 1.10.1989, hence, the teachers were entitled for the retiral benefits including pension in view of the provisions of Rules 1964. According to Rule 3 of the Rules, it shall apply to the permanent employees serving in the State aided institutions of the following categories run either by a local body or by a private management and recognised by a competent authority as such for the purpose of payment of grant-in-aid.
1.Primary Schools;
2.Junior High Schools;
3.Higher Secondary Schools;
4.Degree Colleges;
5.Training Colleges.
According to Rule 4, it was a triple benefit scheme of contributory provident fund insurance and pension.
According to Rule 5(G), employees means a permanently employed person borne on the whole time teaching or non teaching of an aided institution excluding
a) The inferior staff;
b) The ministerial staff of the institution maintained by a local body;
And according to Rule 5 (L), institution means an aided school or college referred to in Rule 3.
7. If there was delay in issuing the clarification for payment of pension to the teachers of the primary section attached with the Intermediate College. There is no fault on behalf of the employee including the petitioner of the recognised and aided institution. The Principal of the College has already sent a communication on 25.3.1996 to the Accounts Officer, Office of the District Inspector of Schools, for enabling deduction towards G.P.F. being deposited towards G.P.F. Account of the petitioner. If there was no deduction towards G.P.F. and group insurance contribution then there is no fault of the petitioner, as recommendation was also made by the College after the college was included in grant-in-aid list. The condition and cut-off date mentioned in the Government Order dated 28.1.2004 is arbitrary and discrimination amongst the teachers who retired before 28.1.2004. The pension is not being claimed or to be provided under the Government Order dated 28.1.2004 but that is only clarification. Merely due to the fault from part of the respondents for deduction from the salary of the petitioner towards G.P.F., etc. and delay in issuing the clarification, it cannot be accepted that the petitioner is not entitled for the pension under Rules 1964, though it was applicable to the Primary teachers as well as teachers of the higher secondary education.
10. In the case of Smt. Ram Keshi Devi Vs. State of U.P. and others 2009(2) UPLBEC 1557, it was decided that the petitioner was entitled for payment of pension who continued to work for about 30 years out of which 18 years were after 1972 when Basic Shiksha Parishad controlled and managed the institution in question though she was not a trained teacher.
11. Hence, in view of the aforesaid discussion, impugned order dated 13.12.2006 passed by District Inspector of Schools, Kanpur Nagar, respondent no. 5 as well as the condition imposed by Government Order dated 28.1.2004 fixing the cut-off date are hereby quashed. The respondents are directed to permit the petitioner, for deposit of the Management's contribution with interest within a period of two months and after deposit of the contribution, the respondents shall extend the benefit to the petitioner of the Government Order dated 28.1.2004 and Rules 1964 for payment of pension to the petitioner w.e.f. 1.7.1995 within a further period of two months. The petitioner is entitled for payment of the arrears of salary with 12% interest w.e.f. 1.7.1995 till the date of payment."
13. The aforequoted judgment of learned single judge in the case of Mangali Prasad Verma (supra) was challenged by the State-respondents in Special Appeal Defective No.678 of 2013 (State of U.P. vs. Mangali Prasad Verma and 2 others) and the Special Appeal was dismissed on 13.09.2017 observing as under:
"We are in agreement with the judgment and order of the learned Single which has permitted the writ petitioner to deposit the management contribution. On satisfaction of the said condition services rendered by Mangali Prasad Verma for the period 1961 to 1989 have to be counted as qualifying service for the purpose determination of the pension. There is no legality in the judgment and order of the learned Single Judge in that regard.
We may, however, clarify that the Government Order dated 28.1.2004 which was so heavily relied upon by the State Government does not alter the legal position in any manner inasmuch as, the applicability of Rules 1964 is not depended upon any declaration being made by the Governor or by the State Government. If a teacher was working in an aided institution prior to the date of his retirement provisions of rules 1964 become applicable by operation of law. The manner of counting the qualifying service stands explained under the Government Order dated 26.7.2001.
We may also clarify that the teachers and employees of institutions which are brought on the grant-in-aid for the first time on or subsequent to 1.4.2005 would be covered by the new scheme enforced on 1.4.2005 and this judgment will have no application in their case.
We may notice that similar view has taken by the Division Bench of this Court in the case of State of U.P. And 6 Ors Vs. Shir Krishna Prasad Yadav and 13 Ors being Special No.228 of 2016 decided on 24.5.2017.
In view of the aforesaid, we find no illegality in the judgment and order of the learned Single Judge, it is accordingly, affirmed. The Appeal is Dismissed."
14. A similar controversy was considered by another bench of this court in Writ-A No.28679 of 2009 (Sri Krishna Prasad Yadav and others vs. State of U.P. and others), decided on 29.01.2015 and it was held as under:
"It would be relevant to point out here, before proceeding to the merits of the rival contentions raised by the parties, that the Committees of Management were put to notice by an order of this Court but have failed to file any Affidavits in opposition to this petition. The Government Order around which centers the present controversy is mentioned in the Affidavits of parties as dated 28th January, 2004. However, parties were agreed that the same was a typographical error and that the correct date of the Government Order was 20th January, 2004. I proceed now to consider the contentions of parties.
It would be apposite to refer to some of the salient provisions of the Rules 1964.
Rule 3 reads as under:
"3. These rules shall apply to permanent employees serving in State aided educational institutions of the following categories run either by a Local Body or by a Private Management and recognised by a competent authority as such for purposes of payment of grant-in-aid: (1) Primary Schools;
(2) Junior High Schools;
(3) Higher Secondary Schools;
(4) Degree Colleges;
(5) Training Colleges."
Rule 17 reads as under:
"17. An employee shall be eligible for pension on--
(i) retirement on attaining the age of superannuation or on the expiry of extension granted beyond the superannuation age;
(ii) voluntary retirement after completing 25 years of qualifying service;
(iii) retirement before the age of superannuation under a medical certificate of permanent incapacity for further service; and
(iv) discharge due to abolition of post or closure of an institution due to withdrawal of recognition or other valid causes.
Notes.--(1) The age of compulsory retirement of an employee shall be such as prescribed in the relevant rules applicable to him.
The date of superannuation shall be reckoned from the date of birth of an employee as entered in his Service Book or other records. In case of the year of birth only is known, but not the month, the first July of the year shall be taken as the date of birth. Similarly when both the year and the month of birth are known, but not the date, the16th of the month shall be taken as the date of birth."
Rule 18 reads as under:
"18. The amount of pension that may be granted shall be determined by the length of qualifying service, vide Rule 31 below. Fractions of a year shall not be taken into account in the calculation of pension under these rules. Pension shall be calculated to the nearest multiple of 5 paisa:
(a) The full pension admissible under these rules will not be sanctioned unless the service rendered has been considered satisfactory and is approved by the Controlling Authority.
(b) If the service has not been thoroughly satisfactory the authority sanctioning the pension may order such reduction in the amount as it thinks proper."
Rule 19 reads as under:
"19. (a) Service will not count for pension unless the employee holds a substantive post on a permanent establishment.
(b)..................
(c)......................
(d)......................
(e)...................."
It is apparent that the grant of pension is squarely covered by the provisions of the statutory Rules referred to above. The said rules in unequivocal terms provide that they shall apply to the permanent employees serving in State Aided Educational Institutions run either by a Local Body or by a Private Management and recognized by a Competent Authority as such for purposes of payment of grant-in-aid.
The category of Institutions referred in Rule 3 clearly include Primary Sections. It is the undisputed position that the Institutions in which the petitioners were serving had Primary Sections and even though run by Private Management were recognized for the purposes of payment of grant-in-aid. These Rules did not prescribe a cut off date for the purposes of a person becoming eligible for grant of pension thereunder. In fact, Rule 4(b) clearly throws light on this aspect of the matter when it grants an option to existing members in permanent service to opt and elect to be governed by these Rules. The Rules themselves came into effect from 1.10.1964 and would, therefore, be applicable to all thereof. Insofar as the aspect of deposit of management contribution as envisaged under the said Rule is concerned, this Court had already struck down the cut of date of 31st March, 2002 as prescribed by the Government Order dated 26.07.2001 in Smt. Shanti Solanki Vs. State of U.P. and Others passed in W.P. No. 75746 of 2006 and the said decision has been consistently followed in various other cases decided by this Court including W.P. No. 17033 of 2012, Lal Chand Singh Vs. State of U.P. And Others. About the payment of pension being governed solely by the provisions of the Rules 1964, this Court is of the opinion that its applicability could not have been eclipsed or in any manner straddled over by the Government Order dated 20th January, 2004. This Court is in agreement with the judgment rendered by a learned Single Judge in Mangali Prasad (supra) on the issue that merely because there was delay in issuing appropriate clarifications with regard to the applicability of the Rules to Primary Sections, the same could not have denuded the petitioners of their right to claim pension under the Rules 1964, which curtails the computation of length of qualifying service to the time when the Primary Sections became or came under the grant-in-aid list.
Accordingly and in view of the above, this writ petition is allowed and it is accordingly held that the petitioners shall be entitled to pension under the provisions of the Rules 1964. The management contribution required to be deposited may be so made within a period of two months and thereafter the respondents shall proceed to compute the pension of the petitioners taking into account the total length of qualifying service rendered by them and in light of the observations made hereinabove. The pension so computed and becoming liable to be paid to the petitioners from their respective dates of superannuation will be paid within a period of two months from the date of deposit of management contribution and the arrears shall carry interest of 12 per cent per annum.
The writ petition is accordingly allowed in terms indicated above."
15. The judgment of learned single judgment in the case of Sri Krishna Prasad Yadav and others (supra) was challenged by the State-respondents in Special Appeal Defective No.228 of 2016 (State of U.P. and 6 others vs. Sri Krishna Prasad Yadav and 13 others and the Special was dismissed on 24.05.2017 observing as under:
"Bare perusal of the aforesaid provisions, this much is clearly reflected that the said rules in unequivocal terms provide that they shall apply to the permanent employees serving in State Aided Educational Institutions run either by a Local Body or by a Private Management and recognized by a Competent Authority as such for purposes of payment of grant-in-aid. Rule 3 clearly include Primary Sections. At no point of time, the State-appellants had ever raised this objection that the contesting respondents/petitioners are not imparting in the Institutions but admittedly the contesting respondents/petitioners were serving at Primary Sections. No doubt, said institution is run by Private Management but the same were recognized for the purposes of payment of grant-in-aid. No where these Rules prescribes a cut off date for the purposes of an incumbent becoming eligible for grant of pension thereunder.
The said Rules themselves came into effect from 1.10.1964, therefore, learned Single Judge has clearly proceeded to hold that the said Rules definitely be applicable in the case of contesting respondents. Learned Single Judge has proceeded to consider another aspect of the matter especially the deposit regarding management contribution as envisaged under the said Rule is concerned, this Court had already struck down the cut off date of 31st March, 2002 as prescribed by the Government Order dated 26.07.2001 in Smt. Shanti Solanki Vs. State of U.P. and Others passed in W.P. No. 75746 of 2006 and the said decision has been consistently followed in various other cases decided by this Court including W.P. No. 17033 of 2012, Lal Chand Singh Vs. State of U.P. And Others. About the payment of pension being governed solely by the provisions of the Rules 1964, this Court is of the opinion that its applicability could not have been eclipsed or in any manner straddled over by the Government Order dated 20th January, 2004. Learned Single Judge has rightly proceeded to consider the present case in hand which is squarely covered with the dictum settled in Writ Petition No. 17819 of 2007; Mangali Prasad Varma Vs. State of U.P. and Others and on the same terms allowed the writ petition.
Consequently, we see no illegality, perversity or infirmity in the order dated dated 29.01.2015 passed by the learned Single Judge and as such, no interference is called for in the present matter.
In view of above, present special appeal is dismissed."
16. The consistent view taken by coordinate benches and several division benches of this court fully supports the case of the petitioner. The impugned order dated 07/11.03.2019 has been passed by the Director of Education (Secondary), Allahabad in breach of the law laid down by this court in the case Mangalai Prasad Verma (supra) and Sri Krishna Prasad Yadav and 13 others (supra). Therefore, the impugned order dated 07/11.03.2019 cannot be sustained and is hereby quashed. The writ petition is allowed in terms of the of the law laid down in the case of Mangali Prasad Verma (supra) and Sri Krishna Prasad Yadav and 13 others (supra).
Order Date :- 06.05.2020 NLY