Allahabad High Court
Smt Neeta Srivastava vs State Of Up And 2 Others on 9 April, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:62593-DB HIGH COURT OF JUDICATURE AT ALLAHABAD (SN.28) Court No. - 40 Case :- SPECIAL APPEAL No. - 353 of 2024 Appellant :- Smt Neeta Srivastava Respondent :- State Of Up And 2 Others Counsel for Appellant :- Adarsh Singh,Indra Jeet Yadav,Indra Raj Singh Counsel for Respondent :- C.S.C.,Tej Bhan Singh Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Indra Raj Singh, learned counsel for the appellant, Sri Devesh Vikram, learned Additional Chief Standing Counsel and Sri Tej Bhan Singh, learned counsel for the respondent-State and perused the record.
2. The present special appeal has been filed against the judgment and order dated 12.03.2024 passed by the learned Single Judge in Writ-A No. 29403 of 2017 (Smt. Neeta Srivastava vs. State of U.P. and others) and for a direction to the respondents to include the petitioner for the benefit of old pension scheme i.e. existing prior to 01.04.2005.
3. Before proceeding on merit, it is apt to reproduce the order passed by learned Single Judge, which reads as under-
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."
4. Shri Indra Raj Singh, leaned counsel for the appellant-petitioner has placed reliance upon paragraph nos 3 and 4 of the supplementary affidavit, wherein, it is asserted that appellant-petitioner had applied for admission in BTC course for the academic year 2000- 01 against the advertisement made in the month of October 2000. She appeared in the test but she was not fortunate and on account of some mistakes in the answer-sheet of BTC entrance test, she could not find place in the select list. Aggrieved with the same, she preferred a Civil Misc. Writ Petition No.3060 (M/S) of 2001 before the Lucknow Bench of this Court, which was dismissed vide order dated 06.11.2001 with a direction to the Director, Basic Education to consider the claim of petitioner. She again challenged the order passed by the Director, Basic Education in Writ A No.21149 of 2002. The said writ petition was allowed by learned Single Judge vide order dated 22.07.2003 and direction was issued to the respondents to permit her to pursue her regular BTC course in next academic session at any respective institution across the State and petitioner was allowed to complete her BTC course for two years. He submits that the said situation was beyond her control as on account of discrepancy in the select list of the BTC 2000-01 and she could not complete her course along with other candidates in the same academic year. He submits that the appellant-petitioner is treated with discrimination qua other candidates namely Tribhuvan Nath Yadav, Anand Prakash Yadav and Shweta Singh, who were selected in the BTC course for the academic year 2000-01 and the result, which was declared on 09.02.2001 and after completing their BTC course, they were permitted to join in the year 2003 and they were also given benefits of the old pension scheme as the new pension scheme commence w.e.f. 01.04.2005. He submits that the learned Single Judge has erred in law and had not appreciated the correct facts and the order impugned is liable to be set aside, the Special Appeal is to be allowed, and the respondents may be directed to accord benefit to the petitioner under old pension scheme existing prior to 01.04.2005.
5. Shri Devesh Vikram, learned Additional Chief Standing Counsel and Shri Tej Bhan Singh, learned counsel for the respondent vehemently opposed the Special Appeal and submits that so far as the actual joining of appellant-petitioner, the same is not in dispute as admittedly she joined the services on 27.01.2006. Moreover, she had also completed her BTC training course after the commencement of new pension scheme. Therefore, her appointment cannot relate back prior to her actual joining and she cannot be put in old pension scheme as the new pension scheme had already commenced w.e.f. 01.04.2005. They submit that there is no infirmity or illegality in the order passed by the learned Single Judge, which warrants any interference.
6. Heard rival submissions and perused the record. The appellant-petitioner had contested the claim for according benefits of old pension scheme on the ground that the delay caused in her appointment was due to default of respondents and the petitioner for that reason may not suffer.
7. The respondent had placed reliance upon the judgment dated 16.02.2024 passed by this Court in Writ A No. 2508 of 2023 (Smt. Sushma Yadav vs. State of U.P. and others) wherein the Co-ordinate Bench has considered the judgment passed in Nand Lal Yadav vs. State of U.P. and others, 2023:AHC:231723 and held that the applicant who had 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.
8. Learned Single Judge has also placed reliance on the 1981 Rules which 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. In the present matter, the appellant-petitioner has acquired the eligibility after she has completed the Special BTC course and only thereafter, she was eligible for appointment. So far as the completion of B.T.C. training course, it is not in dispute that the same has been acquired in the year 2005 and admittedly, she was accorded appointment on 21.01.2006 i.e. after cut off date (01.04.2005) and, therefore, she had been denied the benefit of old pension scheme.
9. So far as her joining is concerned, it is not in dispute that appointment letter is of a later date and prior to it 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 her appointment as an Assistant Teacher, neither the old pension scheme nor the amended G.P.F. Rules were in existence, rather the new pension scheme and the amended G.P.F. Rules were applicable, therefore, the appellant-petitioner is not entitled for benefit of old pension scheme.
10. After considering the submissions made by the learned advocates for the parties and upon perusing the impugned judgment and order, we notice that the same has been rendered by the learned Single Judge with cogent and justifiable reasons. In an Intra- Court Special Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case, on a plain reading of the impugned judgment and order, we do not notice any such palpable infirmity or perversity. As such, we are not inclined to interfere with the impugned judgment.
11. For reasons stated above, the Special Appeal is liable to be dismissed and stands, accordingly, dismissed.
Order Date: 9.4.2024 Ashish Pd.
(Anish Kumar Gupta,J.) (M.C. Tripathi,J.)