. vs .
2022 Latest Caselaw 303 Tel

   THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                        AND
       THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

  WRIT APPEAL Nos.441 OF 2004, 1199 OF 2012 & 1966 OF 2003

COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)

       Regard being had to the controversy involved in the aforesaid

cases, they were heard together and are being decided by a

common order.

       The facts of W.A.No.441 of 2004 are reproduced as under:-

       The present writ appeal is arising out of the order dated

25.10.2002 passed in W.P.No.34380 of 1998.

       The facts of the case reveal that respondent Nos.1 to 4/writ

petitioners came up before this Court claiming the benefit of

Memo.No.2408-T275-19, Education Department, dated

03.12.1979. The respondent Nos.1 to 4/employees initially joined

the services of the State Government as non-teaching staff prior to

1964 and they became the members of teaching staff in the year

1974 in respondent No.5/Stanley Girls High School, Hyderabad.

The facts further reveal that about 16 educational institutions had

opted to remain outside the grant-in-aid scheme and such

institutions were granted the recognition, even though they

withdrew themselves from the grant-in-aid scheme. At the relevant

point of time, one of the conditions imposed upon the schools was

that the pension and provision fund scheme introduced by the

Government in respect of non-government institutions must be

implemented by all such institutions. A doubt arose in respect of

the pension and provident fund scheme and in those

circumstances, the State Government issued a clarificatory Memo

dated 03.12.1979, stating categorically that those schools, which

opted to be out of grant-in-aid, were granted permission and the

employees of those schools will be entitled for pension at

Government rates as an exception, if the management pays 9.5%

contribution in the maximum of the scales. Respondent Nos.1 to

4/writ petitioners came up before this Court stating that they are

not being paid pension at par with other employees. In those

circumstances, the learned Single Judge has passed the following

order:-

"The management of the 2nd respondent school lies counter affidavit stating inter alia at para 8 "that the management is willing to take necessary contribution of pension to enable the Government to pay the pension by the Government itself as was done in the case of teachers who were appointed when the school was under grant in aid scheme. The problem being a social security the Hon'ble Court may be pleased to direct the Government of Andhra Pradesh to accept 9.5% of salary on the maximum scale post being the management share for each retired employee".

"The Government also filed counter affidavit wherein it was stated at para 4 that "the Government has issued clarification stating that the employees of the 16 schools which opted to go out of the grant in aid scheme may be granted pension at Government rates as an exception, if the management pay 9.5% contribution in the maximum of the scales".

It is not in dispute that the 2nd respondent management is one among those 16 schools opted out of grant in aid scheme and it is also made clear in the counter affidavit that the 2nd respondent is willing to contribute the pension at 9.5% as was stipulated at the time of opting out of grant in aid scheme.

A conjoint of the above statements made in the counter affidavits of the Government as well as the Managements. It is clear that the management is willing to pay the pension after calculation at the rate of 9.5% at the maximum of the scales fixed from time to times during the service period. In fact, this issue has been dealt with by another Bench in W.P.No.10438 of 1992 and it appears from the said judgment that the matter has been decided in W.P.No.6388 of 1989 dated 26.9.1990 and following the same delivered the judgment on the same lines.

Having regard to the facts and circumstances of the case and also keeping in view of the statement made by the Government as well as the 2nd respondent management, I direct the respondents to pay all the pensionary benefits as indicated in the clarificatory proceedings dated 3.12.1979, after due verification and calculation with regard to eligibility of the scales of the petitioner. The writ petition is, accordingly, allowed. No costs."

The aforesaid order makes it very clear that the Government

was directed to implement its own clarificatory Memo dated

03.12.1979. It is not the case of the appellants that they do not

want to implement their own Memo.

Therefore, the writ appeals stand disposed of with a direction

to the State Government to ensure that Memo dated 03.12.1979

issued by the State Government is complied with.

Pending miscellaneous applications, if any, shall stand

closed. There shall be no order as to costs.

________________________ SATISH CHANDRA SHARMA, CJ

_______________________ ABHINAND KUMAR SHAVILI, J

28.01.2022 JSU