Friday, March 29, 2024
Secondary Education

कर्मी को नियुक्ति तिथि के आधार पर ही नयी या पुरानी पेंशन योजना का लाभ लेने का अधिकार है। – हाईकोर्ट

इलाहाबाद हाईकोर्ट ने कहा है कि, किसी कर्मी को नियुक्ति तिथि के आधार पर ही नयी या पुरानी पेंशन योजना का लाभ लेने का अधिकार है। अंशकालिक विषय विशेषज्ञ अध्यापक, इस आधार पर पुरानी पेंशन की मांग नहीं कर सकते कि नई पेंशन स्कीम लागू होने के पहले से कार्यरत हैं और बाद में नियमित कर दिए गए है। कोर्ट ने कहा कि, यदि किसी ने सेवा शर्तों को स्वीकार किया है तो उसके विपरीत उन्हें जाने का अधिकार नहीं है। याची जब नियमित हुआ तब पुरानी पेंशन लागू नहीं थी। इसलिए उसे पुरानी पेंशन स्कीम का लाभ नहीं दिया जा सकता। यह आदेश जस्टिस एस.पी. केशरवानी ने योगेन्द्र सिंह इंडोलिया व 14 अन्य विषय विशेषज्ञ शिक्षकों की याचिका दिया है। याची का कहना था कि, अंशकालिक विषय विशेषज्ञ के रूप में किए गए कार्य अवधि पर विचार कर पेंशन स्कीम को तय किया जाना चाहिए। लेकिन कोर्ट ने नहीं माना और कहा कि, नियुक्ति की तिथि पर लागू स्कीम का ही लाभ दिया जा सकता है।

YOGENDRA SINGH INDOLIA AND OTHERS
v.
STATE OF U P AND OTHERS
(High Court Of Judicature At Allahabad)
Writ A No. 2193 of 2020 | 10-02-2020

Surya Prakash Kesarwani, J. – Heard Sri Anurag Shukla, learned counsel for the petitioner and the learned standing counsel for the respondents.

  1. This writ petition has been filed praying for the following relief:-

“i Issue a writ, order or direction in the nature of mandamus commanding the Respondents to treat the Petitioners as covered by Old Pension Scheme.

ii. Issue a writ, order or direction in the nature of mandamus commanding the Respondents to make regular deduction from the salary of the Petitioners towards General Provident Fund (G.P.F.) regulary every month.”

  1. Briefly stated facts of the present case are that a Government Order No.395/15-7-99-1600(559)/98, dated 11.10.1999 was issued by the State Government for part time engagement of subject expert on honorarium basis with the conditions that they shall not be State Government employees and shall not be entitled for pension, provident fund and leave etc. Clauses 7, 8, 10, 11 of the aforesaid Government Order dated 11.10.1999 are reproduced below:-
  2. Pursuant to the aforesaid Government Order dated 11.10.1999, the petitioners were engaged on honorarium basis on different dates. One such engagement letter of the petitioner no.1 is reproduced below:-
  3. It appears that subsequently a Government order dated 06.06.2001 and 30.06.2003 imposed certain restrictions for engagement of subject expert who have completed three academic sessions, which was challenged by several persons by filing the writ petitions, leading writ petition being Writ Petition No.35653 of 2003 (Manoj Kumar Rastogi and Others Vs. State Of U.P. and Others) which was disposed of by order dated 28.10.2003 following the directions given in Writ Petition No.6319 (S/S) of 2003 (Chandra Kishore and others Vs. State of U.P. & others decided on 20.10.2003), which is reproduced below:-

“i) The impugned order dated 30.6.2003 which prohibits the renewal of those Subject Experts who have completed three academic session, is quashed.

ii) Similar restriction imposed in the order dated 6.6.2001 alongwith the restriction for non-payment during summer vacation are also quashed.

iii) The opposite party no.2 is directed to issue direction for all the Regional Joint Directors for permitting all the Subject Experts including the petitioners in their respective regions to resume duties immediately if the Subject experts are eligible and they were selected according to the prescribed procedure. The order shall be issued within a period of 10 days so that the students may not suffer any more.

iv)The opposite party no.1 is directed to frame a policy for the regularization of the existing Subject Experts against the existing 4000 vacancies of the teachers in the aided educational institutions after taking into consideration the aforesaid observation and if required, make necessary amendment in the U.P. Intermediate Education Act or U. P. Secondary Service Selection Board Act within a period of two months.”

  1. By U.P. Act No.37 of 2006, published in the U.P. Gazette Extra Part I, Section (Ka), dated 11.12.2006, Section 21-E was inserted in U.P. Secondary Education (Services Selection Boards) Act 1982, (hereinafter referred to as “the Act 1982”), which is reproduced below:-

“[21E. Absorption of subject experts. – (1) There shall be a list of subject experts working in private aided secondary schools possessing prescribed educational and training qualification including the subject experts who have received honorarium and worked for a minimum period of two academic sessions and were working on September 30, 2006. The list shall be maintained by the Director in such manner as may be prescribed.

(2) Where any substantive vacancy in the post of a teacher in an institution is to be filled by direct recruitment, such post shall, at the instance of the Inspector, be offered by the Management to a subject expert whose name is included in the list referred to in sub-section (1).

(3) Where any subject expert is offered an appointment in accordance with the provision of sub-section (2) fails to join the post within the time allowed, which shall not be less than seven days, his name shall be removed from the list, referred to in sub-section (1).

(4) No appointment of any teacher to an institution shall be made under Section 16 unless the list referred to in sub-section (1) is exhausted.

(5) The subject experts included in the list referred to in sub-section (1) shall be absorbed in those institutions where any substantive vacancy is to be filled by direct recruitment. No subject expert shall have claim for appointment to any particular post.

Explanation. – For the purpose of this Section, –

(a) “Director” means the Director of Secondary Education, Uttar Pradesh and includes any other officer authorized by him in this behalf;

(b) the words “Inspector”, “Institution”, “Management” and eacher shall have the meaning respectively assigned to them in the Uttar Pradesh High School and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971, provided that “teacher” shall not include a Principal or Headmaster,

(c)”subject experts” mean, persons working in aided Secondary Schools on a fixed honorarium appointed in the prescribed manner on a contractual basis.]”

  1. It appears that in view of the provisions for absorption inserted in the Act, 1982 as aforequoted, the petitioners were absorbed and appointed in service as Teachers against substantive existing vacancies. These appointment orders of the petitioners have been issued in the month of September or October 2007. One such appointment order of the petitioner No.1, dated 09.10.2007, is reproduced below:-
  2. The Old Pension/GPF Scheme was effective till March 2005. By the Uttar Pradesh Retirement Benefits (Amendment) Rules 2005 notified on 07.04.2005, Rule 3 was inserted in the Uttar Pradesh Retirement Benefit Rules 1961 whereby it was provided that the Rules 1961 shall not be applicable on employees entering in service on or after 01.04.2005. It appears that simultaneously by another Notification dated 07.04.2005, General Provident Fund (Uttar Pradesh) Rules 1985 were amended by the Amendment Rules 2005 which came into force w.e.f. 01.04.2005. A new Pension Scheme by Notification No.l-3-379/nl -2005-301(9)/2003, dated 28.03.2005 was enacted which was followed by Government Order No. l-3-1051/nl-2008-301(9)-2003 – 14.8.2008 providing that the New Pension Scheme shall apply to all State Government employees coming in service on or after 1.4.2005. Details have been provided in the said scheme, a copy of which has been filed as Annexure 11 to the writ petition.
  3. On the facts as briefly noted above, the petitioners are claiming benefit of Old Pension Scheme and, therefore, they have filed the present writ petition.

Submissions

  1. Learned counsel for the petitioners submits that the petitioners are entitled for Old Pension Scheme for reason that despite directions given in the order dated 28.10.2003 in Civil Misc. Writ Petition No.35653 of 2003, the State Government delayed in framing policy for regularisation of Subject expert. If the State Government would have framed the reqularisation policy immediately after the aforesaid order in the case of Manoj Kumar Rastogi and Others (supra) then the petitioners could have got benefit of Old Pension Scheme. Therefore, for the delay caused by the State Government in framing the regularisation scheme, the benefit of Old Pension Scheme can not be denied to the petitioners.
  2. Learned standing counsel submits that the petitioners are not entitled for Old Pension Scheme in view of the Statutory Provisions and the nature of their initial engagement as subject expert.

Discussion and Findings

  1. I have carefully considered the submissions of learned counsels for the parties.
  2. Undisputedly, the petitioners were engaged as subject expert by different engagement letters issued in the year 2000, as part timer on fixed honorarium. The relevant portion of the Government order dated 11.10.1999, permitting such engagement and the engagement letters of the petitioners, as already been reproduced above, leaves no manner of doubt that the petitioners were engaged on a fixed honorarium as a part time subject experts and they were not to be treated as Government employee and were not entitled for benefit of pension, provident fund and leave etc.
  3. Petitioners have been absorbed and came to be appointed only after Section 21 E was inserted in the Act 1982 on 11.12.2006. The petitioners have been appointed and became part of service cadre and became Government Servant only on their appointments which were made in September and October 2007 when the new scheme was in force. The Old Pension Scheme was abolished in March 2005, which is much prior to the appointments of the petitioners. The petitioners themselves accepted the offer of their appointment by absorption after well looking into the relevant provisions and the Government orders as well as the offer for the post made to them. The provisions of the Scheme 21 E or the relevant Government orders or the Old Pension Scheme and the New Pension Scheme are not under challenge in the present writ petition. It is settled law that writ, order or direction in the nature of mandamus under Article 226 of the Constitution of India can not be issued either contrary to the statutory provisions or to disobey or ignore the statutory provisions. Under the circumstances none of the relief of mandamus as prayed by the petitioners can be granted to the petitioners.

Rules of absorption

  1. In Secretary, State of Karnataka Vs. Uma Devi, (2006) 4 SCC 1 (paras 3 & 4), the Constitution Bench of Hon’ble Supreme Court laid down the law that regular appointment must be the rule. But sometimes this process is not adhered and the constitutional scheme of public employment is by-passed. A class of employment which can only be called “litigious employment”, has risen like a phoenix seriously impairing the constitutional scheme. Whether the wide power under Article 226 of the Constitution of India is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over. It is time, that the Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. In paragraphs 5 & 6 of the aforesaid judgment in the case of Umadevi (supra), Hon’ble Supreme Court has held as under:-

“5. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.

  1. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu’s Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed.”

(emphasis supplied)

  1. In Pratap Kishore Panda & others Vs. Agni Charan Das & others, (2015) 17 SCC 789 (para 17), Hon’ble Supreme Court referred to the law laid down by the Constitution Bench in Umadevi (supra) and held that the doctrine is that if employment of persons is contrary to or de-hors the statutory provisions and / or Rules and Regulations, then equities will not have any play even if such persons have been rendering services for service years. The most that can be done for such employees is for the State Government to devise a scheme, as a one time measure, for their absorption so long as the Governing Statute or the Rules and Regulations are not infringed.
  2. In State of U.P. Vs. Anand Kumar Yadav, (2018) 13 SCC 560, the Hon’ble Supreme Court summarised the principles of rule of equity in public employment and Articles 14 & 16 of the Constitution of India.
  3. In Brij Mohan Lal Vs. Union of India & others, (2012) 6 SCC 502 (paras 172 & 173), the Hon’ble Supreme Court held that absorption in service is not a right.
  4. In Indu Shekhar Singh & others Vs. State of U.P. & others, (2006) 8 SCC 129 (para 26), the Hon’ble Supreme Court referred to its earlier judgment in R.N. Gosain Vs. Yashpal Dhir, (1992) 4 SCC 683, Ramankutti Guptan Vs. Avara, (1994) 2 SCC 642 and Bank of India & others Vs. O.P. Swarnakar & others, (2003) 2 SCC 721 and held that once person exercises his right of option and obtain entry in service on the basis of election, he cannot be allowed to turn round that the conditions are illegal. Further more, there is no fundamental right in regard to counting of the services rendered in an autonomous body. The past services can be taken into consideration only when the Rules permit the same or where a special situation exits, which would entitle the employee to obtain such benefit of past service. The aforesaid judgment in the case of Indu Shekhar Singh (supra) involved the controversy with regard to availability of benefit of past service rendered prior to absorption of deputitionist.
  5. In the case of Mrigank Johari & others Vs. Union of India, (2017) 8 SCC 256 (para 33), the Hon’ble Supreme Court has held that since the appellants accepted the terms and conditions of the absorption, they could not plead otherwise.
  6. In Union of India Vs Onkar Chand,1988 9 SCC 298 (para 12), the Hon’ble Supreme Court while considering the benefit of length of service on deputation before absorption and held that opting permanent absorption, a person cannot claim benefits of absorption as well as the service put in time in the deputation quota.
  7. In Union of India & others Vs. K Savitri & others, (1998) 4 SCC 358 (paragraph 9), the Hon’ble Supreme Court held as under:-

“The service conditions of the redeployed employees under the Rules being governed by the provisions in the rules as well as the instructions issued from the Government of India from time to time and in view of the clear unambiguous language in para 11.1 of the instructions referred to above the conclusion is irresistible that the past services of the redeployed staff cannot be counted for seniority in the new organisation. The Tribunal, therefore, committed serious error in directing that the past services would counted for the seniority of the employees in the All India Radio.”

(emphasis supplied)

  1. The principles of law of public employment as discussed above leaves no manner of doubt that regular employment must be a rule. The power of State as an employer is more limited than that of the private employer inasmuch as it is subject to constitutional limitation. But some time, this process is not adhered and constitutional scheme of public employment is by passed as happened in the present case. Such employment is called “litigious employment”. Absorption in public employment is not a right. It is an exception to the normal rule of public employment. It is subject to conditions of absorption. Once the petitioners have knowingly and with open eyes exercised the option for their absorption in public employment, they cannot turn round and say that New Pension Scheme should not be enforced and instead the Old Pension Scheme which already stood abolished in March 2005 should be applied to them.
  2. It is settled law that when a scheme is abolished, even pending applications seeking benefit of the scheme, unless saved, will also cease to exist. Reference in this regard may be had to the judgment of Hon’ble Supreme Court in the case of State Bank of India and another vs. Raj Kumar, (2010) 11 SCC 661.
  3. In the present set of facts when the petitioners claim to have been appointed, Old Pension Scheme was not in existence. It was abolished in March 2005, whereas the petitioners have been appointed by absorption in the months of September or October 2007. The basis of their appointments is the provision of Section 21 E of the Act, 1982 which was inserted by U.P. Act 37 of 2006 published in the gazette on 11.12.2006. Therefore, the Old Pension Scheme which already stood abolished in March 2005 was neither available to the petitioner on the date of their appointments nor the petitioners are entitled for benefit under the said scheme.

Estoppel

  1. The petitioners have elected to accept their appointments by absorption pursuant to the provisions of Section 21 E. Their appointment is based on the doctrine of election which is Rule of estoppel which postulates that no party can accept and reject the same instrument and that ‘a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn round and say that it is void for the purpose of securing some other advantage.’
  2. As per Halsbury’s Laws of England (4th Edition) Vol. 16 (Paragraph 1508), after taking an advantage under an order a party may be precluded from saying that it is invalid and asking to set it aside.
  3. In the case of Joint Action Committee of Air Line Pilots Association of India (ALPAI) and others v. Director General of Civil Aviation and others,2001 5 SCC 435 (Paragraph-12), Hon’ble Supreme Court referred to its earlier judgments in the case of Babu Ram alias Durga Prasad v. Indra Pal Singh, (1998) 6 SCC 358, P.R. Deshpande v. Maruti Balaram Haibatti, (1998) 6 SCC 507 and Mumbai International Airport Private Limited v. Golden Chariot Airport and another, (2010) 10 SCC 422 and held that the doctrine of election is based on the rule of estoppel. The doctrine of estoppel by election is one of the species of estoppel in pais (or equitable estoppel) which is a rule in equity. By that rule, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.
  4. In the case of Cauvery Coffee Traders, Mangalore v. Hornor Resources (International Company Limited), (2011) 10 SCC 420 (Paragraph 34), Hon’ble Supreme Court referred to its decision in the case of Nagubai Ammal v. B. Shama Rao, (1956) AIR SC 593, CIT v. V. MR.P. Firm Muar, (1965) AIR SC 1216, NTPC Ltd. v. Reshmi constructions, Builders & Contractors, (2004) 2 SCC 663, Ramesh Chandra Sankla v. Vikram Cement, (2008) 14 SCC 58 and Pradeep Oil Corpn. v. MCD, (2011) 5 SCC 270 and held that a party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one knowingly accepts the benefits of a contract or conveyance or an order, he is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience. In the present set of facts the petitioners have completely failed to establish that they have any right to claim the benefit of the abolished old pension scheme which was abolished much prior to their appointments or a right for consideration of their appointment pursuant to Section 21 E of the Act 1982 inserted on 11.12.2006.
  5. For all the reasons aforestated, I do not find any merit in this writ petition. Consequently, the writ petition fails and is hereby dismissed.

©2020 – LQ Global Services Private Limited. All rights reserved.

YOGENDRA SINGH INDOLIA AND OTHERS v. STATE OF U P AND OTHERS

admin

Up Secondary Education Employee ,Who is working to permotion of education

Leave a Reply

Your email address will not be published. Required fields are marked *