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IN THE HIGH COURT OF ALLAHABAD
IRSHAD ALI, J.
U.P. Senior Basic Shiksha Sangh – Petitioner
Versus
State of U.P. through Principal Secretary Basic Education – Respondent
Service Single No. 3458 of 2009
Decided On : 07-07-2021
U.P. Basic Education Act, 1972 - Section 19 (1) - U.P. Recognized Basic Schools (Recruitment and Condition of Service of Teachers and other Conditions) Rules, 1975 - Rules 9 and 10 - U.P. Recognized Basic (Junior High School) (Recruitment and Condition of Service of Teachers) Rules, 1978 - Rule 19 - U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Ministerial Staff And Group 'D' Employees) Rules, 1984 - Teaching and non teaching staff - Contributory pension scheme - Petitioners who are non teaching staff of the institutions that they were appointed in the institution in accordance with the provisions contained under 1984 Rules and at time of taking institution on grant in aid list, same service condition shall be applicable in regard to recruitment of non teaching staff of the institutions - Applicability of NPS treating non teaching staff to be appointed on the date the institution was brought within the purview of payment of salaries act on 02.12.2006 is erroneous in nature.
Finding of the court: Rule 19 of Rules of 1978 does not carve out distinction in regard to applicability between institutions aided and non-aided - Rule 19 of Rules of 1978 is applicable for the payment of provident fund to teachers and head masters employed in recognized schools in accordance with scheme applicable to aided institutions, therefore, the otherwise finding recorded while passing the impugned order cannot be sustained - Special Secretary has committed manifest error of law and has passed absurd order without taking into consideration the relevant provisions referred hereinabove in regard to recruitment and condition of service applicable to teaching and non teaching staff - Special Secretary has nowhere considered while passing impugned order that recruitment and condition of service of teaching and non teaching staff were same on the date of taking the institutions on grant in aid list vide order - Therefore, petitioners before this court who have been granted appointment much prior to enforcement of NPS vide notification issued shall not affect the right of the petitioners to be covered under OPS. Management has been empowered at earlier point of time by issuing government order to deposit the manager's contribution by calculating the service for grant of pension to teaching and non teaching staff, therefore, there shall be no burden upon the State Government in paying the pension treating the teaching and non teaching staff to be covered under OPS.
Result: Writ petitions allowed
JUDGMENT :
IRSHAD ALI, J.
C.M.A. No. 66745/2021-Correction Application.
1. Heard learned counsel for the parties.
2. The following corrections are being incorporated in the judgment and order dated 16.06.2021:
In last line of paragraph-17 “08.03.2020” is deleted in its place “08.03.2002” is added.
In the fourth line of paragraph-38 “1972” is deleted and in its place “1978” is added.
In the fifth line of paragraph-39 “1970” is deleted and in its place “1978” is added.
In the seventh line of paragraph-54 “100” is deleted and in its place “1000” is added.
In the eleventh line of paragraph-54 “1972” is deleted and in its place “1978” is added.
3. Accordingly, the correction application is allowed to the extent mentioned above.
4. For ready reference, the corrected order is being reproduced below:
(2) This is a bunch of 66 writ petitions. Facts of all the connected writ petitions are same and is in regard to claim of Old Pension Scheme (OPS), therefore, this bunch of writ petitions is being decided by means of a common order treating Writ Petition No. 3458 (S/S) of 2009 to be leading writ petition.
(3) Brief fact of the case is that several senior basic level institutions were established during year 1989-1998 in which teaching and non teaching staff were appointed. The Government has discontinued the monthly pension scheme vide order dated 28.03.2005 and w.e.f. 01.04.2005 placed a new contributory pension scheme to new recruits. The government order issued by the State Government on 28.03.2005 has laid down New Pension Scheme enforced w.e.f. 01.04.2005 and vide impugned order, the State Government refused to cover the claim of the teaching and non teaching staff from the zone of old pension scheme on the ground that the institutions where they have been appointed have been brought after the enforcement of NPS.
(4) Vide order dated 02.12.2006, the Government of U.P. admitted those 1000 institutions, who were established between 1989-1998 in grant in aid list. However, teachers of those institutions are not being paid benefit of pension as per OPS, however they were appointed prior to 01.04.2005, therefore, the present bunch of writ petitions has been filed.
(5) Bunch of writ petitions were filed before this Court claiming the relief sought in the present bunch of writ petitions claiming pensionary benefit under the Scheme of 1964 challenging certain orders, whereby members of the Association were ordered to be governed by New Pension Scheme (NPS) introduced vide notification dated 28.03.2005 ignoring the fact that the institution under which the members of the Association were working started receiving grant in aid after 01.04.2005.
(6) The claim setup by the petitioners of the above referred writ petitions was not accepted by learned Single Judge and the writ petitions were dismissed.
(7) Being aggrieved by the judgment passed by learned Single Judge, a special appeal was preferred by the petitioners, which was also dismissed vide judgment and order dated 04.12.2015. A review application was filed mainly on the ground that the Division Bench in dismissing the appeal has relied on the judgment passed by this court in the case of Budhiram vs. State of U.P. and Others, Civil Misc. Writ Petition No. 45217 of 2012 decided vide judgment and order dated 26.09.2012.
(8) The judgment and order passed in the case of Budhiram (Supra) was subsequently set aside by the Division Bench with remission of the case to learned Single Judge for a f
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