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2014 DIGILAW 3578 (ALL)

Hardhyan Chandra v. State of U. P.

2014-12-02

DEVENDRA KUMAR UPADHYAYA

body2014
JUDGMENT Devendra Kumar Upadhyaya,J.: - Heard learned counsel for the petitioner, learned Standing Counsel for respondent nos. 1,2 and 3 and Sri Vishal Kumar Upadhyaya, learned counsel for respondent no.4. 2. This petition by a retired Clerk, who served a government aided privately managed intermediate college, raises a grievance against the respondents for not providing him the benefit of the New Pension Scheme introduced by means of the Government Order dated 31.03.1978 as supplemented by another Government Order dated 28.07.1978. The submission is that the said benefit has not been provided to him, though he is legally entitled to the same. 3. The facts of the case necessary for resolving the controversy raised in this petition are that the petitioner was appointed as Assistant Clerk in Vidyant Hindu Inter College, Lucknow, an institution duly recognized under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred as 'Act, 1921'). The salary to the teaching and non-teaching staff is paid in the said institution under the relevant provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as 'Act,1971'). 4. The petitioner after serving the said institution for a long period retired from service on 31.10.1999 on his attaining the age of superannuation. After his retirement, the petitioner has been consistently representing his case for grant of pension and other benefits under the New Pension Scheme, however, the same was denied which compelled the petitioner to file a writ petition before this Court, namely, Writ Petition No. 2171 (S/S) of 2003 which was finally disposed of by this Court by means of order dated11.10.2011 giving liberty to the petitioner to represent his cause before the District Inspector of Schools, Lucknow who was directed to look into the matter and take a decision thereon in respect of his entitlement for payment of regular pension and other benefits under the New Pension Scheme in accordance with law. In compliance of the aforesaid order dated 11.10.2011, the matter of the petitioner has been considered by the DIOS who passed an order on 17.12.2011 rejecting his claim and holding therein that he is not entitled to pensionary and other benefits under the New Pension Scheme; rather he is entitled to the benefits in terms of the Old Scheme which was introduced by means of the Government Order dated 17.12.1965. 5. 5. The petitioner in this petition, apart from seeking direction to the authorities concerned to make him available the benefits of New Pension Scheme, has also prayed for quashing the aforesaid order dated 17.12.2011 passed by the DIOS, Lucknow. 6. The DIOS, while passing the impugned order dated 17.12.2011, has admitted that the institution from where the petitioner retired is covered by the provisions of the Act, 1921 and the Act,1971. The DIOS has also admitted that the petitioner was appointed on the post of the Assistant Clerk on 04.03.1958 and thereafter he retired on 31.10.1999. It has also been recorded by the DIOS that the amount of Contributory Provident Fund under the Old Scheme was deposited by the petitioner, however, contribution of the management was not deposited towards GPF and since as per rules, for enabling an employee to seek the benefit of the New Pension Scheme, the contribution of the management is necessarily to be deposited and the amount of GPF is also required to be deducted while in the instant case, the GPF amount was not since deducted, the petitioner is not eligible or entitled to be given the benefit of the New Pension Scheme. The DIOS has, thus, held that for the reason of non deduction of GPF, the petitioner is eligible and entitled to be given the benefit under the Old Scheme which was introduced and made applicable by means of the Government Order dated 17.12.1965. 7. Prior to introduction of the New Pension Scheme to the teaching and non-teaching staff of aided non-government institutions, the post retiral dues to the employees were governed by the Government Order dated 17.12.1965 which contains the Rules known as 'Contributory Provident Fund-Insurance-Pension Scheme (Triple Benefit Scheme) Rules' (hereinafter referred to as 'Triple Benefit Scheme'). Under the said Triple Benefit Scheme, the employees working in the non-government aided institutions were entitled to the benefit of the Contributory Provident Fund, Compulsory Life Insurance and Pension which included family pension. Under the Old Scheme (Triple Benefit Scheme), the amount from the salary of the employee concerned was deducted to be deposited in Contributory Provident Fund which was opened in the post office in the name of the individual employee. 8. Under the Old Scheme (Triple Benefit Scheme), the amount from the salary of the employee concerned was deducted to be deposited in Contributory Provident Fund which was opened in the post office in the name of the individual employee. 8. With a view to enhance the rate of pension and for providing certain other benefits at par with the pensionary benefits available to the teachers retiring from Government Inter Colleges, the State Government issued a Government Order on 31.03.1978 followed by another Government Order dated 28.07.1978. The said orders, thus, introduced the New Pension Scheme for the teaching staff. The benefit of the aforesaid New Pension Scheme introduced by means of Government Orders dated 31.03.1978 and 28.07.1978 in respect of the teachers of the non-government aided institutions was extended to the non-teaching staff of non-government aided institutions by means of Government Order dated 03.11.1978. As per New Pension Scheme introduced by the Government Orders dated 28.07.1978 and 03.11.1978, the same was available to the full time regular non-teaching staff who retired on or before 01.03.1978. The New Pension Scheme further provided that with effect from 01.03.1978, the employees on whom the Scheme of Contributory Provident Fund was applicable, will now be covered by the General Provident Fund and the entire amount deposited in the Contributory Provident Fund till 28.02.1978 along with interest shall be deposited in the government accounts in the particular heads. 9. Clause 3 of the aforesaid Government Order dated 03.11.1978 clearly provides that the benefit of parity in pension will be made available only to those employees who will deposit the management contribution of the CPF along with interest in treasury under the specific heads disclosed in the said Government Order. 10. It is noticeable that so far as the benefit of New Pension Scheme is concerned, the same was extended to the non-teaching staff by means of Government Order dated 03.11.1978. The Government Order dated 28.07.1978 did not extent to the non-teaching staff which is confined in its application only to the teaching staff. 10. It is noticeable that so far as the benefit of New Pension Scheme is concerned, the same was extended to the non-teaching staff by means of Government Order dated 03.11.1978. The Government Order dated 28.07.1978 did not extent to the non-teaching staff which is confined in its application only to the teaching staff. It is also noticeable that the Government Order dated 28.07.1978 categorically provides that the benefit of the New Pension Scheme shall be available only to those teachers who will submit their option for the same and further that the willing teachers will submit their options within 90 days from the date of issuance of the said Government Order to the authority empowered to sanction pension. Clause 2 of the said Government Order dated 28.07.1978 further provides that in case option is not submitted within the time prescribed, it will be deemed that the concerned teacher does not want to opt for the New Pension Scheme. It further provides that option once given shall be final. However, though, the benefit of the New Pension Scheme embodied in the Government Order dated 28.07.1978 was extended to the non-teaching staff by means of subsequent Government Order dated 03.11.1978 but the said Government Order dated 03.11.1978 does not embody any requirement of furnishing the option by the non-teaching staff. 11. Since the requirement of submitting option to seek the benefit of the New Pension Scheme existed in the Government Order dated 28.07.1978, as such it appears that by mistake the said requirement is missing in the Government Order dated 03.11.1978 by which the benefit was extended to the non-teaching staff as well. However, the fact remains that the Government Order dated 03.11.1978 does not provide for submitting any option. 12. The petitioner appears to have submitted his option for New Pension Scheme in the prescribed proforma on 20.12.1990. The fact that the option paper, which has been annexed as annexure no.1 to the writ petition, was forwarded by the Principal/Manager of the Institution and that the same is available in the office of DIOS, Lucknow has not been denied either by the management or by the DIOS in their counter affidavits filed in this case. 13. The fact that the option paper, which has been annexed as annexure no.1 to the writ petition, was forwarded by the Principal/Manager of the Institution and that the same is available in the office of DIOS, Lucknow has not been denied either by the management or by the DIOS in their counter affidavits filed in this case. 13. It is also noticeable that after issuance of the Government Order on 28.07.1978 which prescribes the time limit of 90 days to submit the option for the New Pension Scheme, from time to time various Government Orders have been issued extending the said time period. 14. The fact that the time period prescribed for submitting the option has been extended from time to time is evident from the circular letter of the Director of Education, Allahabad dated 06.12.1990 which is addressed to all the Regional Deputy Directors of Education, U.P., according to which, all the authorities should keep in mind that the last date of furnishing the option for the New Pension Scheme was 04.01.1991. Thus, it can safely be concluded, keeping in view the circular dated 06.12.1990 which prescribed the last date of submission of the option as 04.01.1991, that the petitioner had submitted the option within the time period prescribed by the authorities of the Education Department for the reason that the option form dated 20.12.1990, which has been annexed as annexure no.1 to the writ petition, has not been disputed by the respondents. 15. The aforesaid discussion clearly establishes that the petitioner had submitted his option within the time prescribed. Various other documents, such as annexure nos.2 and 3 annexed with the writ petition also establish that the option paper was submitted by the petitioner to the authorities within the time available for being eligible to get the benefit of the New Pension Scheme. 16. The DIOS, Lucknow while passing the impugned order dated 17.12.2011 also does not dispute the fact that the petitioner had submitted his option within the prescribed time. The only reason given by the DIOS in the impugned order for holding that the petitioner is not eligible to be given the benefit of New Pension Scheme is that the amount as per the requirement of the Government order dated 31.03.1978 (by which the New Pension Scheme was introduced) was not deposited. 17. The only reason given by the DIOS in the impugned order for holding that the petitioner is not eligible to be given the benefit of New Pension Scheme is that the amount as per the requirement of the Government order dated 31.03.1978 (by which the New Pension Scheme was introduced) was not deposited. 17. It is decipherable from the record available in this case that the Contributory Provident Fund amount till the date of retirement of the petitioner was deposited by the management of the institution, however, despite submission of the option the said amount of the Contributory Provident Fund along with interest was not deposited in the government account head as required by the Government Orders dated 31.03.1978 and 28.07.1978. Non deposition of the amount under the relevant head of account in terms of the directions of the State Government contained in the aforesaid Government Orders appears to be the sole reason for denying the benefit of the New Pension Scheme to the petitioner. 18. Now, the question for consideration in this case, thus, is as to who is to be saddled with the responsibility of not depositing the amount of CPF along with interest in terms of the Government Order dated 03.11.1978, which has resulted in denial of the benefit of the New Pension Scheme to the petitioner. 19. The Government Order dated 31.03.1978 by which the New Pension Scheme was introduced clearly states that the maintenance of the Provident Fund Accounts of the employees shall be done by the Director of Education and the District and Divisional Level Officers authorized by him. The said provision is embodied in Clause-6 of the Government order dated 31.03.1978. Thus, so far as the responsibility of maintaining the Provident Fund Accounts of the employees is concerned, the Government Order mandated that the same shall lie on the Director and the District and Divisional Level Officers authorized by him for the said purpose. 20. It is worthwhile to notice at this juncture that the petitioner before his retirement appears to have made an application to the Principal on 16.02.1999 stating therein that the amount of CPF be deposited in terms of the provisions of New Pension Scheme. Similarly, the petitioner appears to have represented the Principal of the Institution again on 29.07.1999 praying therein that amount of the CPF be got transferred to the GPF account. 21. Similarly, the petitioner appears to have represented the Principal of the Institution again on 29.07.1999 praying therein that amount of the CPF be got transferred to the GPF account. 21. Thus, the petitioner had not only submitted his option to be granted the benefit of New Pension Scheme within the time provided for the said purpose but has also requested the authorities concerned. May be that the petitioner did not pursue the matter rigorously, however, the conduct of the petitioner, as can be decipher from the material available on record, shows his consistent willingness to opt for the benefit of the New Pension Scheme. Even otherwise, it does not appear to be logical that the petitioner would not opt or would not show his willingness to opt for the New Pension Scheme keeping in view the fact that the benefits under the New Pension Scheme are certainly higher and better as compared to the benefits available under the Old Pension Scheme (Triple Benefit Scheme). 22. It is also on record that though, the passbook of the CPF account of the petitioner, which exists in the post office, has been returned back by the management of the institution to him, however, the said amount has not yet been withdrawn by the petitioner. 23. Keeping in view the over all facts and circumstances of the case and also the fact that there is no denial of submission of the option for the New Pension Scheme dated 20.12.1990 submitted by the petitioner within the time prescribed for the said purpose and also keeping in view the consistent willingness shown by the petitioner to be given the benefit of the New Pension Scheme, I feel it expedient to allow the writ petition and issue appropriate directions to the authorities so that the benefit of the New Pension Scheme may be made available to the petitioner. 24. Accordingly, the writ petition is allowed. The impugned order dated 17.12.2011 passed by the District Inspector of Schools, Lucknow as contained in annexure no.12 to the writ petition is hereby quashed. The District Inspector of Schools, Lucknow is directed to calculate the entire amount along with interest which the petitioner needs to deposit in the GPF account for making him eligible to the benefit of New Pension Scheme within fifteen days from the production of certified copy of this order. The District Inspector of Schools, Lucknow is directed to calculate the entire amount along with interest which the petitioner needs to deposit in the GPF account for making him eligible to the benefit of New Pension Scheme within fifteen days from the production of certified copy of this order. The amount so calculated shall be intimated to the petitioner forthwith. 25. The petitioner, thereafter, shall deposit the amount so intimated to him by the DIOS after withdrawing the entire amount available in CPF account within a month from the date, he receives the intimation. Once the requisite amount is deposited by the petitioner under the appropriate head or account, the benefit of New Pension Scheme shall be made available to the petitioner within a month thereafter. 26. Since the petitioner under this order has been required to make deposit of the amount of CPF to the GPF account along with interest, it is also directed that the respondents-State authorities shall also pay interest at the rate applicable under law on the delayed payment of pension and other retiral dues. 27. There will be no order as to costs.