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2017 DIGILAW 1921 (ALL)

STATE OF U. P. v. SHASHTHI DUTT SHASTRI

2017-08-21

ARUN TANDON, RITU RAJ AWASTHI

body2017
JUDGMENT By the Court.—Heard learned counsel for the appellants as well as learned counsel for the respondents and perused the records. 2. With the consent of counsel for the parties the two special appeals are being finally heard at the admission stage. 3. Special Appeal No. 264 of 2013 (State of U.P. and others v. Bhashthi Dutt Shastri and others) challenges the judgment and order dated 15.5.2012 whereby the learned Single Judge has quashed the Government Order dated 4.2.2004 to the extent it grants benefit to the teachers working in Non Government aided institutions and has issued direction to treat the petitioners (present private respondents) at par with the teachers working in the Government institutions in respect of payment of death cum retirement gratuity and other post retiral benefits to which the teachers of Government institutions are entitled w.e.f. 28.11.2001. 4. Special Appeal No. 739 of 2016 (State of U.P. and others v. Narayan Singh Senger and others) challenges the order dated 14.1.2016 passed in Writ-A No. 27662 of 2014 whereby the learned Single Judge relying on the judgment passed in writ petition giving rise to Special Appeal No. 264 of 2013 has allowed the writ petition in terms of the said judgment aforesaid. 5. The question for consideration before us in both these appeals is whether the teachers working in Non Government aided institutions (who retired prior to 1.7.2003) should be treated at par with the teachers serving in the Government institutions and can be said to form a homogenous class for the purpose of considering the grant of post retiral benefits, such as pension and gratuity etc. 6. As per the admitted facts all the petitioners (present private respondents) were retired as teachers from privately managed and aided Intermediate colleges after attaining the age of 60 years. The State Government vide Government Order dated 31.3.1978 had sanctioned pension to those teachers at the same rate and subject to the conditions admissible to the teachers of Government colleges. vide Government Order dated 10.8.1978 the State Government had sanctioned the benefit of death cum retirement gratuity to the teachers of privately managed institutions retiring at the age of 58 years and in this regard rules were notified on 29.8.1989 for sanction of death cum retirement gratuity to the teachers of privately managed institutions retiring at the age of 58 years. 7. 7. As per the said scheme, all those teachers who gave their option for retirement at the age of 58 years were entitled to get pension as well as gratuity whereas such teachers who gave option to continue in service till they attain the age of 60 years were entitled to pension only. 8. It is to be noted that the petitioners/respondents on the basis of option exercised by them had continued to work till the age of 60 years and thereby were not given gratuity. 9. Under the Government Order/notification dated 28.11.2001 the age of retirement of Government servants in Government institutions was increased from 58 to 60 years. Consequently, the Government Order dated 20.6.2002 was issued by the State Government to the effect that all service benefits i.e. payable to the Government servants at the age of 58 years will be payable at the age of 60 years w.e.f. 28.11.2001. The consequence of this order was that pension and death cum retirement gratuity become payable to the teachers working in Government institutions who were to retire at the age of 60 years. 10. The State Government vide Government Order dated 4.2.2004 extended the benefit of enhancement of age to the teachers working in Non Government institutions and the age of retirement was enhanced from 60 to 62 years. The teachers working in Non Government aided institutions were required to give their option to retire at the age of 60 years and avail the benefit of pension-cum-gratuity. This Government Order was made applicable w.e.f. 1.7.2003. 11. The petitioners (present private respondents) challenged the Government Order dated 4.2.2004 mainly on three fold grounds, as have been itself noted in the impugned judgment of learned Single Judge. 12. The first contention on behalf of the petitioners/respondents was that the petitioners/respondents who are working in Non Government aided institutions constitute a homogenous class with the teachers working in Government institutions. They have been discriminated in the matter of the benefit of pension-cum-gratuity on retirement at the age of 60 w.e.f. 1.7.2003 whereas the same has been allowed to the teachers working in Government institutions w.e.f. 28.11.2001. 13. The second contention was that there is no rational classification as there is no material on the basis of which justification can be given for grant of benefit under Government Order dated 9.2.2004 from 1.7.2003 instead of 28.11.2001. 14. 13. The second contention was that there is no rational classification as there is no material on the basis of which justification can be given for grant of benefit under Government Order dated 9.2.2004 from 1.7.2003 instead of 28.11.2001. 14. The third contention was that the petitioners/respondents have been deprived of the death cum retirement gratuity which was payable to them after having retired at the age of 60 years whereas the counterparts of the petitioners/respondents in the Government institutions have been accorded this benefit at the age of 60 years. 15. We have to first consider as to whether the teachers working in the Non Government aided colleges form a homogenous class with the teachers working in the Government institutions. 16. It is to be noted that the teachers working in Government institutions are covered under the definition of ‘Government Servant’ whereas the teachers working in Non Government aided institutions are not. Service conditions of the teachers working in the Non Government aided institutions are altogether different and they are governed under the provisions of U.P. Intermediate Education Act, 1921 and the rules framed thereunder whereas the teachers working in Government institutions are Government servants and their service conditions are covered by rules framed under Article 309 of the Constitution of India. 17. It is also to be noted that the age of retirement of Government servants including the teachers working in Government institutions is 60 years whereas the age of retirement of teachers working in non Government aided institutions is 62 years. The Government servants are entitled to get gratuity, pension and other post retiral benefits as are admissible to them whereas the teachers working in Non Government aided institutions are entitled to avail the benefit of pension plus death cum retirement gratuity if they give an option to retire presently at the age of 60 years (previously 58 years). The teachers working in Government institutions are on transferable post whereas the teachers working in Non Government aided institutions can be transferred only on their making an application and that too with the consent of both the committee of management of two institutions included in transfer. 18. As such, it is very much clear that the teachers working in Non Government aided institutions and the teachers working in Government institutions are governed under the different set of rules. They do not form a homogenous group. 19. 18. As such, it is very much clear that the teachers working in Non Government aided institutions and the teachers working in Government institutions are governed under the different set of rules. They do not form a homogenous group. 19. It is also to be noted that in the present cases the petitioners had already exercised their option to forgo the gratuity and continued in the service till the age of 60 years and as such they cannot turn around and claim that they be provided gratuity at par with the teachers working in Government colleges. 20. Since we have come to the conclusion that the teachers working in Non Government aided institutions and the teachers working in Government institutions are altogether different class and cannot be treated to be a homogenous class, therefore, the second and third contentions raised in the writ petition loose significance. 21. The judgment of the learned Single Judge in appeal has wrongly treated the two category of teachers to form a homogenous group. The very foundation of the judgment of the Single Judge in our opinion is misplaced. 22. In view of the above, we are of the considered opinion that the impugned judgment and order dated 15.5.2012 passed in Writ-A No. 43687 of 2006 cannot be sustained in the eye of law. It is hereby set aside. The impugned judgment dated 14.1.2016 passed in Writ -A No. 27662 of 2014 whereby benefit of the aforesaid judgment dated 15.5.2012 has been extended is also hereby set aside. The special appeals are allowed.