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Allahabad High Court · body

1992 DIGILAW 571 (ALL)

RAJ KUMARI KAPOOR v. DY. DIRECTOR of EDUCATION

1992-04-21

P.P.GUPTA

body1992
JUDGMENT P.P. Gupta, J. - By an order dated 10-7-1962, passed by the Committee of Management, respondent No. 4, the petitioner. Smt. Raj Kumari Kapoor was appointed on probation for one year on the Post of Music Teacher in the pay scale of Rs. 75-200 (Annexure-II), She joined as Music Teacher in the institution run under the name of Rama Devi Balika Inter College, which is a recognised and aided educational institution, on 12-7-1962. By an order dated 19-1-1966, the petitioner was granted promotion from C.T. Grade to L.T. Grade teacher from 1-7-1966, from which date she was placed on probation. By an order dared 17-1-1966 (Annexure 'IV'), the Regional Inspectress of Girls Schools (hereinafter referred to as 'RIGS'), Allahabad, respondent No. 2, granted approval to the appointment of the petitioner in L.T. Grade, Subsequently by means of an order dared 2-11-1979 (Annexure 'V'), she was further promoted to the post of Lecturer which appointment letter was issued after obtaining approval from respondent No. 2 on 3-10-1979. She retired from service on 30-6-1984. 2. By an order dated 26-12-1986, issued by the Deputy Director of Education, respondent No. 1, the petitioner's pension was fixed at Rs. 239/- per month with effect from 1-7-1984 (Annexure 'VI' to the petition). While fixing this amount, her service as C.T. Grade teacher from 12-7-1962 to 30-6-1965 was not taken into account. The petitioner, therefore, filed a representation dated 29-1-1987 (Annexure 'VII') before the Deputy Director of Education, respondent No. 1, for rectification of the pension of the petitioner. An enquiry was conducted by respondent No. 3, who, by means of a letter dated 20-1-1989 (Annexure 'VIII'), intimated respondent No. 1 that the petitioner had been continuously working in the institution from 12-7-1962. The Manager of the institution, by means of his letter dated 25-5-1987 (Annexure IX') made a similar recommendation. By an order dated 12-12-67 (Annexure IX'), Passed by RIGS, Allahabad, respondent No. 2, the date of substantive appointment or the petitioner was specified as 24-7-1962. This order also specified the date from which deductions towards Provident Fund were to be made. Accordingly, the deductions from the pay of the petitioner towards Provident Fund were continuously made from July, 1972 onwards. This order also specified the date from which deductions towards Provident Fund were to be made. Accordingly, the deductions from the pay of the petitioner towards Provident Fund were continuously made from July, 1972 onwards. Her Service Book also specified the date of confirmation of her service as 24-7-1962 (Annexure 'X'), Respondent No. 1, however, rejected the petitioner's claim by his order dated 4-4-1989 (Annexure 'XI') and did not consider her length of service for the period from 12-7-1962 to 30-6-1965 for computing the pension admissible to the petitioner. In pursuance of this order, the Manager of the Management Committee, by his letter dated 3-5-1989 (Annexure 'XII'), intimated this decision to the petitioner. The contention of the petitioner is that her service for the period from 12-7-1962 to 30-6-1965 for computing her pension has been rejected without any rational basis and the same is wholly unreasonable, arbitrary and against the provisions of the Intermediate Education Act, 1921 and the Regulations framed thereunder. 3. I have heard the learned counsel for the parties at length and have also perused the record. 4. In para 4 of the counter-affidavit it was alleged that the petitioner was appointed in L.T. Grade with effect from 1-7-6965 for which the approval was given by RIGS on 17-1-1966. It was denied that the petitioner was substantially appointed in C.T. Grade from 12-7-1992. In para 6 it was denied that the petitioner was granted promotion from C.T. Grade to L.T. Grade. In para 8 it was stated that the services of the petitioner in C.T. Grade from 12-7-1962 to 30-6-1965 were not approved by RIGS and so this period could not be included in regular service of the petitioner. In para 13 of the counter-affidavit, it is reiterated that the petitioner's services from 12-7-1962 to 30-6-1965 were neither duly approved by the competent authority nor she was qualified to teach in C.T. Grade, inasmuch as she was not trained. Therefore, the period of services of the petitioner from 12-7-1962 to 30-6-1965 could not be taken into account for the sanction of pension. 5. It is, therefore, an undisputed fact that the petitioner, by an order dated 10-7-1962, was appointed as Music Teacher and was directed to join on the post on 12-7-1962. It has not been disputed that in pursuance of this order the petitioner did join the services on 12-7-1962 as a Music Teacher. 5. It is, therefore, an undisputed fact that the petitioner, by an order dated 10-7-1962, was appointed as Music Teacher and was directed to join on the post on 12-7-1962. It has not been disputed that in pursuance of this order the petitioner did join the services on 12-7-1962 as a Music Teacher. By an order dated 19-1-1966 (Annexure 'III'), the petitioner was promoted in the grade of Rs. 120-300 and was placed oil probation with effect from 1-7-1965. The contention of the respondents to the contrary that the petitioner was not given any promotion from O.T. Grade to L.T. Grade cannot, therefore, be accepted. Her appointment got approval from the DIOS on 17-1-1966 (Annexure 'IV'). It is also not disputed that in pursuance of the appointment letter dated 10-7-1962 the petitioner joined institution on 12-7-1962 and continuously functioned in the institution till she retired from service on 30-6-1984. 6. It appears from the stand taken by the respondents that the period of services from 12-7-1962 to 30-6-1965 was not taken into account for fixing her pension on the ground that she was not a trained teacher and further her services did not get approval of the DIOS. It was argued on behalf of the respondents that her services during this period were against the express provisions of the U.P. Intermediate Education Act and in the absence of approval by the DIOS, these services will be no services in the eyes of law. It was emphasised that where the approval is required, and is mandatory, and if such approval is not obtained, irrespective of the party at fault, the appointment will be no appointment in the eyes of law, as the provisions for approval are mandatory and non-compliance would render the order of appointment a nullity as non-existent in the eyes of law. 7. The aforesaid argument cannot be accepted. As already stated, the petitioner was appointed as a teacher by an order dated 10-7-1962 and in pursuance whereof she joined the institution on 12-7-1962. She continued to work thereafter when she was promoted in higher grade as a trained teacher and was placed on probation with effect from 1-7-1965. This promotion was approved by the DIOS also by the order dated 17-1-1966, (Annexure 'IV'). It was the duty of the Management Committee to have sought the approval of DIOS for appointment of-the petitioner as a teacher in C.T. Grade. This promotion was approved by the DIOS also by the order dated 17-1-1966, (Annexure 'IV'). It was the duty of the Management Committee to have sought the approval of DIOS for appointment of-the petitioner as a teacher in C.T. Grade. The petitioner cannot be penalised for such negligence and latches on the part of the Management Committee. In this connection a reference may also be made to an order dated 12-12-1967 (Annexure 'IX'), passed by the RIGS, Allahabad, respondent No. 2, which specified the date of substantive appointment of the petitioner as 24-7-1952. This order also specified the date from which deductions towards Provident Fund from the petitioner's salary were to be made. It was thereafter that General Provident Fund deductions were made from the petitioner's salary continuously from July, 1972 onwards. The petitioner's Service Book (Annexure 'X') also specified the date of confirmation on the post as 24-7-1962. 8. From the aforesaid documents it becomes abundantly clear that the petitioner had been working on the post continuously in 12-7-1962. Her date of substantive appointment was 24-7-1962, as is clear from the order of respondent No. 2 and the Service Book of the petitioner (Annexures IX and X respectively) Her services, therefore, for the period from 12-7-1962 to 30-6-1965 should have also been counted while computing the pension admissible to the petitioner. A reference may be made to Rule 19 of the Uttar Pradesh Raj Sahayata Prapta Sikhsha Sansthan Ke Karamchariyo Ki Ankshyadaye Vhabishyo Nidhi Vima-Pension Niyamnwali, 1964. Sub rules (Ka) and (Kha) of Rule 19 is relevant for this case, which is quoted as below :- "(Ka) Pension Ke live Sewa Ki Ganana Tab Tak Na Ki Jayagi, Jab Tak Ki Karamchari Kishi Adhisthan Men Koye Maulik Pad Par Na Kartaho. (Kha) Yadi Kishi Keramchari Ko Lagatar Aasthaye Aathwa Sthapnapanna Sewa Ke Bad Bina Kishi Babadhnn Ke Ushi Pad Par Aathwa Kishi Annya Pad Par Sthaye Kar Diya Gaya Ho, To Waha Sewa Aahakari Sewa Ke Rup Meyn Gini Jayagi." The order of respondent No. 2 and the Service Book of the petitioner clearly prove that the petitioner was confirmed on the post with effect from 24-7-1962. She was promoted from C.T. to L.T. Grade w.e.f. 1-7-65. This promotion was also approved by the RIGS, respondent No. 2. on 17-1-1966 (Annexure-4 to the writ petition). She was promoted from C.T. to L.T. Grade w.e.f. 1-7-65. This promotion was also approved by the RIGS, respondent No. 2. on 17-1-1966 (Annexure-4 to the writ petition). Therefore, on these facts and circumstances, the appointment of the petitioner on the post of Music Teacher in C.T. Grade with effect from 12-7-1962 shall be deemed to have been approved by the competent authority. The contention of the respondents that because the services of the petitioner as teacher in C.T. Grade for the period 12-7-62 to 30-6-65 were not approved by the competent authority, they cannot be counted while computing the pension of the petitioner cannot, therefore, be accepted. Hence, in view of sub-rule (Kha) of Rule 19 of the above Rules, the period of services rendered by the petitioner of the period 12-7-1962 to 30-6-1965 shall be taken into consideration while computing the pension of the petitioner. The authorities have, therefore, overlooked the above facts and the rules and have committed an error in excluding the period from 12-7-1962 to 30-6-1965 towards continued service rendered by the petitioner while computing her pension. The petitioner is, therefore, entitled to the relief, claimed. 9. In view of the above discussions, the petition is allowed and the impugned orders dated 26-12-1986 and 4-4-1989 (Annexures VI and XI respectively), passed by the Deputy Director of Education, Allahabad, respondent No. 1, are hereby quashed. The respondents are directed to refix the petitioner's pension after treating her in continuous service from 12-7-1962 till the date of her retirement, without excluding the period from 12-7-1962 to 30-61965, and to nay the arrears of her pension on the basis of refixed amount within a period of three months from the date a certified copy of this order is produced before them and also continue to pay the refixed pension regularly, as per rules. In the circumstances of the case, there shall be no order as to costs.