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Allahabad High Court · body

2008 DIGILAW 2725 (ALL)

HAKIM MOHAMMED SHAFI ULLAH v. STATE OF U. P.

2008-12-19

ARUN TANDON, ASHOK BHUSHAN

body2008
JUDGMENT By the Court.—This is an appeal against the judgment and order of the learned Single Judge dated 7.3.2008 dismissing the writ petition filed by the appellant. The appellant filed the writ petition praying for a mandamus commanding the respondents to pay his G.P.F., Pension gratuity and other benefits due to him. 2. Brief facts necessary for deciding the issues raised in the appeal are; that the appellant was appointed as a Lecturer in the Unani Medical College, Allahabad (hereinafter called the “U.M.C.”) which at that time was a private Unani institution. U.M.C., Allahabad was affiliated to Kanpur University vide order dated 17.2.1972 with effect from July, 1971. The State Government from time to time had fixed pay scales and Dearness Allowance for non-government institutions including the U.M.C. Reference has been made to the Government Orders dated 5.10.1974 and 16.8.1977. The State Government had also provided for grant to the U.M.C., Allahabad to the extent of 50 per cent of expenses. The appellant worked in the U.M.C., Allahabad as Lecturer and thereafter as Reader and attained the age of superannuation in the year 1978. State Legislature enacted the Uttar Pradesh Indian Medical Institutions (Acquisition and Miscellaneous Provisions) Act, 1982 (hereinafter called the “Act, 1982”) to provide for acquisition and management of certain non-government institutions imparting instructions in Ayurvedic and Unani-Tibbi Systems of Medicine. The Act, 1982 was enforced on 17.3.1982. The State Government issued Government Order dated 2.7.1982 laying down certain conditions and guidelines for management of non-government Ayurvedic and Unani Colleges consequent to the aforesaid Act, 1982. The appellant claimed G.P.F., Pension gratuity and other benefits due to him and had filed Writ Petition being Writ Petition No. 7751 of 1991 which was allowed by a learned Single Judge vide order dated 28.9.1993. Special Appeal No. 556/1994, State of U.P. v. Hakim Mohammad Shafi Ullah was filed by the State which was allowed by the Division Bench of this Court vide judgment and order dated 24.2.1996 setting-aside the order of the learned Single Judge and remitting the matter for fresh consideration. The writ petition thereafter was heard and by the impugned judgment and order dated 7.3.2008 has been dismissed. 3. The writ petition thereafter was heard and by the impugned judgment and order dated 7.3.2008 has been dismissed. 3. Learned Single Judge in the impugned judgment and order has held that the U.M.C., Allahabad was taken over by the Government by the Act, 1982 and only those persons who were employed at the time of acquisition became eligible to receive pension under Section 6 (1) of the Act,1982 and the appellant who had retired in the year 1978 was not entitled or eligible for pension. Learned Single Judge also observed that the appellant had retired in the year 1978 and the writ petition was filed in the year 1991 i.e. after 13 years. Learned Single Judge has held that the petitioner had not been able to establish under which provision of law he is entitled to claim pensionary benefits. 4. Learned Counsel for the appellant challenging the order passed by the learned Single Judge contended that prior to acquisition of U.M.C., Allahabad the said college was affiliated with Kanpur University. He submitted that the name of the College is mentioned in the First Statutes of the Kanpur University framed under the Uttar Pradesh State Universities Act, 1973 (hereinafter called the Act, 1973) at Serial No. 71 of Appendix E. It is submitted that by various Government Orders pay scales and payment of Dearness Allowance and other pecuniary benefits were made available to even non-government institutions including the U.M.C., Allahabad. It is submitted that the State Government had also been granting aid to the institution and by virtue of Section 33 of the Act, 1973, it was obligatory for the University and the College to provide pensionary benefits. It is further submitted that the State having acquired the College, it is liable to pay the pensionary benefits. 5. Shri G.C. Upadhyay, learned Standing Counsel for the respondents submitted that the appellant is not entitled to any retiral benefits since when the Act, 1982 came into force he had already retired. He submitted that the benefit under the provisions of Section 33 of the Act,1973 is not available to the appellant since the Management did not comply with the terms and conditions of the Act and had not enforced the contributory Provident Fund Scheme or any other pension scheme. It is submitted by the learned Standing Counsel that the appellant cannot claim parity with Dr. It is submitted by the learned Standing Counsel that the appellant cannot claim parity with Dr. Narendra Singh Yadav, Medical Officer in the Zila Panchayat which is a semi government organisation. 6. We have considered the submissions made by the learned counsel for the parties and perused the record. 7. The appellant was appointed as Lecturer in U.M.C., Allahabad and attained the age of superannuation in the year 1978 when the institution was still a private institution. The institution had been affiliated to the Kanpur University with effect from 1971 and after enforcement of the Act, 1973 the name of the institution is also mentioned as one of the institution affiliated with Kanpur University which is clear from Appendix E of the First Statutes of the Kanpur University. The provision on which the appellant has placed reliance is Section 33 of the Act, 1973 which is to the following effect : “Section 33 : Pensions, Provident Fund, etc.—The University and every affiliated or associated college shall constitute, for the benefit of its officers, teachers and other employees, in such manner and subject to such conditions [as may be specified by general or special order by the State Government] such pension, insurance or provident fund, as it may deem fit including a fund from which such teachers or their heirs, as the case may be, shall be paid pension or gratuity in the event of their incurring disability, wound or death in connection with the discharge of their duties as Superintendent of a Centre or invigilator as defined in Uttar Pradesh Universities (Provisions regarding Conduct of Examinations) Act, 1965.” 8. From the materials brought on record, it is clear that the Management of the U.M.C. never enforced any scheme for Provident Fund or pension. In the order dated 3.12.1994 passed by the Director Ayurvedic Unani, U.P. Lucknow which has been brought on record as Annexure 6 to the counter affidavit clearly noted that Principal and Superintendent of U.M.C. Allahabad vide its letter dated 23.8.1991 had informed the Director that management had not provided for CPF/GPF Pension Scheme nor any such claim was provided by the University, hence the appellant was not entitled for any retiral benefits from the State. It is not the case of the appellant that the management had provided for any CPF/GPF Scheme. It is not the case of the appellant that the management had provided for any CPF/GPF Scheme. By virtue of Section 6 of the Act, 1982 every Teacher or other employee who immediately before the appointed date was employed shall become eligible from the appointed date a teacher or other employee as the case may be of the State Government. The appellant was not in service on the date when the Act, 1982 was enforced since he had already retired in the year 1978. The benefit of Section 6 of the Act, 1982 is thus not available to the appellant. The Government Order dated 2.7.1982 has been brought on record as Annexure 5 to the counter affidavit which was issued consequent to enforcement of the Act, 1982 laying down procedure and methodology after enforcement of Act, 1982. According to Government Order dated 2.7.1982 paragraphs 13 and 15 even those teachers or employees who became government servant after enforcement of the Act, 1982 and were governed by any CPF/GPF Rules, the benefit of earlier service shall be given to them when the amount of contribution under CPF is deposited along with interest in the GPF in the newly created GPF account and failing which the claim of pension regarding the period prior to acquisition shall come to an end. 9. Section 6 of the Act, 1982 provides that every teacher or employees who were working immediately before the appointed date as Teacher or employee shall become teacher or employee of the State Government. Section 6 of the Act, 1982 is quoted below : “6. 9. Section 6 of the Act, 1982 provides that every teacher or employees who were working immediately before the appointed date as Teacher or employee shall become teacher or employee of the State Government. Section 6 of the Act, 1982 is quoted below : “6. Teachers, and other employees to become employees of State Government.—(1) Subject to the provisions of Section 7, every teacher or other employee who, immediately before the appointed day is employed in, or in connection with the affairs of any scheduled institution shall become, as from the appointed day, a teacher, or other employee, as the case may be, of the State Government and shall hold his office by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, gratuity and other matters as he would have held, if this Act had not come into force and shall continue to do so, unless and until his employment is duly terminated or until his remuneration, terms and conditions are duly altered by the State Government : Provided that if such transfer is not acceptable to any such teacher or other employee he may give intimation to the State Government to that effect within one month from the appointed day and thereupon, his employment shall stand terminated with effect from the appointed day : Provided further that if the employment of a teacher or other employee is terminated in accordance with the preceding proviso, such teacher or employee shall, subject to the provisions of sub-section (2), be entitled— (a) to an amount equivalent to three months’ salary in the case of permanent employee, and one month’s salary in the case of any other employee; and (b) to other benefits, if any, which would have accrued to him because of his past services in such institution, if his employment had not been so terminated. (2).......................... (3)........................” 10. Section 6 of the Act, 1982 does not in any manner help the appellant nor by virtue of the said provision, appellant could be treated to be a government servant. (2).......................... (3)........................” 10. Section 6 of the Act, 1982 does not in any manner help the appellant nor by virtue of the said provision, appellant could be treated to be a government servant. When the Government Order dated 2.7.1982 denies the pensionary benefits to an employee or teacher who becomes the government servant after the enforcement of Act, 1982 on account of non-deposit of contribution with interest in the GPF account for the period earlier to appointed date there is no question of recognising right of any teacher or employee who retired much earlier to the enforcement of the Act, 1982 and was not a member of any CPF scheme. 11. In view of the aforesaid the State cannot be held liable for payment of any pension or GPF to the appellant when it had not undertaken any such liability under the Act, 1982 or the Government Order dated 2.7.1982. The appellant relied on cases of two persons who were given benefits i.e. Hakim Mohammad and Shri Narendra Singh Yadav. Hakim Mohammad retired on 30.6.1986 i.e. after the enforcement of the Act, 1982, hence his case was clearly distinguishable. Insofar as Dr. Narendra Singh Yadav’s case is concerned, he was working in the Zila Panchayat, Kanpur which was a semi government organisation and governed by different set of rules and schemes relating to the pensionary benefits. The case of Dr. Narendra Singh Yadav also does not help the appellant, more so, when the appellant has not been able to establish any liability of the State Government for payment of pension and other retiral benefits. 12. In view of the above we are unable to find any ground to issue directions to the respondents to pay the retiral benefits to the appellant. The appellant is not entitled for any relief in the special appeal. The special appeal is accordingly dismissed. ————