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2010 Supreme(All) 3075
[2010(8) ADJ 68 (FB)]
ALLAHABAD HIGH COURT
(Full Bench)
BEFORE : ASHOK BHUSHAN, ARUN TANDON AND A.P. SAHI, JJ.
Dr. A.P. PALIWAL …..Petitioner
Versus
STATE OF U.P. AND OTHERS …Respondents
(Civil Misc. Writ Petition No. 4333 of 2005, decided on 8th September, 2010)
Counsel :
J.P. Singh for the Petitioner; M.C. Chaturvedi, C.S.C. for the Respondents.
Headnote:(A) U.P. State Universities Act, 1973—Section 33—Government Order dated 24.12.1983—Constituiton of India, 1950—Articles 226 and 14—Pension—Retiral benefits—Computation of—Lecturer—Period of service rendered in other State (in the instant case, Madhya Pradesh)—Cannot be added for purposes of computation of his pension and other retiral benefits, in absence of any agreement between State of U.P. and other State—Qualifying years of service for computation of pension and other retiral benefits are governed by Government order dated 24.12.1983, which is in consonance with Section 33—As such,no direction can be issued by High Court in exercise of its writ jurisdiction to extend that benefit—Order refusing to extend that benefits—Neither arbitrary or irrational nor against law—Stray or isolated individual acts of Government, which itself is self descriptive—Cannot be made foundation for holding any other action to be discriminatory. [Paras 12 to 17, 26, 27, 39 and 46]
(B) Constitution of India, 1950—Article 226—Writ petition seeking mandamus—No such direction be issued to ignore law or act against law—Unless certain provision is found to be ultra-vires. [Paras 26 and 27]
(C) Government Order—Issued on dated 29.8.1990 and 5.2.2003 by State of U.P.—Explained—Cannot be formed basis for any preposition of law.
[Paras 32 to 37]
(D) Constitution of India, 1950—Articles 14 and 16 to 21—High Court's observations—Extension of particular benefit based on equality, as envisaged by Article 14—Be on reasonable and rational—State Government has greater responsibility—It should, therefore, exercise its powers in accordance with rule of law—It cannot act on its sweet will and in violation of fundamental rights of citizen or principle of equality enshrined in constitution. [Paras 40 to 43, 45 and 46]
Result; Decided Accordingly.
By the Court.—This reference arises out of a doubt expressed by a Division Bench about the correctness of the judgements noted therein on the proposition relating to addition of services as a Teacher in a Government School in Madhya Pradesh towards the services of a Lecturer in an aided Degree College in the State of U.P. for computing pension and other post retiral benefits. The decisions, including those mentioned in the referring order, that are subject matter of resolution through an authoritative pronouncement, are :
(I) Dr. Ajita Bhattacharya v. State of U.P., Writ Petition No. 1614 of 2000, decided on 18.1.2001.
(II) Dr. Jay Prakash Singh v. State of U.P. and others, Writ Petition No. 17417 of 2000, decided on 30.4.2001.
(III) Dr. Pradeep Kumar v. State of U.P. and others, Writ Petition No. 17418 of 2000, decided on 30.4.2001.
(IV) Dr. (Mrs.) Kavita Srivastava v. Principal Secretary, Higher Education, Uttar Pradesh Government, Lucknow, 2003 (1) ESC 643 (All).
(V) Hari Om Agrawal v. State of U.P. and others, Writ petition No. 35605 of 2004, decided on 31.8.2004.
(VI) Harish Kumar Sharma v. Director of Education and others, Writ Petition No. 45957 of 2006, decided on 24.8.2006.
2. The controversy appears to have arisen in the background that the petitioner Dr. A.P. Paliwal initially served as an Upper Grade Teacher in a Government Higher Secondary School, Hoshangabad, State of Madhya Pradesh from 1.7.1963 onwards. He came to be appointed as a lecturer on 1st September, 1973 in Dharam Samaj Post Graduate College Aligarh affiliated to the Agra University in the State of Uttar Pradesh and attained his age of superannuation working as such on 24.1.1998. The petitioner claimed that his services between 1.7.1963 to 31.8.1973 as a Teacher in the Government Higher Secondary School in the State of Madhya Pradesh should be added for the purpose of his length of services while computing his pension and other post retiral benefits. The petition as framed, prays for issuance of a writ of certiorari for quashing the order dated 10th January, 2005 passed by the Finance Controller Higher Education Directorate intimating the Principal of the Institution that the petitioner’s pensionary benefits have been calculated on the basis of his services rendered within the State of U.P. and in the absence of any Government Order to the contrary or even otherwise, the services rendered by the petitioner outside the State of U.P. in Madhya Pradesh cannot be added for such computation. The allegations in the writ petition recite the instances of the decisions of this Court to contend that the claim of the petitioner has been discriminated and much stress has been laid on the judgments of Dr. (Mrs.) Kavita Srivastava (supra), the decision in the case of Hari Om Agrawal (supra), and the decision of the Apex Court as relied upon in these two decisions namely Shardendu Bhushan v. Nagpur University, Nagpur and others, 1987 (Suppl.) SCC 53. Reliance is also placed on the Government Orders dated 29.8.1990, 30.6.1992, 19.2.1996, 5.2.2003 and the Government Orders dated 23.7.1973, 13.6.1979, 10.12.1985, 14.10.1999 and 4.1.2001.
3. The Division Bench after having noted the decisions cited at the bar and certain Government Orders framed two questions for being answered by a Larger Bench vide order dated 5.10.2007. Accordingly, the Bench was constituted to answer the aforesaid questions. The referring order is reported in 2008 (3) ESC 1813 and the questions framed are as follows:
(1) As to whether the judgement in the case of Shardendu Bhushan (supra) lays down any proposition of law, qua the length of service rendered in a different State to be added for the purpose of computation of pension in respect of Teacher who was subsequently appointed in a degree college affiliated to the University covered by the Act, 1973 and has retired as such.
(2) Whether in absence of any statutory provision/Government Order permitting any such addition of length of servic
