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2015 DIGILAW 581 (ALL)

Neha Agrawal v. State of U. P.

2015-03-26

D.Y.CHANDRACHUD, P.K.S.BAGHEL

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JUDGMENT Pradeep Kumar Singh Baghel, J. The mother of the appellant, Smt Anjna Rani is stated to have been initially appointed on the post of Supervisor under the Non-Formal Education Scheme 1 on 15 July 1987. By a notification dated 13 August 1989 issued by the second respondent, she is stated to have been appointed on the post of Project Officer and according to the appellant, on 3 May 1997, she was allowed to cross the efficiency bar. The initial appointment under the Scheme was on a temporary basis. The Scheme had initially been introduced by the Union Government in 1979-80 for imparting education to children in the age group of 6 to 14 years. The expenses were to be shared between the Union and the State Governments in a specified ratio. The Scheme was implemented in the State of Uttar Pradesh by the Director of Education (Basic). In order to implement the Scheme, certain posts of supervisors were created at various levels. However, since the Scheme was temporary, appointments were made on a temporary and ad hoc basis terminable without notice. The Scheme continued until 2001 when funding by the Union Government came to be stopped on 31 March 2001. The State Government, however, came out with a revised project called the Education Guarantee Scheme and Alternative and Innovative Education with effect from 1 April 2001. The persons who had been recruited in the Scheme who were drawn on deputation from the regular line were repatriated. There were others who did not hold any lien on parent posts and who were initially appointed as Supervisors or, as the case may be, Project Officers under the Scheme itself. On 24 March 2001, a Government Order was issued by the State Government under which Project Officers who had no lien on parent posts were to be absorbed as Assistant Teachers in the LT Grade. Several persons were adjusted against those posts. A batch of writ petitions was filed before this Court which culminated in a judgment of a Division Bench of this Court in Uma Shanker Singh Vs State of U P2. The Division Bench remitted the matter back to the State Government to reconsider the feasibility of protecting the pay and status of the petitioners. A batch of writ petitions was filed before this Court which culminated in a judgment of a Division Bench of this Court in Uma Shanker Singh Vs State of U P2. The Division Bench remitted the matter back to the State Government to reconsider the feasibility of protecting the pay and status of the petitioners. The judgment of this Court was challenged before the Supreme Court by the State Government in Civil Appeal No 8652 of 2001 and connected appeals which were dismissed on 1 December 2011. The order of the Supreme Court was in the following terms: "Having heard learned counsel for the parties and perused the impugned judgment, we are of the opinion that the direction by the High Court to the Government to consider the question of protection of pay and status of the writ petitioners in the light of the observations made in the impugned judgment, does not warrant our interference with the impugned judgment. Accordingly, the appeal is dismissed. However, having regard to the fact that the issue is hanging fire for over 10 years, we would request the authorities concerned to take a final decision in the matter, as expeditiously as practicable and in any case, not later than 6 months from the date of receipt of a copy of this order. In view of the order passed in the appeal, all applications for impleadment and intervention are rendered infructuous and are disposed of accordingly." 2. On 27 September 2012, the State Government granted the revised pay scale corresponding to the pay scale of Project Officer/Assistant Project Officer with the approval of the Finance Department. This decision was questioned before a Division Bench in Meena Manral Vs State of U P3 on the ground that the State had failed to apply its mind to the aspect of the grant of status equivalent to the status of Project Officer/Assistant Project Officer. By a judgment and order dated 13 May 2014, the Division Bench allowed the writ petition by directing the State Government to reconsider the matter pertaining to the issue of the grant of equivalent status to the petitioners as directed in the earlier judgment dated 5 April 2002. Following the judgment of the Division Bench, a decision was taken on 22 December 2014 by the Secretary (Basic Education). Following the judgment of the Division Bench, a decision was taken on 22 December 2014 by the Secretary (Basic Education). The order of the Secretary (Basic Education) records that it will be appropriate if, for the purpose of grant of pay protection and status, those employees who were engaged prior to 2001 and were in receipt of a pay scale of Rs 6,500-10,500 were granted the revised pay scale under the Sixth Pay Commission. Moreover, information was sought on the number of posts of Head Masters which were vacant in respect of newly established high schools under the National Secondary Education Policy so that the Project Officers could be absorbed against the posts which were available. 3. Insofar as the appellant is concerned, she had filed a writ petition for challenging an order dated 14 June 2011 passed by the Additional Director (Treasury and Pensions) declining her plea for the grant of family pension on the ground that her mother Anjna Rani had been appointed only on temporary basis on 15 July 1987. The writ petition was dismissed by the learned Single Judge only on the ground that an ad hoc employee under the Scheme was not a government servant which would entitle to her pension or the grant of family pension to the heirs. 4. The basic submission which has been urged on behalf of the appellant is that the learned Single Judge erred in dismissing the writ petition, though a counter had been called from the State. As a matter of fact, no counter was filed and the petition was dismissed with a brief order as noted earlier. As we have noticed from the narration contained in the earlier part of this decision, it is apparent that the entire issue regarding the protection of pay and status of persons who were initially recruited under the Scheme was initially the subject matter of the judgment of the Division Bench dated 5 April 2002 in Uma Shanker Singh's case. Thereafter, on remand, the State Government took a decision which was again questioned before the Division Bench in the case of Meena Manral (supra). The Division Bench by its judgment dated 13 May 2014 held that the State Government had not duly applied its mind to the circumstances as set out in the judgment and order dated 5 April 2002 and directed the State Government to decide the issue afresh. The Division Bench by its judgment dated 13 May 2014 held that the State Government had not duly applied its mind to the circumstances as set out in the judgment and order dated 5 April 2002 and directed the State Government to decide the issue afresh. As the order of the Secretary (Basic Education) dated 22 December 2014 indicates, the entire matter is still to be resolved by taking an appropriate decision on the basis of the information which has been sought by the Secretary (Basic Education). In our view, the issue pertaining to the grant of family pension which the appellant had sought to raise cannot be isolated from the basic issue in regard to the pay and status of the persons who were recruited under the Scheme. In this view of the matter, the learned Single Judge was, in our view, not justified in dismissing the writ petition without the basic issue in regard to the protection of pay and status being resolved. The decision of this Court in Uma Shanker Singh (supra) was confirmed, as noted earlier, by the Supreme Court in the civil appeal. In that view of the matter, it would be appropriate to direct that the State Government should file a counter affidavit and to await the substantive decision of the State on the entire issue. 5. For these reasons, we allow the special appeal and set aside the impugned judgment and order dated 19 February 2015 and restore Writ-A No 46196 of 2011 to the file. We direct that the State shall file a counter affidavit within a period of three months from the receipt of a certified copy of this order so that, in the meantime, an appropriate decision can be taken following the order of the Secretary (Basic Education) dated 22 December 2014. 6. The special appeal is disposed of in the aforesaid terms, however, with the clarification that we have not expressed any final opinion on the merits of the petition and on the entitlement of the petitioner for the grant of family pension which is expressly left open.