Vishnu Lal Sharma vs Deputy Director Of Education ...
2022 Latest Caselaw 3697 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - A No. - 321 of 2022
 

 
Petitioner :- Vishnu Lal Sharma
 
Respondent :- Deputy Director Of Education (Secondary) And 3 Others
 
Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh,Deo Prakash Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Siddharth,J.

Heard Sri Adarsh Singh, learned counsel for the petitioner, learned Standing counsel for respondent nos. 1 to 3 and perused the record.

The present writ petition under Article 226 of the Constitution has been filed challenging the impugned order dated 09.11.2021 passed by respondent no.1, Deputy Director of Secondary Education, Aligarh Region, Aligarh, whereby the pension has not been sanctioned to the petitioner on the ground that he has not completed qualifying services after his regularization.

The record reflects that the petitioner was appointed as ad hoc Assistant Teacher in L.T. Grade on 20.8.1995 and the financial approval for such appointment has been accorded on 09.04.1997 and subsequently, his services was regularized vide order dated 07.04.2017 passed by Regional Level Committee headed by Joint Director of Education, Aligarh.

Learned counsel for the petitioner submits that ground mentioned in the impugned order that the petitioner is not entitled for pension as he has not completed 10 years qualifying service after his regularization is subject matter of Writ-A No. 9374 of 2021 decided on 06.8.2021. The order dated 6.8.2021 reads as under:-

"Controversy raised in the present petition has been adjudicated by this Court in Writ Petition No.25431 of 2018 (Sunita Sharma Vs. State of U.P. and others) decided on 20.12.2018 in which following observations were made:-

"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 regularization, 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."

Special Appeal filed against the aforesaid judgment has already been dismissed.

Similar controversy has again been decided by the Division Bench in Special Appeal (Def.)163 of 2021. The ordinance dated 21.10.2020 has also been considered to hold as under:-

"8. A perusal of Section 2 of the Ordinance of 2020 reveals that service rendered by an officer appointed on a temporary or permanent post in accordance with the provisions of service rules would be counted towards qualifying service.

9. In view of the above, even the Ordinance of 2020 would not affect the claim of the petitioner/non-appellant having been appointed against the sanctioned post, may be initially on ad hoc but as per rules and subsequently his service was regularized. It is not the case of the respondents that initial appointment of the petitioner was against the rules. It is moreso when the writ petition was filed with clear statement of fact that petitioner/non- appellant was appointed against the sanctioned post and in accordance with rules. Therefore, even approval to his appointment was given by the District Inspector of Schools.

10. In the light of the discussion made above, we do not find any reason to cause interference in the judgment impugned herein. However, we have given additional reason to allow pensionary benefits to the petitioner/non-appellant by counting his length of service.

11. Accordingly, compliance of the order of learned Single Judge be made, if it has not been complied as yet, within time framed,.

12. The appeal is disposed of with the aforesaid."

Submission on the strength of the above pronouncement is that adhoc services rendered by the petitioner from 21.8.1995 to 22.3.2016 cannot be excluded for the purposes of pension and will have to be counted towards qualifying service by virtue of Rule-19(b) of the 'Uttar Pradesh State Aided-educational Institution Employees' Contributory Provident Fund-Insurance-Pension Rules, 1964'.

Although various arguments have been made but learned Standing Counsel does not dispute the legal proposition laid down in the aforesaid judgment(s).

Since the order of the District Inspector of Schools, Aligarh is in teeth of the law laid down in the aforesaid judgment of this Court as such, the order dated 27.4.2021 passed by the respondent no. 2 cannot be sustained and is quashed. Matter stands remitted to respondent no. 1 for a fresh consideration of cause in light of the above observations. Requisite orders shall be passed within a period of three months, thereafter.

Subject to the observations made above, writ petition stands allowed."

The present writ petition is squarely covered by the principle of law laid down in Sunita Sharma's case.

The writ petition is allowed. The order impugned dated 09.11.2021 passed by the respondent no.1, Deputy Director of Secondary Education, Aligarh Region, Aligarh is hereby quashed.

In view of the discussions aforesaid, it is clear that petitioner is entitled to pensionary benefits under the Uttar Pradesh State Aided Educational Institution Employees Contributory Provident Fund Insurance Pension Rules, 1964 and for such purposes the adhoc continuance from 1997-2017 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 shall be passed by the competent authority within a period of two months. All consequential benefits would also be extended to the petitioner within a further period of two months thereafter.

Order Date :- 23.5.2022

Ruchi Agrahari