Shiva Kirti Singh, J. – Heard learned counsel for the petitioner and learned counsel for the respondent no.1.

2. This writ petition has been filed by the Commissioner, Kendriya Vidyalaya Sangathan, New Delhi against order dated 4.8.2006 and 5.11.2007 passed in OA No.487 of 2004 and Review Application No.38 of 2007 respectively by the learned Central Administrative Tribunal, Patna Bench, Patna.

3. The Tribunal allowed the claim of the respondent no.1 a retired Principal of Kendriya Vidyalaya Sangathan (KVS) and directed for counting 9 years 5 months and 18 days of service rendered by the respondent/applicant as qualifying service for the purpose of pension and determining his post retiral benefits accordingly. It is not in dispute that the respondent applicant was a teacher in J. L. High School, Begusarai during the period 17.1.1955 to 4.7.1964. He resigned from that post after he was selected as a Post Graduate Teacher in KVS. He joined under KVS on 7.7.1964. He earned promotion to the post of Vice Principal and Principal and retired from service on 31.12.1989. He received his pension on the basis of service rendered in KVS for a number of years and filed OA No.487 only in the year 2004 raising two grievances.

4. For redressal of his first grievance, he made a prayer for refixation of his pay for the period 1.1.1986 to 31.12.1989 on the ground that earlier pay fixation was erroneous. In respect of second grievance relating to calculation of earlier service for the purpose of pension, the prayer was for counting the period of service rendered by him in J.L. High School, Begusarai for the benefit of pension. The learned Tribunal found no mistake in fixation of pay as claimed by the applicant and hence, no relief was granted on that account. However, as noted above, the second relief has been allowed and against that the petitioner has preferred this writ petition. Prior to filing of this writ petition, the petitioner preferred a review application before the Tribunal bearing No.38 of 2007 but the same was dismissed on 5.11.2007.

5. It appears that after superannuating from service on 31.12.1989, the respondent applicant approached the authorities through representation for counting his past service in another school for the purpose of pension. Such representations said to have been filed in the year 1990 and later came to be rejected on 1.11.1996 vide Annexure-1. According to authorities, the benefit of past service could not count for enhanced pension as claimed by the applicant because the earlier school was not having the scheme of GPF/CPF during the period of service of the applicant and (2) as per Government of India Rules, unless the previous institution was either a Government institution or an institution receiving grant-in-aid to the tune of more than 50 per cent, the previous service could not be counted for the purpose of pension.

6. The Tribunal has allowed the OA preferred by the respondent by relying upon paragraph 5 of OM No.28-10/84- Pension Unit dated 29.8.1984 issued by the Government of India, Department of Personnel and A.R. According to the Tribunal, paragraph 5 of the memorandum stipulates that where no terminal benefits for the previous service has been received, the previous service in such cases will be counted as qualifying service. Since, admittedly no terminal benefits were received by the applicant from previous service, the Tribunal accepted the case of the applicant for counting his previous service as qualifying service for pension.

7. On behalf of the petitioner it has been submitted that the OA was barred by limitation and the facts available on record show that the school in question was a privately managed school and the teachers at the relevant time were not in a pensionable establishment and the school was getting a meagre amount as aid by the State and not 50 per cent funding as required by the policy decision of the Central Government. In this regard our attention was drawn to circular dated 29.