Anita Rani vs State Of U.P. And 4 Others
2021 Latest Caselaw 10815 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 8066 of 2021
 

 
Petitioner :- Anita Rani
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Mahendra Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Pursuant to order passed by this Court on 21.1.2021 in writ petition no. 615 of 2021 petitioner's claim for payment of pension has been examined and rejected by the order impugned, dated 22nd March, 2021. This order records that petitioner was initially appointed as an Assistant Teacher on adhoc basis on 30th April, 1994 and she commenced work on 2.5.1994. Financial approval was granted to her appointment on 21.10.1995 w.e.f. 1.7.1994. Petitioner's services have been ultimately regularized w.e.f. 22nd March, 2016, under Section 33G of the U.P. Secondary Education Services Selection Board Act, 1982. Order impugned further records that as petitioner has been regularized in the year 2016, she would be treated on probation from that date only and the pension scheme as had already been discontinued w.e.f. 1.4.2005, as such, the petitioner would not be entitled to pension.

Learned counsel for the petitioner points out that the issue raised in the order impugned has already been adjudicated by this Court in writ petition no. 25431 of 2018 (Sunita Sharma Vs. State of U.P. and others) in which the Court took note of relevant statutory provisions to hold that adhoc services followed by regularization would be counted for the purposes of payment of pension. Judgment of the Court relied upon by the petitioner in the case of Sunita Sharma (supra) is reproduced hereinafter:-

"Learned counsel for the petitioner places reliance upon the provisions contained under Rule 19(b) of the Rules of 1964, which is reproduced hereafter:-

"(b) Continuous temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service.

Rule 3 of 1964 Rules clearly provides that these Rules shall apply to permanent employees serving in the State aided educational institution of the category specified thereunder, be it run by a local body or a private management, if it is recognized by the competent authority for the purposes of extending of grant-in-aid. It is not in issue that the provisions of Rules of 1964 are attracted in the facts of the present case, inasmuch as the Institution is a recognized Institution, wherein salary is being extended to teaching and non-teaching staff by the State by virtue of the provisions contained in the Act of 1971. On the date of his retirement, petitioner was a permanent employee serving in aided educational institution, which is recognized by a competent authority for the purposes of aid. Rule 19(b) of the Act would clearly come to the rescue of the petitioner, inasmuch as it clearly provides that continuous temporary or officiating service followed without interruption by confirmation in the same or another post, shall also count as qualifying service. Petitioner's engagement from 1996 till 2016, when she was regularized, would be treated as continuous temporary service followed without interruption by confirmation on same post. The adhoc continuance followed with regularisation, therefore would be covered within the ambit and scope of Rule 19-B of the 1964 rules, and therefore, such period would have to be counted towards qualifying service for the purposes of payment of pension etc.

Learned Standing Counsel has not placed any provision whereunder the Rules of 1964 have either been rescinded, modified or substituted by any other provision and the Rules of 1964 therefore continues to remain in force.

So far as the Government Order relied upon by learned Standing Counsel is concerned, it is settled that in hierarchy of laws a statutory Rule would stand at a higher pedestal than a Government instructions. Once the statutory Rules of 1964 remains in force and is attracted in the facts of the present case, the provisions of the Rules cannot be by passed merely by relying upon a Government instructions. The defence set up by the respondents, therefore to non suit the petitioner cannot be sustained. It appears that though U.P. Retirement Benefits Rules, 1961 and other like provisions were amended w.e.f. 1.4.2005, but no such amendment has been incorporated in the Rules of 1964. As a consequence, the benefits admissible under the Rules of 1964 would continue to be applicable upon teachers, who are covered thereunder.

The view, which this Court proposes to take, is also supported by a judgment of the Division Bench in Special Appeal (Defective) No. 678 of 2013 State of U.P. through its Secretary Secondary Education vs. Mangali Prasad Verma and two others, wherein the benefit under the Rules of 1964 have been made applicable upon the respondents therein. Relevant portion of the judgment of the Division Bench is reproduced thereinafter:-

"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."

In view of the discussions aforesaid, it is clear that petitioner is entitled to pensionary benefits under the Rules of 1964 and for such purposes the adhoc continuance from 1996-2016 followed with regularization would have to be counted towards qualifying service for sanction and fixation of pension. A mandamus is issued accordingly to the respondents for grant of pensionary benefits to the petitioner. Necessary order in that regard could be passed by the competent authority within a period of three months. All consequential benefits would also be extended to the petitioner within a further period of two months thereafter."

The aforesaid judgment has also been affirmed by dismissal of Special Appeal Defective No. 181 of 2020.

This Court finds substance in the contention advanced on behalf of the petitioner, inasmuch as, there is no consideration in the order impugned of the provisions contained in the Uttar Pradesh State Aided Educational Institution Employees Contributory Provident Fund Insurance Pension Rules, 1964. Neither Rule 19(b) has been noticed, nor the statutory scheme has been examined. The authority concerned has failed to examine the petitioner's grievance with reference to applicable provisions of law and, therefore, the order impugned is rendered unsustainable.

Faced with the above observations, learned Standing Counsel states that the authority concerned be permitted to revisit the issue.

In that view of the matter and to facilitate a fresh consideration, the order of Regional Deputy Director of Education, Aligarh, dated 22nd March, 2021 is quashed. Matter stands remitted to the authority concerned for a fresh determination of cause in light of the above observation by passing a reasoned order within a period of three months from today. All consequential benefit shall be extended to petitioner in terms of such determination within a further period of six weeks, thereafter.

Writ petition is accordingly allowed. No order is passed as to costs.

Order Date :- 25.8.2021

Ranjeet Sahu