Allahabad High Court
Buddhiram vs State Of U.P.And Others on 26 September, 2012
Author: V.K.Shukla
Bench: V.K.Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR COURT NO. 30 RESERVED ON 17.09.2012 DELIVERED ON 26.09.2012 Civil Misc. Writ Petition No. 45217 of 2012 Buddhiram Versus The State of U.P. and others & Civil Misc. Writ Petition No.45229 of 2012 Yogendra Nath Mishra Versus That State of U.P. and others & Civil Misc. Writ Petition No. 47649 of 2012 Khyali Ram Versus State of U.P. and others & Civil Misc. Writ Petition No. 44742 of 2012 Bhagwan Das Maurya Versus State of U.P. and others & Civil Misc. Writ Petition No. 47000 of 2010 Ram Niranjan Mishra & others Versus State of U.P. and others & Civil Misc. Writ Petition No. 55778 of 2010 Ram Yagya Shukla Versus State of U.P. and others Hon'ble V.K.Shukla,J.
Civil Misc. Writ Petition No. 45217 of 2012 has been filed by the petitioner requesting therein to permit the petitioner for depositing the management contribution together with interest thereon and further prayer has been made to command respondent authorities for clubbing the petitioner service when the institution was unaided for calculation of his pension as per Government Orders dated 27.07.2001, 22.05.2006, 20.07.2006 and 21.01.2009.
Civil Misc. Writ Petition No. 45229 of 2012 has been filed by the petitioner requesting therein to permit the petitioner for depositing the management contribution together with interest thereon and further prayer has been made to command respondent authorities for clubbing the petitioner service when the institution was unaided for calculation of his pension as per Government Orders dated 27.07.2001, 22.05.2006, 20.07.2006 and 21.01.2009.
Civil Misc. Writ Petition No. 47649 of 2012 has been filed by the petitioner for directing the respondents to accept managerial contribution for providing the pension and other post retrial benefit to the petitioners so that the petitioners be get the pension, within a period to be specified by this Court.
Civil Misc. Writ Petition No. 44742 of 2012 has been filed requesting to quash the Government Order dated 24.07.2012 passed by District Basic Education Officer, Allahabad and further to issue a suitable writ order or direction directing the respondents to accept the management contribution from the petitioner with interest and pay pensionery benefits as he was getting prior to Feb. 2008 with arrears of pension from March 2008 onwards and others consequential benefits.
Civil Misc. Writ Petition No. 47000 of 2010 has been filed for quashing the last two lines of Government dated 08.04.2009 and further prayer has been made to direct the respondent to count more than 10 years service rendered by the petitioners prior to 01.04.2005 and provided pensionery benefits under the old pension scheme existing prior to 01.04.2005.
Civil Misc. Writ Petition No. 55778 of 2010 has been filed for quashing the last two lines of Government dated 08.04.2009 and further prayer has been made to direct the respondent to count more than 10 years service rendered by the petitioners prior to 01.04.2005 and provided pensionery benefits under the old pension scheme existing prior to 01.04.2005.
Petitioners of this bunch of writ petitions are complaining that scheme in question is beneficiary scheme and once whatever default has been there in depositing managerial contribution together with interest, the delay be condoned and requisite relief should be accorded to deposit managerial contribution with interest so that benefit of pension be extended to them and further request has been made by a group of incumbent by contending that once institution in question has been included in the grant-in-aid list of the State Government after 01.04.2005 but their appointment is prior to 01.04.2005 then they should be given option to be covered under old pension scheme and not under new pension scheme, and accordingly requisite relief be accorded to both the category of incumbents.
Sri Ashok Khare, Senior Advocate, Sri Anil Yadav Advocate, Sri L.K.Dwivedi, Advocate and Sri V.K.Singh, Advocate made submission in respect of claim mentioned in the writ petitions by submitting that scheme in question is welfare scheme and in view of this time frame provide for depositing managerial contribution together interest should not come in the way for depositing managerial contribution together interest, and benefit of said scheme should be extended to them qua the said category of incumbents and further the institutions which have been included in grant in aid list after 01.04.2005, w.e.f. 01.12.2006 incumbent working therein are also entitled for benefit of the old scheme once their appointments have been made prior to 01.04.2005, then said benefit cannot be denied and in view of this clarification which has been made in the Government Order dated 08.04.2009, that institution in question which has been included in the grant in aid list after 01.04.2005 they would be governed by new pension scheme is per se bad.
Learned Standing counsel on the other hand contended that in the present case time frame has been fixed for depositing managerial contribution together interest and well within the said time frame said exercise has not been at all been undertaken as such benefit of the old pension scheme cannot be extended and as far as Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund, Insurance Pension Rule 1964 is concerned benefit of the same is extendable to such institutions who are in the grant-in-aid list, and once policy decision has been taken that all those institutions who have been included in the grant-in-aid list after 01.04.2005, they would be governed by new pension policy then in such matters petitioners cannot claim as matter of right that they should be governed under old rules and accordingly writ petitions deserve to be dismissed.
After respective arguments have been advanced, the scheme of things are being looked into.
In order to provide teachers serving in the State-aided institution better service conditions committee of was constituted and said committee made recommendation that an employee serving in the State-aided educational institutions were enjoying the benefits of Contributory Provident Funds only, and there was no provision of their life Insurance/Pension etc. and it was considered necessary that these benefits might also be extended to them in order to relieve them of the worries after the retirement and in this background by means of Government Order dated 17.12.1965,Triple Benefit Scheme was introduced which was made effective with effect from 01.10.1964. The benefit occurring to the employees to the said scheme was (i) Contributory Provident Fund (ii) Compulsory Life Insurance (iii) Pension including Family Pension. For making these benefits more effective Rules were made providing therein terms and conditions on which these benefits were extendable. The said Rules were known as "Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund, Insurance Pension Rule. Chapter-I of the said Rules, Rule 3 provides that benefit of aforesaid Rules shall apply to permanent employees serving in the Sate of the following categories of institution 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. The object of said rule is to ensure all three types of service benefits namely Contributory Provident Fund, Insurance and Pension. Rule 4 of the aforesaid Rules provides that these rules are intended to ensure to the employees of the State aided educational institutions, three types of service benefits viz Contributory Provident Fund, Insurance and Pension (Triple Benefit Scheme) the quantum of the benefits and the conditions by which they are governed are described in the succeeding Chapters. Under the said Rules an employee already in permanent service on the date of enforcement of these Rules shall be given an option to elect these new rules or to continue to be governed by the existing rules applicable to him. Categorical provision has been provided for that no employees shall be allowed option to choose only a part of the scheme except as otherwise specifically provided for in these rules.
Rules 3 and 4 of the Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund, Insurance Pension Rule 1964 is being quoted below:
Rule 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 4: (a) These rules are intended to ensure to the employees of the State aided educational institutions, three types of service benefits viz Contributory Provident Fund, Insurance and Pension (Triple Benefit Scheme) the quantum of the benefits and the conditions by which they are governed are described in the succeeding Chapters.
(b) An employee already in permanent service on the date of enforcement of these Rules shall be given an option to elect these new rules or to continue to be governed by the existing rules applicable to him.
(c) No employees shall be allowed option to choose only a part of the scheme except as otherwise specifically provided for in these rules.
Chapter II of of the said Rules deals with definition clause. Chapter III of the said Rules deals with Contributory Provident Fund, Chapter IV of the said Rules deals with Life Insurance and Chapter V of the said Rules deals with Pension. Under Chapter V of the said Rules, Rule 17 deals with eligibility for pension of an employee and in respect of entitlement of pension.
Rule 18 deals with amount of pension that may be granted shall be determined by the length of qualifying service and Rule 19 provides that service will not count for pension unless the employee holds a substantive post on a permanent establishment. Rule 17 and 19 being relevant is being extracted below:
Rule 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 of closure of an institution due to withdrawal of recognition or other valid causes.
Rule 19: (a) Service will not count for pension unless the employees holds a substantive post on a permanent establishment.
(B) Continuance temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service.
(C) Leave without allowance, suspension allowed to stand as a specific penalty, overstayal of joining time or leave not subsequently regularized, and period of breaks in service shall be reckoned as qualifying service.
(d) Period of breaks between two periods of service due to termination of service, for no fault of the employee shall not be treated as interruption involving forfeiture of past qualifying service. In other cases breaks due to other causes shall result in forfeiture of past service unless condoned by Government.
(e) Time passed on earned leave shall fully count as qualifying service, but time passed on other kinds of leave with allowance shall count as qualifying service as follows:-
(i) If the total service is not less that 13 years, but less than 30 years, one year of such leave shall count as qualifying service;
(ii) If the total service is not less than 30 years, two years of such leave shall count as qualifying service.
Notes:(1) The term "Earned Leave" means leave on full average pay.
(2) In case a married women employee time passed on maternity leave may be allowed to count as qualifying service, provided that the period covered by such leave and also earned leave shall not exceed what would have been admissible had she availed of the whole of the earned leave to which she was entitled under the rule.
(3) "Total Service" means total service reckoning from the date of commencement of service qualifying for pension and includes periods of leave referred to above.
(4) The service put in by an employee before he has completed 18 years of age or after attaining the age of superannuation unless extended by competent authority or on re-employment after retirement shall not qualify for pension.
(5) The entry relating to confirmation of employee in the service book shall be countersigned by the Controlling Authority.
(6) In cases not covered by these rules qualifying service shall be determined by Government and its decision shall be final.
Rule 24 deals with family pension and as per said Rule 24 family pension not exceeding the amount specified could be granted for a period of 10 years to the family of an employee who dies either while still in service or after retirement, after completion of not less than twenty years of qualifying service. Proviso has been added to the said Rule providing therein that period of payment of family pension shall in no case extend beyond a period of five years from the date on which the deceased employee would have attained the age of superannuation. While this scheme had been subsisting on 08.03.1978 State Government issued Government Order in the background of repeated request being made that pension should be made available to the employee of institution run and managed by Basic Shiksha Parishad, Allahabad in the same way and manner as State Government employees were being paid. State Government conceded to this demand and mentioned that all the employees of institutions run and managed by Basic Shiksha Parishad who have been retired on 01.03.1977 or thereafter they would be paid their pension in the same way and manner as State Government employees were being paid. However, a rider was attached to the same by mentioning that the said teacher would not at all be entitled for benefit of Death-cum-Retirement Gratuity and after death no pension would be made admissible to their family members. In the said Government Order itself it was mentioned in paragraph 2 that each employee will have to give their option as to whether they would opt for pension for in Government Order dated 08.03.1978 or they will continue to be governed by the provisions as contained under Government Order dated 17.12.1965. In paragraph 3 of the said Government Order it was mentioned that all benefits which were extended to the employee who have been superannuated prior to 01.03.1977 same would be made available. In paragraph 5 of the aforesaid Government Order it was mentioned that the benefits extended by means of Government Order dated 17.12.1965 and benefits extended by means of U.P. Basic Shiksha Parishad G.P.F. Adhiniyam, 1975 be treated as amended to this extent. After the said Government Order had been issued, much hue and cry has been raised by the employees in respect of deprivation of family pension and then State Government in its wisdom on 31.03.1982 mentioned that condition which has been imposed in the Government Order dated 08.03.1978 is being rescinded and subject to the conditions mentioned in the Government Order employees who are covered by the new pension policy they would be extended the same Government employees are getting with effect from 01.10.1981. In this particular Government order in paragraph 4(a) of the same it has been provided for that where while in employment if employee has completed seven years of service, then in that event family pension would be payable from the date of death, in case of his survival, he would have attained the age of 65 years. In paragraph 4 (b) it has been provided that if death takes place after superannuation then in that event family pension would be payable to the family pensioner till pensioner would have attained sixty five years of age or for period of seven years, whichever was earlier. Subsequent to this Government Order, another Government Order dated 16.06.1984 has been issued, wherein by way of clarification it has been mentioned that said benefit was extenable to teachers who had died on 01.10.1981 or even prior to the same.
As provision of Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund, Insurance Pension Rule 1964 has been covering only those institutions and employees who were permanent in the State aided educational institution and as various institutions were being included in the grant-in-aid list of the State Government then issues have been raised qua clubbing the services rendered by incumbents at the point of time when the institution was unaided. In this regard repeated demands were being made from the State Government for extending the benefit of aforesaid service for computing the qualifying service for pension. State Government proceeded to consider the request of said category of teachers and in furtherance of Government Orders dated 10.03.1978 and 31.03.1982 State Government proceeded to issue Government Order dated 23.05.1998 mentioning therein that in continuance of the Government Order dated 10.03.1978 and 31.03.1982, period which has been spent by incumbent in the institution prior to institution being included in grant-in-aid list, said period of service shall also be clubbed but condition was attached therein that who have attained the age of superannuation will have to pay contribution in Contributory Provident Fund alongwith interest. Said amount in question was required to be deposited in Contributory Provident Fund and further it was mentioned that even incumbents who have died, said benefit in question shall be extended to them also. By means of Government Order dated 23.05.1998 time frame has been provided for upto 31.03.1998 for the said amount in question to be deposited in the Government treasury. Obligation has been cast upon the Management through Principal that in respect of teaching and non-teaching staff after computation being made the managerial contribution alongwith the interest, be deposited in the office of District Basic Education Officer. It was also mentioned that thereafter entry shall be made in the service book. It was also clarified that for pension/family pension, said service would be computed from the date when he has been lawfully appointed and it was also clarified that this Government Order dated 23.05.1998 shall be applicable to the incumbent who have retired after aforesaid date i.e. 23.05.1998.
Thereafter said Government Order in question has again been considered in Government Order dated 17.02.1999, wherein period which has been fixed for depositing managerial contribution upto 30.09.1998 same has been extended up to 30.07.1999 and it was also clarified and directed that for availing benefit of aforesaid Government Order, all the institutions should get said contribution deposited in time with the Government Treasury.
State Government again issued Government Order dated 15.07.1999 for fixing salary of teachers and other employee of Junior High School and as per the same it was clearly provided that institutions which are included in the grant-in-aid list at the said point of time, increment shall be admissible from the date when they have been validly appointed in the institution concerned as per the provision as contained under U.P. Recognized Basic Schools (JHS) (Recruitment and Conditions of Service of Teachers and other Conditions) Rules 1978 and the way and manner salary was to be fixed has also been provided for. Thereafter it appears that State Government once again issued Government Order dated 26.07.2001 and period for depositing Managements contribution has been extended from 30.06.1999 up to 31.03.2002.
By means of Government Order dated 26.07.2001 cut of date for depositing the managerial contribution has been fixed upto 31.03.2002 and at the said point of time, Civil Misc. Writ Petition No. 75746 of 2005 (Smt. Shanti Solanki Vs. State of U.P. and others) has been filed and challenge was made therein that said cut of date as has been fixed to deposit management contribution together with interest upto 31.03.2002 is arbitrary and unreasonable. This Court on 06.09.2006 has held that said cut of date as 31.03.2002 is wholly arbitrary and has no nexus viz-a-viz the shence mentioned therein. This Court has also proceeded to mention that cut of date as has been mentioned in the Government Order dated 26.07.2001 fixing 31.03.2002 as the last date for deposit of management's contribution has already been struck down and accordingly management's contribution along with interest is deposited within a period of six weeks from today and if the amount, as directed above, is paid, the respondents shall extend the benefit of aforesaid Government Order to petitioner also subject to fulfillment of other terms and conditions of the scheme. Relevant extract of the said judgment is being extracted below:
"As the allegations made in the writ petition have not been denied and no justification for fixing the cut off date as 31.03.2002 has been given, the Court is left with no other option but to quash that part of the Government order dated 26.07.2001 which fixes 31.03.2002 as the last date for deposit of the management's contribution together with interest.
Consequently, the writ petition is allowed and in case the petitioner deposits the management contribution together with interest within a period of six weeks, the respondents shall extend the benefit of the said Government Order to the petitioner within a further period of six weeks."
On 22.05.2006 State Government issued Government Order and therein State Government has proceeded to mention that all those institutions who have been included in grant-in-aid w.e.f. 01.01.2004 qua the same demand has been made by Teachers Association whereas it has been specifically mentioned in the Government Order dated 29.05.1999 in paragraph-2, that in respect of institutions which are included in the grant-in-aid, the date on which, institution in question is included in grant-in-aid list within six months managerial contribution should be deposited and accordingly action be taken.
Thereafter another Government Order dated 20.07.2006 has been issued in the direction of clubbing of earlier service rendered when institution was unaided for calculation of pension on the condition of depositing of contributory fund and fulfillment of other terms and condition.
Thereafter State Government had taken the decision to include various institution in the grant-in-aid list and the said institution were to be taken into grant-in-aid list w.e.f. 01.12.2006 and accordingly list of institutions have been published, who have been taken in the grant-in-aid on 01.12.2006. Said list forms part of the record in Civil Misc. Writ Petition No. 45229 of 2012. The Additional Education Director (Basic) Allahabad thereafter wrote a letter on 26.10.2007 and called the guideline for extending the time period depositing the management contribution fund, in pursuance of the Government Order dated 26.07.2001. The Regional Joint Director of Education wrote a letter to all District Basic Education Officer of Uttar Pradesh and finance and Account Officer in the office of the District Basic Education Officer on 10.02.2009 and called the list of the teachers and non-teaching staff, who have not deposited the management contribution fund. The Chief Secretary Finance U.P. Government Lucknow also issued a circular on 16.09.2010 regarding the pension of the employees. The State Government issued a Government Order on 21.01.2009 for the purposes of depositing the management contribution fund (Anshdan) of the employees, which period the institution was not taken in grant-in-aid, regarding considering of the pension of the employees, on the basis of the entire service.
On 08.04.2009 Government Order has been issued and it has been clearly mentioned therein that w.e.f. 01.04.2005 new pension scheme namely Contributory Pension Scheme has been introduced and said scheme has been made applicable to all Government aided institution w.e.f. 01.04.2005 and all those employees, who have not completed 10 years of service as on 01.04.2005 they can opt for new Pension Scheme and it has also been mentioned therein that all the institutions included in grant-in-aid list on 01.12.2006 after 01.04.2005 they would be covered by new pension scheme.
On the parameter of the aforesaid provisions thus, broadly matter has to be examined qua the institutions, who have been brought in grant-in-aid list w.e.f. 01.04.2005 and onwards and the institutions who have been brought in the grant-in-aid list of the State Government prior to 01.04.2005.
In reference to the institution who have been brought in the grant-in-aid list of the State Government prior to 01.04.2005 services, rendered by incumbents at the unaided stage has to be clubbed but a condition has been attached that in respect of contributory provident fund, the Managers contribution has to be deposited by Manager/employee alongwith entire interest in Contributory Provident Fund account. Qua employees who have been functioning and who have opted for contributory provident fund scheme and have not deposited the contribution qua them time frame fixed earlier for depositing the contribution amount and interest has been extended up to 31.03.1998 and thereafter again said period has been extended up to 30.06.1999 vide Government Order dated 17.02.1999. Thereafter Government Order dated 15.07.1999 has been issued with clear cut condition providing for to be adhered in the matter of fixation of salary when the institution in question as included in the grant-in-aid list and entire benefit of increment etc has to be extended to the employee who have been appointed strictly as per Rules. By means of another Government Order dated 26.07.2001 period for depositing amount of managerial contribution had been extended from 30.06.1999 to 31.03.2002 and this much is clear that after the said period in question has been extended employees of various institution whose managerial contribution have not been deposited have rushed to this Court and this Court has proceeded to set aside the cut of date fixed as 31.03.2002. State Government had clarified in the Government dated 22.05.2006, by reiterating paragraph 2 of Government Order dated 29.05.1999 mentioning therein that all those institutions who have been included in the grant-in-aid list there contribution should be deposited within six months from the date institution in question has been taken in the grant-in-aid list.
Fact of the matter is that w.e.f. 01.04.2005 new pension scheme has been enforced and prior to it there has been altogether different pension scheme. As far as employees, who have been working in the aided institution prior to 01.04.2005 and who intend to get benefit of old scheme in respect to them, the authority should extend the period to deposit their contribution together with interest as this Court has proceeded to declare the cut of date fixed as 31.03.2002 as irrational and various writ petitions are being filed virtually every day with request that as said cut of date has been declared to be unreasonable and arbitrary, and as such requisite directives be issued for permitting the incumbent to deposit managerial contribution together with interest.
In such a situation question is as to whether said time limit provided for depositing the managerial contribution together with interest should be extended or not. As scheme in question is beneficiary scheme for extending the benefit to teaching and non-teaching staff of the institution and once interest of the State is fully protected as amount of contribution is to be deposited alongwith interest then in such a situation nothing prevents the State Government to give last opportunity to teaching and non-teaching staff to get benefit of aforesaid scheme by depositing managerial contribution alongwith interest within time frame provided for specially in the background that cut of date fixed as 31.03.1982 has been struck down, and by the said judgment still holds the field, in view of this qua teaching and non-teaching staff who have been appointed prior to 01.04.2005, as a one time measure, the period for depositing Managements contribution with interest, be extended by the State Government. Requisite exercise be undertaken within one month from the date of receipt of certified copy of the order.
Now coming to the second category of cases wherein the staff of institution, who have been appointed in the institution prior to 01.04.2005, when it was unaided but after institution has been included in the grant-in-aid w.e.f. 01.04.2005, qua them State Government has taken policy decision that those institutions who have been included in the grant-in-aid list after 01.04.2005 they shall be governed by new pension rules. Once State Government has proceeded to take policy decision that teaching and non-teaching staff in the institution in question would be governed by new pension policy after being included in the grant-in-aid list of the State Government, can grievance be raised by the petitioners on the said score that same is arbitrary or unreasonable. Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund, Insurance Pension Rule, 1964 are not applicable or attracted when the institution in question is not on in the grant-in-aid and the provision of Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund, Insurance Pension Rule, 1964 would be applicable qua the institution from the date when it has been taken into grant-in-aid list of the State Government, as such said rules become applicable in the institution concerned only when it is included in the grant-in-aid list. Admittedly after 01.04.2005, once said group of institution has been included in the grant-in-aid list of the State Government w.e.f. 01.12.2006 and a new pension scheme has been there, then petitioners cannot claim as a matter of right that they should be covered by old pension Rules.
This much has been accepted that at the point of time when institution in question has been included in the grant-in-aid list entire benefit of earlier service of unaided stage has been clubbed and benefit of the earlier service rendered has been extended qua grant of pay scale, increment and other benefits etc. The services rendered at unaided stage has not at all been waste, and due care has been taken to extended the benefits admissible in the lieu of the same. Question is can said service be also included as part of the qualifying service specially when appointment in question has been made prior to 01.04.2005 and admittedly institution in question has been brought into the grant-in-aid list of the State Government w.e.f. 01.12.2006.
This Court in the case of Chandra Bhushan Bajpai Vs. Joint Director of Education, Kanpur Mandal, Kanpur and others (Civil Misc. Writ Petition No. 32132 of 2001 decided on 21.08.2008) reported in 2008(3) UPLBEC 2333 has taken the view that qualifying service period for pension is to be considered on the parameter as is required under the Rules of 1964. In the said case petitioner was claiming counting of period of service rendered by him in the unaided, Non-Government Junior High School and said claim of the petitioner has not been accepted and service rendered at unaided stage has not at all been counted. Paragraphs 6,7,8 and 9 of the said judgment being relevant is extracted below:
6 For the purpose of qualifying service U.P. Contributory Provident Fund Insurance Pension Rules are applicable wherein Rule 19(a) and (b) reads as under:
"19 (a) Service will not count for pension unless the employee holds a substantive post on a permanent establishment.
(b) Continuous temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service. (See also C.S.R. Para 422)."
7. The benefit of the aforesaid Rule would have been attracted to the case in hand provided the petitioner would have worked in a institution which was provided grant in aid. Rule 3 of the aforesaid Rules clearly provides that it is applicable to permanent employees serving in State aided education institutions. 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."
8. It is clear case of the respondents that the institution in question was brought in grant-in-aid list in March 1961 though the petitioner served therein prior thereto. Therefore, U.P. Contributory Provident-Insurance-Pension Rules which came into force on 1.10.1964 are not applicable at all. Learned counsel for the petitioner could not place any other provision to substantiate his claim that the said service can be counted. Pension is not a bounty but as a matter of fact, a right, yet the mode and manner of its payment is governed strictly by relevant Rules. Unless the Rules provide, no person can claim a particular service in a particular employment for counting as qualifying service. The Apex Court, in D.S. Nakara Vs. Union of India 1983 (1) SCC 305 while holding pension as a right, observed as follows:
"pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion." (Para 20)
9. Learned counsel for the petitioner could not place before the Court any provision under which the services rendered in a recognised but un-aided Non-Government Junior High School could have been counted.
This Court in the case of Kunwar Bahadur Sinha Vs. Director of Education. U.P. Lucknow and others (Civil Misc. Writ Petition No. 13741 of 1990 decided on 05.05.1995) reported in 1995 (2) UPLBEC 1264 has proceeded to mention that Rule 19(b) of Rules 1964 has not at all been considered whereas sub-Rule (b) of Rule 19, provides that continuous temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service. In the said case it has been mentioned that Regional Deputy Director of Education it seems has not noticed clause (b) of Rule 19 of the Rules and has premised the impugned order solely on Clause (a) of Rule 19 which provides that service will not count for pension unless employee holds a substantive post on a permanent establishment. In said case at no point of time issue was raised in respect of institution being grant-in-aid list.
New pension scheme has been effectuated w.e.f. 01.04.2005 and it has been mentioned therein that it would be applicable to those set up incumbent who had been appointed after 01.04.2005 and it is true that appointment of petitioners had been made prior to 01.04.2005 but the institution in question has been brought in the grant-in-aid list after 01.04.2005 and benefit of past service when the institution in question was unaided has been extended and the State Government has taken policy decision that new pension scheme shall be applicable qua institutions included in grant-in-aid list w.e.f. 01.04.2005. Pension is a right and the payment of it does not depend on the discretion of the government but is governed by Rules, and once new pension scheme has been enforced w.e.f. 01.04.2005, and conscious decision has been taken to include teaching and non-teaching staff under the new pension scheme, wherein institution has been brought on grant-in-aid list after 01.04.2005, under the new pension scheme, cannot be faulted, as benefit has to be allowed keeping in view the financial resources of the Government, and coupled with this, the teaching and non-teaching staff of institution included in the grant-in-aid after 01.04.2005, form a different class, as prior to said date the provisions of U.P. Contribution Provident-Insurance Pension Rules 1964 was not at all applicable or attracted, and from the date i.e when the provisions of the said Rule have become available i.e after 01.04.2005, new pension scheme has been introduced, in view of this said policy decision cannot be faulted, as same is neither arbitrary nor irrational and there is rational basis for framing such a policy.
Apex Court in the case of Commander HQ Vs. Capt. Biplavendra Chand reported in JT 1997 SC 371 has taken the view that pension is payable to them who fall within the ambit of Rules. Similar view has been taken in the case of T.N. Electricity Board Vs. Veeraswamy reported in 1999 (2) ESC (SC) 1036.
Apex Court, in the case of Sudhir Kumar Kansal Vs. Allahabad Bank 2011 (2) ESC 243 has, in the matter of grant of pension, either under the old rule or the new rule, proceeded to mention that in society governed by rule of law sympathies cannot override the Rules and Regulations, and in the said case view has been taken accordingly that appellant was not eligible to claim any benefit under Old Pension Scheme.
Inevitable conclusion is that once institution in question has been included in grant-in-aid list after 01.04.2005 and thereafter new pension scheme has been introduced and it has been stated that the claim of petitioners would be governed under the new scheme then said category of incumbents as matter of right cannot claim to be governed under old scheme, and their claim of pension will fall within the ambit of Rules as has been introduced w.e.f. 01.04.2005.
In view of this, qua incumbents who have been appointed in the said institution and said institution in question has been included in the grant-in-aid list of the State Government prior to 01.04.2005 qua them last opportunity be given by the State Government for enabling them to deposit managerial contribution alongwith with interest and thereafter whatever benefit of the aforesaid old scheme is liable to be extended, the same be extended to said category of incumbents. In respect of institution who have been included in the grant-in-aid list after 01.04.2005 the incumbents working therein their claim would be governed under new pension scheme.
In view of aforesaid discussion, Civil Misc. Writ Petition No. 45217 of 2012; 45229 of 2012 are dismissed. Civil Misc. Writ Petition No. 47649 of 2012 and Civil Misc. Writ Petition No. 44742 of 2012 are allowed. Civil Misc. Writ Petition No. 55778 of 2010 and Civil Misc. Writ Petition No. 47000 of 2010 are dismissed.
Petitioners' whose writ petition has been allowed are permitted to deposit contribution with interest within two months from today, and in the event of deposit being made, then benefit of Government Order be extended to them, subject of fulfillment of other terms and condition.
No orders as to cost.
Dated 26.09.2012 Dhruv