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2024 DIGILAW 260 (ALL)

State of U. P. v. Mahesh Chandra Sharma

2024-01-24

ASHWANI KUMAR MISHRA, SYED QAMAR HASAN RIZVI

body2024
ORDER : Order on Delay Condonation Application 1. Heard Sri Neeraj Tripathi, learned Additional Advocate General assisted by Sri Ankit Gaur, learned counsel for the State and Sri Adarsh Singh and Sri Ajeet Singh, learned counsels for the respondent. 2. Reasons for delay in filing the special appeal have been satisfactorily explained. Delay Condonation Application is consequently allowed. Office is directed to treat the appeal as having been filed within time. Regular Number would be allotted to the appeal. Order on Appeal 1. Heard Sri Tripathi in support of the appeal on merits and Sri Adarsh Singh on behalf of the respondents. 2. Learned Single Judge vide the order under challenge has directed the appellant to process the claim of respondent/petitioner for payment of pension by counting his ad-hoc services rendered on the post of Assistant Teacher in L.T. Grade, prior to his regularization in accordance with Section 33G of the U.P. Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred to as the Act of 1982). 3. Undisputed facts of this case are that the respondent/petitioner was appointed as L.T. Grade Teacher on ad-hoc basis in Kisan Inter College, Taharpur, Amroha vide order dated 14.01.1993. The ad-hoc appointment was against a short term vacancy. This appointment of respondent was approved by the District Inspector of Schools, Moradabad on 18.09.1993. The respondent was allowed to continue as L.T. Grade Teacher in the institution and all benefits of service were extended to him. The short term vacancy got converted into substantive vacancy. The Act of 1982 was amended vide U.P. Act No. 7 of 2016, as a result of which a teacher appointed in terms of the amended provision was held entitled to regularization. The short term vacancy got converted into substantive vacancy. The Act of 1982 was amended vide U.P. Act No. 7 of 2016, as a result of which a teacher appointed in terms of the amended provision was held entitled to regularization. Section 33G of the Act of 1982, providing for such course is reproduced hereinafter: "33-G. Regularisation of certain more appointments against short term vacancies-Any teacher, other than the Principal or the Headmaster, who- (a) was appointed by promotion or by direct recruitment in the lecturer's grade or trained graduate grade on or after August 7, 1993, but not later than January 25, 1999 against a short term vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, as amended from time to time, and such vacancy was subsequently converted into a substantive vacancy: (b) was appointed by promotion or by direct recruitment on or after August 7, 1993, but not later than December 30, 2000 on adhoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade; (c) possesses the qualifications prescribed under, or is exempted (c from such qualification in accordance with, the provisions of the Intermediate Education Act, 1921; (d) has been continuously serving the institution from the date of such appointment up to the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2016; (e) has been found suitable for appointment in a substantive capacity by the selection committee referred to in clause (a) of sub-section (2) of Section 33C in accordance with the procedure prescribed under clause (b) of the said sub-section; shall be given substantive appointments by the Management. (2)(a) The names of the teachers shall be recommended for substantive appointment in order of seniority as determined from the date of their appointment; (b) If two or more such teachers are appointed on the same date, the teacher who is elder in age shall be recommended first. (3) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment. (3) Every teacher appointed in a substantive capacity under sub-section (1) shall be deemed to be on probation from the date of such substantive appointment. (4) A teacher who is not found suitable under sub-section (1) and a teacher who is not eligible to get a substantive appointment under the said subsection shall cease to hold the appointment on such date as the State Government may by order specify. (5) Nothing in this section shall be construed to entitle any teacher to substantive appointment if on the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2016 such vacancy had already been filled or selection for such vacancy has already been made in accordance with this Act. (6) The services of the adhoc teachers and the teachers who have been appointed against short term vacancies shall be regularised from the date of commencement of the Uttar Pradesh Secondary Services Selection Board (Amendment) Act, 2016. (7) Reservation Rules shall be followed in rugularisation of adhoc teachers and teachers who are appointed against short term vacancies. (8) Adhoc teachers, who have not been appointed either in accordance with the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 or in accordance with Section 18 of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 and are otherwise getting salary only on the basis of Interim/Final orders of the court shall not be entitled for regularisation." 4. There existed a substantive vacancy and the respondent/petitioner was found eligible and entitled to regularization by a Selection Committee duly constituted in terms of Section 33G of the Act of 1982. The Joint Director of Education, 12th Region, Moradabad passed an order on 27.10.2016 regularizing the service of the respondent-petitioner with effect from 22.03.2016. The respondent-petitioner was also granted benefit of selection grade by the District Inspector of Schools, Amroha on 10.01.2017. A communication was also sent by the District Inspector of Schools, Amroha, allotting G.P.F. Account No. 292 to the respondent vide his order dated 23.04.2017. The respondent continued to work satisfactorily and ultimately attained the age of superannuation on 31.03.2020. 5. Claim for payment of pension was put forth by the respondent on the ground that his ad-hoc services rendered prior to the regularization was liable to be counted towards qualifying service for the purpose of payment of pension. The respondent continued to work satisfactorily and ultimately attained the age of superannuation on 31.03.2020. 5. Claim for payment of pension was put forth by the respondent on the ground that his ad-hoc services rendered prior to the regularization was liable to be counted towards qualifying service for the purpose of payment of pension. This claim for pension came to be rejected by the District Inspector of Schools, Amroha vide his order dated 21.03.2020. Aggrieved by this order, the respondent filed Writ Petition No. 11131 of 2023. The writ petition has been allowed by the learned Single Judge relying upon the provisions of the applicable rules i.e. Uttar Pradesh State Aided-educational Institution Employees' Contributory Provident Fund-Insurance-Pension Rules (hereinafter referred as Pension Rules) introduced vide Government order dated 17.12.1965. These Rules had come into force with effect from 01.10.1964. Rule 19(b) of the Rules has been relied upon by the respondent, which is reproduced hereinafter: "19(b)-Continuous, temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service" 6. Learned Single Judge has allowed the claim of the respondent relying upon Rule 19(b) and a direction has been issued to compute the previous services rendered by respondent on ad-hoc basis towards qualifying services. Aggrieved by the judgment of the learned Single Judge, the State is before us in this appeal. 7. Sri Neeraj Tripathi, learned Additional Advocate General for the State submits that the policy for payment of pension to the teachers and employees of aided educational institutions recognized under the U.P. Intermediate Education Act, 1921, has been introduced vide government order dated 17.12.1965. The pension rules came into force on 01.10.1964. Clause 3 of the Pension Rules are relied upon by the State, which are extracted hereinafter: 8. On behalf of the State, it is submitted that the services of respondent was never confirmed and therefore, the status of the respondent cannot be treated to be that of a permanent employee in the aided educational institutions. It is further submitted by learned State Counsel that the Pension Rules have since been amended vide Government Order dated 12.12.2023 whereby the previous government order of 17.12.1965 has been modified vide Clause 2 of the government order, which is reproduced hereinafter: 9. It is further submitted by learned State Counsel that the Pension Rules have since been amended vide Government Order dated 12.12.2023 whereby the previous government order of 17.12.1965 has been modified vide Clause 2 of the government order, which is reproduced hereinafter: 9. It is argued that in terms of the amended rules, which are applicable upon the respondent, the period of substantive service would be counted only with effect from 22.03.2016 and not for any period prior to it. Submission is that the learned Single Judge has not correct noticed the statutory scheme and therefore grant of pension to the respondent is unsustainable. 10. Sri Adarsh Singh, learned counsel for the respondent, per contra, submits that the State having chosen to exercise its power under Article 162 of the Constitution of India, in framing the pension rules, is bound by the terms of the pension rules. It is also submitted that the government order containing the pension rules was applicable on the date of superannuation of the respondent i.e. 31.03.2020 and therefore, any subsequent amendment in the Rules, vide government order dated 12.12.2023, cannot take way the vested right already accrued in favour of respondent to receive pension. 11. We have heard the learned counsel for the parties and perused the materials on record. It is not in issue that right to receive pension was created in the teaching and non-teaching staff of specified aided educational institutions vide Pension Rules, which got introduced vide government order dated 17.12.1965. The policy contained in the Pension Rules clearly contemplate inclusion of services rendered by a teacher in continuous, temporary or officiating capacity followed without interruption by confirmation, towards qualifying services. Regulation 19(b) has remained intact and has not been amended till the time the respondent remained in service. Regulation 19(b) has already been extracted above. Learned Single Judge has taken note of Rule 19(b) to hold that the continuous ad-hoc services rendered by the respondent, followed by the regularization of his services, would be counted towards qualifying service. 12. The challenge to the judgment is essentially led on the premise that the services of respondent were not made permanent. The service conditions of the respondent were governed by the provisions of the Act of 1982. 12. The challenge to the judgment is essentially led on the premise that the services of respondent were not made permanent. The service conditions of the respondent were governed by the provisions of the Act of 1982. The provisions of the U.P. Intermediate Education Act, 1921, were also applicable to the extent they are not inconsistent with the provisions of the Act of 1982, by virtue of Section 32 of the Act of 1982. Under the Act of 1921, statutory regulations have been framed which regulate the probation of a teacher. Regulation 8, 10 and 11 of the Regulations framed under Chapter III are relevant for the present purposes and are extracted hereinafter: "8. (1) The period of probation for a head of institution or teacher, whether appointed by direct recruitment or promotion, shall be one year, (2) Such period shall mommence- (a) in relation to a teacher deemed to be appointed in a substantive capacity under the Uttar Pradesh Secondary Education (Removal of Difficulties) (Fifth) Order, 1976 from November 27th, 1976. (b) in relation to any other person, from the date of this substantive appointment. 9. ................................. 10. A person placed on probation shall be confirmed if he fulfils the requirements of Regulation 9 above, as worked with diligence, has otherwise provided himself fit for the post for which he was recruited and his integrity is certified. 11. Unless before the expiry of the period of probation, the service of a Headmaster, Principal or Teacher is terminated or action is taken to dismiss, discharge or remove him or reduce him in rank or in the case of Headmaster or Principal the period of probation is extended under Regulation 12 following, he shall be confirmed on the post and in the grade at the end of his probation." 13. In the facts of the present case, the respondent was substantively appointed under Section 33G by an order of the competent authority dated 27.10.2016. The substantive appointment was made effective with effect from 22.03.2016. By virtue of Regulation 8, the period of probation was to be of one year. Regulation 9 specifies the conditions subject to which the confirmation of a teacher is to be made. Regulation 9 provides for passing of the High School Examination in Hindi as one of the compulsory subjects. It is undisputed that the case of the respondent was covered under Regulation 9. Regulation 9 specifies the conditions subject to which the confirmation of a teacher is to be made. Regulation 9 provides for passing of the High School Examination in Hindi as one of the compulsory subjects. It is undisputed that the case of the respondent was covered under Regulation 9. It is also not in dispute that the period of probation was not extended by an order of the competent authority beyond 12 months. No order of dismissal, discharge, removal or reduction in rank was otherwise passed within period of probation or extended period of probation. It is, therefore, apparent that by virtue of Regulation 10, services of respondent would be treated as confirmed under the statute itself. The argument of learned State Counsel that in the absence of order of confirmation, the respondent cannot be treated to be a permanent employee, is rejected. 14. We may, at this stage, observe that the purpose of keeping an employee under probation is otherwise to examine his suitability for employment. In the facts of the present case, the respondent had rendered satisfactory services since his initial ad-hoc appointment in 1993. Even after his services have been regularized in 2016, no instance of unsuitability in service has been pointed out by the respondents. The argument of the State with regard to non confirmation of respondent in service appears to be a desperate argument put forth only to resist the claim of the respondent for payment of pension, which otherwise stood covered under the Rules. We, therefore, are least impressed by the argument of the State that the services of the respondent were not confirmed. 15. So far as the scheme contained in the government order dated 17.12.1965 is concerned, it is apparent that the pension scheme is a separate and distinct scheme framed by the Executive in respect of the teachers and non-teachers of specified institutions. 16. A Co-ordinate Bench of Lucknow Bench of this Court in Civil Misc. Review Application No. 33 of 2023 has already held that the provision of U.P. Retirement Benefits Rules, 1961 or the amendments made vide U.P. Act No. 1 of 2021 therein, are not applicable to teachers employed in Government Aided Educational Institutions. 17. 16. A Co-ordinate Bench of Lucknow Bench of this Court in Civil Misc. Review Application No. 33 of 2023 has already held that the provision of U.P. Retirement Benefits Rules, 1961 or the amendments made vide U.P. Act No. 1 of 2021 therein, are not applicable to teachers employed in Government Aided Educational Institutions. 17. So far as the argument of the State based on the amendment of the pension scheme vide government order dated 12.12.2023 is concerned, we find that this argument also cannot be substained to resist the claim of the respondent. The Constitution Bench of the Supreme Court in Chairman Railway Board versus C.R. Rangadhamaiah, AIR (SC) 1997 0 3828, wherein the retrospective amendment of the pension scheme was examined, clearly held that vested rights cannot be taken away in such manner. In para 24 to 34 of the judgment, the Constitutional Bench has crystallized the law as per which the accrued/vested right cannot be retrospectively taken away, as is sought to be done by the State in the present matter. The Constitution Bench judgment has been relied upon by the Supreme Court in Punjab State Cooperative Agricultural Development Bank Ltd versus Registrar, Cooperative Societies, AIR (SC) 2022 0 1349. In Para 44, the Supreme Court has referred to the Constitution Bench judgment in Chairman Railway Board (supra).The law has been culled out in para 47 to 50 of the judgment which are reproduced hereinafter: "47. The exposition of the legal principles culled out is that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution. 48. In the instant case, the Bank pension scheme was introduced from 1st April 1989 and options were called from the employees and those who had given their option became member of the pension scheme and accordingly pension was continuously paid to them without fail and only in the year 2010, when the Bank failed in discharging its obligations, respondent employees approached the High Court by filing the writ petitions. The Bank later on withdrawn the scheme of pension by deleting clause 15(ii) by an amendment dated 11th March, 2014 which was introduced with effect from 1stApril, 1989 and the employees who availed the benefit of pension under the scheme, indeed their rights stood vested and accrued to them and any amendment to the contrary, which has been made with retrospective operation to take away the right accrued to the retired employee under the existing rule certainly is not only violative of Article 14 but also of Article 21 of the Constitution. 49. It may also be noticed that there is a distinction between the legitimate expectation and a vested/accrued right in favour of the employees. The rule which classifies such employee for promotional, seniority, age of retirement purposes undoubtedly operates on those who entered service before framing of the rules but it operates in futuro. In a sense, it governs the future right of seniority, promotion or age of retirement of those who are already in service. 50. For the sake of illustration, if a person while entering into service, has a legitimate expectation that as per the then existing scheme of rules, he may be considered for promotion after certain years of qualifying service or with the age of retirement which is being prescribed under the scheme of rules but at a later stage, if there is any amendment made either in the scheme of promotion or the age of superannuation, it may alter other conditions of service such scheme of rules operates in futuro. But at the same time, if the employee who had already been promoted or fixed in a particular pay scale, if that is being taken away by the impugned scheme of rules retrospectively, that certainly will take away the vested/accrued right of the incumbent which may not be permissible and may be violative of Article 14 and 16 of the Constitution." 18. Since the right to receive pension had accrued in favour of the respondent on the date of his superannuation, we find that such accrued and vested right cannot be taken away by retrospective application of the Pension Rules, as is sought to be pressed by the State. 19. For the reasons and discussions held above, we find that the learned Single Judge has committed no error in allowing the claim for pension in favour of the respondent. 19. For the reasons and discussions held above, we find that the learned Single Judge has committed no error in allowing the claim for pension in favour of the respondent. The Special Appeal lacks merits and is accordingly dismissed.