Smt. Ram Chameli Devi vs State Of U.P. And Others
2017 Latest Caselaw 8061 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 26
 

 
Case :- WRIT - A No. - 15908 of 2012
 

 
Petitioner :- Smt. Ram Chameli Devi
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Siddharth Khare, Ashok Khare
 
Counsel for Respondent :- C.S.C., Ajeet Dubey, R.B. Yadav
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

This writ petition has been filed by the petitioner challenging the order dated 19.01.2012 passed by the Secretary Basic Education, by which the representation of the petitioner for grant of pensionery benefits has been rejected. A further prayer has been made for issuance of a mandamus to the Authorities to release the petitioner's pension w.e.f. July, 1998 till date along with interest.

Heard Mr. Siddharth Khare, learned counsel for the petitioner, Mr V.K. Nagaich, learned Standing Counsel for the State-respondents and Mr. R.B. Yadav, learned counsel for the Basic Shiksha Adhikari, Agra.

Mr. Siddharth Khare has argued that the petitioner was initially appointed as Un-trained Assistant Teacher in a Basic/Primary School, Saraindhi, Block Jagner, District Agra on 30.08.1963. Later on, the said School came under the purview of the Basic Shiksha Parishad after notification of the Basic Education Act, 1972 and the services of the petitioner came to be governed by the U.P. Basic Education (Teachers Services) Rules, 1981. The petitioner was an Un-trained Teacher, and therefore, was given fixed pay of Rs. 350/- per month and she continued to remain on fixed pay till her retirement on 30.06.1992.

Although the State-respondents had issued a Government Order dated 04.12.1982, which provided for exemption from training to such Un-trained teachers, who had completed 10 years of service as on 30.06.1978, the case of the petitioner was never considered by the Department and therefore just before her retirement, the petitioner made a representation on 25.02.1991 requesting the Authorities to exempt her from training. Later on, a Circular was issued by the Director of Education (Basic) on 02.12.1991 demanding the list of Un-trained Teachers from various Districts and in pursuance of the said Circular Letter, the petitioner was directed to fill up the Form for the purpose of exemption from training, which was forwarded by the Head Master of the School concerned to the respondent-authorities. The copy of the Form filled up by the petitioner before her retirement and forwarded to the Authorities has been filed as Annexure 6 to the writ petition.

It is the case of the petitioner that no action was taken on the application of the petitioner and she retired on 30.06.1992. Since, her repeated representations to the Authorities for grant of pension and other retiral benefits went unheeded, the petitioner filed Civil Misc. Writ Petition No. 77109 of 2005, which was disposed of by this Court on 20.12.2005 with a direction to the Basic Education Officer to consider her case and pass appropriate orders. The Basic Education Officer rejected the representation of the petitioner by his order dated 20.09.2006 while referring to the Government Order dated 24.03.2003, which provides that teachers working on fixed pay shall not be entitled for pension.

The Government Order dated 24.03.2003, which has been relied upon by the Basic Education Officer has not been filed by the petitioner nor by the State-respondents in the two counter affidavits filed by them.

Aggrieved by the order dated 20.09.2006 passed by the Basic Education Officer, the petitioner filed another Writ Petition No. 4141 of 2007, which was disposed of on 21.04.2011 with a direction to the Secretary, Basic Education to take into account the relevant Government Orders applicable to the petitioner as on the date of her retirement. This Court has specifically observed in the judgment and order dated 21.04.2011 that the Government Order dated 24.03.2003 was issued after the retirement of the petitioner on 30.06.1992 and would not govern her case as it was prospective in nature.

It has been argued that despite this Court holding that the Government Order dated 24.03.2003 could not be relied upon by the State-respondents for rejecting the case of the petitioner for pension, the said Government Order has again been relied upon by the Secretary, Basic Education in his order dated 19.01.2012, by which the case of the petitioner has been considered and rejected.

Learned counsel for the petitioner has relied upon two Government Orders issued when the petitioner was in service, namely, Government Order dated 05.09.1970 filed as Annexure 14 to the writ petition, by which it has been provided that for the purpose of extension of benefits under Labhtrayi Yojana the services rendered by an Assistant Teacher on fixed pay as Un-trained Assistant Teacher shall also be treated as qualifying service and the other Government Order, which has been relied upon by the learned counsel for the petitioner, is dated 04.12.1982 filed as Annexure 4 to the writ petition. In this Government Order, it has been provided that all these Un-trained Teachers, who had rendered 10 years of continuous service on or before 30.06.1978, shall be considered for exemption from training and they shall be treated as Trained Assistant Teacher. It was clarified in the said Government Order that it would not be applied automatically to those persons in whose case, there was a break in service, and for such teachers a detailed proposal had to be sent to the Directorate and it was at the discretion of the Directorate whether to exempt such teachers from training or not.

It has been argued by the learned counsel for the petitioner on the basis of aforesaid two Government Orders, that by the Government Order dated 04.12.1982 it was incumbent upon the Authorities themselves to consider the case of the petitioner for grant of exemption from training and since the petitioner's services was long and continuous w.e.f. the date of her initial appointment on 30.08.1963 and she had rendered almost 20 years of such service by the time the said Government Order was issued, it was incumbent upon the Authorities themselves to exempt the petitioner from training. However, the Authorities did not pay any heed, and therefore, the petitioner filed an application for grant of such exemption on 25.02.1991, and she also filled up the Form as required by the Head Master of the School concerned in terms of the Circular Letter issued by the Directorate thereafter, but no heed was paid and the petitioner retired in the meantime on 30.06.1992.

It has been argued by Mr Ashok Khare, learned Senior Advocate that in terms of the Government Order dated 05.09.1970 also, all those teachers, who had been exempted from training after ten years of continuous service and were being treated as trained teachers, were entitled to count their services rendered before such training as qualifying service for pension.

On the other hand, Mr. R.B. Yadav, learned counsel for the Basic Shiksha Parishad has pointed out from the counter affidavit filed on behalf of Basic Shiksha Adhikari, Agra that the Government Order dated 05.09.1970 would apply only in such cases where an Un-trained Teacher was exempted from training and was treated as Trained Teacher and given Regular Pay Scale before his or her retirement. Such teachers whose regularization had taken place much earlier i.e. before their retirement could be held eligible for counting their services rendered as Un-trained Teachers as qualifying service for the purpose of pension.

It is the case of the Basic Shiksha Adhikari, Agra that as per the Government Order dated 01.07.1989 a minimum of ten years of regular service is required for the purpose of grant of pensionery benefits to any Government Servant and it is admitted case of the petitioner that the petitioner was initially appointed as Un-trained Teacher and was given fixed pay at the rate of Rs. 350/- per month, which was later enhanced and at the time of her retirement also the petitioner was getting Rs. 850/- per month only as fixed pay. Since the petitioner was never regularized during her service, she could not claim benefit under the Government Order dated 05.09.1970 and several other Government Orders issued thereafter, for similarly situated teachers. The case of the petitioner was different, and therefore, it was rejected by the Secretary Basic Education.

In the counter affidavit filed on behalf of respondent No. 1, Secretary Basic Education, it has been averred that although the Government Order dated 24.03.2003 would not apply in the case of the petitioner still there were other relevant Government Orders for example, the Government Order dated 01.07.1989, which provided ten years of Regular Service to be rendered by a person before he could be held to be entitled for pension.

It has been stated by the State-respondents that the petitioner admittedly retired as an Un-trained Teacher on fixed pay of Rs. 850/- on 30.06.1992 and filed a writ petition after a lapse of 13 years for the first time in the year 2005. Her case was rejected by the Basic Education Officer on 20.09.2006 on the basis of the Government Order dated 24.03.2003. The petitioner filed another writ petition and did not challenge the Government Order dated 24.03.2003 therein. This Court observed in the judgment and order dated 21.04.2011 that the said Government Order being prospective in nature, would apply to teachers retiring after 24.03.2003 and not before. Since the petitioner was not regular and her services rendered as Un-trained Teacher was never regularized and she was never granted any specific exemption from training at any point of time during her service, her case cannot be considered for grant of pension.

Learned counsel for the petitioner, however, has pointed out the orders passed in a similar case by this Court in Writ Petition No. 39702 of 2005 (Smt. Ram Keshi Devi vs State of U.P. and others) reported in 2009 (2) UPLBEC 1557, wherein the case of Smt. Ram Keshi Devi was that she was initially appointed on fixed pay as Un-trained Assistant Teacher in a Primary School run by Basic Shiksha Parishad. From the date of her appointment in October, 1961 till the date of her retirement on 10.09.1989, Smt. Ram Keshi Devi was never exempted from training and continued to work as Un-trained teacher on fixed pay. Her case was rejected by the State-respondents, but this Court held that even though the petitioner therein was untrained and did not obtain any training till her retirement and she was also not granted exemption from such training, still since she was permitted to continue as teacher for about 30 years in a school managed by the Basic Shiksha Parishad and she had actually rendered service, therefore whether the petitioner possessed necessary qualifications at the time of initial appointment was of not much relevance. This Court relied upon the judgment rendered in the case of Hans Raj Pandey vs State of U.P. and others, 2007 (3) UPLBEC 2073, to hold that even though the petitioner therein continue to work on fixed salary and not on Pay-Scale, yet he would be entitled to continue. However, this Court limited the benefit of pension and other retiral dues and directed them only to be granted w.e.f. 01.07.1999, as the petitioner therein for the first time approached the authorities in 2002. As per law settled by the Hon'ble Supreme Court in C. Jacob vs Director, of Geology & Mining and another, AIR 2009 SC 264, highly belated claims could not be entertained and in Shiv Dass vs Union of India, AIR 2007 SC 1330, it had been held that question of entitlement to pension should be decided as it is the continuous cause of action, but the relief beyond the three years from the date of approaching the authorities/court could not be granted.

Learned counsel for the Basic Shiksha Adhikari has also referred to judgment rendered by the Division Bench of this Court in Special Appeal No. 1462 of 2011, (District Basic Education Officer and others vs Ram Awadh Yadav and another), wherein the writ petitioner was initially engaged as class IV employee in a Junior High School in 1968 on Fixed Pay. and he continued to work as such upto 19.01.1997. He was granted Regular Pay Scale w.e.f. 20.01.1997 against the sanctioned post of Class IV employee and he retired on 01.06.2002. His claim for pension was rejected as he had not put in ten years of qualifying service.

The learned Single Judge had allowed the writ petition by his judgment and order dated 12.01.2010, against which District Basic Education Officer had filed aforesaid Special Appeal No. 1462 of 2011.

In the said case, the Division Bench of this Court had relied upon another Division Bench judgment rendered in the case of one Gaya Ram to hold that a temporary appointment can be made on a permanent or temporary post, whereas for the appointment on the Fixed Pay, there is no requirement of a post. There was a major difference in the nature of appointment of two classes of employees, and therefore, a person, who was appointed on a Fixed Pay like the respondent therein could not be allowed to count service rendered prior to regularization for the purpose of qualifying service for pension. This Court held specifically that the service rendered on Fixed Pay by the writ petitioner from October, 1968 to June, 1997 could be counted for the purpose of grant of pension.

Mr Siddharth Khare, learned counsel for the petitioner has also relied upon the Single Judge decision rendered on 29.01.2015 in Writ A No. 28679 of 2009, (Sri Krishna Prasad Yadav and others vs. State of U.P. and others) wherein a Coordinate Bench of this Court was considering the case of the petitioners, who were working in Primary Section of a College which came under Grant-in-aid list issued by the Government on 06.09.1989 and the writ petitioners were working from dates much prior to that starting from 1964 to 1972. The grievance of the teachers was with regard to non-payment of pension under the provisions of U.P. State Aided Educational Institutions Employee's Contributory Provident Fund/Insurance/Pension Rules, 1964, which came into force on 01.10.1964 (the Labhtrayi Yojna) and in terms thereof, employees were entitled to be provided pension computed on the basis of total length of service put in by them.

This Court had held that merely because there was a delay in issuing appropriate clarification with regard to applicability of the rules to Primary Sections of aided secondary Institutions, the same could not have denuded the petitioners of their right to claim pension under the Rules of 1964. The Primary Section was held to be an integral part of the secondary Institution and the teachers attached thereto were directed not to discriminate for the purpose of payment of pension merely because they came on to Grant-in-aid list w.e.f. 01.10.1989. Since, there was no provision in the Rules of 1964, which curtailed the computation of length of qualifying service to the time when primary sections became entitled for maintenance under Grant-in-aid list, this Court held that the petitioners be entitled to pension under Rules of 1964, and for counting of their service rendered before such Institution came under Grant-in-aid list, and that the pension should be paid to the petitioners from their respective dates of superannuation along with arrears and interest @ 12 per annum.

It has been contended by the learned counsel for the petitioner that the judgment rendered in the case of Sri Krishna Prasad Yadav was challenged before the Division Bench in Special Appeal and the said Special Appeal has been dismissed in May, 2017 and the judgment of the Hon'ble Single Judge has been affirmed.

It has been further argued by Mr Siddharth Khare, learned counsel for the petitioner that the Government Order dated 04.12.1982 and the Government Order dated 05.06.1987 filed as Annexure 1 to the rejoinder affidavit specifically provide for grant of trained teachers Pay-Scale to such un-trained teachers, who had been working for more than ten years in the Institution concerned and the said directions were mandatory and were liable to be made applicable automatically by the Basic Education Authorities of the District concerned, and were not dependent upon any application to be moved by such un-trained teachers. Since, the said two Government Orders were issued much before the retirement of petitioner in 1992, they ought to have been applied automatically in the case of the petitioner and there was no need for her to make any application.

Even so the petitioner did make an application before her retirement, which was duly forwarded by the Headmaster of the school concerned to the Basic Education Officer. Yet no orders were passed exempting the petitioner from training and she continued to work as un-trained teacher and retired as such on Fixed Pay on 30.06.1992. There was no fault on the part of the petitioner and for the inaction of the Authorities in not considering the case of the petitioner for grant of exemption automatically, the petitioner cannot be allowed to suffer.

Learned counsel for the petitioner has relied upon the judgment rendered by the Division Bench of this Court in the case of State of U.P. and others vs Kuldeep Thakur, 2017 (3) ESC 1137, wherein this Court distinguished the judgment rendered by Full Bench in Pawan Kumar Yadav vs State of U.P. and others, 2010 (8) ADJ 664 to hold that though the writ petitioner's father therein continued to be a daily wager and was not regularised before his death, yet since he was entitled for such regularisation in terms of the Government Order issued on 13.08.2015, on which the date the father of the writ petitioner was admittedly alive, then the said right which accrued to the father of the writ petitioner therein for regularisation had to be taken into account and the father of the writ petitioner was to be treated as regularised before his death in October, 2015. Had the father of the writ petitioner been so regularised in terms of the Government Order dated 13.08.2015, as per the right accrued to him be considered for such regularisation automatically, then he would have been a Government servant at the time of his death in October, 2015 and the writ petitioner would then be entitled to claim compassionate appointment under U.P. Recruitment of Dependents of Government Servants under Dying-in-Harness Rules, 1974. The Division Bench had dismissed the appeal, but modified the judgment of the learned Single Judge dated 22.11.2016 to the extent that it was left open to the appellant-State to consider the status of regularisation of the father of the writ petitioner and then, proceed to take an appropriate decision with regard to claim of the writ petitioner for compassionate appointment in the light of observations made in the judgment by the Division Bench.

Looking to the facts and circumstances of the case and arguments advanced on behalf of the State-respondents and the learned counsel for the petitioner, it is undisputed that the petitioner was initially appointed on Fixed Pay as un-trained teacher in 1963.

The Government Order was issued on 04.12.1982, the first paragraph of which is being quoted herein-below:

"ftu vizf'kf{kr v/;[email protected]/;kfidkvksa dks vfojy lsok vof/k 30-6-1978 dks 10 o"kZ ;k blls vf/kd iwjh gks pqdh gks mUgsa izf'k{k+.k ls eqfDr dk ykHk 1-7-75 ls ns; gksxk Hkys gh vki }kjk eqfDr iznku fd;s tkus ls lEcfU/kr vkns'k mDr frfFk ds ckn gh fuxZr fd;s tk;sA^^

Another Government Order was issued on 05.06.1987, which also provided therein as follows:

"30 viSy] 1987 dks ftu vizf'kf{kr v/;kfidkvksa dh lsok 10 o"kZ vFkok 10 o"kZ ls vf/kd gks pqdh gS mUgsa blh frfFk ls izf'k{k.k ls eqfDr iznku djrs gq, izf'kf{kr osrueku fn;k tk;A"

Although the said Government Order dated 05.06.1987 relates to Girls Higher Secondary Schools/Inter colleges, the direction therein, it has been argued, would also apply in the case of Primary Schools. It was incumbent upon the Educational Authorities themselves to consider the case of the petitioner for grant of exemption from training and to treat her as a trained Assistant Teacher, entitled to regular Pay Scale, which was not done by them within time. The petitioner had also applied, but her case was not considered and in the meantime, she retired on30.06.1992.

It is settled principle of law that nobody can be put to a disadvantage for not doing something, which was not his job to do in the first place. It was a Government Order issued by the Government, and was meant to be complied with by all District Basic Education Officers on their own without further advertisement.

In the case of the petitioner, she became entitled for grant of exemption from training and regular Pay Scale w.e.f. 1978, as envisaged in the Circular dated 04.02.1982, her case was however not considered within time.

This Court following the principle of law as settled by Division Bench of this Court in the case of State of U.P. and others vs Kuldeep Thakur (supra), therefore, sets aside the impugned order passed by the Secretary, Basic Education and directs reconsideration of the case of the petitioner in view of the Circular No. 3/6764-84/15-10(1)/82-83 issued on 04.12.1982.

The entire consideration with regard to entitlement of the petitioner should be completed and a reasoned and speaking order be passed thereon within a period of three months from the date a certified copy of this order is made available to the Secretary, Basic Education.

The writ petition is allowed to this extent.

Order Date :- 18.12.2017

Sazia