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Gauhati High Court · body

2015 DIGILAW 276 (GAU)

Rothangpuii and Anr. v. State of Mizoram

2015-03-05

L.S.JAMIR

body2015
Heard Mr. C. Lalramzauva, learned senior counsel assisted by Mr. A.R.Malhotra, learned counsel for the petitioners. Also heard Mr. Lalsawirema, learned Government Advocate appearing for the State of Mizoram. 2. Mr. C. Lalramzauva, learned senior counsel appearing for the petitioners submit that the petitioners are non-matriculates and they were initially appointed as Pre-Primary School Teachers and thereafter they were absorbed and appointed as Government Primary School Teacher in the scale of pay of Rs. 225-308/- per month with effect frm 1.2.1984 and were posted at different Primary Schools under the Government of Mizoram by an order dated 6.2.1984. The appointment of the petitioners by the order dated 6.2.1984 were against 533 posts of Primary School Teacher sanctioned by the Government of Mizoram, Education Department by letter dated 13.2.1984. Thereafter, by an office order dated 30.10.1989, 181 non- matriculate Primary School Teachers were selected to undergo one year course of training at DIET, Aizawl/TTI, Lunglei for the academic session of 1990 i.e. 1.2.1990. Some of the petitioners were also included from amongst the 181 non-matriculate Primary School Teachers who were selected to undergo the one year course of training. Similarly, all the other petitioners were also selected subsequently to undergo similar training and all the petitioners had successfully completed such training. The petitioners after completion of such training were treated at par with those matriculate untrained teachers for all purposes including pay. Thereafter, they were promoted/placed to Primary School Teacher (Selection Grade) by order dated 27.6.2005 with effect from different dates as shown against their names in the said order. The petitioners were earning a monthly salary in the scale of Rs. 5500-9000/- per month as per the 5th Pay Revision with effect from 1.1.1996 as indicated in the order dated 27.6.2005 issued by the Director of School Education, Government of Mizoram, Aizawl. While the petitioners were serving as such, the 6th Pay Revision of the Central Government was implemented by the Government of Mizoram and thereafter the petitioners were allowed to draw their pay in the revised scale of Rs. 9300-34800+4400/- per month with effect from August, 2010. 3. Learned senior counsel for the petitioners submit that the recruitment to the post of Primary School Teacher is governed by the Recruitment Rules made by the Government from time to time wherein the required educational qualification has been prescribed and has also been amended from time to time. 9300-34800+4400/- per month with effect from August, 2010. 3. Learned senior counsel for the petitioners submit that the recruitment to the post of Primary School Teacher is governed by the Recruitment Rules made by the Government from time to time wherein the required educational qualification has been prescribed and has also been amended from time to time. As per the Mizoram Education & Human Resources Department (Group ‘C’ post) Recruitment Rules, 1996 (in short ‘Recruitment Rules of 1996’), the minimum educational qualification for the Primary Teacher is HSLC passed. He submits that however at the time of the recruitment of the petitioners to the post of Primary School Teachers, Class VIII passed was the minimum educational qualification required at that relevant point of time. Further, by the Mizoram Education & Human Resources Development Department (School Education) (Group ‘C’ post) Recruitment Rules, 2003, the minimum educational qualification required for appointment to the post of Primary School Teacher is Higher Secondary School LeavingCertificate(HSSLC)/Pre- University Certificate and above with Diploma/Certificate in Teachers Education of a duration of not less than 2 years. He also submits that in the mean time, the State respondents had framed a notified the Mizoram Special Voluntary Retirement for School Teachers Rules, 2009 (in short ‘Rules of 2009’) which was notified in the official gazette on 5.6.2009 and on which date the said Rules had come into force. Under the said Rules of 2009, Rule 3(1) provides that all regular teachers must acquire such minimum educational qualification as prescribed by the relevant Recruitment Rules in force relevant to the stage of education in which they are currently employed within three years from the date of coming into force of the Rules of 2009. Further, under Rule 3(2) provides that after the expiry of the prescribed period of three years, any regular serving teacher who fails to comply with Clause 1 of Rule 3 of the Rules of 2009 shall have the option to seek voluntary retirement as provided in Rules 48-A of CCS(Pension) Rules, 1972 which has been adopted for State Government employees of Mizoram. Mr. C. Lalramzauva, learned senior counsel submits that while the petitioners were serving in their capacity as Primary School Teachers, they were informed that they could not be allowed to continue in their services as they did not have the minimum educational qualification required under the Recruitment Rules of 2003. Mr. C. Lalramzauva, learned senior counsel submits that while the petitioners were serving in their capacity as Primary School Teachers, they were informed that they could not be allowed to continue in their services as they did not have the minimum educational qualification required under the Recruitment Rules of 2003. The petitioners were therefore directed to submit an application seeking for voluntary retirement from their service under the threat of compulsory retirement from service. Accordingly, the petitioners were forced to put their signatures in the prescribed form which was prepared by the Government on different dates and in some cases, the signatures of the petitioners were also forged by the official of the department. Thereafter, by orders dated 2.7.2010 and 23.9.2010 issued by the Director of School Education Department, the application of the petitioners were shown accepted with effect from 1.9.2010 and 1.10.2010 respectively on receiving the approval of the Government of Mizoram, Education Department. The manner in which the petitioners were compelled to submit their applications for voluntary retirement being not acceptable to the petitioners, they had therefore submitted a representation for withdrawal of the said application. However, the petitioners were informed that as the Government of Mizoram had constituted the Education Reforms Commission of Mizoram on 8.5.2009 and had recently submitted its report wherein it was recommended under Chapter 8 at paragraph 8.2 that the petitioners on their voluntary retirement would be given the benefit of payment of full salary for the remaining period of service and full pension benefit apart from the other benefit permissible under the law and such report of the Commission was considered by the Council of Ministers in its meeting held on 3.8.2010 and approved as per Additional Agenda Item No. 7. As the petitioners were given such information that the Commission’s report and its recommendation was approved by the Government and therefore they would be given the benefit of payment of full salary for the remaining period of service to be sacrificed by them with full pension and other benefits as per the said recommendation, the petitioners had agreed to proceed on voluntary retirement and accordingly, they were treated as having gone on Special Voluntary Retirement from service with effect from 1.9.2010 and 1.10.2010 respectively. 4. 4. Learned counsel for the petitioners also submits that in the meantime, by a notification dated 23.8.2009 in exercise of power conferred by sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009, and in pursuance of notification dated 31.3.2010 issued by the Department of School Education & Literacy, Ministry of Human Resource Development, Government of India, the National Council for Teacher Education (NCTE) had laid down the minimum qualification for a person to be eligible for appointment as a teacher in Class I to VIII. By the said notification, it was also provided that teachers appointed before the date of notification dated 23.8.2010 need not acquire the minimum qualification specified in Clause 1. In spite of such notification condoning the deficiency in educational qualification in respect of the petitioners, the respondent No. 3 had issued a notification dated 28.9.2010 by which the exemption as provided earlier by notification dated 9.9.2010 was again taken away and therefore the respondents continued to pressurize the petitioners to proceed on voluntary retirement with the plea that their cases would be considered on the basis of the report of the Education Reforms Commission of Mizoram, 2010 and which has been approved by the Government of Mizoram for implementation. He submits that despite such promises made by the respondents to the petitioners, the respondents have failed to give the benefit of the payment of full salary for the remaining period of service. The petitioners being aggrieved had therefore formed an Association known as Education VRS Pensioners Association and thereafter submitted a representation dated 15.9.2010 to the Minister in Charge of Education wherein they demanded payment of full salary for the remaining period as per the report and recommendation of the Education Reforms Commission. Such representation was endorsed to the Department by the concerned Minister and thereafter the petitioners were informed by the respondent No. 4 that since the Government of Mizoram has accorded its approval to the recommendation of the Education Reforms Commission in principle, steps were being taken for implementation of the same and that their pension matters were being pursued in the Department of Accounts & Treasuries by a letter dated 25.3.2011. 5. 5. It is also submitted by the learned senior counsel for the petitioners that the respondents had constituted a Task Force by a notification dated 6.4.2011 for taking up necessary follow up action on the recommendation of the Mizoram Education Reforms Commission and a Group of Experts and also a Monitoring Committee to monitor and supervise the functioning of the Task Force. The Task Force held its meeting on 19.9.2011 and submitted the minutes of the meeting to the Education Department which was subsequently referred to the Finance Department. The respondent No. 3 after considering the matter had taken a view that all retirement benefit in respect of the petitioners who had retired from their service had to be regulated under the Rules of 2009 and not in accordance with the recommendation of the Mizoram Education Reforms Commission. It was also observed that payment of full salary for the remaining period of service in favour of the petitioners could not be implemented unless the Government of Mizoram could find another source of funding. He submits that the petitioners are the only bread earners of the family and the family members are therefore fully dependent on the petitioners. The report of the Mizoram Education Reforms Commission having been already accepted and approved by the Council of Minister, it is duty bound on the part of the respondents to implement the same and to pay full salary of the remaining period of service to the petitioners. He also submits that the State respondents are not denying that the petitioners are entitled to such full salary of the remaining period of service but the only ground they are taking is that the Government may have to look for another source of funding. As the Council of Minister has already approved the recommendation of the Education Reforms Committee, it was therefore duty bound on the part of the State respondents to implement the same. The petitioners were given a false belief of getting their full salary for the remaining period of service provided they proceed on voluntary retirement otherwise, the petitioners would have had the right to continue till superannuation, more particularly, when the notification dated 23.8.2010 issued by the National Council of Teacher Education (NCTE) had condoned the deficiency in educational qualification by the said notification. He therefore submits that the respondents be directed to pay full salary for the remaining period of the services of the petitioners as already assured to them by the respondents. 6. Mr. Lalsawirema, learned Government Advocate appearing on behalf of the State respondents submit that the respondents had come to know that there were many unqualified teachers in the Government Primary Schools and Government Middle Schools and therefore with a view to improve the quality of education and to standardize the teaching method in the school, the State respondents had formulated the Scheme with attractive incentive payment by giving an opportunity to such teachers to seek voluntary retirement from their service under the Rules of 2009. Under the said Rules, only those eligible teachers of target group who were willing to avail the scheme had submitted application in the form prescribed. He, therefore, denies the allegations made by the petitioners that they were under threat of compulsory retirement from service and that some of their signatures were also forged by the officials of the department. To this effect, the learned Government Advocate submits that 12 applicants/teachers were allowed to withdraw their application as they had applied for withdrawal of their voluntary retirement by letters dated 21.6.2010 and 29.7.2010 issued by the Department of School Education. This action on the part of the respondents would show that there was no any coercion nor any threat upon the petitioners and that they have voluntarily taken the decision to proceed on voluntary retirement. 7. Learned Government Advocate also submits that the recommendation of the Education Reforms Commission may have been approved by the Council of Minister in its meeting held on 3.8.2010, however, the same could not be implemented due to shortage of fund in the Education sector. He submits that mere recommendation for payment of full salary of the remaining service is not good and sufficient reason for claiming additional benefit by the petitioners in the absence of any executive order or amendment of the Rules of 2009. He, further submits that the petitioners who were non-matriculate were granted voluntary retirement on their own volition under the Rules of 2009 with full pension benefit as admissible under the CCS (Pension) Rules, 1972 giving a maximum weightage of 10 years provided in Rule 48-B of CCS (Pension) Rules, 1972. He, further submits that the petitioners who were non-matriculate were granted voluntary retirement on their own volition under the Rules of 2009 with full pension benefit as admissible under the CCS (Pension) Rules, 1972 giving a maximum weightage of 10 years provided in Rule 48-B of CCS (Pension) Rules, 1972. Further, he submits that 25% of the vacant post of 193 has been filled up by the dependants of the employees who had retired under the Rules of 2009 totaling to about 48 posts. As the Rules of 2009 has not been amended, the question of paying full salary for the remaining period as recommended by the Education Reforms Commission does not arise inasmuch as the voluntary retirement of the petitioners were done under the Rules of 2009. He also submits that when the petitioners had submitted their application for voluntary retirement on 30.4.2010, the State Reforms Commission had not given its report which was subsequently submitted only in the month of July, 2010. This being the position, he submits that there is no merit in the writ petition and the decision taken by the State respondents should not be interfered with. He places relianced in the cases of a) Municipal Corporation, Jabalpur Vs. Om Prakash Dubey reported in (2007) 1 SCC 373 b) City Montessori School Vs. State of Uttar Pradesh and Others reported in (2009) 14 SCC 253 c) Shyam Telelink Limited Vs. Union of India reported in (2010) 10 SCC 165 d) Poonam Vs. Sumit Tanwar reported in (2010) 4 SCC 460 and e) S.P. Gupta and Ors Vs. President of India reported in AIR 1982 SC 149 . 8. I have heard the submissions forwarded by the learned counsel appearing for the parties. 9. It is an admitted fact that all the petitioners are non-matriculate who were serving as Primary School Teachers and had proceeded on voluntary retirement under the Rules of 2009. 10. The Recruitment Rules of 1996 indicates that the minimum educational qualification for appointment to the post of Primary School Teacher is HSLC passed. Further, by the Recruitment Rules of 2003, it is seen that the minimum educational qualification for Primary School Teacher is HSSLC/Pre-University Certificate and above with Diploma/Certificate in Teacher Education of a duration not less than two years. Admittedly, the petitioners were appointed prior to the enforcement of the aforesaid Recruitment Rules of 1996 and 2003. Further, by the Recruitment Rules of 2003, it is seen that the minimum educational qualification for Primary School Teacher is HSSLC/Pre-University Certificate and above with Diploma/Certificate in Teacher Education of a duration not less than two years. Admittedly, the petitioners were appointed prior to the enforcement of the aforesaid Recruitment Rules of 1996 and 2003. Rule 3(1) of the Rules of 2009 provides that all serving regular teachers must acquire such minimum educational qualification as prescribed by the relevant Recruitment Rules in force relevant to the stage of education in which they are currently employed within three years from the date of coming into force of the Rules of 2009. Further, under Rule 3(2) stipulates that after the expiry of the prescribed period of three years, any regular serving teacher who fails to comply with Clause 1 of Rule 3 of the Rules of 2009 shall have the option to seek voluntary retirement as provided in Rule 48-A of CCS(Pension) Rules, 1972 which has been adopted for the State Government employees of Mizoram. Rule 3(3) also provides amongst others, that 25% of the resultant vacancies will be reserved for the dependant family members as and when the resultant vacancies are filled up by the Government. 11. Rule 4 of the Rules of 2009 provides for retirement benefits as under:- “4. Retirement Benefits: Once an application for voluntary retirement under these rules is accepted by the Government such teacher shall forthwith be eligible to the payment of retirement benefits as specified below: 1) The amount of pension shall be regulated as per Rule 49 of the CCS (Pension) Rules, 1972 as amended from time to time. 2) A maximum weightage of 10 years’ Qualifying Service shall be given instead of 5 years as provided in Rule 48-B of CCS (Pension) Rules, 1972 subject to the condition that the total Qualifying service rendered by such teachers does not in any case exceed 33 years and does not take him beyond the date of superannuation age. 3) Family Pension as per Rule 54 of the CCS (Pension) Rules, 1972 as amended from time to time will be admissible to the family of the retired teacher in the event of his or her death. 4) Retirement Gratuity shall be admissible as provided under Rule 50 of the CSS (Pension) Rules, 1972 as amended from time to time. 3) Family Pension as per Rule 54 of the CCS (Pension) Rules, 1972 as amended from time to time will be admissible to the family of the retired teacher in the event of his or her death. 4) Retirement Gratuity shall be admissible as provided under Rule 50 of the CSS (Pension) Rules, 1972 as amended from time to time. 5) Communication of 40% of Pension amount shall be admissible as per CCS (Communication of Pension) Rules, 1981 as amended from time to time. 6) Cash compensation on pay and leave shall be admissible as per rate fixed in Annexure-IV on the basis of such retiree’s remaining years of service. 7) Available balance of General Provident Fund to the teacher’s credit, Insurance Fund and interest thereupon under the Mizoram Government Employees Group Insurance Scheme, 1992 and normal encashment of unutilized Earned Leave at the teacher’s credit as per the relevant rules in force shall be admissible to such teacher who retires under these Rules.” 12. This Court has considered the Rules of 2009 as indicated above. The Rules of 2009 does not provides for a forced voluntary retirement but option was given to seek voluntary retirement if the teachers could not comply to acquire the minimum educational qualification within the prescribed period of three years. There has been an allegation in this petition that the petitioners were forced to proceed on voluntary retirement under the threat of compulsory retirement and that some of the signatures of the petitioners were forged by the official of the department. This Court on perusal of the material available on record has noticed Annexures 1 and 2 appended to the affidavit-in-opposition filed by the State respondents. These are letters dated 21.6.2010 and 29.7.2010 written by the Department of School Education to the Director of School Education, Mizoram, Aizawl accepting the request for withdrawal of the application for retirement under the Scheme. From the said two letters, it can be seen that 12 withdrawal applications of teachers were accepted by the State respondents. The acceptance of the withdrawal of voluntary retirement would indicate that there was no coercion on the part of the State respondents inasmuch as if there has been any coercion or threat such withdrawal would not have been accepted by the State respondents. Therefore, this Court is of the considered opinion that the petitioners had proceeded on voluntary retirement on their own volition. Therefore, this Court is of the considered opinion that the petitioners had proceeded on voluntary retirement on their own volition. 13. This Court has also considered the recommendation of the Education Reforms Committee and also the minutes of the Council of Ministers held on 3.8.2010. There is no doubt that the recommendation of the Education Reforms Commission of Mizoram was approved by the Cabinet. However, such approval would not amount to implementation inasmuch as no decision has been taken by the State respondents for implementation of the same nor has the Rules of 2009 been amended till date. The Rules of 2009 also does not in any manner indicates that the petitioners would be entitled to full salary of the remaining period after taking voluntary retirement. What has been specified in the Rules of 2009 with regard to retirement benefit is stipulated in Rule 4 therein which has also been reproduced herein above. The petitioners have been given the retirement benefit as stipulated under Rule 4 of the Rules of 2009. However, the demand of the petitioners in the present writ petition is for payment of the full salary of the remaining period of their services and in the alternative to be reinstated back in the service. 14. This Court has already come to the finding that the petitioners had decided to proceed on voluntary retirement under the Rules of 2009 on their own volition Further, as there is no provision for paying such full salary for the remaining period of their service, this Court is of the considered opinion that the prayer of the petitioners in the present writ petition is unreasonable and beyond the Rules of 2009. 15. In that facts and circumstances of the case as discussed hereinabove, this Court does not find any merit in the present writ petition and accordingly the same is dismissed. No cost.