The Allahabad High Court has decided that the assistant teachers selected under the advertisement issued before the implementation of the new pension scheme will get the benefit of the old pension scheme.
A Single Bench of Justice Vikas Budhwar passed this order while hearing a petition filed by Nand Lal Yadav and others.
The facts of the case as worded in the leading writ petition are that an advertisement was published by the U.P Secondary Education Selection Board, Advertisement for filling up various posts of Assistant Teacher including subject “Science”.
The petitioner claiming himself to be belonging to another backward class category and handicapped applied for selection and appointment on the post of Assistant Teacher in subject “Science”. Interviews are stated to have been conducted on 29.11.2004 and result was declared on 24.12.2004 wherein the name of the petitioner found place at serial No 14 while according placement in the institution, Sri Shri Krishnand Janta Inter College, Bankatai, Deoria.
Since as per the petitioner, the said institution, Sri Shri Krishnand Janta Inter College, Bankatai, Deoria did not allow the writ petitioner to join the said institution so the third respondent, District Inspector of Schools, Bhadoi issued a communication addressed to the Secretary, U.P Secondary Education Service Selection Board, Allahabad/Prayagraj on 26.10.2005 requiring adjustment of the petitioner in any other institution.
Pursuant to the said letter, the Deputy Secretary of the Board by virtue of a letter dated 02.04.2005 allotted the sixth respondent-institution, Kashi Raj Mahavidyalaya Inter College, Orai, Sant Ravi Das Nagar which is an aided institution upto class XII.
Consequently, the third respondent, District Inspector of Schools, Bhadoi issued a letter to the Manager of Sri Kashi Raj Mahavidyalaya Inter College, Orai, Sant Ravi Das Nagar on 04.04.2005 for joining the petitioner. The sixth respondent-institution vide its resolution dated 10.04.2005 resolved to issue appointment order to the petitioner and accordingly, an appointment order dated 11.04.2005 was issued and the said fact was intimated to the third respondent, District Inspector of Schools, Bhadohi.
Ultimately, the petitioner joined on the post of Assistant Teacher “Science” on 15.04.2005 and thereafter, he claims to have been accorded promotion on the post of Lecturer. The petitioner further claims to have superannuated on the post of Lecturer in the subject “Science” on 31.03.2023.
The principal relief sought in the leading, connected petitions is for a mandamus to the State official respondents is to treat the case of the petitioner under the old pension scheme as they were selected prior to the proclamation of the new pension scheme which came into effect from 01.04.2005 and, thus, they should be made admissible to the payment of pension under the old pension scheme.
Before delving into the legality and the tenability of the judgments of the rival parties, it would be apposite to have a quick survey of the statutory provisions governing the field. The Uttar Pradesh Legislature in order to establish a Secondary Education Service Selection Board for selection of teachers in the institution recognized under the Intermediate Education Act, 1921 enacted an Act by the name of Uttar Pradesh Secondary Education Service Selection Board Act, 1982, the Court said.
The Court observed that,
Net analysis of the provisions goes to show that it is the vacancies which is to be notified by the Committee of Management of the institution, selections is to be conducted by the Board or Commission as the case may be and placement orders are to be issued by the Board/Commission and appointment orders are to be issued by the Committee of Management while according joining to the selected candidates. The statutory scheme further provides the consequences of non-according of joining of the candidates by the Management in the light of the aforesaid statutory scheme.
The facts of the case are not in dispute between the parties, the only legal question which falls for consideration before the Court is as to which of the pensionary schemes either old pension scheme or new pension scheme would stand applicable.
“Notably, earlier the pension of the teachers and the staff was regulated under the provisions of U.P Retirement Benefit Rules, 1961 which came to be amended by virtue of a notification dated 28.03.2005 known as U.P Retirement Benefit (Amendment) Rules, 2005 which came into effect from 01.04.2005 and Rule 2(3) as discussed above provided that the said rule shall not apply to the employees entering service on or after April 1, 2005 in connection with the affairs of the State or on pensionable establishment, whether temporary or permanent.
It is admitted to the parties that the advertisements were issued prior to enforcement of the new pension scheme which came into effect from 01.04.2005, it is also not in dispute that the selections were conducted by the Board/Commission and they were selected prior to the new pension scheme.
The Court in the leading writ petition by virtue of the order dated 09.05.2023 had also required the Advocate General to explore the possibility of one time opportunity to be granted to the appointees whose selection was prior to enforcement of new pension scheme though appointment or joining was made subsequent thereto without their fault, however, despite umpteen number of times being accorded nothing is forthcoming.
Insofar as the argument raised by Neeraj Tripathi, Additional Advocate General assisted by Shailendra Singh, Standing Counsel who appears for the State respondents that the petitioners cannot be granted relief particularly in view of the existence of the provisions Section 2 (3) of the 2005 Pension Rules, though, the said argument appears to be attractive at the first blush but it may not detain the Court any more particularly in view of the statutory scheme as discussed above whereby duty is cast upon the Education Authorities under the relevant statutory provisions for taking appropriate steps for joining of the petitioners, since, nothing has been brought on record that there was any fault on the part of the petitioners approaching the institution for issuance of appointment orders or joining, thus, for the fault so attributed to the Committee of Management which is to be regulated by appropriate measures to be taken by the Educational Authorities, the petitioners cannot be said to be on a disadvantageous position”, the Court observed while allowing the petition.
Viewing the case from the four corners of law the Court did not found any good reason to differ from the view taken in the noted judgments relied upon by the counsels for the writ petitioners and accordingly, the Court decided the writ petitions in the following terms:-
A mandamus in each writ petition is issued to each of the respondent commanding them to treat the writ petitioners governed by General Provident Fund-cum-Pension Scheme that was in vogue prior to the enforcement of the Contributory Pension Scheme and to ensure deductions, payment of contribution towards retiral benefits to the writ petitioners, accordingly, after verifying the factual aspects relating to their working in the respective institutions putting to notice the institutions where at the writ petitioners are claiming to have worked and also attained retirement within a period of fourth months from the date of production of certified copy of the order.
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