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2023 DIGILAW 525 (UTT)

Harish Singh Bisht v. State of Uttarakhand

2023-09-12

MANOJ KUMAR TIWARI

body2023
JUDGMENT : Petitioners, in these writ petitions, were appointed in recognized Junior High Schools, which were not receiving any financial aid from the State Government at the relevant point of time. Token grant of Rs. 1,00,000/- was given to those Schools vide Government Order dated 24.05.2005. Those Schools were subsequently included in the grant-in-aid list by the State Government vide order dated 30.03.2007. According to petitioners, since token grant was given to the schools where they were serving, vide Government Order dated 24.05.2005, and New Pension Scheme was introduced only w.e.f. 01.10.2005, therefore, petitioners are entitled to benefit of Old Pension Scheme, as they came to be appointed in government aided schools much earlier, i.e. on 24.05.2005. 2. Since common questions of law and fact are involved in these writ petitions, therefore are being taken up together and are being decided by this common judgment. However, for the sake of brevity, facts of Writ Petition (S/S) No. 1839 of 2017 alone are being considered. 3. Harish Singh Bisht has filed Writ Petition (S/S) No.1839 of 2017, seeking the following substantive reliefs: “i) Issue a writ, order or direction in the nature of mandamus directing the respondents to give the petitioner the benefit of Government Pension Scheme (GPF) as prevalent prior to 01-10-2005 (as per ANNEXURE No-7). ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to treat the petitioner’s services as regular government employee/teacher from the date of 24 May 2005/ date of petitioner school coming under the government grant with all consequential benefits. iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to give the petitioners benefit of Time Scale Salary along with interest in parity with the judgment dated 27-03-2017 passed by this Hon’ble High Court in WPSS No.1955/2015 (ANNEXURE No-9).” 4. According to the petitioner, he was appointed as Assistant Teacher in Danu Junior High School, Bindukhatta, District Nainital, w.e.f. 16.02.2001; at the time of his appointment, the School was not receiving any financial aid from the State Government. Vide Government Order dated 24.05.2005, token grant of Rs. 1,00,000/- was given to the said School and, thereafter, vide Government Order dated 30.03.2007, the said School was included in the grant-in-aid list of the State Government. Vide Government Order dated 24.05.2005, token grant of Rs. 1,00,000/- was given to the said School and, thereafter, vide Government Order dated 30.03.2007, the said School was included in the grant-in-aid list of the State Government. It is contended that the New Pension Scheme was introduced in respect of State Employees and Employees of Government Aided Educational Institutions w.e.f. 01.10.2005 and since token grant was given to the concerned School vide Government Order dated 24.05.2005, therefore, petitioner is to be treated as employee of an aided school w.e.f. 24.05.2005, thus he is entitled to pension, as per Old Pension Scheme. 5. From perusal of the record, it is revealed that Additional Secretary, Education Department, Government of Uttarakhand issued a Government Order on 24.05.2005, whereby sanction for releasing token grant of Rs.1,00,000/- was given in respect of 19 private unaided Junior High Schools. By the same Government Order, 80 other private unaided Educational Institutions were included in the grant-in-aid list of the State Government. The 19 Non-Government Recognized Junior High Schools, which were granted token grant vide Government Order dated 24.05.2005, were included in the grant-in-aid list of the State Government by a separate Order dated 30.03.2007. 6. Petitioner contends that since the Institution, in which he was appointed, was given token grant vide Government Order dated 24.05.2005, therefore, the date of issuance of said Government Order is to be treated as date of his substantive appointment in Government Aided Junior High School, as such benefit of Old Pension Scheme deserves to be extended to him. Learned counsel for the petitioner relies upon Director’s letter dated 24.03.2006 and consequential letter dated 24.08.2006 issued by Finance & Accounts Officer to Management of the concerned School for contending that petitioner’s services came under statutory control of the Competent Authority in Education Department, w.e.f. 01.07.2005. 7. Per contra, learned State Counsel submits that, by means of Government Order dated 24.05.2005, 80 Recognized Non-Government Educational Institutions were included in the grant-in-aid list; while, 19 Junior High Schools, including those in which petitioners were serving, were treated differently and only sanction for release of token grant of Rs. 1,00,000/- was granted in respect of those 19 schools vide Government Order dated 24.05.2005. 1,00,000/- was granted in respect of those 19 schools vide Government Order dated 24.05.2005. Learned State Counsel has drawn attention of this Court to letter dated 24.03.2006 issued by Director, School Education to Finance & Accounts Officer, Basic Education, Nainital, which is enclosed as Annexure No.3 to the writ petition. By the said letter, permission to spend amount of Rs. 1,00,000/- sanctioned as token grant, was given with the condition that, before spending the amount, due enquiry, regarding appointment of Teaching and Non-Teaching Staff in the concerned School, shall be made and it shall also be verified whether approval to such appointments was given by the competent authority. Learned State Counsel, thus, submits that although token grant was sanctioned in May, 2005, however, permission to utilize the amount of token grant was given by Director, School Education only on 24.03.2006. Learned State Counsel has also drawn attention of this Court to letter dated 24.08.2006 issued by Finance & Accounts Officer, Basic Education to Manager of Danu Junior High School, wherein displeasure is shown for not submitting utilization certificate regarding amount of Rs. 1,00,000/-, sanctioned as token grant to the school. 8. Learned State Counsel also relied upon a document enclosed as Annexure No.6 to the writ petition, which is the Pay Fixation Order of the petitioner. Perusal of the said document reveals that petitioner was paid salary as per the Government pay scale only w.e.f. 01.04.2007. It is submitted that, before inclusion of the School in grant-in-aid list, State Government had no liability to pay salary to the petitioner and petitioner was paid salary in regular pay scale from State Exchequer, only w.e.f. 01.04.2007. Learned State Counsel further submitted that, upon inclusion of the Unaided School in the grant-in-aid list, vide Government order dated 30.03.2007, Teaching and Non-Teaching Posts were sanctioned and salary of Teaching and Non-Teaching Employees was drawn against such sanctioned posts. Thus, he submits that petitioner cannot claim to be Teacher of Government Aided Institution from the date of sanction for token grant by the State Government and he acquired the said status after 30.03.2007. 9. Claim of the petitioner is for Old Pension Scheme. Benefit of said scheme is available only to such State Employees/Employees of Government Aided Educational Institutions, who were substantively appointed against pensionable post before 01.10.2005. 9. Claim of the petitioner is for Old Pension Scheme. Benefit of said scheme is available only to such State Employees/Employees of Government Aided Educational Institutions, who were substantively appointed against pensionable post before 01.10.2005. The Government Order dated 24.05.2005 reveals that petitioners’ School was granted token grant, while certain other schools were included in grant-in-aid list of the State. Thus, it can be safely inferred that token grant is different from inclusion of a school in the grant-in-aid list. The order issued by Competent Authority regarding creation of Posts in the concerned schools is not on record and this Court finds force in the contention raised on behalf of the State that before appointment in a Government Aided Institution, posts have to be created by the Competent Authority and salary from State Exchequer can be drawn only against such created posts. From the Pay Fixation Order, which is enclosed as Annexure No.6 to the writ petition, it is revealed that petitioner was given salary from State Exchequer only w.e.f. 01.04.2007 and earlier he was paid remuneration by the Management from its own sources. 10. The condition precedent for getting benefit of Old Pension Scheme is that one should be serving on a pensionable post before 01.10.2005. There is nothing on record to show that services rendered by petitioner before 01.10.2005 were pensionable or that he was appointed in a pensionable establishment. Services in an Unaided Educational Institution are generally non-pensionable. In the absence of any material to show that petitioner was serving in a pensionable establishment, the only logical conclusion would be that he was not appointed against a pensionable post. Since the Institution, in which he was serving, was included in grant-in-aid list w.e.f. 30.03.2007, therefore, he cannot claim benefit of Old Pension Scheme on the strength of token grant sanctioned to the concerned School vide Government Order dated 24.05.2005. 11. Learned Counsel for petitioners has raised another issue by contending that similarly situate persons, who were serving in Unaided Junior High Schools, which were given token grant vide Government Order dated 24.05.2005, and were later included in the grant-in-aid list of the State Government vide Government Order dated 30.03.2007, have been given benefit of Old Pension Scheme and their G.P.F. is regularly deducted by the employer. Pleading to this effect is made in paragraph nos. 11 & 12 of the writ petition. Reply to paragraph nos. Pleading to this effect is made in paragraph nos. 11 & 12 of the writ petition. Reply to paragraph nos. 11 & 12, as given in the counter affidavit, is vague and there is no specific denial of the averments made in the writ petition. 12. Article 14 of our Constitution guarantees equal treatment to similarly situate persons by the State and its Authorities. Thus, State cannot treat similarly situate persons differently. Petitioners contend that similarly situate persons, who were initially appointed in Unaided Junior High Schools in Garhwal Region have been given benefit of Old Pension Scheme, even though they are identically placed as the petitioners, therefore, these writ petitions are disposed of with direction to Director, School Education, Uttarakhand to look into this aspect of the matter and take necessary corrective measures for correcting such anomaly. It shall be open to petitioners to highlight their grievance regarding dis-similar treatment by making representation(s), enclosing therewith all relevant documents to substantiate their allegation of discrimination, within three weeks from today. If such representation(s) is made within stipulated time, Director shall pass speaking order within six months, after examining the issues involved in the matter and after providing opportunity of hearing, if needed, to the persons likely to be affected by the decision on such representation.