Court No. - 33
Case :- WRIT - A No. - 14459 of 2020 Petitioner :- Amrendra Vikram Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Vinod Kumar Upadhyay,Santosh Kumar Upadhyay Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
The present petition has been filed for a direction upon the respondents to treat the petitioner as being covered by the old pension scheme (enforced till 31.03.2005) in view of the fact that initiation of the selection process commenced with issuance of advertisement dated 09.03.1998.
Annexure no.1 to the writ petition is a notice/ advertisement dated 08.03.1998, which invited applications for imparting Special B.T.C. training for the purposes of appointment to the post of Assistant Teacher in Basic Institutions run by State Government. According to petitioner he applied and had a higher merit but he was not permitted to commence the Special B.T.C. Course. Petitioner accordingly filed Writ Petition No. 29586 of 1999, in which an interim order came to be passed on 21.07.1999. The authorities, however, did not permit the petitioner to resume training which compelled him to file a fresh Writ Petition No.35390 of 2000 and ultimately the petitioner was permitted to commence training after order was passed in the contempt petition. The petitioner also states that he completed his training in the year 2004, where after the B.T.C. Certificate was issued to him on 06.08.2005. It is thereafter that petitioner has been appointed on 31.12.2005 as Assistant Teacher by when the New Pension Scheme has come into effect. According to the petitioner the delay in completion of special B.T.C. was due to fault of respondents and, therefore, denial of benefit under the old pension scheme is arbitrary. Reliance is placed upon a judgment of this Court in Mahesh Narain Vs. State of U.P. and others (Writ Petition No.55606 of 2008) Writ petition was entertained and respondent no.3 was directed to file a counter affidavit. A stop order was passed by this Court on 22.07.2021, but no counter affidavit has been filed despite a second stop order passed on 31.09.2021. The writ petition, therefore, is taken up for hearing without granting any further time to the respondents to file a counter affidavit.
The appointment to the post of Assistant Teacher in a Basic Institution is governed by the provisions of The U.P. Basic Education (Teachers) Services Rules, 1981. The eligibility for appointment includes a B.T.C. Training Certificate.
The advertisement which is being referred to in the writ petition is for the purposes of admission in the Special B.T.C. Course. Such admission has been granted to petitioner belatedly but it remains a fact that ultimately the B.T.C. certificate has been issued to petitioner in August, 2005 by when the new pension scheme had already been enforced. It is to be kept in mind that eligibility for appointment in favour of petitioner has arisen only with issuance of B.T.C. certificate and not prior to it. Reliance upon advertisement dated 08.03.1998 is misplaced inasmuch as the advertisement merely was for inviting applications for admission to special B.T.C. training and it cannot be construed as commencement of recruitment for the post of Assistant Teacher, which is governed by the Rules of 1981. This process of recruitment has arisen only after August, 2005. The appointment issued to petitioner in the Month of December, 2005 has otherwise not been questioned. Merely because there was delay in admitting him to Special B.Tc. would not mean that petitioner becomes entitled to appointment on the post of Assistant Teacher from a prior date. Law with regard to applicability of pension scheme has been explained in a subsequent judgment of this Court in Manoj Kumar Singh Vs. State of U.P. and others, 2020 (10) ADJ 1479. This Court has drawn a distinction between the rules of recruitment and the conditions of service. It has been noticed that payment of pension or pension scheme is a part of condition of service and will have no relevance for the purposes of recruitment as per the rules. The principle that rules cannot be changed after recruitment has begun will not be applicable in such circumstances for payment of pension under the old scheme. There is otherwise no arbitrariness or illegality in offering appointment to the petitioner inasmuch as the eligibility to apply for appointment has arisen only after completing the B.T.C. Course which has been issued to petitioner on 06.08.2005. Petitioner otherwise has not questioned date of his appointment and, therefore, raising of a grievance in that regard almost after 15 years would otherwise not be permissible. None of the exigency in which appointment from a previous date for the purpose of pension arises in the facts of the case. The law laid down in Mahesh Narain (Supra) has been explained in Manoj Kumar Singh (Supra) and the exigency warranting preponement of recruitment for the purpose of previous pension scheme is not shown to exist in the facts of this case. Dismissed accordingly.
Order Date :- 25.10.2021 Abhishek Singh