Allahabad High Court
Smt. Neeta Srivastava vs State Of U.P. And 2 Others on 12 March, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved- 29.02.2024 Delivered- 12.03.2024 Neutral Citation No. 2024:AHC:43509 Court No. - 36 Case :- WRIT - A No. - 29403 of 2017 Petitioner :- Smt. Neeta Srivastava Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ram Dulare Singh,Adarsh Singh,Aradhana Singh,Ashok Kumar Upadhyay,Indra Raj Singh,Manoj Kumar Singh,Mayank Singh,Rajnish Kumar Srivastava Counsel for Respondent :- C.S.C.,Mrigraj Singh Hon'ble Saurabh Shyam Shamshery,J.
1. Petitioner by way of present writ petition has sought a mandamus for granting benefits of old pension scheme though petitioner has not disputed that he has participated in the BTC Course in the year 2000-01 and due to litigation and passed in later part of year 2005, thereafter, he was appointed as Assistant Teacher on 21.01.2006 i.e. after cut off date (01.04.2005) and therefore denied benefit of old pension scheme.
2. Sri Adarsh Singh, learned Advocate for petitioner has vehemently submitted that delay caused in his appointment was due to default of respondents and litigation and for that reason, he may not suffer and he placed reliance on a judgment passed by Division Bench of this Court in State of U.P. and others vs. Mahesh Narain and others, 2021:AHC:34527-DB and a judgment passed by coordinate Bench of this Court in Nand Lal Yadav vs. State of U.P. and others, 2023:AHC:231723 along with connected cases.
3. Per contra, Sri Tej Bhan Singh, learned Advocate for respondent-3 has submitted that in similar issue, a judgement has been reserved by this Court on 16.02.2024 in Smt. Sushma Yadav vs. State of U.P. and others, Writ A No. 21508 of 2023, which has now been pronounced.
4. This Court has considered above issue in Smt. Sushma Yadav vs. State of U.P. and others, 2024:AHC:38423 and relevant part thereof is mentioned hereinafter -:
"12. The Coordinate Bench in Nand Lal Yadav (supra) has held that applicants who have been selected pursuant to the process of examination undertaken prior to enforcement of New Pension Scheme and despite issuance of appointment order post new pension scheme, they still would be covered under the old pension scheme. In Nand Lal Yadav (supra), process for appointment of assistant teacher was commenced in the year 2003 and their appointment letters were issued in later part of first half of year 2005, whereas New Pension Scheme came into force on 01.04.2005.
13. In the aforesaid circumstances, it was held that they were entitled for the old pension scheme, whereas in present case, the petitioner has passed the B.T.C. training course after commencement of New Pension Scheme and that selection process was commenced only thereafter, therefore, the judgment in the case of Janardan Rai and others (supra) relied upon by respondents would be relevant, and paragraphs 14 and 15 thereof are mentioned hereinafter, which squarely covers the present case on facts as well as on law against the case of petitioner:
"14. The settled position is that Rules, 1981 deals with the post training scenario and acquiring of B.T.C. qualification is altogether a different concept as by that time person is still acquiring qualification for post. Only when candidates acquired training qualification and possess to their credit teacher eligibility test qualification alongwith other eligibility criteria prescribed under 1981 Rules, then only as per provision contained in 1981 Rules, candidature of the candidate has to be considered and merely because candidate has proceeded to complete Training Course, same ipso-facto cannot be construed as a guarantee of ensuring appointment. When a person has been in the process of acquiring qualification, it cannot be said that selection process has commenced.
15. In the present case the appellants-petitioners acquired the eligibility after they completed the Special B.T.C. Course and thereafter they were appointed some time in November 2005. The New Pension Scheme and the amended provisions of the G.P.F. (Uttar Pradesh) Rules 2005, came into force w.e.f. 07.04.2005. Therefore, as on the date of appointment of the appellants-petitioners as Assistant Teacher in December 2005, Old Pension Scheme or the unamended G.P.F. Rules were not in existence rather the New Pension Scheme and the amended G.P.F. Rules were applicable. Therefore, the appellants-petitioners are not entitled for the benefit of Old Pension Scheme or the unamended provisions of G.P.F. Rules."
(Emphasis Supplied)
14. The aforesaid judgment was affirmed by the Supreme Court. In the aforesaid circumstances since the judgment passed by the Division Bench in the Janardan Rai and others (supra) squarely covers the present case against the petitioner and since it has also been upheld by the Supreme Court, therefore there is no ground to take a different view. The petitioner has passed B.T.C. in 2006 i.e. much after New Pension Scheme came into force on 01.04.2005 and that process of selection commenced thereafter, therefore, at that stage he was not even appointed as Assistant Teacher. Otherwise also the petitioner has claimed benefit of Old Pension Scheme after 17 years of her appointment. Judgment relied upon by petitioner is distinguishable on facts. The prayer of petitioner to grant benefit of Old Pension Scheme has no legal basis and accordingly present petition is dismissed."
5. In view of above, this Court has taken a considered view that Basic Training Course cannot be construed as guarantee of ensuring appointment and it cannot be construed that selection process has commenced. In present case also, petitioner has completed his BTC course in later part of 2005 and thereafter he became eligible and appointed as Assistant Teacher on 21.07.2006 i.e. after new pension scheme came into force and I do not find that this case is distinguishable from the case of Smt. Sushma Yadav (supra).
6. In Nand Lal Yadav (supra), coordinate Bench has not taken note of Janardan Rai and others vs. State of U.P. and others, Special Appeal No. 605 of 2018 and Mahesh Narain (supra) is distinguishable on facts as well as for determination of applicability of pension scheme, the date of appointment would be relevant.
7. Accordingly, this Court is of considered opinion that present case is covered by the judgement passed by this Court in Smt. Sushma Yadav (supra) against the case of petitioner, hence, writ petition is dismissed.
Order Date :- March 12,2024 N. Sinha