State Of U.P. Thru' Secretary ... vs Mangali Prasad Verma And 2 Ors
2017 Latest Caselaw 4305 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 10
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 678 of 2013
 

 
Appellant :- State Of U.P. Thru' Secretary Secondary Education And 5 Ors.
 
Respondent :- Mangali Prasad Verma And 2 Ors
 
Counsel for Appellant :- Bhola Nath Yadav
 
Counsel for Respondent :- Siddhartha Khare
 

 
Hon'ble Arun Tandon,J.

Hon'ble Ritu Raj Awasthi,J.

Heard learned counsel for the parties.

This intra-Court Appeal is directed against the judgment and order of the learned Single Judge dated 20.12.2012 passed in Writ Petition No.17819 of 2007.

Facts relevant for deciding the present appeal are as under.

Harjinder Nagar Intermediate College, Kanpur Nagar was originally established as a recognized Junior High School. The petitioner-respondent before us, namely, Mangali Prasad Verma was appointed as Assistant Teacher in the Primary Section of the said Junior High School in the year 1961. The institution was subsequently upgraded as High School and finally as Intermediate College. After such upgradation, the Institution was taken on the grant-in-aid list under the Government Order dated 6.9.1989 with effect from 1.10.1989.

We may record that there is no dispute with regard to the payment of salary to Sri Mangali Prasad Verma from the State Exchequer, after the institution was taken on the grant-in-aid with effect from 1.10.1989. It is also not in dispute that such payment of salary to Mangli Prasad Verma continued from the State Exchequer, till he attained the age of retirement i.e. on 30th June, 1995.

Sri Mangali Prasad Verma set up a claim for grant of pensionary benefits/retiral benefits in terms of the Uttar Pradesh State Aided Educational Institution Employees Contributory Provident Fund Insurance Pension Rules, 1964 (herein after referred to as "Rules, 1964") after adding the period of services rendered when the instition was unaided for computation of the qualifying service for payment of pension.

According to Mangali Prasad Verma, the services rendered by him, when the institution was unaided i.e. between 1961 to 1981. must also be counted, for the purpose, he may be permitted to deposit the management contribution in terms of the Government order dated 26.7.2001.

We may also clarify that under the Government Order dated 26.7.2001 the cut off date as mentioned for deposit of the Managment contribution i.e. 31.3.2002, was subjected to challenge by means of writ petition No.75746 of 2005 (Smt. Shanti Solanki Vs. State of U.P. and Others). The writ Court vide judgment and order dated 6.9.2006 held that the cut off date so fixed is arbitrary. The same was quashed. All such teachers who retired after the institution was brought in grant-in-aid were permitted to avail the benefit of computation of period of working in the unaided Institution for the purposes of determination of qualifying service for pension on deposit of management contribution.

Upto this stage, there is hardly any difficulty. What has happened is that the State of Uttar of Pradesh came out with another Government Order dated 28.1.2004. By means of this Government Order teachers and staff of primary section attached to aided and recognized Intermediate Colleges were declared to be entitled to the benefits of the pension and other retiral benefits as was applicable to the teachers of the High School and Intermediate College.

Because of this Government Order dated 28.1.2004, the State took stand in the case of writ petitioner, namely, Mangli Prasad Verma that the teachers and staff of the primary section shall be deemed to be entitled to the benefits of pension and retiral dues only in terms of the Government Order dated 28.1.2004 which was prospective in nature and since the petitioner Mangali Prasad Verma retired prior to 2004, he is not entitled to the pensionary benefit.

The learned Single Judge under the order impugned has found that the stand so taken by the State as arbitrary. Therefore, a direction has been issued for conferring the benefits of pension upon Mangali Prasad Verma.

The State Government not being satisfied has filed this intra-Court Appeal under Chapter VIII Rule 5 of the Allahabad High Court, Rules.

It is contended that the judment and order of the learned Single Judge is liable to be set aside, in view of the judgment of the Division Bench of this Court in Special Appeal No.560 of 2016 (State of U.P. & 3 Others Vs. Mahaveer Singh Yadav) along with connected appeal decided on 22.09.2016, which in turn relied upon the Division Bench judgment in the case of U.P. Senior Basic Shikshak Sangh Sindhi Vidyalaya Vs. State of U.P. reported in 2016 1 ADJ 667, and which had duly explained the judgment of the High Court in the cases of Smt. Shanti Solanki Vs. State of U.P. & Others (Writ Petition No. 75746 of 2005 decided on 06.09.2016) and Buddhiram versus State of U.P. & Others reported in 2013 (1) ADJ 254.

It is therefore submitted that judment in appeal before us must also be dealt with in same manner and the matter be remanded to the writ Court to re-examine the issues raised in light of the Division Bench judgment in the case of U.P. Senior Basic Shikshak Sangh Sindhi Vidyalaya.

We are not impressed by the contention so raised on behalf of the State-appellant. In the case of U.P. Senior Basic Shikshak Sangh Sindhi Vidyalaya (supra) the issue under consideration was qua grant of pensionery benefits to the teachers of institution which had been brought on the grant-in-aid subsequent to 1.4.2005. From the said date a new scheme for payment of retiral dues in respect of teachers of recognized and aided institution had been enforced. In the cases of U.P. Senior Basic Shikshak Sangh Sindhi Vidyalaya (supra); Smt. Shanti Solanki (supra) and Buddhiram (supra), it has been laid down that all teachers of institution which are brought on the grant-in-aid by the State Government subsequent to 1.4.2005 would be covered by the new scheme.

We are not required to express any opinion on the issues decided by the Division Bench in the aforesaid cases, as the facts of the case in hands are entirely different. It is not in dispute before us that the institution, namely, Harjinder Nagar Intermediate College was brought on the grant-in-aid under Government Order dated 6.9.1989. Because of this fact alone, the judgment of the Division Bench in the case of U.P. Senior Basic Shikshak Sangh Sindhi Vidyalaya (supra) would be clearly distinguishable.

The Apex Court in the case of Bhavnagar University Vs. Palitana Sugar Mills (Pvt.) Ltd. & Ors., reported in 2003 (2) SCC 111, has held as follows:

"It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

Now on the merits of the claim set up by the petitioner. We find that there is no issue with regard to the payment of salary to the petitioner Mangali Prasad Verma from the State Exchequer with effect from 1.10.1989 till the date of his retirement on 30th June, 1995. Meaning thereby that the primary section of the Harjindar Nagar Intermediate College wherein petitioner was employed, was treated as part and parcel of the same Intermediate College which was on grant-in-aid. The provision of Uttar Pradesh State Aided Educational Institution Employees Contributory Provident Fund Insurance Pension Rules, 1964 (hereinafter referred to as Rules, 1964) become applicable by operation of law from the date the institution was brought on Grant-in-Aid i.e. 1.10.1989 in view of Rule 3 of the Rules 1964.

Rule 3 reads as under:-

3" These rules shall apply to permanent employees serving in State aided educational institutions of the following categories run either by a Local Body or by a Private Management and recognised by a competent authority as such for purposes of payment of grant-in-aid :

1. Primary Schools;

2. Junior High Schools:

3. Higher Secondary Schools;

4. Degree Colleges;

5. Training Colleges;

The petitioner, therefore, stood covered by the provisions of Rules 1964 in the matter of payment of retiral dues.

The only issues which survives for consideration is as to whether the services rendered by the petitioner at the time when the institution was unaided i.e. between 1961 to 1989 are to be counted for determination of the qualifying service for determination of final pension or not. As already noticed above the State Government itself came out with a Government order dated 26.7.2001 providing for such services rendered at the time when the institution was unaided to be taken into account for the purposes of computation of qualifying service for the purpose of pension subject, however, to the deposit of the management contribution. The cut off date mentioned for the purpose i.e. 31st March, 2002 has already been struck down by Division Bench of this Court in the case of Smt. Shanti Solanki (supra) and Buddhiram (supra) which judgment stands affirmed with the dismissal of the Special Appeal filed against the same.

The net consequence is that all such teachers like the petitioner who had been working in aided institution prior to their retirement become entitle for addition of the services rendered at the time when the institution was unaided for computation of qualifying service subject to the deposit of the management contribution.

We are in agreement with the judgment and order of the learned Single which has permitted the writ petitioner to deposit the management contribution. On satisfaction of the said condition services rendered by Mangali Prasad Verma for the period 1961 to 1989 have to be counted as qualifying service for the purpose determination of the pension. There is no legality in the judgment and order of the learned Single Judge in that regard.

We may, however, clarify that the Government Order dated 28.1.2004 which was so heavily relied upon by the State Government does not alter the legal position in any manner inasmuch as, the applicability of Rules 1964 is not depended upon any declaration being made by the Governor or by the State Government. If a teacher was working in an aided institution prior to the date of his retirement provisions of rules 1964 become applicable by operation of law. The manner of counting the qualifying service stands explained under the Government Order dated 26.7.2001.

We may also clarify that the teachers and employees of institutions which are brought on the grant-in-aid for the first time on or subsequent to 1.4.2005 would be covered by the new scheme enforced on 1.4.2005 and this judgment will have no application in their case.

We may notice that similar view has taken by the Division Bench of this Court in the case of State of U.P. And 6 Ors Vs. Shir Krishna Prasad Yadav and 13 Ors being Special No.228 of 2016 decided on 24.5.2017.

In view of the aforesaid, we find no illegality in the judgment and order of the learned Single Judge, it is accordingly, affirmed. The Appeal is Dismissed.

Order Date :- 13.9.2017

Junaid