Brahma Prakash Pandey vs State Of U.P. And Others
2017 Latest Caselaw 3005 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 37
 
Case :- WRIT - A No. - 22084 of 2007
 
Petitioner :- Brahma Prakash Pandey
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- P.N. Tripathi,Ashwani Mishra
 
Counsel for Respondent :- C.S.C.,Anil Tewari,Ved Byas Mishra
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

1. Heard Sri P.N. Tripathi, learned counsel for the petitioner, learned Standing Counsel for the respondents no. 1, 2, 3 & 5 and Sri Ved Byas Mishra, learned counsel for the respondent no. 4.

2. The dispute relates to the benefits being claimed by the petitioner as a teacher of a Sanskrit Degree College recognized and affiliated to the Sampurnanand Sanskrit University, Varanasi and aided by the State Government.

3. The undisputed facts are that the date of birth of the petitioner is 19.7.1943 and his age of retirement as fixed earlier was 60 years. Consequently, the petitioner was to attain the age of retirement on 18.7.2003. The institution is admittedly a Government aided Degree College. The petitioner was duly appointed and was continuing in substantive capacity when he retired in the year 2003. His appointment stands approved by the University under the Statutes framed for the said purpose.

4. A Government order was promulgated on 4.2.2004 whereby the age of superannuation of all Degree Colleges affiliated and recognized by any U.P. State University came to be enhanced from 60 to 62 years. A copy of the said Government Order has been filed by the petitioner as well as the respondent State in its counter affidavit. Clause 2 of the said Government Order enhances the age of superannuation from 60 to 62 years and clause 3 of the said Government Order, which is the center of controversy in the present case, provides for that such teachers, who had attained the age of superannuation after 1.7.2003, that is 60 years, and were continuing on account of the benefit of the academic session, would also be entitled to the benefit of extension of such services. Clause 3 of the said Government Order is extracted hereunder:-

^^3&Jh jkT;iky egksn; ;g Hkh vkns'k iznku djrs gSa fd tks f'k{kd 01&07&2003 ds i'pkr vf/ko"kZrk vk;q iw.kZdj lsokUr ij py jgs gSa mUgsa Hkh vf/ko"kZrk vk;q o`f+) lEcU/kh ykHk iznku fd;k Tkk;sxkA^^

5. It is to be noted that the said Government Order does not draw any distinction between any other Degree College and a Sanskrit Degree College. The said Government Order has been promulgated and copies thereof have been dispatched to the Registrars of all Universities recognized under the U.P. State Universities Act, 1973. It is undisputed that the Sampurnanand Sanskrit University, Varanasi is a University established and recognized under the U.P. State Universities Act, 1973. It is also undisputed that the Degree College in which the petitioner has been appointed, namely, Sri Shiv Prasad Pandey Adarsh Sanskrit Mahavidyalaya, Collector Ganj, Unnao is also a Degree College duly affiliated and recognized by the State University and governed by the statutes and ordinances framed thereunder. Thus, the scope and ambit of the Government Order dated 4.2.2004 clearly covers the benefits extended therein to the teachers of the Degree Colleges affiliated to the Sanskrit University as well.

6. It appears that the benefit of the said Government Order was also extended and to that effect, a correspondence ensued between the District Inspector of Schools, Unnao and the Registrar of the Sanskrit University whereby it was acknowledged that all such institutions were entitled to such benefit and that the petitioner was also entitled to such a benefit thereby extending his date of superannuation upto 30.6.2006. Admittedly, the date of superannuation at the age of 60 years of the petitioner is 18.7.2003, which is after 1.7.2003 as per the Government Order dated 4.2.2004. Thus, as per the clause extracted hereinabove, the University and educational authorities rightly extended the benefit of the age of superannuation to the petitioner as well inasmuch as he was continuing till the end of the session, i.e., till 30th of June 2004. The Government Order, therefore, had come in between on 4.2.2004 and, consequently, applied fully on the facts of the present case.

7. It appears that on 24.4.2006, the then Deputy Director of Education (Sanskrit) expressed a doubt about the applicability of another Government Order dated 21.4.2005 in respect of Sanskrit institutions mentioning therein that there appears to be an anomaly in extending benefits under the said Government Order. The Government Order dated 21.4.2005 was promulgated in respect of Sanskrit institutions (Sanskrit Vidyalaya). It is in this context that the doubt was expressed by the Deputy Director of Education. The same did not refer to the Government Order dated 4.2.2004 nor did it purport to apply to Sanskrit Degree Colleges.

8. Amidst such a confusion, a query was made by the District Inspector of Schools, Unnao on 9.6.2006 about the claim of the petitioner continuing in service and receiving salary upto the age of 62 years. It is in this context that the petitioner's salary came to be withheld as a consequence whereof, he filed Civil Misc. Writ Petition No. 57299 of 2006, which was disposed of on 16.10.2006 with a direction to consider his representation in this regard and pass an appropriate order. The order dated 16.10.2016 passed by the Court is extracted as under:-

"Since the petitioner has already retired, and the salary of the petitioner for the month of May and June, 2006 together with the General Provident Fund and other pensionary benefits has not been paid as yet, for which the petitioner has made representation on 21st June, 2006. But the respondents are sitting over the matter without due consideration.

Therefore, in disposing of the writ petition, we are of the view and direct that the representation of the petitioner will be considered positively within a month from the date of communication of the order upon giving fullest opportunity of hearing and by passing a reasoned order thereon. For the purpose of effective adjudication, a copy of writ petition along with its annexure can be treated as part and parcel of the representation.

Thus, the writ petition is disposed of.

No order is passed as to costs."

9. Consequent to the said direction, the impugned order dated 2.3.2007 has been passed whereby it has been recorded that the petitioner is not covered by the Government Order dated 21.4.2005 and the counter affidavit proceeds further with a recital that since there was no Government Order prior to 21.4.2005 in relation to Sanskrit institutions, therefore, the petitioner would not be entitled to any such such benefit inasmuch as the Government Order dated 21.4.2005 would apply to cases of retirement after 1.7.2004. Applying the same respondents have denied the benefit to the petitioner contending that since the petitioner has completed his tenure on 30.6.2004, getting the benefit of academic session upon completing 60 years of age, therefore, he was not entitled to the benefit of the Government Order dated 21.4.2005 and, as such, he was not entitled to continue upto the age of 62 years. The respondent University has, however, supported the claim of the petitioner.

10. Having considered the submissions raised, what we find is that the impugned order rightly records that the petitioner's case is not covered by the Government order dated 21.4.2005 inasmuch as the petitioner had completed 60 years of age prior to 30.6.2004 and secondly, he was a teacher of a Degree College affiliated to a University. In our considered opinion, the stand of the respondents in excluding Sanskrit Degree Colleges from the applicability of the Government order dated 4.2.2004 is absolutely misplaced inasmuch as there is no such categorization in the Government Order so as to exclude its applicability in relation to Sanskrit Degree Colleges affiliated to the Sanskrit University. Even otherwise such exception cannot be inferred as it would violate Article 14 of the Constitution of India.

11. The finding recorded in the impugned order that the Government Order dated 4.2.2004 would not be applicable on Sanskrit Pathshalas is an absolutely misplaced proposition inasmuch as the institution in which the petitioner is a teacher, is a Sanskrit Degree College, and not a mere Pathshala which is duly affiliated to the Sanskrit University. Consequently, the Government Order 4th February 2004 squarely applies on the facts of the present case and the petitioner was entitled to continue upto 30.6.2006 on attaining the age of 62 years.

12. It is evident from the counter affidavit that the petitioner was allowed to continue as the Registrar of the Sanskrit University had issued a direction in this regard on 1st of December 2004 and, accordingly, the petitioner was also paid his salary and was allowed to continue till 30.6.2006. However, his salary for the months May and June, 2006 was withheld. The present writ petition, therefore, not only assails the order dated 2.3.2007 but also prays for a mandamus to pay arrears of salary to the petitioner for the months May and June, 2006 and also to release all his pensionary benefits in accordance with the same.

13. In view of the findings as recorded herein above, since the petitioner has been found entitled to continue upto 30.6.2006, we allow the writ petition and quash the order dated 2.3.2007 with a direction to the respondents to treat the petitioner to have attained the age of superannuation and continued in service upto the age of 62 years and, accordingly, to pay him the salary of the months of May and June, 2006 as he was entitled to continue till the end of session, and fix all his pensionary benefits accordingly. Pensionary benefits as well as arrears shall be released to the petitioner, whatever is due, after calculation within three months from today.

Order Date :- 4.8.2017

Ram Murti