TGT : इलाहाबाद हाई कोर्ट ने प्रशिक्षित स्नातक शिक्षकों को पुरानी पेंशन देने से किया इनकार

इलाहाबाद हाई कोर्ट ने उत्तर प्रदेश के हाईस्कूल और इंटरमीडिएट कालेजों में 2004 की भर्ती के टीजीटी अध्यापकों को पुरानी पेंशन देने की मांग में दाखिल याचिका पर हस्तक्षेप करने से इनकार कर दिया है। हाई कोर्ट ने कहा कि मार्च 2005 में पुरानी पेंशन स्कीम समाप्त हो गई है। अप्रैल 2005 से नई पेंशन स्कीम लागू होने के बाद याचियों की नियुक्ति की गई है। ऐसे में उन्हें पुरानी पेंशन नहीं दी जा सकती।

यह आदेश न्यायमूर्ति एसपी केशरवानी ने मुद्रेश कुमार व अन्य की याचिका को खारिज करते हुए दिया है। बता दें कि टीजीटी यानी प्रशिक्षित स्नातक शिक्षकों की भर्ती के लिए साक्षात्कार जुलाई से सितंबर 2005 में लिया गया था। इसके बाद सितंबर 2005 से फरवरी 2006 के बीच उनके रिजल्ट घोषित हुए। अक्टूबर 2005 से अक्टूबर 2006 तक विभिन्न विषयों के अध्यापकों की नियुक्ति की गई। याचियों का कहना था कि महेश नारायण केस में सिंचाई विभाग के कनिष्ठ अभियंता भर्ती मामले में मार्च 2006 में नियुक्ति की गई। हाई कोर्ट ने उन्हें पुरानी पेंशन देने का निर्देश दिया है। इसी आधार पर उन्हें भी पुरानी पेंशन दी जाए। हाई कोर्ट ने कहा कि कनिष्ठ अभियंता भर्ती वर्ष 2000 की है, जो कि मुकदमेबाजी में उलझी रही। अन्य नियुक्ति में सरकार की गलती से देरी हुई। याचियों के मामले में ऐसा नहीं है। टीजीटी अध्यापकों की भर्ती नियमानुसार पूरी की गई। याचियों की नियुक्ति मार्च 2005 के बाद हुई, इसलिए उन्हें पुरानी पेंशन पाने का हक नहीं है।

MUDRESH KUMAR AND OTHERS
v.
STATE OF U P AND OTHERS
(High Court Of Judicature At Allahabad)
Writ A No. 3751 of 2020 | 06-03-2020

Surya Prakash Kesarwani, J. – Heard Sri Vinod Kumar Singh, learned counsel for the petitioners, learned standing counsel for the respondents.

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

“I . a writ, order or direction, in the nature of mandamus, directing the respondent no.2 to extend the benefit of Old Pension Scheme to the petitioners in terms of the judgment and order dated 19.12.2019 passed in Writ Petition No.55606 of 2008 (Mahesh Narayan and others Vs. State of U.P. and others).
II. a writ, order or direction, in the nature of mandamus, directing the respondent no.2 to consider the decide the representation of the petitioners dated 14.02.2020.”

1. Briefly stated facts of the present case are that Advertisement No.1/2004 was issued inviting applications for recruitment of Trained Graduate Teachers in different subjects. Learned counsel for the petitioner states that the interview of the petitioners depending upon the subjects were held between July to September 2005 and final results were declared between September 2005 to February 2006 depending upon the subjects. However, particulars regarding date of interview and dates of final result have neither been disclosed in the writ petition nor the learned counsel for the petitioner could make a statement in this regard. The dates of appointment letters given in paragraphs 7 to 11 of the writ petition and copies of appointment letters filed as Annexure 2 to the writ petition shows that immediately after declaration of results final select list was declared and allocation of colleges were made by the competent authorities. Thereafter, Managers of the respective colleges issued appointment letters to the petitioners. From perusal of copies of appointment letters collectively filed by the petitioners as Annexure 2 to the writ petition, it appears that appointment letters were issued by the concerned colleges to the petitioner nos. 1 to 5 on 03.10.2006, 07.01.2006, 29.10.2005, 10.03.2006 and 03.10.2005, respectively. Thus, undisputedly, the final select list was declared and the petitioners were appointed much after the Old Pension Scheme was abolished in the month of March 2005. The petitioners have now filed the present writ petition claiming benefit of Old Pension Scheme on the basis of judgment of this court dated 19.12.2019 in in WRIT – A No. – 55606 of 2008 (Mahesh Narayan and others Vs. State of U.P. and others).

Submissions

1. Learned counsel for the petitioner submits that in view of judgment in the case of Mahesh Narayan and others (supra) the petitioners are entitled for the benefit of old Pension Scheme.
2. Learned standing counsel submits that the petitioners are not entitled for the benefit of Old Pension Scheme inasmuch as they were appointed without any delay and much after the Old Pension Scheme was abolished.

Discussion and Findings

1. I have carefully considered the submissions of learned counsels for the parties.
2. The sole basis of filing the present writ petition is the judgment of this Court in the case of Mahesh Narayan and others (supra). The relevant portion of the judgment in the case of Mahesh Narayan and others (supra), is reproduced below:-

“From the perusal of judgments of Satyesh Kumar Mishra (Supra) and Firangi Prasad (Supra), there is no doubt on the point that similar dispute was before this Court in the matter of Satyesh Kumar Mishra (Supra), which was dismissed by this Court against which Special Appeal Defective No. 480 of 2016 is pending. It is also not disputed that legal issue involved in the matter of Satyesh Kumar Mishra (Supra) was also before Division Bench of this Court in the matter of Firangi Prasad (Supra) where the Court has clearly held that on the fault of appointing authority in issuing appointment letter, petitioners cannot be put any type of disadvantage. It appears that at the time of deciding the matter of Satyesh Kumar Mishra (Supra), judgement of Firangi Prasad (Supra) was not placed before this Court, therefore, without considering the same, decision was given in the matter of Satyesh Kumar Mishra (Supra). Under such facts and circumstances, judgement of Satyesh Kumar Mishra (Supra) is per incuriam and cannot be treated as precedent in the present case and will not come in the rescue of respondents.
The controversy and question of law involved in the present case is squarely covered with the judgement of Firangi Prasad (Supra) as well as other judgments relied upon by learned counsel for the petitioners and Courts have taken consistant view that respondents cannot by their inaction deprive a candidate to his legitimate right.
So far as facts of the case are concerned, there is no dispute on the point that pursuant to advertisement No. A-3/E-1/2000, advertisement was issued in news paper on 22.12.2000 and as per order of this Court dated 29.12.2001 passed in Special Appeal No. 485 (S/B) of 2001 (supra), there was no legal impediment in completition of recruitment process, but dut to inaction on the part of respondents, it was completed only after dismissal of writ petition on 05.07.2005. Final selected list of selected candidate was published in daily newspaper ‘Dainik Jagran’ dated 12.03.2006 and thereafter appointment letters were issued. It is also not disputed that in between again in subsequent advertisement No. A-3/E-1/2002, recruitment was completed and candidates had been granted appointment prior to 01.04.2005 and getting the benefit of ‘Old Pension Scheme’.
Therefore, considering the facts and circumstances of the case and legal position discussed herein above, writ petition is partly allowed and petitioners are excluded from the effect and operation of Notification dated 28.03.2005 and 07.04.2005 as it is in violation of Article 14 of Constitution of India as well as law laid down by the Courts.
Respondents are directed to include the petitioners under ‘Old Pension Scheme’ as provided in Rules, 1961 before amendment and be given all other consequential benefits.”

1. Thus, in the case of Mahesh Narayan and others (supra) the facts were that Advertisement No. A-3/E-1/2000 was issued on 22.12.2000 for recruitment on the post of Junior Engineer (Civil) in irrigation department. As per order dated 29.12.2001 in Special Appeal No.485 (S/B) of 2001 there was no legal impediment in completion of recruitment process but due to inaction on the part of the authorities it was completed only after dismissal of writ petition No.57 of 2005 and the list of finally selected candidate was published in news paper on 12.3.2006 and thereafter appointment letters for the posts of Junior Engineer (Civil) Irrigation were issued. It has also been observed by this Court in the aforesaid case of Mahesh Narayan and others (supra) that during pendency of selection process a subsequent advertisement No.A-3/E-1/2002 was issued and recruitment was completed and appointment letters were issued prior to 1.4.2005 and the candidates so appointed under the subsequent advertisement were getting benefit of Old Pension Scheme. On these facts a coordinate Bench in the case of Mahesh Narayan and others (supra) granted benefit of Old Pension Scheme to the petitioners of that writ petition holding that the action of the State in not giving benefit is violative of Article 14 of the Constitution of India.
2. Facts of the present case are entirely different. Neither there was any inaction on the part of the U.P. Secondary Education Services Selection Board or any authority of the State Government nor there was any delay in conducting the examination or declaring the result or completing the selection process. The selection process initiated by advertisement dated 30.9.2004 was expeditiously completed and appointment letters were issued to the petitioners as per admitted facts noted in Para 3 above. Therefore, the judgment in the case of Mahesh Narain and others (supra) does not support the case of the petitioners.
3. Undisputedly the advertisement in question for recruitment on the post of Trained Graduate Teachers in Non Government Aided High Schools and Inter Colleges was issued under the provisions of The Uttar Pradesh Subordinate Educational (Trained Graduate Grade) Service Rules, 1983 (hereinafter referred to as “The Rules 1983”). The petitioners participated in the recruitment process and were appointed under the aforesaid Rules 1983. Rule 4 provides for cadres of service. Rule 15 provides the procedure of direct recruitment. Rule 18 provides for appointment. Rule 3(g) defines “Member of the Service”. It provides “Member of the Service” means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of service. Rule 3(h) defines the word “service” to mean the Uttar Pradesh Subordinate Educational (Trained Graduate Grade) Service. Rule 3(i) defines the word “Substantive appointment” to mean an appointment not being an adhoc appointment, on a post in the cadre of service, made after selection in accordance with the rules and if there are no rules, in accordance with the procedure prescribed for the time being executive instructions issued by the Government.
4. Thus, under the Rules 1983, the petitioners No.1 to 5 became “Member of Service” on their substantive appointments on the posts in the cadre of service on 03.10.2006, 07.01.2006, 29.10.2005, 10.03.2006 and 03.10.2005 respectively, while the pension scheme was abolished much earlier in the month of March 2005. Therefore, the petitioners are not entitled for the benefit of the old pension scheme which was not in existence at the time of their appointments.
5. The view taken be me above, is also supported by the law laid by Hon’ble Supreme Court in State of Rajasthan Vs. Jagdish Narain Chaturvedi, (2009) 12 SCC 49 (Para 18) in which it has been held that in order to become “Member of Service”, a candidate must satisfy four conditions, namely, (i) the appointment must be in a substantive capacity; (ii) to a post in service i.e. in a substantive vacancy; (iii) made according to rules; (iv) within the quota prescribed for the source. An order of appointment will be effective only on communication vide Tagin Litin Vs. State of Arunachal Pradesh, (1996) 5 SCC 83. Although origin of Government Service is contractual but on appointment on a post or office, the person so appointed acquires a ‘Status’. Then his rights and obligations are determined by statute or statutory rules which may be framed and may be altered unilaterally by the Government. Similar view has been taken by Hon’ble Supreme Court in Roshanlal Tandon Vs. Union of India, (1967) AIR SC 1889 at 1894 approved in Union of India Vs. Tulsi Ram Patel, (1985) AIR SC 1416 at 1437. Thus petitioners can not get benefit of old pension scheme which was abolished much prior to their appointments. The Old Pension Scheme was not part of the rules governing conditions of service of the petitioners.
6. For all the reasons aforestated, I do not find any merit in this writ petition. Consequently, the writ petition is dismissed. However, there shall be no order as to costs.

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MUDRESH KUMAR AND OTHERS v. STATE OF U P AND OTHERS