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2023 DIGILAW 557 (UTT)

Vijay Chandra Tewari v. State of Uttarakhand

2023-09-27

MANOJ KUMAR TIWARI

body2023
JUDGMENT : MANOJ KUMAR TIWARI, J. 1. After serving for more than 33 years in a Government Aided Intermediate College, petitioner retired from service on 31.03.2016. Since he has not been given pension under the Old Pension Scheme, therefore, he has filed this writ petition seeking the following reliefs: “(a) Issue a writ, order or direction in the nature of MANDAMUS directing the Respondents to pay pension to the petitioner after counting the services of the petitioner from 08.07.1982 till 31.03.2016 under the old pension scheme. (b) Issue a writ, order or direction in the nature of MANDAMUS directing the Respondents to pay the arrears of the pension to the petitioner with interest after calculating the pension of the petitioner taking into consideration the services from 08.07.1982 to 31.03.2016. (c) Issue a writ, order or direction in the nature of MANDAMUS directing the Respondents to pay back with interest the amount deducted by the respondents from the pay of the petitioner under the head of CPD, when the contributory pension scheme, 2005 was not applicable to the petitioner. (d) Issue a writ, order or direction in the nature of MANDAMUS directing the Respondents to pay the amount of Gratuity with interest to the petitioner for the period 08.07.1982 to 31.03.2016.” 2. From perusal of record, it is revealed that petitioner was given ad-hoc appointment as Assistant Teacher L.T. Grade (Biology) against a short term vacancy, which arose on account of suspension of the previous incumbent, namely, Mr. R.D. Joshi. Approval to such ad-hoc appointment was given by the District Inspector of Schools, Nainital, vide order dated 03.09.1982. 3. Petitioner’s services were directed to be terminated by District Inspector of Schools, Nainital, vide order dated 13.10.1986, however, pursuant to interim order passed by Hon’ble Allahabad High Court, petitioner was permitted to continue as Assistant Teacher, L.T. Grade (Biology). The previous incumbent on the said post, namely, Mr. R.D. Joshi completed age of superannuation on 31.01.2007 and a clear vacancy arose on the post against which petitioner was appointed, only on 01.02.2007. 4. It is a fact that services of petitioner were regularised on the post of Assistant Teacher, L.T. Grade (Biology), vide order dated 02.08.2007. Before his regularisation, petitioner was not serving in pensionable establishment and an ad-hoc teacher, appointed in a Government Aided School, was not entitled for pension. 4. It is a fact that services of petitioner were regularised on the post of Assistant Teacher, L.T. Grade (Biology), vide order dated 02.08.2007. Before his regularisation, petitioner was not serving in pensionable establishment and an ad-hoc teacher, appointed in a Government Aided School, was not entitled for pension. Petitioner was given regular appointment on the aforesaid post vide order dated 02.08.2007, however, before grant of regular status to him, State Government issued a notification on 25.10.2005 providing that persons appointed in Government Departments/Government Aided Educational Institutions after 01.10.2005, shall be covered by New Contributory Pension Scheme. 5. Learned counsel for petitioner contends that petitioner was appointed in a Government Aided School in 1982, therefore, he is not covered by New Contributory Pension Scheme and he is entitled to get benefit of Old Pension Scheme. 6. The said contention, however, is not acceptable, as before 02.08.2007, petitioner’s status was that of an ad-hoc employee and he was serving against a post, on which the previous incumbent Mr. R.D. Joshi was holding lien. It is not disputed that disciplinary proceedings initiated against Mr. R.D. Joshi remained inconclusive till his retirement. Mr. R.D. Joshi was holding a pensionable post and pension must have been paid to him post retirement, therefore, two persons cannot be paid pension from the same post. Even though, petitioner served against the said post between 03.09.1982 till retirement of Mr. R.D. Joshi on 31.01.2007, however, petitioner cannot have a better claim for pension than what Mr. R.D. Joshi had. 7. A counter affidavit has been filed by Chief Education Officer, Nainital. Paragraph Nos. 4, 10, 11, 13, 14 and 15 of the counter affidavit are reproduced below: “4. That in regard to the contents of Para no. 1 of the writ petition it is submitted that on dated 08.07.1982 the petitioner was temporarily engaged on part time basis against the post of Assistant Teacher (Biology), due to the suspension of regularly appointed working teacher Shri R.D. Joshi. The disciplinary proceeding against Shri R.D. Joshi remains pending till his superannuation i.e. dated 31.01.2007, consequent thereto Shri R.D. Joshi was being paid the substantive allowance till his superannuation against the post of Assistant Teacher, Biology. The disciplinary proceeding against Shri R.D. Joshi remains pending till his superannuation i.e. dated 31.01.2007, consequent thereto Shri R.D. Joshi was being paid the substantive allowance till his superannuation against the post of Assistant Teacher, Biology. Thereafter from 01.02.2007 the entire dues has been paid to the petitioner treating him as Assistant Teacher, Biology working against the substantive vacant post, which was received by the petitioner without any objection at that time. It is further submitted that the suspension allowance had been paid to the working Assistant Teacher against the said post of Assistant Teacher, Biology Shri R.D. Joshi till his superannuation. It is also submitted that neither the said post of Assistant Teacher, Biology was vacant till 01.02.2007 nor the petitioner can substantively be appointed against the said vacancy prior to 01.02.2007. Thus the claim of the petitioner in the instant writ petition is not valid and sustainable, moreover, the petitioner is retired on 31.03.2016, and after laps of about three years, the instant writ petition of the petitioner is highly belated that too without explaining such inordinate delay, the writ petition of the petitioner is liable to be dismissed on this ground only. 10. That the contents of Para No. 10 of the writ petition as stated are denied. It is submitted that the contentions of the petitioner are categorically denied that his appointment was under the due procedure of selection, he was working from the year 1982, the provisions of New Pension Scheme, 2005 is not applicable upon him. While in fact, as stated above, the petitioner was temporarily engaged on part time basis against the said post on 08.07.1982 and at that time the regularly appointed working Assistant Teacher, Biology Shri R.D. Joshi was under suspension, thus the said post was not vacant at that time and after retirement of Shri R.D. Joshi on 31.01.2007, the said post became substantively vacant since 01.02.2007, and subsequently the petitioner was regularized from 02.08.2007 against the said vacant post of Shri R.D. Joshi, as such the provisions of New Pension Scheme, 2005 is fully applicable upon the petitioner. 11. That the contents of Para No. 11 of the writ petition as stated are denied. 11. That the contents of Para No. 11 of the writ petition as stated are denied. It is submitted that from the date of regularization of service of the petitioner, the contribution under New Pension Scheme, 2005 was being deducted from the salary of the petitioner, against which the petitioner has not submitted any objection or representation before the Department. The petitioner after laps of long delay has arisen his grievances through this writ petition, which is not maintainable. 13. That the contents of Para No. 13 to 18 of the writ petition as stated are not admitted, hence denied. In reply thereto it is submitted that on the basis of the services rendered by the petitioner from dated 01.02.2007 till the date of superannuation i.e. 31.03.2016, the petitioner has been paid the admissible service benefits i.e. gratuity amounting to Rs. 2,88,450/- and admissible amount of Rs. 10,03,424/- under New Pension Scheme, 2005 on the basis of the contribution deposited by the petitioner vide Cheque No. 005914 dated 07.10.2016, which has already been accepted/ received by the petitioner without any demur. 14. That the contents of Para no. 19 to 22 of the writ petition are denied as incorrect and misleading. It is incorrect version of the petitioner that the provision of new Pension Scheme 2005 is not applicable upon him and he is praying to return back the amount of contribution deducted from his salary alongwith interest. While, in fact the petitioner has already been received, accepted the entire admissible amount under New Pension Scheme 2005 i.e. Rs. 10,03,424/- in the year 2016, thus it is clear that the petitioner is trying to misled the Hon’ble Court by suppressing the real and true facts. 15. That the contents of Para no. 23 of the writ petition are denied. It is submitted that the post of the petitioner against which he was working was substantively became vacant on 01.02.2007, hence he is not entitled for any service benefit before the said date. It is further submitted that the petitioner has received the entire admissible benefits on the basis of the services rendered by him from 01.02.2007 to 31.03.2016 without any objection.” 8. It is further submitted that the petitioner has received the entire admissible benefits on the basis of the services rendered by him from 01.02.2007 to 31.03.2016 without any objection.” 8. From the counter affidavit filed by Chief Education Officer, it is apparent that the benefits admissible under New Pension Scheme have been paid to petitioner; it is further revealed that petitioner received the said benefits, without raising any demur. 9. Now, only question which falls for consideration is whether petitioner is entitled to benefit of Old Pension Scheme or not. Since petitioner was substantively appointed against a sanctioned post vide order dated 02.08.2007 and permanent vacancy had occurred on the said post only on 31.01.2007, therefore, petitioner is not entitled to benefit of Old Pension Scheme, which was applicable only to those, who were regularly appointed against a sanctioned post before 01.10.2005. Reliance by petitioner on his ad-hoc appointment in 1982 for claiming benefit under Old Pension Scheme is not tenable in the eyes of law. 10. No material has been placed on record to substantiate petitioner’s claim that he was holding a pensionable post before 01.10.2005 or that he was serving in a pensionable establishment before the cut-off date indicated in the notification dated 25.10.2005. Thus, no direction can be issued to respondents to give benefit of Old Pension Scheme to petitioner. 11. Learned counsel for petitioner then submitted that although petitioner was paid gratuity, however, the amount paid as gratuity is less than what he was entitled under the provisions of Payment of Gratuity Act, 1972. 12. Learned State Counsel, however submitted that Payment of Gratuity Act is not applicable to Government employees and employees of Government Aided Educational Institutions are exempted, in view of provision contained in Section 5 of the said Act, as they are getting more favourable benefits than the benefits available under Payment of Gratuity Act. He further submitted that there are statutory Rules governing gratuity payable to State employees and employees of Government Aided Educational Institutions, therefore, petitioner cannot claim protection of Payment of Gratuity Act. He further submitted that Payment of Gratuity Act provides a forum, and if petitioner is claiming benefit under the said Act, then he can approach the forum provided under the said Act. 13. This Court finds substance in the contention raised by learned State Counsel. He further submitted that Payment of Gratuity Act provides a forum, and if petitioner is claiming benefit under the said Act, then he can approach the forum provided under the said Act. 13. This Court finds substance in the contention raised by learned State Counsel. Since Payment of Gratuity Act provides a forum for enforcing the provisions of the Act, therefore, a person seeking enforcement of provisions of the said Act should approach the forum available under the said Act. Thus, no relief can be granted to petitioner in this writ petition filed under Article 226 of the Constitution. 14. Accordingly, the writ petition is dismissed with liberty to petitioner to approach the forum available under Payment of Gratuity Act, 1972.