Ram Gopal Pandey vs Joint Director of Education, Kanpur Mandal, Kanpur and others

Sudhir Agarwal, J.—The grievance of the petitioner is that services rendered by him prior to 30.6.1958 at Kashi Prasad Inter College, Hamirpur (hereinafter referred to as the ''institution'') is not being counted towards qualifying service for the purpose of pension though in view of law laid down by this Court in Ram Rakesh Pal v. State of U.P. and others (Writ Petition No. 34579 of 1993) decided on 1.9.1995, Ram Janam Singh v. Deputy Director of Education and others (Writ Petition No. 11855 of 1994) decided on 14.9.1995, Ramjee Das v. State of U.P. and others, (Civil Misc. Writ Petition No. 14395 of 1.992) decided on 20.11.1996, Ram Adhar lal Srivastava v. State of U.P. and others, (2001) 1 UPLBEC 916 and Shital Prasad Tripathi v. State of U.P. and others, 1990 AWC 1453 and Rules 19(a) and (b) of U.P. State Aided Educational Institution Employee''s Contributory Provident Fund, Insurance, Pension Rules (hereinafter referred to as "the Rules") the petitioner is entitled to count the same and, therefore, the impugned order dated 13.6.2001 (Annexure 1 to the writ petition) passed by Joint Director of Education, Kanpur Region, denying the said benefit is illegal.

In brief the facts giving rise to the present dispute are that the petitioner claims to have worked as Assistant Teacher from 23.8.1956 to 30.6.1958 at the institution and thereafter he was appointed as Teacher in Sri Nagar Ji Vidyalaya Inter College, Krishna Nagar, Kanpur from 1.7.1958 and on attaining the age of superannuation, retired on 30.6.1988 from the post of Principal. While computing the qualifying services of petitioner for retiral benefits, the same has been taken into account from 1.7.1958 to 30.6.1988. The petitioner contended that his earlier services rendered in the institution should also have been included and for the said purpose made representation to the concerned authority and when the same remained unheeded, he filed a Writ Petition No. 10380 of 2001 which was disposed of on 22.3.2001 directing the concerned authority to decide his representation, pursuant whereto the impugned order has been passed.

Learned Counsel for the petitioner contended that in respect of secondary educational institutions, service rendered by the Teachers in the earlier institution is liable to be counted as directed by this Court in various cases referred to above and, therefore, he is also entitled to the same benefit and any other view would be contrary thereto. He also placed reliance on Government Order dated 5.1.1996 in support of his claim that he is entitled to count the aforesaid service.

Learned Standing Counsel has filed counter affidavit supporting the decision taken by the competent authority denying the claim of the petitioner and it has been stated that the institution was brought in grantinaid list subsequently when petitioner had already left it. In paragraphs No. 3 and 7 of the counter affidavit respondents have made this statement as a matter of fact and in reply thereto in Paras 4 and 7 of the rejoinder affidavit the petitioner has not said anything regarding the aforesaid averment and there is not even a whisper or suggestion that the aforesaid institution was brought on grantinaid list prior to 30.6.1958. Besides, no provision has been brought to the notice of this Court wherein services rendered in unaided NonGovernment School can be counted for the purpose of pension. Various Government Orders and rulings cited at the Bar on behalf of the petitioner are in different context and not applicable to the issue involved in this writ petition. G.O. dated 5.1.1996 is in respect to secondary educational institutions and provides for counting service rendered in unaided recognised educational institution provided it is the same institution wherefrom the teacher ultimately retired and for the period he has served when the institution was unaided, the Management deposits its share of provident fund in Government treasury by 31st of March, 1996.

The judgment of this Court in Ram Rakesh Pal (supra) refers to G.Os dated 13.6.1979, 10.1.1986 and 16.9.1988 which were for counting of service in NonGovernment institutions of such Teachers who were ultimately appointed in Government institutions and retired there from and provides that service rendered in private institution may be counted towards retiral benefits provided the Management''s share of provident fund is deposited in Government Treasury within the time prescribed. This Court held that if the Management''s share of Provident Fund is not deposited by the time mentioned in the G.Os merely that reason would not be sufficient to deny the benefit to a teacher provided such deposit is subsequently made by the Management. Ram Janam (supra) was a case where the institution was aided and only the service rendered by the teacher while he was working as clerk in the institution was not included which was found to be incorrect in the light of the provisions of the relevant Rules and it was held that such period is also liable to be taken into account. The aforesaid two judgments were followed in Ramjee Das (supra). Therefore, none of the aforesaid judgments are applicable to the facts and dispute involved in the present case. In Shital Prasad Tripathi (supra) the issue was with respect to cutoff date on the question as to whether services rendered in aided or unaided institution can be counted or not provided the Management deposits share of provident fund. Even the said authority would not help the petitioner.

For the purpose of qualifying service U.P. Contributory Provident Fund Insurance Pension Rules are cited at the Bar wherein Rules 19(a) and (b) reads as under:

"19. (a) Service will not count for pension unless the employee holds a substantive post on a permanent establishment.

(b) Continuous temporary or officiating service followed without interruption by confirmation in the same or another post shall also count as qualifying service. (See also C.S.R. Para 422)."

The benefit of the aforesaid Rule would have been attracted to the case in hand provided the petitioner would have worked in a institution which was provided grantinaid. Rule 3 of the aforesaid Rules clearly provides that it is applicable to permanent employees serving in State aided educational institutions. 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 grantinaid:

(1) Primary Schools;

(2) Junior High Schools;

(3) Higher Secondary Schools;

(4) Degree Colleges;

(5) Training Colleges."

It is clear case of the respondents that the institution in question was brought in grantinaid list subsequently though the petitioner served therein prior thereto. There fore U.P. Contributory Provident, Insurance, Pension Rules which came into force on 1.10.1964 are not applicable at all. Learned Counsel for the petitioner could not place any other provision to substantiate his claim that the said service can be counted. Pension is not a bounty but as a matter of fact, a right, yet the mode and manner of its payment is governed strictly by relevant Rules. Unless the Rules provide, no person can claim a particular service in a particular employment for counting as qualifying service. The Apex Court, in D.S. Nakara v. Union of India, 1983 (1) SCC 305, while holding pension as a right, observed as follows:

"Pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the Rules and a Government servant coming within those Rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone''s discretion." [Para 20]

Learned Counsel for the petitioner could not place before the Court any provision under which the services rendered in a recognised but unaided NonGovernment Junior High School could have been counted.

In view of the aforementioned discussion, I do not find any merit in this petition. It is accordingly, dismissed. No order as to costs.