Document Fragment View

Matching Fragments

25) Assailing the impugned order, submission of learned Senior Counsel for the petitioners is that the impugned order is neither policy decision not government order, therefore, the rider imposed in regard to applicability of NPS upon the petitioners is arbitrary and contrary to applicable rules.

26) Their next submission is that vide impugned order the Special Secretary of State Government has tried to modify the NPS implemented upon the employees who entered in service on or after 01.04.2005. In case of petitioners, in bunch of matters, none of the petitioner has entered in service on or after 01.04.2005. Thus, his submission is that the impugned order is contrary to NPS and cannot be modified by an executive order passed by the respondents.

50) The petitioners before this court were granted appointment in accordance with aforesaid rules and their appointments were duly approved by the competent authorities. At the time of taking the institutions on grant in aid list in the manager's return names of teaching and non teaching staff were also submitted and financial concurrence was also granted to them. At the time of enforcement of NPS, the rules referred herein above were same as was existing at the time of appointment of the petitioners. When the institutions were brought within purview of Payment of Salaries Act, the aforesaid rules were intact and no amendment was incorporated in the rules that after taking the institutions on grant in aid list their appointment shall be treated to be made after enforcement of NPS. Therefore, once this is the back ground, the petitioners before this court cannot be denied for grant of benefit of OPS being appointed in the institutions prior to enforcement of NPS.

59) Once, this is the background of the case of the petitioners, the analogy drawn under the impugned order making applicable the NPS being the institutions brought within the purview of Payment of Salaries Act, 1978 after 01.04.2005 is wholly erroneous and contrary to the act and rules applicable to the petitioners.
60) It is admitted case of the parties that teachers and non teaching staff have been appointed much prior to enforcement of NPS the date of enforcement w.e.f. 01.04.2005, therefore, only on the ground that the institution was brought within purview of payment of salaries act vide notification issued on 02.12.2006 after cut off date of enforcement of applicability of NPS cannot be a ground for depriving the teachers and non teaching staff, who were appointed in accordance with applicable rules and on the date of taking the institution on grant in aid list the recruitment condition of appointment was same.
69) Rule 19 of Rules of 1978 does not carve out distinction in regard to applicability between institutions aided and non aided. It specifically prescribes that Rule 19 of Rules of 1978 is applicable for the payment of provident fund to teachers and head masters employed in recognized schools in accordance with scheme applicable to aided institutions, therefore, the otherwise finding recorded while passing the impugned order cannot be sustained.
70) In view of the above, I am of the considered opinion that the Special Secretary has committed manifest error of law and has passed absurd order without taking into consideration the relevant provisions referred hereinabove in regard to recruitment and condition of service applicable to teaching and non teaching staff. The analogy drawn by the Special Secretary in passing the impugned order that NPS has been enforced vide order dated 28.03.2005 enforced w.e.f. 01.04.2005 is relevant date for applicability of claim of those teaching and non teaching staff whose institutions have been brought within purview of Payment of Salaries Act after the cut off date fixed for applicability of NPS is wholly erroneous to NPS, therefore, the order is liable to be set aside. Therefore, the impugned order dated 08.04.2009 being illegal and contrary to NPS cannot be sustained and is hereby set aside.