The petitioner was not entitled to the benefit of the Old Pension Scheme as he was substantively appointed after the cut-off date for the scheme. The Payment of Gratuity Act, 1972 did not apply to government employees and employees of government-aided educational institutions, and the petitioner should approach the forum provided under the said Act for any relief.

JUDGMENT :

MANOJ KUMAR TIWARI, J.

1. After serving for more than 33 years in a Government Aided Intermediate College, petitioner retired from service on 31.03.2016. Since he has not been given pension under the Old Pension Scheme, therefore, he has filed this writ petition seeking the following reliefs:

“(a) Issue a writ, order or direction in the nature of MANDAMUS directing the Respondents to pay pension to the petitioner after counting the services of the petitioner from 08.07.1982 till 31.03.2016 under the old pension scheme.

(b) Issue a writ, order or direction in the nature of MANDAMUS directing the Respondents to pay the arrears of the pension to the petitioner with interest after calculating the pension of the petitioner taking into consideration the services from 08.07.1982 to 31.03.2016.

(c) Issue a writ, order or direction in the nature of MANDAMUS directing the Respondents to pay back with interest the amount deducted by the respondents from the pay of the petitioner under the head of CPD, when the contributory pension scheme, 2005 was not applicable to the petitioner.

(d) Issue a writ, order or direction in the nature of MANDAMUS directing the Respondents to pay the amount of Gratuity with interest to the petitioner for the period 08.07.1982 to 31.03.2016.”

2. From perusal of record, it is revealed that petitioner was given ad-hoc appointment as Assistant Teacher L.T. Grade (Biology) against a short term vacancy, which arose on account of suspension of the previous incumbent, namely, Mr. R.D. Joshi. Approval to such ad-hoc appointment was given by the District Inspector of Schools, Nainital, vide order dated 03.09.1982.

3. Petitioner’s services were directed to be terminated by District Inspector of Schools, Nainital, vide order dated 13.10.1986, however, pursuant to interim order passed by Hon’ble Allahabad High Court, petitioner was permitted to continue as Assistant Teacher, L.T. Grade (Biology). The previous incumbent on the said post, namely, Mr. R.D. Joshi completed age of superannuation on 31.01.2007 and a clear vacancy arose on the post against which petitioner was appointed, only on 01.02.2007.

4. It is a fact that services of petitioner were regularised on the post of Assistant Teacher, L.T. Grade (Biology), vide order dated 02.08.2007. Before his regularisation, petitioner was not serving in pensionable establishment and an ad-hoc teacher, appointed in a Government Aided School, was not entitled for pension. Petitioner was given regular appointment on the aforesaid post vide order dated 02.08.2007, however, before grant of regular status to him, State Government issued a notification on 25.10.2005 providing that persons appointed in Government Departments/Government Aided Educational Institutions after 01.10.2005, shall be covered by New Contributory Pension Scheme.

5. Learned counsel for petitioner contends that petitioner was appointed in a Government Aided School in 1982, therefore, he is not covered by New Contributory Pension Scheme and he is entitled to get benefit of Old Pension Scheme.

6. The said contention, however, is not acceptable, as before 02.08.2007, petitioner’s status was that of an ad-hoc employee and he was serving against a post, on which the previous incumbent Mr. R.D. Joshi was holding lien. It is not disputed that disciplinary proceedings initiated against Mr. R.D. Joshi remained inconclusive till his retirement. Mr. R.D. Joshi was holding a pensionable post and pension must have been paid to him post retirement, therefore, two persons cannot be paid pension from the same post. Even though, petitioner served against the said post between 03.09.1982 till retirement of Mr. R.D. Joshi on 31.01.2007, however, petitioner cannot have a better claim for pension than what Mr. R.D. Joshi had.

7. A counter affidavit has been filed by Chief Education Officer, Nainital. Paragraph Nos. 4, 10, 11, 13, 14 and 15 of the counter affidavit are reproduced below:

“4. That in regard to the contents of Para no. 1