Allowed

Gajendra Singh Chauhan v. State of U P and 3 Others

Allahabad HC26 May 2023WRIA/815/2023

Case brief

AI extract

What is this about?

This petition challenged an order denying family pension to the petitioner's late wife, an assistant teacher in a primary section of an aided higher secondary school. The High Court held that the Rules of 1964 apply prospectively and declared the respondent's reliance on a cutoff date in a Government Order unsustainable. The Court quashed the rejection order.

What did the court decide?

Set aside impugned order; directed respondents to grant family pension with interest from date of death; permitted deposit of management's contribution.

Gajendra Singh Chauhan Vs State of U P and… — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:125300

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Court No. - 36

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Case :- WRIT - A No. - 815 of 2023

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Petitioner :- Gajendra Singh Chauhan Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Arvind Srivastava Iii,Pratik Kumar Counsel for Respondent :- C.S.C.

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Hon'ble Ashutosh Srivastava,J.

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Heard Shri Arvind Srivastava-III, learned counsel for the petitioner and Shri Shailendra Singh, learned Standing Counsel for the Respondent Nos.1 to 3. Notice was issued to the Respondent No.4 fixing 26.04.2023, but no one has put in appearance on behalf of the Respondent No.4.

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The present writ petition has been filed seeking issuance of a writ of certiorari quashing the order dated 11.7.2022 passed by the Deputy Director of Education (Secondary) Kanpur Region, Kanpur whereby the claim of the petitioner regarding release of family pension has been declined. A further prayer for issuance of a writ of mandamus commanding the Respondent No.2 to grant the family pension to the petitioner along with arrears and up-to-date interest has also been claimed.

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It is the case of the petitioner that his wife was appointed as an Assistant Teacher in attached primary section of the Adarsh Higher Secondary School, Vidhuna, District Auraiya in the year 1978. Her services were regularized on 30.11.1991. The wife of the petitioner was granted exemption from training under orders of the District Inspector of Schools and Regional Deputy Director of Education under order dated 26.08.1996. The wife of the petitioner expired on 25.04.2002. The petitioner thereafter applied for grant of family pension, however, the claim was kept pending. The petitioner was compelled to approach this Court by means of Writ-A No. 6276 of 2022 which writ petition was disposed of vide order dated 17.05.2022 directing the Respondent No.2 to pass appropriate orders on the claim of the petitioner. The Respondent No.2, the Deputy Director of Education (Secondary) Kanpur Region, Kanpur has rejected the claim of the petitioner vide order dated 11.07.2022 which has been impugned in this writ petition.

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Learned counsel for the petitioner vehemently contends that the

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rejection of the claim of the petitioner on the ground that the Government Order dated 06.11.1978 is not applicable to the case of the petitioner and it is the Government Order dated 28.01.2004 which is applicable. The Government Order dated 28.01.2004 provides that the benefit of pension, family pension, gratuity and government provident fund would be sanctioned to the Assistant Teachers of primary section attached to higher secondary schools with effect from the issuance of the Government Orders. Besides only those teachers would be entitled for pension whose contribution of CPF/GPF has been deposited. The Government Order operates prospectively. Learned counsel for the petitioner contends that the Government Order dated 28.01.2004 has been subjected to the judicial scrutiny before this Court in numerous writ petitions leading amongst them being Writ-A No. 17819 of 2007 (Mangal Prasad Verma versus State of U.P. and others) wherein the cut off date mentioned in the Government Order has been struck down as being arbitrary and discriminatory amongst the teachers who retired before 28.01.2004.

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Learned counsel for the petitioner further submits that this Court in Writ Petition No. 75746 of 2005 (Smt. Shanti Solanki versus State of U.P. and others) permitted the petitioner therein to deposit the managements' contribution within a period of six weeks and the respondents were directed to extend the benefit of the Government Orders to the petitioner within a further period of six weeks and the cut off date fixed by the Government Order was quashed. It is contended that the petitioner is ready to deposit the management's contribution with interest and the benefit of the Government Order be granted in favour of the petitioner.

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A counter affidavit has been filed on behalf of the Respondent Nos.1, 2 & 3 wherein stand has been taken that the cut off date mentioned in the Government Order dated 28.1.2004 is still in force and cannot be ignored in the case of the petitioner. The fact that the institution in question receives the grants-in-aid since the year 1989 is not disputed. It is also not disputed that the wife of the petitioner was exempted from training and that she died in harness on 25.04.2002.

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A rejoinder affidavit has been filed in response to the counter affidavit reiterating the averments made in the writ petition.

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I have heard the learned counsels for the respective parties and have perused the record.

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A perusal of the impugned order reveals that the petitioner has

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been non suited only on the ground that the claim of the petitioner is not covered by the Government Order dated 28.01.2004. The impugned order completely ignores the fact that a teacher of the primary section is entitled for pension in terms of the Rules, 1964 and the Government Order dated 28.01.2004 is merely clarificatory in nature. The Government has framed the U.P. State Aided Education Institution Employees Contributory Provident Fund-Insurance-Pension Rules, 1964 (hereinafter referred to as the Rules, 1964). The Rules have been made applicable w.e.f. 01.10.1946. These Rules have been made applicable to the institutions run either by the Local Body or by a private management and recognized by the competent authority for the purposes of payment of grant-in-aid. The said Rules have been made applicable to the following institutions:

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(1) Primary Schools;

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(2) Junior High Schools;

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(3) Higher Secondary Schools;

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(4) Degree Colleges; &

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(5) Training Colleges

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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:

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"(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."

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The expression 'Institution' has been defined in Section 5(l) of the Rules, 1964, as under:

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"(l) 'Institution' means an aided school or college referred to in Rule 3 above."

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Rule-5(p) of the Rules, 1964 gives the meaning of 'pension', thus:

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"(p) 'Pension' means the pension payable to an employee under the rules Chapter V of these Rules."

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Chapter V of the Rules, 1964 deals with the pension. Rule 17 prescribes the eligibility for pension which, insofar as is material

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for this case, reads as under:

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"17. An employee shall be eligible for pension on-

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

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

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

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

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In view of the above, the Court is of the considered opinion that the wife of the petitioner was entitled to pension. Consequently, the petitioner would stand entitled to family pension and the view taken by the second respondent i.e. the Deputy Director of Education, Kanpur Region, Kanpur cannot be sustained. Consequently, the order dated 11.07.2022 passed by the Respondent No.2, is set aside. As no factual dispute is involved in the matter and the impugned order was based on misconstruction of the Government Order dated 28.01.2004, wherein the cut off date has been fixed no useful purpose would be served to send the matter back to the authority concerned afresh as this Court has already declared the cut off date as arbitrary and discriminatory in the case of Mangal Prasad Verma (supra).

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Accordingly, the respondents are directed to extend the benefit of the Government Order dated 28.01.2004 and the Rules, 1964 to the petitioner for the payment of the family pension with effect from 25.04.2002 within a period of three months from the date of service of certified copy of the order of this Court. The petitioner shall be entitled for the arrears of pension with interest @ 9% per annum with effect from 25.04.2002 till the date of actual payment. The respondents are further directed to permit the petitioner to deposit the management's contribution, if not already deposited, within a period of three months and after deposit of the management's contribution, the petitioner shall be entitled for the family pension as directed above.

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The writ petition is allowed in terms aforementioned.

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No order as to costs.

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Order Date :- 26.5.2023 pks/ravi

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Digitally signed by :- PAWAN KUMAR SINGH High Court of Judicature at Allahabad

Gajendra Singh Chauhan v. State of U P and 3 Others

Case brief

What is this about?

What did the court decide?

Gajendra Singh Chauhan v. State of U P and 3 Others

Case brief

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What did the court decide?

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