Allahabad High Court
Smt. Malti Dixit And Another vs State Of U.P. And Others on 29 January, 2010
Author: Shishir Kumar
Bench: Shishir Kumar
Court No. - 26 Case :- WRIT - A No. - 43085 of 2007 Petitioner :- Smt. Malti Dixit And Another Respondent :- State Of U.P. And Others Petitioner Counsel :- Siddharth Singh,Chandan Sharma Respondent Counsel :- C.S.C. Hon'ble Shishir Kumar,J.
Heard Sri Chandan Sharma, learned counsel for petitioners and learned Standing Counsel on behalf of State.
This writ petition has been filed for quashing the order 30.7.2007 (Annexure 1 to writ petition) and Government Order dated 28.1.2004 (Annexure 11 to writ petition).
From the facts stated in the writ petition it emerged that petitioner Nos. 1 and 2 were initially appointed as Assistant Teacher in Primary Section of Dwarika Prasad Girls Inter College on 26th June, 1975 and 16th July, 1973. They retired from service after attaining the age of superannuation on 30th June, 2000 and 30th June, 2002 respectively. It is not in dispute that the institution in question is a recognized institution under the provisions of U.P. Intermediate Education Act as well as is governed under Payment of Salaries Act, 1971. Petitioners approach the authority concerned regarding payment of retiral benefits after their retirement but claim of petitioners was not considered then petitioners approached this Court by filing a Writ Petition No.47912 of 2005 (Malti Dixit and others Vs. State of U.P. and others) which was finally disposed of on 21.2.2007 directing Director of Education or his nominee to decide the claim of petitioners by a reasoned and speaking order taking into consideration the relevant Government Orders for the purposes of payment of retiral benefits.
Now the order impugned has been passed rejecting the claim of petitioners only on the ground that Government Order dated 28.1.2004 specifically states regarding entitlement of teachers attached to the aided institution, therefore, petitioners are not entitled to get pensionary benefits and there is no whisper regarding payment of retiral benefits in view of Government Order dated 25.11.1985 to the primary sections which are attached to aided education institution.
Sri Chandan Sharma, learned counsel appearing for petitioners submits that Government Order of 2004 is not applicable in the case of petitioners and the Government Order dated 6.11.1978 will be applicable in the case of petitioners. Relevant paragraph to that effect is being quoted below:-
"UKTA PRASANG MAE NIVEDAN HAI KI SAHAYATA PRAPT KANYA UCHATTAR MADHYAMIK VIDYALAYA KE SAMAND JIN PRIMARY KAKSHAO KI AYDHYAPIKAYE VETAN VITRAN ADHINIYAM THATA INTERMEDIATE SHIKSHA ADHINIYAM SE SUNISCHIT HAI, UN AVKASH PRAPT AYDHYAPIKAYE KO UCHHATAR MADHYAMIK VIDYALAYAO KA AVIVAJYA ANG MANKAR UCHHATAR MADHYAMIK VIDYALAYA KE ANYA AVKASH PRAPT ADHYAPAK / ADHYAPIKAYAO KE SAMTULYA HE SEWA NIVRIT LABH DIYE JAYANGE. KRIPYA YATHAVAT KARYAVAHI SAMPAN KARAYE."
Further submission has been made that similarly other situated teachers of the said institution has approached this Court by filing a Writ Petition no.4088 of 2002 (Smt. Sheela Chatterjee Vs. State of U.P. and five others) which was finally decided by this Court on 5.12.2003 directed to pay retiral benefits and the same is being paid by respondents. The Special Appeal against this order has already been dismissed by this Court. In such circumstances, learned counsel for petitioners submits that petitioners are also entitled in view of Government Order and rejection of claim of petitioners cannot be sustained upon relying the Government Order of 1985.
On the other hand learned Standing Counsel has placed reliance upon para 3 of the counter affidavit stating therein that in view of Government order dated 28.1.2004, the authority concerned has considered the issue and rejected the claim of petitioners. Further, it has been stated that it is a settled law that if the State Government after considering the facts, fix a cut of date that will be treated to be valid and that will be in the power of the State Government in view of judgment reported in AIR 2006 (1) Supreme Court, 407 (State of Andhra Pradesh and Vs. A.P. Pensioners Association and others ).
I have considered the submissions made on behalf of parties and have perused the record. From the record it is clear that primary sections of institution is attached to secondary section and provisions of Payment of Salaries Act are applicable. There is no dispute to this effect from the record that petitioners were teachers of primary section attached to the institution which are aided and recognized under the U.P. Education Act. From the record it is clear that these teachers have retired prior to 2004. Therefore, in the opinion of the Court, the Government Order of 2004 relied upon by respondents while rejecting the claim of petitioners is not sustainable. It is well settled in law that if any Government Order or Rule is made applicable that will be applicable from the date of notification in the official gazette, unless and until a specific mention is there regarding applicability of the same retrospectively. From perusal of the Government Order dated 21.8.2004, it does not appear that it can be made applicable prior to 28.1.2004. As regards the applicability of Government Order of 21.8.1985, it does not say or mention regarding entitlement of teachers of primary section attached to the High School regarding payment of retiral benefits, Government Order of 1978 is clear to this effect regarding entitlement of teachers for the purposes of payment of retiral benefits. As regards the submission made by Learned Standing Counsel there is no doubt to this effect that legislature has full competence to fix cut of date regarding entitlement of any benefit to their employees but as regards the applicability that will be from the date of gazette notification unless and until provided otherwise. From perusal it does not appear that there is any mention regarding applicability of the same prior to the date of issuance of notification in the official gazette. Therefore, contention of learned Standing Counsel taking support of the judgments mentioned in the counter affidavit will not be applicable to the facts of the present case.
In view of the facts and the findings to this effect, the order impugned dated 30.7.2007 passed by respondent No.3 is not sustainable in law and is hereby quashed. The writ petition is allowed. The respondent No.2 i.e. Director of Education, (Madhyamik) Lucknow is directed to pass appropriate orders regarding payment of pension and other retiral benefits to petitioners within a period of two months from the date of production of certified copy of this order. Ultimately, if respondent no.2 comes to the conclusion regarding entitlement, then interest at the rate of 9% be paid to petitioners.
No order as to costs.
Order Date :- 29.1.2010 SKD