Allahabad High Court
Smt. Pushpa Tripathi vs State Of U.P.And 3 Ors. on 13 January, 2020
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 39 Case :- WRIT - A No. - 53977 of 2013 Petitioner :- Smt. Pushpa Tripathi Respondent :- State Of U.P.And 3 Ors. Counsel for Petitioner :- Amit Saxena,Santosh Kumar Pandey Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
1. This petition has been filed for a direction upon the respondents to extend benefit of old pension scheme to petitioner as was admissible prior to 1.4.2005, as also deduct provident fund under the rules, the then in force, on the ground that petitioner has been appointed prior to 1.4.2005.
2. Gurunanak Girls Inter College, Sundar Nagar, Kanpur is a minority institution recognized under the provisions of the U.P. Intermediate Education Act, 1921 and the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 are also applicable.
3. Certain vacancies of Assistant Teacher in L.T. Grade in the institution concerned fell vacant on 30.6.1997 and for making appointment against them permission from the District Inspector of Schools concerned had been obtained on 1.9.1999 and advertised in two daily newspaper 'Pioneer' and 'Swatantra Bharat'. Petitioner applied against the advertisement and also appeared at interview on 5.11.1999. According to petitioner, she was selected and papers were forwarded to the educational authorities by the Committee of Management, whereafter petitioner was appointed on 17.4.2000 and she joined on 18.4.2000. This fact was intimated to Inspector on 18.5.2000. It is stated that initial information was sent to the Inspector on 20.1.2000, whereas other documents were sent on 18.5.2000. Since payment of salary was not released to petitioner, she approached this Court by filing Writ Petition No.27538 of 2000, which was disposed of with a direction upon the Deputy Director of Education, Kanpur Region, Kanpur to take an appropriate decision. The Deputy Director of Education vide order dated 31.3.2006 accepted petitioner's claim for appointment. This order, however, was challenged by the Managing Committee by filing Writ Petition No.54417 of 2006 and this Court finally disposed of the matter remitting the issue again to the Deputy Director of Education, Kanpur Region, Kanpur for passing a fresh order. It is pursuant to order of this Court that an order dated 18.6.2007 has been passed by the Deputy Director of Education permitting the petitioner to join and to be paid salary. It is thereafter that petitioner has joined on 23.7.2007. According to petitioner, although she has been permitted to join after 1.4.2005, though she was appointed on 17.4.2000, as such she is entitled to benefit of old pension scheme introduced in 1978. This Court accordingly directed this aspect to be examined, vide its judgment dated 23.5.2013 rendered in Writ Petition No.29217 of 2013. It is thereafter that petitioner's claim has been considered and rejected by the order impugned dated 17.8.2013.
4. Sri P. N. Saxena, learned Senior Counsel assisted by Sri Santosh Kumar Pandey for the petitioner submits that petitioner was appointed prior to 1.4.2005, and therefore, her claim for being extended benefit of pension scheme enforced then was liable to be accepted and that the contrary view taken by the authority concerned is perverse.
5. Learned Standing Counsel has attempted to justify the order passed by the authority concerned for the reasons recorded therein.
6. I have heard learned Senior Counsel for the petitioner as well as learned Standing Counsel for the State authorities and have perused the materials brought on record. None has appeared for the respondent Committee of Management.
7. Facts, as have been noticed above are not in issue. However, there exists another aspect that requires narration at this stage. Though petitioner claims to have been appointed on 17.4.2000 but it is not in issue that payment of salary was not sanctioned or released to her then. The claim of petitioner's appointment was to be dealt with as per the provisions of section 16FF of the Act of 1921 read with regulation 17(g) of the Regulations framed under Chapter III of the Act of 1921. The claim in that regard was not accepted then. The matter was brought to this Court and initially petitioner's claim was accepted vide order dated 31.3.2006. This order, however, has been set aside in writ petition filed by the Managing Committee and fresh decision has been taken by the Deputy Director of Education in favour of the petitioner. This order dated 18.6.2007 is the sheet anchor of petitioner's claim. The order of the Deputy Director dated 18.6.2007 has attained finality and is not challenged by anyone including the petitioner. The order dated 18.6.2007 clearly records that petitioner was appointed after the vacancy was advertised, and therefore, her selection cannot be non-suited but it required specific approval of the Inspector which had not been accorded. It has also been noticed that new Committee of Management did not allow the petitioner to work, and instead, proceeded to conduct fresh selection against the same advertisement, against which Smt. Gurjeet Kaur and Smt. Pragati Trehan were appointed as L.T. Grade teachers. Their appointment stood approved by the educational authorities and they are already working. The selected teachers are neither arrayed as a party in the present petition, nor their appointment is under challenge. It is for this reason that while accepting petitioner's claim of appointment and according approval to it, the Deputy Director of Education has adjusted the petitioner against future vacancy. Relevant portion of the order dated 18.6.2007 is extracted hereinafter:-
"iwoZ izcU/kd Jh tkfxUnj flag }kjk fu;qfDr ds lUnHkZ esa ftyk fo|ky; fujh{kd f}rh; dkuiqj uxj ls foKkiu dh vuqefr ds i'pkr dh x;h fu;qfDr dks vfu;fer ugh ekuk tk ldrk ijUrq foHkkx ls vueksfnr gksuk vko';d Fkk tks fd ugh gqvk rFkk uohu izcU/kd }kjk mDr foKkiu ds vk/kkj ij iqu% fu;qfDr;ks dh x;h ,oa vuqeksnu izkIr fd;k x;k rFkk lHkh f'k{kd fu;fer osru Hkqxrku izkIr dj jgs gS osru fooj.k vf/kfu;e ds vuqlkj jktdks"k ;s osru Hkqxrku izkIr dj jgs gS osru forj.k vf/kfu;e ds vuqlkj jktdks"k ;s osru Hkqxrku fd;s tkus gsrq foHkkx dk vuqeksnu vko';d gksrk gS ftlds fy;s l{ke vf/kdkjh ftyk fo|ky; fujh{kd f}rh; dkuiqj uxj gSA Jherh iq"ik f=ikBh ds izdj.k ij orZeku izcU/kd }kjk foHkkxh; vuqefr izkIr djrs gq;s fu;fer :i ls dk;ZHkkj xzg.k djkus dh dk;Zokgh djkbZ tk;s ;g vuefr vkxkeh gksus okyh fuDrrk ij vk/kkfjr gksxh ftyk fo|ky; fujh{kd f}rh; }kjk uohu fjDr inks ij dk vuqeksnu Jherh iq"ik f=ikBh dks vkesfyr fd;s tkus ds i'pkr gh fd;k tk;sA"
8. The above order of the Deputy Director of Education clearly records that other appointments made subsequently against the initial advertisement has already been approved and those teachers are already working and receiving salary. In order to accommodate the petitioner, therefore, the Deputy Director of Education directed the Committee of Management to allow the petitioner to take charge after according approval to petitioner's appointment against future vacancy. This order of the Deputy Director of Education is not under challenge. Once that be the position, petitioner's claim for appointment has to be treated against a vacancy which may come into existence after 18.6.2007.
9. Argument of learned Senior Counsel for the petitioner may appear attractive that petitioner's appointment, made in the year 2000, having been accepted, she would be entitled to all consequential benefits, but the contention cannot be accepted as it is undisputed that vacancies then advertised were filled by Committee of Management with other appointments, which were approved, and those teachers are already working and receiving salary. Petitioner has not challenged their appointments. Her claim for appointment has been accepted against vacancies to arise later. The order dated 18.6.2007, in essence, demolishes petitioner's claim for appointment against a vacancy arising prior to 1.4.2005.
10. Having accepted this position the petitioner now cannot submit that her appointment be treated against a vacancy which had occurred prior to the advertisement published by the Committee of Management in the year 1999. As a matter of fact the order of the Deputy Director has merely adjusted equities since other appointments were not challenged, and the petitioner cannot be allowed benefit over and above what has already been granted by the Deputy Director of Education. In case petitioner's claim is accepted, the State will be saddled with responsibility of paying pension to two teachers against the vacancy which has arisen in the year 1997. Only one set of teachers can be adjusted against vacancies occurring prior to 1.4.2005. Since petitioner's claim for appointment has been accepted against vacancy occurring after 2007, which order has been accepted by the petitioner, she cannot have any grievance. In such circumstances, rejection of petitioner's claim for grant of pension under the old pension scheme appears to have been rejected for a valid ground, which requires no interference.
11. Writ petition, accordingly, fails and is dismissed. No order is passed as to costs.
Order Date :- 13.1.2020 Ashok Kr.