Allahabad High Court
Shiv Nath Rai vs State Of U.P. And Others on 25 January, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:12274 Court No. - 34 Case :- WRIT - A No. - 17184 of 2008 Petitioner :- Shiv Nath Rai Respondent :- State of U.P. and Others Counsel for Petitioner :- D.S.P. Singh,Beerendra Singh Pal,Manoj Kumar Keshari Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
1. Heard Sri D.S.P. Singh, learned counsel for the petitioner and Sri P.K. Srivastava, learned Additional Chief Standing Counsel for the State respondents.
2. Petitioner, namely, Shiv Nath Rai, who served with an institution namely, Shri Sudist Baba Inter College Sudistpuri, Raniganj, Ballia as Assistant Teacher, upon his retirement on 30th June, 1995, was issued with final pension payment order on 9th February, 1998 and accordingly, started receiving pension. While he continued to draw pension the Deputy Director of Education, Secondary, Azamgarh Region, Azamgarh passed an order on 19th December, 2007 holding that petitioner though was paid pension upon his retirement from the primary section of the intermediate college vide order 20th February, 1998 but in view of the Government order dated 28th January, 2004 that made pension to the teachers of primary section of recognized and aided intermediate college admissible with effect from 28th January, 2004 only and so also those who retired thereafter would be entitled and since petitioner had retired way back in the year 1995, no such pension was admissible and hence the pension payment order was put in abeyance.
3. Assailing the order before this Court by means of present writ petition invoking extraordinary jurisdiction under Article 226 of the Constitution, two folds arguments have been advanced:
(a). Pension was made admissible to the petitioner like other teachers taking recourse to the Government order dated 22nd September, 1978 and the Circular letter issued by the Deputy Director of Education (Arth) Director of U.P. on 6th November, 1978 and so unless and until these orders are recalled by the authorities including the Government as far as Government order is concerned, Deputy Director of Education is not justified in passing the order;
(b). The controversy is no more res integra regarding entitlement of teachers, retiring from attached primary section of recognized and aided institution in the event these teachers were also getting salary from the State exchequer.
4. In support of this argument, learned counsel for the petitioner has relied upon the two decisions of this Court. One is in the case of Smt. Malti Dixit and another v. State of U.P. and others in Writ ? A No.- 43085 of 2007 decided on 29th January, 2010 and another order of this Court is in the case of Smt. Sheela Chatarjee v. State of U.P. and others in Civil Misc. Writ Petition No.- 4088 of 2002 decided on 5th December, 2003.
5. Learned counsel for the petitioner has also drawn the attention of this Court to the Circular letter dated 6th November, 1978 that has been filed along with supplementary affidavit. Learned counsel for the petitioner has further placed reliance upon the judgment of a coordinate Bench of this Court in the case of Bairagi Ram v. State of U.P. and others, 2014 SCC OnLine All 14678 and All Manipur Pensioners Association by its Secretary v. State of Manipur and others, (2020) 14 SCC 625.
6. Per contra, learned Standing Counsel submits that it is an undisputed fact that Government order for making pension admissible to retired teachers of the primary section of attached recognized and aided institution came to be passed on 28th January, 2004. He submits that the circular letter dated 6th November, 1978 was neither a Government order, nor semi Government order and, therefore, did not require to be superseded by any subsequent Government order although on the question of sanction of pension by issuing pension payment order to the petitioner, he submits that it is not disputed that pension payment order had been issued by a conscious decision taken by the authority. He also would not dispute that the order passed by the authority on 19th December, 2007 was an ex parte order.
7. Having heard learned counsel for the respective parties and their arguments raised across the bar, the only point that requires determination as to whether petitioner was rightfully issued with pension payment order upon his retirement in the year 1995 or it was bad for want of any provision regarding the same.
8. In order to appreciate the arguments advanced by learned counsel for the petitioner on the point that requires determination, I have gone through the Government order dated 6th November, 1978 that refers to the Government order dated 22nd September, 1978 and he takes according to it, the entire recognized and aided institutions recognized under the Intermediate Education Act, 1921 as one unit and thus primary section of it to be an integral part to make retirement dues applicable to the teachers of secondary and higher secondary level and also of the primary section.
9. In Smt. Malti Dixit (supra) an identical issue was involved as Assistant Teacher therein. From the primary section in Dwarika Prasad Girls Inter College, Smt Malti Dixit and another teacher had retired on 30th June, 2000 and 30th June, 2002 respectively. In that case also upon direction issued by this Court in Writ ? A No.- 47912 of 2005 filed by two teachers Malti Devi and other one of the said institution, the claim for pension was rejected on the ground that the Government order had made pension admissible to such teachers of primary section only with effect from 28th January, 2004. The Court held that once the Payment of Salaries Act, 1971 applicable to the secondary and higher secondary sections of intermediate college has been made applicable to the primary sections of the intermediate college, then all such benefits available to such teachers of the college will also be applicable to the attached primary sections. The Court further observed that petitioners in that case were held entitled to retirement benefits under the Government order dated 6th November, 1978 and that cannot be said to be superseded retrospectively by the Government order dated 1st August, 2004.
10. Similar stand was taken by another coordinate Bench of this Court regarding admissibility of pension to the teachers who were governed under the Payment of Salaries Act, 1971 in the case of Smt. Sheela Chatarjee (supra).
11. Further in the case of Mangali Prasad Verma v. State of U.P. (2013 (1) UPLBEC 285) the Court held that primary section teachers to be entitled to all such benefits as admissible to the secondary and higher secondary sections of recognized and aided institutions as they were all governed under the Retirement Benefit Rules, 1964. This Court even quashed the cut off date 28th January, 2004 vide paragraphs 5 to 10 of the judgment the Court held thus:
"5. Considered the submission of learned counsel for the parties. There is no dispute that the petitioner was Assistant Teacher who was appointed in the year 1961 and the Primary Section is attached with Intermediate School, hence it is an integral part of the institution which is governed under the provisions of U.P.Intermediate Education Act 1921 and U.P.Act No. 24 of 1971. The Primary Section was also included in the grant-in-aid which was at Serial No. 176 in the Government Order dated 6.9.1989 and the same came in the grant-in-aid w.e.f. 1.10.1989, hence, the teachers were entitled for the retiral benefits including pension in view of the provisions of Rules 1964. According to Rule 3 of the Rules, it shall apply to the permanent employees serving in the State aided institutions of the following categories run either by a local body or by a private management and recognized by a competent authority as such for the purpose of payment of grant-in-aid.
1.Primary Schools;
2.Junior High Schools;
3.Higher Secondary Schools;
4.Degree Colleges;
5.Training Colleges.
According to Rule 4, it was a triple benefit scheme of contributory provident fund insurance and pension.
According to Rule 5(G), employees means a permanently employed person borne on the whole time teaching or non teaching of an aided institution excluding
a) The inferior staff;
b) The ministerial staff of the institution maintained by a local body;
and according to Rule 5 (L), institution means an aided school or college referred to in Rule 3.
6. If there was delay in issuing the clarification for payment of pension to the teachers of the primary section attached with the Intermediate College. There is no fault on behalf of the employee including the petitioner of the recognised and aided institution. The Principal of the College has already sent a communication on 25.3.1996 to the Accounts Officer, Office of the District Inspector of Schools, for enabling deduction towards G.P.F. being deposited towards G.P.F. Account of the petitioner. If there was no deduction towards G.P.F. and group insurance contribution then there is no fault of the petitioner, as recommendation was also made by the College after the college was included in grant-in-aid list. 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.
7. In Writ Petition No. 75746 of 2005 Smt. Shanti Solanki Vs. State of U.P. and Others, the petition was allowed on 6.9.2006 and the petitioner was permitted to deposit the Management's contribution within a period of six weeks and the respondents were directed to extend the benefit of the Government Order to the petitioner within a further period of six weeks and the cut-off dated fixed by the Government Order dated 26.7.2001 was quashed.
8. The Writ Petition No. 17033 of 2012 Lal Chandra Singh Vs. State of U.P. and Others was disposed of on 5.4.2012, in terms of the judgment and order dated 6.9.2006 passed in the petition of Smt. Shanti Solanki (supra).
9. In the case of Smt. Ram Keshi Devi Vs. State of U.P. and others 2009(2) UPLBEC 1557, it was decided that the petitioner was entitled for payment of pension who continued to work for about 30 years out of which 18 years were after 1972 when Basic Shiksha Parishad controlled and managed the institution in question though she was not a trained teacher.
10. Hence, in view of the aforesaid discussion, impugned order dated 13.12.2006 passed by District Inspector of Schools, Kanpur Nagar, respondent no. 5 as well as the condition imposed by Government Order dated 28.1.2004 fixing the cut-off date are hereby quashed. The respondents are directed to permit the petitioner, for deposit of the Management's contribution with interest within a period of two months and after deposit of the contribution, the respondents shall extend the benefit to the petitioner of the Government Order dated 28.1.2004 and Rules 1964 for payment of pension to the petitioner w.e.f. 1.7.1995 within a further period of two months. The petitioner is entitled for payment of the arrears of salary with 12% interest w.e.f. 1.7.1995 till the date of payment. Accordingly, the present petition is hereby allowed. No order as to cost."
12. Even otherwise in the case of State of U.P. and others v. Pawan Kumar Divedi and others, (2014) 9 SCC 692, the Constitution Bench of Supreme Court has very categorically held that once an institution recognized under the one Act and is governed by the same Board then the institution shall be one unit including its junior and basic section, where in that case junior high school was held to be including primary section imparting education in classes 1 to 5. Therein in that case also benefit of 1978 Act applicable to the junior high school teachers for the purposes of payment of salary was held applicable to the attached primary section as well. Vide paragraph 43 of the judgment the Court held thus:
"43. The submission of Mr. P.P. Rao, learned Senior Counsel for the State of U.P. with reference to the subject school, namely, Riyaz Junior High School (Classes VI to VIII), that the said school was initially a private recognized and aided school and the primary section (Classes I to V) was opened by the management later on after obtaining separate recognition, which was unaided, the teachers of such primary section, in terms of definition in Rule 2(b) and Rule 4 of the 1975 Rules are not entitled to the benefits of Section 10 of the 1978 Act does not appeal to us for what we have already said above. The view taken by the High Court in the first round in Vinod Sharma v. Director of Education (Basic) U.P. (1998) 3 SCC 404 that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Head Master and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978 Act, cannot be said to be a wrong view. Rather, it is in accord and conformity with the Constitutional scheme relating to free education to the children up to 14 years."
13. In view of the above ex-position of law, in my considered view, petitioner is entitled to pension as he was getting under the Act, 1978 and the stand taken by the respondent contrary under the order impugned is unsustainable. Besides above the order has been passed without giving notice and opportunity of hearing to the petitioner thus adverse civil consequences has resulted by the order impugned and, therefore, on this count also the order is unsustainable.
14. In view of the above both the above points are determined in favour of the petitioners and are against the State respondent.
15. The writ petition succeeds and is allowed. The order impugned dated 19th December, 2007 is hereby quashed.
16. Petitioner shall be entitled to his regular pension as he was getting under the pension payment order originally issued to him on 20th February, 1998. His pension shall be revised as per the rules and arrears along with interest at the rate of admissible in law shall be paid within a period of two months from the date of production of certified copy of this order.
Order Date :- 25.1.2024 Atmesh