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2017 DIGILAW 3044 (ALL)

Tuhi Ram v. State of U. P.

2017-12-22

SANGEETA CHANDRA

body2017
JUDGMENT : 1. These two writ petitions have been heard together by this Court as they have been filed on similar facts and involve a similar question of law raised therein. 2. The brief facts relevant for decision of the controversy are that petitioner in Writ Petition No. 59979 of 2014 Tuhi Ram was appointed on 1.7.1974 as an Assistant Teacher in a private recognised, but unaided Junior High School i.e. Vasudev Vidhya Mandir Junior High School, Mathura (now Hathras). 3. Tuhi Ram's services were regularised on 1.7.1978 and were approved by the District Basic Shiksha Adhikari, Mathura on 20.3.1991. He retired from service on 30.6.2009 and at the time of his retirement his average pay of the last ten months was Rs. 19,200/-. His pension papers were prepared by the BSA treating him to have completed 35 years of service and pension was started to be paid to him of Rs. 19,600/- per month w.e.f. 1.7.2009, this pension continued to be paid upto December 2012, but thereafter it was stopped by the Authorities. 4. Similarly Sri Hari Shanker Tyagi, the writ-petitioner of Writ Petition No. 61284 of 2014 was initially appointed on 30.6.1972 as an Assistant Teacher in Vasudev Vidhya Mandir Junior High School Mathura (now Hathras). The appointment of Hari Shanker Tyagi was regularised on 1.7.1978 and later approved on 20.3.1991 by the then District Basic Shiksha Adhikari, Mathura. Hari Shanker Tyagi retired on 30.6.2011 and at the time of his retirement his average pay of the last 10 months of Rs. 20,380/- and the petitioner was treated to have completed 39 years of service and his pension was approved and started to be paid to him w.e.f. 1.7.2011. Such payment continued to be made till November 2012, but was stopped thereafter. 5. It is the case of the petitioners that the Authorities themselves had treated the petitioners to have rendered 35 years and 39 years of service respectively. Their appointments having been approved in March 1991, they had completed more than 10 years of service prior to their retirement and were entitled for pension. The pay fixation of the petitioners was also done taking into account their prior service rendered in unaided Junior High School and now the same could not be stopped by the Authorities. 6. Their appointments having been approved in March 1991, they had completed more than 10 years of service prior to their retirement and were entitled for pension. The pay fixation of the petitioners was also done taking into account their prior service rendered in unaided Junior High School and now the same could not be stopped by the Authorities. 6. Counter affidavits have been filed in both these writ petitions by District Basic Shiksha Adhikari, Hathras as since 1997, the school in question has come under the purview of District Basic Shiksha Adhikari, Hathras. The District Basic Shiksha Adhikari has pointed out in his counter affidavit that w.e.f. 1.4.2005, a new pension scheme had been introduced by the State Government through its Government Order dated 28.3.2005, wherein it is provided that a person, who had been given appointment after 1.4.2005 would get the benefit of Contributory Pension Scheme only and not the old pension scheme. If any employee had rendered less than 10 years of service as on 1.4.2005, then such an employee had to submit his option regarding Contributory Pension Scheme and he could not be granted pension under the old scheme. 7. This Government Order was clarified by another Government Order dated 20.4.2009 and both the Governments Order dated 28.3.2005 and 20.4.2009 were challenged in Writ Petition No. 3458 SS of 2009 (U.P. Senior Basic Shikshak Sangh Vs. State of U.P. & others) by similarly placed Teachers' Association. The writ petition was dismissed on 4.1.2013, and therefore, the Director, Basic Education issued a circular on 21.2.2013 clarifying that pension would not be admissible to teachers of institutions, which were initially unaided and had been taken under grant-in-aid list after 1.4.2005. The petitioner's institution was taken under grant-in-aid list w.e.f. 1.12.2006 i.e. after 1.4.2005. In such cases, such teachers would only be eligible for submitting their option for Contributory Pension Scheme. 8. It has also been mentioned in the counter affidavit that in pursuance of the letter/circular of the Director (Basic) Education, the Finance and Account Officer in the office of Basic Shiksha Adhikari, Hathras had informed the Principal/Manager of the petitioners' Institution through his letter dated 16.5.2013 that all teachers be asked to submit their options. The petitioners never submitted their options. Since pension was inadmissible in view of the Government Orders dated 28.3.2005 and 8.4.2009, the same was stopped. 9. The petitioners never submitted their options. Since pension was inadmissible in view of the Government Orders dated 28.3.2005 and 8.4.2009, the same was stopped. 9. At the time of argument, Sri Akhilesh Chandra, counsel for the Basic Shiksha Adhikari, Hathras has pointed out judgments rendered by a Division Benches of this Court in Special Appeal No. 123 of 2013 (U.P. Senior Basic Shikshak Sangh Vs. State of U.P. & others) decided on 4.12.2015 and Special Appeal No. 560 of 2016 (State of U.P. & 3 others Vs. Mahavir Singh Yadav) connected with Special Appeal Defective No. 561 of 2016 (State of U.P. Vs. Mahesh Prasad Srivastava) decided on 22.9.2016 and judgment rendered on 20.10.2016 in Special Appeal Defective No. 635 of 2016 (Shiv Shanker Singh Vs. State of U.P.) and has brought to the notice of this Court that in cases where similarly situated Teachers had approached this Court, either through association or individually by filing writ petitions, this Court had rejected their cases and upheld the Government Orders dated 28.3.2005 and 8.4.2009. 10. Learned counsel for the petitioners has however tried to differentiate the case of the writ petitioners from the case of others referred to in the aforesaid Special Appeals saying that in the aforecited judgments this Court was dealing with cases where Government Orders dated 1.4.2005 & 8.4.2009 were challenged whereby the State Government had launched the New Pension Scheme. According to the petitioner, this New Pension Scheme is inapplicable in the case of the petitioners, as the petitioners had retired after rendering more than 10 years of regular service, and were also being paid their pension, treating their entire service as qualifying service, and all of a sudden the said pension was stopped in violation of principles of natural justice. 11. By means of an order dated 2.12.2006, the school was taken under grant-in-aid list and the petitioners became entitled for payment of salary from the Government, meaning thereby, that the petitioners became employees similarly situated as other employees of Institutions, which were already under grant-in-aid and they could not be discriminated against by the Authorities. 12. This Court has considered the rival submissions and the judgments cited by the learned Basic Shiksha Adhikari. In U.P. Senior Basic Shikshak Sangh Vs. 12. This Court has considered the rival submissions and the judgments cited by the learned Basic Shiksha Adhikari. In U.P. Senior Basic Shikshak Sangh Vs. State of U.P. (supra), the Association was representing the cause of teachers of recognised Junior High School privately managed and granted aid by the State Government after 1.4.2005. The Association had pleaded that once their institutions came under grant-in-aid, these teachers were similarly situated and should be similarly treated as Teachers whose Institutions were already under grant-in-aid list since before the launch of New Pension Scheme and governed by the U.P. State Aided Educational Institutions Employee Contributory Provident Fund-Insurance-Pension Rules 1964 (herein referred to as Labhtrayi Yojna). 13. This Court considered the argument of the petitioner's Association that about 1000 Junior High Schools were brought under grant-in-aid w.e.f. 1.12.2006 by Government Order dated 2.12.2006, prior to this, such schools were unaided, but were recognised. The petitioners had earlier been granted benefits of prior service by Government Orders dated 23.5.1998, 17.2.1999 & 8.3.2002 and their fixation of salary was done by extending the benefits of service rendered by them when the Institution was not under grant-in-aid for the purposes of pay fixation and other allowances. Yet their prior service was not being counted for the purposes of grant of pension under the Labhtrayi Yojna. Instead they were being asked to opt for Contributory Pension Scheme. 14. This Court in the aforecited cases came to conclusion that the Labhtrayi Yojna was not applicable or attracted when the Institution in question was not in grant-in-aid list as Rule 3 of the said Labhtrayi Yojna Rules of 1974 clearly provided that the said scheme would be applicable to permanent employees serving in State aided Educational Institutions. Such Scheme would become applicable for private recognition Institutions only from the date when the same were taken into grant-in-aid list. 15. Admittedly by the time the Institutions in which the writ petitioners were working were taken under grant-in-aid list w.e.f. 1.12.2006 i.e. after 1.4.2005; the Government had already introduced the Contributory Pension Scheme. 16. The Hon'ble Division Bench while deciding U.P. Senior Basic Shikshak Sangh (supra) considered earlier judgments rendered by this Court in Buddhiram Vs. State of U.P. 2013 (1) ADJ 254 and Chandra Bhushan Bajpai Vs. 16. The Hon'ble Division Bench while deciding U.P. Senior Basic Shikshak Sangh (supra) considered earlier judgments rendered by this Court in Buddhiram Vs. State of U.P. 2013 (1) ADJ 254 and Chandra Bhushan Bajpai Vs. Joint Director of Education, Kanpur Mandal, Kanpur to hold that service rendered by such Teachers in Institutions at the time when they were unaided could not be counted as qualifying service and held that New Pension Scheme has been notified w.e.f. 1.4.2005 for employees, who had been appointed after 1.4.2005, or as clarified by the Government Order dated 8.4.2009 to such employees, who had earlier been working in recognised, but unaided Institutions. 17. This Court held that if the 1964 Rules provided for extension of benefit to only State aided Educational Institution, then a mandamus could not be issued to modify the scheme to apply it to unaided Institutions also. Service rendered by the appellants in Junior High Schools at the time when it remained unaided could not be counted as qualifying service, and they were to be governed by New Pension Scheme now introduced w.e.f. 1.4.2005. 18. The judgment rendered by the Division Bench in the case of U.P. Senior Basic Shikshak Sangh (supra) has been relied upon by another Division Bench in Special Appeals of Mahavir Singh Yadav (supra) Mahesh Prasad Srivastava (supra) and Shiv Shanker (supra), in its later judgment dated 22.9.2016 and 20.10.2016. 19. The petitioners herein admittedly were teaching in unaided recognised Junior High School since 1972/1974 upto 1.12.2006. The Junior High School in question came under grant-in-aid ist w.e.f. 1.12.2006 by Government Order dated 2.12.2006, as such the Labhtrayi Yojana of 1964 could not be made applicable to them, nor pension could have been granted to them, as the Labhtrayi Yojana 1964 was only applicable to Teachers in Educational Institutions, which were aided by the State Government. 20. The service rendered by the petitioners before the Institution came under grant-in-aid list cannot be counted as qualifying service for the purposes of pension as w.e.f. 1.4.2005, the Government had introduced a New Pension Scheme. 21. The petitioner's case being fully covered by the Government Orders dated 28.3.2005 and 8.4.2009 and the judgment rendered by this Court in Writ Petition Petition 3458 (SS) of 2009 decided on 4.1.2013, could not be continued to be granted pension. 21. The petitioner's case being fully covered by the Government Orders dated 28.3.2005 and 8.4.2009 and the judgment rendered by this Court in Writ Petition Petition 3458 (SS) of 2009 decided on 4.1.2013, could not be continued to be granted pension. In fact such pension was inadmissible to the petitioners from the very beginning and was wrongly being granted. However this Court in view of the law settled by the Hon'ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih (White Washer) 2014 (8) SCC 883 cannot allow recovery of pension already paid to the petitioners. 22. The writ petitions are dismissed. No order as to costs.