State of U.P. and 2 Others v. Gajendra Singh Chauhan and Another

Order on Appeal:

¶1This special appeal is directed against judgement and order dated

26.05.2023 passed in Civil Misc. Writ-A No.815 of 2023 (Gajendra Singh Chauhan Versus State of U.P. and three others), whereby the writ petition has been allowed by learned Single Judge with a direction to release family pension to him within a period of three months, along with interest at the rate of 9 per cent per annum with effect from

25.04.2002 till the date of actual payment. A further direction has been issued to the appellant-State to permit respondent to deposit contribution of management, if not already deposited, within a period of three months, and after depositing the contribution of management the petitioner would be entitled for the said benefits in terms of directions, noticed above.

¶2Learned State counsel submits that the claim of respondent had not been adjudicated on merits in view of the observation that such claim itself was not admissible in view of Government Order dated

28.01.2004. It is alleged that even if the Government Order was found inapplicable in the facts of the case, yet the only direction that could have been issued was to consider the claim of the respondent-petitioner on merits, afresh, and the learned Single Judge erred in granting relief beyond it.

¶3Learned counsel for the respondent/petitioner, per contra, submits that only objection to the claim for family pension by State was the G.O. dated

28.01.2004, and since the cut off of date fixed therein has already been declared arbitrary in a series of judgements of this Court, as such the direction to release family pension merits no interference.

¶4We have heard learned counsel for the appellant-State and Sri Arvind Srivastava for respondent-petitioner and perused the materials on record.

¶5It transpires that respondent, Gajendra Singh Chauhan filed Writ Petition No.815 of 2023 challening the order dated 11.07.2022 passed by Deputy Director of Education (Secondary), Kanpur Region, Kanpur. A further prayer was made in the writ petition to command State-respondent to grant family pension forthwith to the petitioner, along with arrears, together with interest admissible under the law.

¶6The order passed by the Deputy Director of Education (Secondary) would go to show that respondent, Gajendra Singh Chauhan had earlier filed Writ-A No.6276 of 2022, wherein a direction was issued to the concerned authority i.e. Deputy Director of Education, Kanpur Region, Kanpur to pass appropriate orders on the representation of the petitioner within six weeks. The representation contained a claim for payment of family pension. It is pursuant to such direction of Writ Court that facts have been examined by the Deputy Director of Education. The Deputy Director of Education has noticed that wife of the respondent-petitioner was a teacher in a primary institution attached to Adarsh Higher Secondary School, Vidhuna, District Auraiya and provisions of Payment of Salaries Act, 1971 were applicable upon her. The officer further noticed the fact that wife of respondent-petitioner was a regular employee and had to be treated at par with teachers employed in secondary institution and no separate order of regularization was required to be passed in her respect. However, the claim for payment of pension was not considered by the Deputy Director of Education relying upon the Government Order dated 28.01.2004, which extended the benefit of family pension only from the date of sanction of pension or upon issuance of Government Order dated 28.01.2004. It is precisely for this reason that the claim of the respondent of family pension was rejected. The Deputy Director also noticed that previous Government Order dated 6.11.1978 was not applicable. The Government Order dated 28.01.2004 reads as under: "

मा訷砐वि्ቕ ालय尕勷क努䃠सम्ब㛞⹦प्राइमरी-

वि्ቌक尕勷क᮫ቊपंन

संख्या- 148/79-6-04-28(18)/2000 प्र努䃠षक,

स努䃠ामें,

्रीहविरराኪ⒗विक᮫ቊर

वि्ቌाविनद努䃠क(माध्यविमक) सवि!

उ्ቈरप्रद努䃠,लखनऊ।

उ्ቈरप्रद努䃠 ासन।

वि्ቌाअनुभाग-6

लखनऊⵖᯒविदनांकⵖᯒ28 ኪ⒗नरी, 2004 विषयⵖᯒ-

असाकीयसहायताप्राप्तमाध्यविमकवि्ቕ ालय尕勷स努䃠सम्ब㛞⹦प्राइमरी

प्रभागक努䃠वि्ቌक/

विवि्ቌकाओंक᮫ቊ पेंनकीसुविधाअनुमन्यकराᮺⒺኪ⒗ान努䃠क努䃠

सम्बन्धमें। मह᮫ቊदय,

उपयु2क्तविषयक努䃠सन्दभ2 मेंमुझ努䃠आपस努䃠यहकहन努䃠काविनद努䃠 हुआहቝय़विक

अासकीयसहायताप्राप्तउ訷砐मा訷砐वि्ቕ ालय尕勷स努䃠सम्ब㛞⹦प्राइमरीप्रभाग (बालक/बाविलका) क努䃠वि्ቌक/

विवि्ቌकाओंक᮫ቊ,

साहयताप्राप्तमाध्यविमकवि्ቕ ालय尕勷

क努䃠वि्ቌक尕勷कीभांवितस努䃠ाविनृवि्ቈकलाभतथापेंन, पाविराविरक, पेंन,

ग्र努䃠च्युटी

ኪ⒗ी訷砐पी訷砐ᮺⒺफ訷砐कीसुविधाकालाभविदय努䃠ኪ⒗ान努䃠की्रीराज्यपालमह᮫ቊदयसहष2

स्ीकृवितप्रदानकरत努䃠हैं।

2.

यहस努䃠ाविनृवि्ቈकलाभआद努䃠 विनग2मनकीवितविथस努䃠अथाउसक努䃠उपरान्त

स努䃠ाविनृ्ቈ ह᮫ቊन努䃠ाल努䃠वि्ቌक尕勷क᮫ቊहीअनुमन्यह᮫ቊगीतथापेंनह努䃠तुअह2कारीस努䃠ा

ही मानी ኪ⒗ाय努䃠गी विኪ⒗स अविध क努䃠 विलᮺⒺ सम्बविन्धत वि्ቌक का सी訷砐पी訷砐ᮺⒺफ訷砐/

ኪ⒗ी訷砐पी訷砐ᮺⒺफ訷砐अंदानकटाह᮫ቊ।

3.

उक्तमदपरह᮫ቊन努䃠ालाव्ययअनुदानसंख्या-71

क努䃠संगतल努䃠खाीष2कमें

प्राविधाविनतबኪ⒗टस努䃠हनविकयाኪ⒗ाय努䃠गा।

4.

यहआद努䃠 वि्ቈ विभागक努䃠अासकीयसंख्या-ई-11/178/दस-04 विदनांक 28 ኪ⒗नरी, 2004

मेंप्राप्तउनकीसहमवितस努䃠ኪ⒗ारीविकय努䃠ኪ⒗ारह努䃠हैं। भदीय, ह訷砐/-

हविरराኪ⒗विक᮫ቊर " सवि!। So far as payment of family pension to the employees of primary section attached to secondary institution is concerned, the Government Order dated

6.11.1978 is referred, as per which, pensionary benefits were admissible to the attached primary school teachers at par with pensionary benefits admissible to the Secondary Institutions covered by the Payment of Salaries Act, 1971. Pensionary benefits were, therefore, extended to the teachers of primary section attached to secondary institutions also. The Government Order of 28.01.2004 had neither modified nor rescinded the previous Government Order of 06.11.1978. Nevertheless, the Government Order dated 28.01.2004 restricted the benefit of pension either from the date of issuance of payment pension order or to the teachers who retired after

28.01.2004. Wife of the respondent-petitioner had died on 25.04.2002. Apparently no reasons have been specified in the Government Order dated

28.01.2004 for restricting the benefits, already granted earlier to the teachers of primary section in terms of such Government Order. No justification has been furnished for curtailing the benefits already granted earlier only to the teachers who were to retire after 28.01.2004. The fixing of cut off date in the Government Order dated 28.01.2004 came to be challenged before this Court in Writ-A No.17819 of 2007 (Mangli Prasad Verma Versus State of U.P. and others). Learned Single Judge of this Court, in Writ-A No.17819 of 2007, quashed the cut off date fixed in Government Order dated 28.01.2004. The decision in Mangli Prasad Verma (supra) has been followed in a series of judgements.

¶7It is worth noticing that Government has framed U.P. State Aided Education Institution Employees Contributory Provident Fund-Insurance-Pension Rules, 1964, and its benefits were extended to the institutions run either by the Local Body or by private management and recognized by the competent authority for the purposes of payment of grant-in-aid. Learned Single Judge has noticed the provisions of Rules of 1964 to observe as under: "The said Rules have been made applicable to the following institutions:

(1) Primary Schools;

(2) Junior High Schools;

(3) Higher Secondary Schools;

(4) Degree Colleges;

(5) Training Colleges Rule 4 of the Rules, 1964 provides three types of service benefits, viz., contributory provident fund, insurance and pension (Triple Benefit Scheme). Rule 5(g) defines the word "employee" in the following terms: "(g) 'Employee' means a permanently employed person borne on the whole-time teaching or non-teaching establishment of an aided institution, excluding (a) the inferior staff, and (b) the ministerial staff of the institutions maintained by a Local Body." The expression 'Institution' has been defined in Section 5(l) of the Rules, 1964, as under: "(l) 'Institution' means an aided school or college referred to in Rule 3 above." Rule-5(p) of the Rules, 1964 gives the meaning of 'pension', thus: "(p) 'Pension' means the pension payable to an employee under the rules Chapter V of these Rules." Chapter V of the Rules, 1964 deals with the pension. Rule 17 prescribes the eligibility for pension which, insofar as is material for this case, reads as under: "17. An employee shall be eligible for pension on-

(i) retirement on attaining the age of superannuation or on the expiry of extension granted beyond the superannuation age;

(ii) voluntary retirement after completing 25 years of qualifying services;

(iii) retirement before the age of superannuation under a medical certificate of permanent incapacity for further service; and

(iv) discharge due to abolition of post or closure of an institution due to withdrawal of recognition or other valid causes."

¶8Learned State counsel has not been able to dispute the applicability of aforesaid Rules of 1964 upon the institutions concerned nor applicability of Government Order dated 06.11.1978 is seriously questioned which extended the applicability of 1964 Rules upon retiring teachers of the primary section of secondary institutions.

¶9From the facts noticed above, it is, therefore, apparent that learned Single Judge rightly came to the conclusion that the claim of respondent for payment of family pension could not have been non-suited only on the strength of Government Order dated 28.01.2004. We, therefore, are in respectful agreement with judgement of learned Single Judge to the extent His Lordship has interfered with the impugned order of Deputy Director of Education, dated 11.07.2022.

¶10However, we find substance in the argument of learned counsel for State-appellant that even if the order of Deputy Director of Education was set aside, the matter ought to have been remitted to the concerned Deputy Director to consider the claim of respondent, afresh, particularly as claim of respondent had not been examined on the other aspects. The claim was apparently raised after nearly two decades.

¶11We, therefore, partly allow the Special Appeal of the State and modify the judgement of learned Single Judge, dated 26.05.2023, with the direction to the Deputy Director to reconsider the claim of respondent for release of family pension in accordance with applicable laws, afresh, within two months, from the date of presentation of a copy of this order is made before him. Consequently the direction to release family pension with effect from

25.04.2002 as well as direction to release arrears with 9 per cent interest stands modified and substituted with the direction aforesaid. Respective case of the parties, on other aspects of entitlement to family pension, is left open.

¶12The special appeal stands disposed, accordingly. Order Date :- 22.11.2023 MN/- High Court of Judicature at Allahabad

Court No. - 46 Case :- SPECIAL APPEAL DEFECTIVE No. - 773 of 2023 Appellant :- State Of U.P. And 2 Others Respondent :- Gajendra Singh Chauhan And Another Counsel for Appellant :- C.S.C.,C.S.C. Counsel for Respondent :- Arvind Srivastava III Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J. Order on Delay Condonation Application: The delay in filing of the special appeal has been explained to the satisfaction of the Court and is otherwise not seriously opposed. The delay condonation application is consequently allowed. Delay is condoned.