Allahabad High Court
Smt. Vimla Devi Sharma vs State Of U.P. & Others on 16 April, 2015
Author: Pradeep Kumar Singh Baghel
Bench: Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 59 Case :- WRIT - A No. - 36320 of 2009 Petitioner:- Smt. Vimla Devi Sharma Respondents:- State Of U.P. & Others Counsel for Petitioner:- Siddharth Khare, Ashok Khare Counsel for Respondents:- C.S.C. Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is a retired Assistant Teacher of a Primary School. She has moved this writ petition under Article 226 of the Constitution for issuance of a writ of certiorari to quash the order dated 12th June, 2008 passed by the Additional Director of Education (Secondary), U.P., Allahabad, the third respondent, whereby her representation for sanction of pension has been rejected.
The essential facts are that Gurukul Sarvodaya Inter College, Panchali Khurd, District Meerut1 is a recongnised educational institution, wherein education is imparted from Class-I to Class-XII. The Institution receives the financial aid out of the State fund. It is governed by the provisions of the Uttar Pradesh Intermediate Education Act, 1921 (U.P. Act No. II of 1921)2 and the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971)3. Initially, the primary section from Classes I to V, attached to the Institution, was not receiving grant-in-aid. It was first time brought on the grant-in-aid list with effect from 01st October, 1989, therefore, it also came under the purview of the Act, 1971.
The petitioner was initially appointed as an Assistant Teacher in the primary section of the Institution on 01st July, 1964. She reached her age of superannuation on 30th June, 2001. The grievance of the petitioner is that she has not been sanctioned pension. When several representations having been made by the petitioner for sanction of pension remained pending, the petitioner along with four other similarly placed Assistant Teachers of primary section of another institution, namely, Gurunanak Girls Inter College, Kankarkhera, Meerut approached this Court under Article 226 of the Constitution by means of Civil Misc. Writ Petition No. 1565 of 2008 (Smt. Sushila Thapar and others v. State of U.P. and others). The aforesaid four other Assistant Teachers, who joined the said writ petition along with the petitioner, were also appointed between 1966 and 1969 and they retired from service between 2001 and 2002. The said writ petition was disposed of by this Court vide order dated 09th January, 2008 with a direction upon the authority concerned to take appropriate decision in the matter and pass a reasoned and speaking order.
After the order of this Court, the petitioner submitted a detailed representation, wherein she stated that there was regular deduction from her salary against the General Provident Fund (GPF) and Insurance and she has submitted her option for the pension. She had also cited the examples of Sri Radhey Shyam Verma, who was an Assistant Teacher in the Primary Section of D.A.V. Inter College, Kankarkhera, Meerut, and Sri Ajab Singh, Assistant Teacher of Primary Section, who were sanctioned pension on 15th March, 2004. In compliance of the order of this Court dated 09th January, 2008, the third respondent vide impugned order dated 12th June, 2008 rejected the claim of the petitioner, whereas he sanctioned the pension to the co-petitioners (aforementioned other four Assistant Teachers) of Writ Petition No. 1565 of 2008. In the impugned order the only ground mentioned is that the petitioner was appointed in the attached Primary Section of a Boys Higher Secondary School, whereas the other petitioners of the said writ petition were appointed in the girls institution. Against this background, the petitioner has filed the present writ petition.
A counter affidavit has been filed on behalf of the respondents, wherein it has been admitted that the Institution is governed by the provisions of the Act, 1971 and it is receiving financial aid from the State fund with effect from 01st October, 1989. It is also stated that the petitioner has been receiving salary from the salary-payment account of the State since 01st October, 1989. The principle stand taken in the counter affidavit, as averred in paragraphs-6 and 11 thereof, is that by a Government Order dated 28th January, 2004 the State Government has sanctioned the benefit of pension, family pension, gratuity and G.P.F. to the teachers of attached boys/girls primary section from the date of issuance of the said Government Order i.e. 28th January, 2004, and in view of the provisions of the said Government Order, the teachers who retired prior to enforcement of the said Government Order are not entitled for the pension. Therefore, as the petitioner stood retired prior to 2004, the said benefit is not applicable to her.
I have heard Sri Ashok Khare, learned Senior Advocate, assisted by Sri Siddhartha Khare, learned counsel for the petitioner, and the learned Standing Counsel.
Sri Ashok Khare submitted that the petitioner is entitled to pension under the provisions of the Uttar Pradesh State Aided Educational Institution Employee's Contributory Provident Fund-Insurance-Pension Rules, 19644, under which the benefit of pension is available to all categories of Government aided institutions and the distinction sought to be drawn by the third respondent is wholly misconceived and artificial. He further submitted that the facts of the identical matters in the cases of Sri Radhey Shyam Verma and Sri Ajab Singh, referred to above, have not been properly addressed in the impugned order. Lastly, Sri Khare has placed reliance on a judgment of this Court in the case of Mangali Prasad Verma v. State of U.P. and others5 and Sri Krishna Prasad Yadav and others v. State of U.P. and others6.
Learned Standing Counsel has supported the reasons mentioned in the impugned order and has also invited the attention of the Court to paragraphs-6 and 11 of the counter affidavit.
I have considered the rival submissions advanced by the learned counsel for the parties and perused the record.
It is a common ground of the parties that the petitioner was appointed as an Assistant Teacher in the Primary Section of the Institution on 01st July, 1964 and retired on 30th June, 2001 and the Institution was sanctioned the financial aid w.e.f. 01st October, 1989. The State Government issued a Government Order dated 28th January, 2004 to the effect that benefit of the pension, family pension, gratuity and G.P.F. shall be admissible to the teachers of the primary sections attached to the higher secondary schools with effect from the date of issuance of the said Government Order.
The aforesaid Government Order dated 28th January, 2004 came to be considered by this Court in Mangali Prasad Verma (supra) and this Court found that the condition and the cut off date mentioned in the said Government order are arbitrary and discriminatory amongst the teachers who retired before 28th January, 2004. The Court also found that the said Government Order is only clarificatory in nature. The relevant part of the judgment is extracted hereunder:
"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."
In the said case, the Court has relied upon earlier judgments of this Court in the cases of Smt. Shanti Solanki v. State of U.P. and others7, Lal Chandra Singh v. State of U.P. and others8, and Smt. Ram Keshi Devi v. State of U.P. and others9.
From the record it transpires that when the order of this Court in Mangali Prasad Verma (supra) was not complied with, a contempt proceeding, being Contempt Application (Civil) No. 6286 of 201310, was taken out by the petitioner therein. My attention has been drawn to the short counter affidavit filed by the State authorities in the said contempt proceeding. In paragraph-3 of the said short counter affidavit, which was sworn by the Director of Education (Secondary), U.P., Lucknow, it has been stated that the State Government is sympathetically considering the matter of such teachers who have retired prior to issuance of the Government Order dated 28th January, 2004 for making them entitled to receive pension and there are several thousands teachers who would get benefit if the Government takes decision in their favour. A supplementary affidavit of compliance was also filed in that case and the pension was paid to the petitioner therein.
In the case of Mangali Prasad Verma (supra) the facts were identical to the case in hand. In the said case also the primary section of the institution was brought on the grant-in-aid list on the same date i.e. 01st October, 1989 and the petitioner therein was appointed in 1961 in the primary section on the post of Assistant Teacher and he retired on 30th June, 1995. Thus, the law laid down in the aforesaid case applies to the present facts with full force.
In Sri Krishna Prasad Yadav (supra) also similar issue was involved and this Court following the decision of Mangali Prasad Verma (supra), allowed the claim of the petitioner therein.
In addition to above, the State Government has framed the Rules, 1964 and they have been made applicable w.e.f. 01st October, 1964. These Rules have been made applicable to the institutions run either by the Local Body or by a private management and recognised by the competent authority for the purposes of payment of grant-in-aid. The said Rules have been made applicable to the following institutions:
(1) Primary Schools;
(2) Junior High Schools;
(3) Higher Secondary Schools;
(4) Degree Colleges; & (5) Training Colleges.
Rule 4 of the Rules, 1964 provides three types of service benefits, viz., contributory provident fund, insurance and pension (Triple Benefit Scheme). Rule 5(g) defines the word "employee" in the following terms:
"(g) 'Employee' means a permanently employed person borne on the whole-time teaching or non-teaching establishment of an aided institution, excluding (a) the inferior staff, and (b) the ministerial staff of the institutions maintained by a Local Body."
The expression 'Institution' has been defined in Section 5(l) of the Rules, 1964, as under:
"(l) 'Institution' means an aided school or college referred to in Rule 3 above."
Rule-5(p) of the Rules, 1964 gives the meaning of 'pension', thus:
"(p) 'Pension' means the pension payable to an employee under the rules Chapter V of these Rules."
Chapter V of the Rules, 1964 deals with the pension. Rule 17 prescribes the eligibility for pension which, insofar as is material for this case, 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 services;
(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."
Rule-18 of the Rules, 1964 articulates that the amount of pension that may be granted shall be determined by the length of qualifying service. Rule-19 contemplates that the service will not count for pension unless the employee holds a substantive post on a permanent establishment. However, in respect of temporary or officiating service, it provides that the continuous temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service.
From a simple reading of the aforesaid provisions, it instantly brings out that a teacher of the primary section is entitled for pension in terms of the Rules, 1964 and the Government Order dated 28th January, 2004 is merely clarificatory in nature. Moreover, the cut-off date mentioned in the said Government order has already been struck down by this Court in Mangali Prasad Verma (supra).
After careful consideration of the matter, I am of the considered opinion that the petitioner is entitled for pension and the view taken by the third respondent is not sustainable. Hence, the impugned order dated 12th June, 2008 passed by the third respondent is set aside. As no factual dispute is involved in the matter and the impugned order was based on misconstruction of the Government Order dated 28th January, 2004, wherein the cut off date has been fixed, no useful purpose would be served to send the matter back to the authority concerned for consideration afresh as this Court has already declared the cut off date as arbitrary in the case of Mangali Prasad Verma (supra). Accordingly, the respondents are directed to extend the benefit of the Government Order dated 28th January, 2004 and the Rules, 1964 to the petitioner for payment of pension with effect from 30th June, 2001 within a period of four months from the date of communication of a certified copy of this order. The petitioner is entitled for the arrears of pension with interest at the rate of 9% per annum with effect from 30th June, 2001 till the date of actual payment. The respondents are further directed to permit the petitioner to deposit the Management's contribution, if not already made, within a period of two months and after deposit of the contribution, she will be entitled for the pension, as directed above.
Accordingly, the writ petition is allowed.
No order as to costs.
Order Date :- 16th April, 2015.
SKT/-
Hon'ble Pradeep Kumar Singh Baghel, J.
The writ petition is allowed.
For order, see my order of the date passed on the separate sheets (eight pages).
Dt.- 16.04.2015.
SKT/-