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Judgment
B.S. Chauhan and Arun Tandon, JJ.—Petitioner was initially appointed as Upper Grade Teacher in Government S.N.G. Uchchatar Madhyamik Shala, Hoshangabad, State of Madhya Pradesh on 01/7/1963. He continued to function in the said institution till in pursuance to an advertisement published by D.S. College Aligarh (Post Graduate College) affiliated to Agra University he was appointed on the post of Lecturer, on 01/9/1963. The petitioner joined on the said post of Lecturer and discharged his duties till 24/1/1998 when he attained the age of superannuation.
The issue giving rise to the present writ, petition is as to whether the services rendered by the petitioner between 01/7/1963 to 31/8/1973 in the State of Madhya Pradesh are to be taken into account for the purposes of computation of his pension subsequent to his retirement as Lecturer from D.S. College, Aligarh. It is not in dispute before us that the services rendered by the petitioner between 01/7/1963 to 31/8/1973 where in an institution situate in the State of Madhya Pradesh and further that the petitioner was offered a fresh appointment after facing a selection committee, by the D.S. College Aligarh. The Service Conditions of the teacher appointed in the affiliated Degree College are regulated under the U.P. State Universities Act, 1973 (hereinafter referred to an ''Act 1973''), 1st Statute and the Ordinance framed thereunder qua the University concerned. In respect of payment of pension to the retired teachers of such colleges, certain Government Orders have also been issued by the State of U.P. from time to time.
It is admitted on record that the Act 1973, 1st Statute and the Ordinance applicable to the Bhim Rao Ambedkar University, Agra do not provide for the services rendered outside the State of U.P. or to be added for the purposes of computation of pension payable after retirement. It is also admitted that there is no Government Order providing for such addition of service rendered by a teacher in any other State for the purpose of computation of pension after retirement from employment for the affiliated degree college.
The counsel for the petitioner with reference to the various orders of this Court and lastly with reference to the Division Bench judgment of this Court in Writ Petition No. 45957 of 2006 decided on 24/8/2006 submits that such length of service rendered by the petitioner in the State of Madhya Pradesh between 1963 to 1973 has to be taken into account for the purposes of consequential benefits including computation of pension.
This Division Bench judgment of this Court, in turn, has relied upon the judgement of the Hon''ble Supreme Court in the case of Shardendu Bhushan v. Nagpur University, Nagpur and Ors. AIR 1988 SC 353 and has proceeded to hold that the services rendered in a University outside the State of Uttar Pradesh are to be added in the total length of service rendered for the purposes of all consequential benefits including pension of teacher who has retired from a Degree College within the State. Other orders of the Division Bench of this Court have also been referred to for the conclusion so arrived at, i.e. Writ Petition No. 1614 of 2000, Dr. Ajita Bhattacharya v. State of U.P. and Ors. decided on 18/1/2000, Writ Petition No 17417 of 2000, Dr. Jai Prakash Singh v. State of U.P. and Ors. decided on 30/4/2001.
We find it difficult to follow the law laid down by the Division Bench of this Court referred and relied upon by the counsel for the petitioner for the following reasons:
A. In the case of Shardendu Bhushan (supra) the issue for consideration before the Hon''ble Supreme Court was as to whether the leaching experience gained by a person in a previous institution which was affiliated to the Calcutta University could be taken into account for the purpose of calculating his total teaching experience for promotion in the next higher post in another University in Nagpur.
The Hon''ble Supreme Court in the factual background of the case held that sit ice the teaching experience gained by an incumbent working in a college affiliated to the Calcutta University is as good as his teaching experience as may be gained in the University of Nagpur and, therefore, there was no justification for such teaching experience being excluded with reference to the provisions applicable for computing the minimum teaching experience required for grant of higher grade in the present University.
In our opinion, before the Hon''ble Supreme Court, the issue of addition of services rendered in a different University situate in a different State for the purpose of computation of total length of service for determination of pension payable after retirement from the University situate in the State of U.P. was not up for consideration.
Similarly, in the case of R.L. Marwaha Vs. Union of India (UOI) and Others, The issue for consideration was with reference to the various Clauses of the Office Memorandum applicable to the incumbent concerned for the purposes of computing qualifying service qua determination of pension. The Clauses of the Office Memorandum alone have been explained by the Hon''ble Supreme Court and no uniform principle of law qua addition of services rendered in different States for calculation of pension has been laid down.
(B) As already recorded above, no Government Order nor any statutory provisions could be referred to by the counsel for the petitioner wherein a provision has been made for addition of services rendered in different States for computation of pension qua teachers who retired from affiliated college of various Universities of State of U.P.
(C) The other judgments of this Court which have been referred to by the petitioner, in turn, rely on judgment of the Hon''bls Supreme Court in the case of Shardendu Bhushan (supra).
(D) Pension has been held to be deffered wages can the liability of such deffered wages earned while working in the employment of an other State be fastened upon the State of U.P. after fresh appointment is offered in this State.
(E) In our opinion, unless there is a provision either under the Act 1973, 1st Statutes, or the ordinance framed thereunder or a Government Order is issued permitting such addition of service rendered in a different State for the purpose of computation of final pension payable, no orders can be issued by this Court under Article 226 of the Constitution of India for inclusion of services rendered outside the State.
We are, therefore, of the opinion that the following questions arises for consideration by a larger Bench of this Court:
(1) As to whether the judgment in the case of Shardendu Bhushan (supra) lays down any proposition of law, qua the length of service rendered in a different State to be added for the purpose of computation of pension in respect of Teacher who was subsequently appointed in a degree college affiliated to the University covered by the Act, 1973 and has retired as such.
(2) Whether in absence of any statutory provision/Government Order permitting any such addition of length of service rendered in a different State to be computed for the purpose of pension qua the person who has retired as teacher from an affiliated Degree College of a State University a direction can be issued under Article 226 of the Constitution of India for such addition of length of service rendered outside the State for pension.
Let the papers of the writ petition be placed before the Hon''ble The Chief Justice for constituting a Full Bench for deciding the matter.