Jammu & Kashmir High Court
Nizam-Ud-Din vs State Of J&K And Ors on 11 August, 2010
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 1369 OF 2005 Nizam-ud-Din Petitioners State of J&K and ors Respondent !Mr. O. P. Thakur, Advocate. ^Mr. Gagan Basotra, AAG. Hon'ble Mr. Justice Mansoor Ahmad Mir, J. Date: 11.08.2010 : J U D G M E N T :
By the medium of this writ petition, the petitioner has sought a writ of mandamus commanding the respondents to release pension and other service benefits right from the date of his retirement, on the grounds taken in the writ petition.
This petition is on the Board of this Court for the last about five years. It is averred that the petitioner came to be appointed as a Maktab Teacher in the year 1960 in a school which was established at Shabanbass, which presently is a part of Banihal Tehsil. Annexures A, B and C to the petition indicate that petitioner was performing the duties as a Maktab Teacher regularly and his salary was Rs.35/- per month. Vide annexure B Tehsil Education Officer, Banihal also recommended his case for promotion as a Teacher. In the year 1981 the Government sanctioned a Primary School at Shabanbass where the petitioner was running a Maktab (school) and all the students who were admitted in Maktab (School) came to be admitted in the said Government Primary School in terms of annexure D, i.e., Order No.215- 16 dated 27.5.1981. The petitioner was directed to join Government Primary School Gund Tethar. He accordingly joined in the said school and performed his duties as a teacher. Thereafter he came to be transferred to Pirpura and then to Govt. Girls Middle School, Tethar (annexure E). The Government decided to adjust all Maktab/Pathshala Teachers as full teachers in the Education Department and, accordingly, in terms of Government Order No.696(Edu) of 1988 dated 12.7.1988 (annexure F) Maktab/Pathshala Teachers were appointed as teachers on regular basis after relaxing their upper age limit, but the appointment order was not issued in favour of petitioner. Thereafter the petitioner also came to be appointed as a Teacher on regular basis in pursuance of Govt. Order No.1133-Edu of 1989 dated 29.11.1989 (annexure G) and he reached the age of superannuation on 30.4.1993. Thereafter the pension case of petitioner was processed but the same was not granted him, constrained him to make representations to the respondents for grant of pension while calculating his service as Maktab/Pathshala Teacher right from 1960. When all his efforts failed, the petitioner filed the present petition for redressal of his grievances.
Respondents have filed the reply.
Respondents 1 to 4 have not denied the appointment of petitioner as a Maktab Teacher right from 1960, then as a regular teacher in the year 1989 and thereafter his reaching the age of superannuation on 30.4.1993. They have resisted the petition on the ground that the petitioner was neither a Government nor temporary employee, he has rendered only three years regular service as a teacher and thus is not entitled to claim pension.
Learned counsel for respondents 1 to 4 was asked to produce the rules which were applicable to Maktab Teachers at the relevant point of time. He made a statement in the Court that he is not in a position to obtain copies of the rules which were occupying the filed governing Maktab Teachers at the relevant point of time.
Thus the short question involved in this writ petition is whether the services rendered by the petitioner as a Maktab Teacher can be counted for grant of pension.
The appointment of petitioner as a Maktab Teacher is not denied by the respondents. What is denied is the status of petitioner as a Maktab Teacher. According to respondents, Maktab Teachers were neither permanent nor temporary employees. But, the fact of the matter is that Maktab Teachers came to be appointed by the Government and petitioner was being paid Rs.35/- as monthly pay. Thereafter he was also transferred from one school to another and later on came to be engaged as a permanent teacher. These facts have been admitted by the respondents. Articles 177, 177-A and 178 of J&K Civil Service Regulations (Vol.I) containing Chapter 15 govern the case in hand. It is apt to reproduce Article 177-A herein :
177-A. Notwithstanding anything contained in Art. 177, a work charged employee/whole time contingent paid staff including daily rated worker(s) (excluding casual/seasonal worker(s) who is/are brought on regular establishment and retires/retire without having been declared substantive or quasi-permanent, shall be allowed to count 50% of his/her work charged/contingent paid service as qualifying for pension together with the period of service rendered in regular establishment. If the total of two spells is 20 years or more, he will be eligible for pension under the preceding proviso. In terms of the said Article, any employee who has performed the job as a work charged employee/daily rated worker or contingent paid employee and is brought on regular establishment thereafter, his 50% service as a work charged employee/daily rated worker is to be calculated for qualifying service in order to grant pension. Admittedly, the petitioner came to be appointed as Maktab Teacher on 20.7.1960 and performed his duties till 29.11.1989, the date when he came to be appointed as a regular teacher and thereafter he retired after reaching the age of superannuation on 30.4.1993.
In the given circumstances the respondents were under legal obligation to also count 50% service of the petitioner as a Maktab Teacher while processing his case for grant of pension. Keeping in view the above discussion, I deem it proper to grant the writ petition. Accordingly, this writ petition is granted and respondents 1 to 4 are directed to consider the case of petitioner for grant of pension and other service benefits within three months from the date a copy of the order is served upon them.
Disposed of along with all CMPs.
Jammu (Mansoor Ahmad Mir) Dated:11.8.2010 Judge (Anil)