Court No. - 58
Case :- WRIT - A No. - 1698 of 2019 Petitioner :- Samsul Ali Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Parmatma Nand Ojha,Abhishek Shekhar Ojha,Anurag Kumar Ojha Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
While entertaining the writ petition, following orders were passed in the matter on 1.2.2019:-
"Learned counsel for the petitioner may file a supplementary affidavit clearly substantiating his plea that the petitioner had offered to deposit managerial contribution towards GPF within the time permitted under the Government Order.
Put up as fresh once again on 8.2.2019."
Again this Court proceeded to pass an order on 8.2.2019, which is reproduced hereinafter:-
"Learned counsel for the petitioner has placed before the Court a photocopy of the document evidencing the fact that a recommendation was made by the institution of petitioner's claim to offer deposit GPF contribution in terms of the scheme. It is stated that no receiving was given but the records are available with the respondents in the matter.
Learned Standing Counsel may obtain instructions. Put up as fresh on 15.2.2019."
In view of the above orders passed, learned Standing Counsel was allowed time to obtain instructions in the matter. After the instructions were received, following orders were passed on 22.2.2019:-
"Learned Standing Counsel has obtained instructions, according to which, provision of GPF for the teachers of attached primary section was introduced for the first time vide Govt. Order dated 28.1.2004, and in the absence of any other provision making it applicable from a previous date, the benefit of GPF prior to the said date cannot be granted.
Learned counsel for the petitioner seeks a short indulgence to respond. Put up as fresh once again on 26.2.2019."
Learned counsel for the petitioner has placed before the Court the provisions of the Uttar Pradesh State Aided Educational Institutions Employees Contributory Provident Fund, Insurance Pension Rules, 1964. Rules 3 and 4 of the Rules of 1964 are relevant and are being extracted hereinafter:-
"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 grant-in-aid;
(1) Primary Schools;
(2) Junior High Schools:
(3) Higher Secondary Schools;
(4) Degree Colleges;
(5) Training Colleges;
4. (a) These rules are intended to the employees of the State aided educational institutions, three types of service benefits, viz., Contributory Provident Fund, Insurance and Pension (Triple Benefit Scheme). The quantum of the benefits and the conditions by which they are governed are described in the succeeding Chapters.
(b) An employee already in permanent service on the date of enforcement of these rules shall be given an option to elect these new rules or to continue to be governed by the existing rules applicable to him.
(c) No employees shall be allowed option to choose only a part of the Scheme except as otherwise specifically provided for in these rules.
(d) Option once exercised shall be final."
It is urged on behalf of petitioner that the scheme for payment of pension and for provident fund was enforced since 1964 by virtue of the aforesaid rules, and the stand of the respondents that only pursuant to Government Order dated 28.1.2004 such a scheme became applicable is in teeth of the aforesaid rules. Reliance is also placed upon a Division Bench judgment of this Court in State Of U.P. Thru' Secretary Secondary Education and others Vs. Mangali Prasad Verma and others, 2018 (8) ADJ 680, wherein following observations have been made in paragraphs 20 to 22:-
"20. The net consequence is that all such teachers like the petitioner who had been working in aided institution prior to their retirement become entitle for addition of the services rendered at the time when the institution was unaided for computation of qualifying service subject to the deposit of the management contribution.
21. We are in agreement with the judgment and order of the learned Single which has permitted the writ petitioner to deposit the management contribution. On satisfaction of the said condition services rendered by Mangali Prasad Verma for the period 1961 to 1989 have to be counted as qualifying service for the purpose determination of the pension. There is no legality in the judgment and order of the learned Single Judge in that regard.
22. 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."
In view of what has been observed by the Division Bench in para 22, this Court has no hesitation in holding that once the applicability of the Rules of 1964 is not disputed, the question of its applicability being made conditional and dependent upon the Government Order of 28th January, 2004 cannot be sustained. The benefits of the Rules of 1964 would have to be extended to the petitioner also.
In that view of the matter, this writ petition stands disposed of requiring the respondent nos.3 and 4 to consider the petitioner's claim for computing his entire length of service and for grant of pensionary benefits, after accepting deposit of managerial contribution towards GPF together with interest, in terms of applicable Government Orders, within a period of three months from the date of presentation of certified copy of this order.
Order Date :- 26.2.2019 Anil