मृतक आश्रित नियुक्ति को स्थायी बताते हुए 1 अप्रैल 2005 से पूर्व नियुक्त शिक्षकों को हाईकोर्ट ने दी राहत, GPF काटे जाने के सम्बन्ध में न्यायालय के निर्णय की प्रति देखें!
Court No. - 18
Case :- SERVICE SINGLE No. - 89 of 2015
Petitioner :- Yogesh Kumar Gupta & 2 Ors.
Respondent :- State Of U.P. Through Secy. Basic Edu. Lko. & Ors.
Counsel for Petitioner :- Dharm Raj Mishra
Counsel for Respondent :- C.S.C.,Jogendra Nath Verma
Hon'ble Anil Kumar,J.
Heard Shri Dharm Raj Mishra, learned counsel for the petitioners, learned State Counsel appearing on behalf of the opposite party nos.1 and 2, Shri Jogendra Nath Verma, learned counsel appearing on behalf of the opposite party nos.3 and 4 and perused the record.
Learned counsel for the petitioners, for the purpose of interim relief submits that petitioners were appointed on the post of Assistant Teacher under Dying in Harness Rules by order dated 13.11.2000, 19.07.2003 and 11.08.2003 in Primary School. Thereafter, on 06.08.2005, they were sent for BTC training course and have successfully completed the training. After completing the said training, deduction towards G.P.F. from their salary has been made uptil December, 2014.
Subsequently, in view of the Government Order dated 15.11.2011 contained in Annexure No.1 to the writ petition issued by opposite party no.1 thereby not deducting towards the G.P.F. as they are un-trained teachers under Dying in Harness Rules and their appointment has not been considered as regular appointment.
He further submits that the said Government Order is not applicable on the petitioners as they were appointed on permanent nature under Dying in Harness Rules read with Rule 4 for deduction of GPF known as General Provident Fund (U.P.) (Amendment) Rules, 2005, as such, the impugned order is liable to be stayed.
In addition to the said facts, learned counsel for the petitioner submits that this Court, in an identical circumstances has passed an order in Writ Petition No.2520 (SS) of 2014 which on reproduction reads as under :-
"Notice on behalf of opposite parties no. 1 & 2 has been accepted by learned Chief Standing Counsel and Sri Neeraj Chaurasiya, Advocate has accepted notices on behalf of opposite parties no. 3 & 4.
I have heard learned counsel for parties and perused the record.
By means of present writ petition, the petitioners pray for a writ in the nature of mandamus commanding the opposite parties no. 3 & 4 to permit them to contribute in premium of GPF amount w.e.f. 29.10.2005 & 31.12.2005, respectively, the date on which petitioners have completed one year's service, treating their appointment as permanent appointment
The petitioners were appointed as Assistant Teachers under Dying in Harness Rules on 29.10.2005 & 31.12.2005, respectively. The orders of appointment are Annexures No. 1 & 2 to this petition. The petitioners although have been appointed on a fix pay scale but the order of appointment itself says that they will be considered as temporary appointees. The petitioners say that according to General Provident Fund (Uttar Pradesh) (Amendment) Rules, 2005 they are entitled for benefit of G.P.F. deductions from the date of their appointments. In this regard they have drawn the attention of this Court towards Rule-4 of the said rules.
For convenience, the said Rule-4 is being quoted below:-
"4. Conditions of eligibility:-All permanent government servants and all temporary government servants, other than those appointed on contract and re-employed pensioners, whose services are likely to continue for more than a year shall subscribe to the fund from the date of joining the service:
Provided that no government servant entering service on or after April 1, 2005 shall subscribe to the fund.
Note 1.- Apprentices and probationers shall be treated as temporary government servants for the purpose of this rule."
Learned Standing counsel as well as counsel for Basic Education Officer have argued that since the petitioners have completed their training after 2005, hence their case is not covered by the said rules. According to them, cut off date has been fixed as April 1, 2005.
Learned counsel for the petitioners vehemently argued that Rule 4 is very clear about the date of joining. Rule 4 is explicit that date of joining will be the date of making subscription to the G.P.F. Argument of learned Standing counsel that only date of confirmation will give a right of G.P.F. subscription appears to be misconceived prima facie. The said Rule further clarifies that trainees as well as probationers will be considered temporary government servant for the purpose this scheme. He further argues that even if he has to be considered as a trainee then too he qualifies on April 1, 2005. In any view of the matter, the argument of the petitioner appears to be correct.
Learned counsel for the opposite parties may file counter affidavit.
Meanwhile, the opposite parties are directed to allow deduction of G.P.F. amount from the salary of the petitioners under old pension scheme."
In view of the above said facts, learned counsel for the petitioners requests that opposite party may be directed to make deduction towards G.P.F. from the salary of the petitioners.
You are reading this copy of the court case at www.primarykamaster.com
Basic Education Officer have argued that as the petitioners were appointed under Dying in Harness Rules subject to the condition that they were sent for training and only entitled for salary at the time of appointment. Admittedly, petitioners have completed their training and paid regular salary w.e.f. 01.04.2005. So, in view of the above said facts, the Government Order dated 15.11.2011 is applicable in the present case and petitioners are not entitled for the relief as claimed by them.
After hearing learned counsel for the parties who are present today and going through the records as well as taking into consideration that the petitioners were appointed under Dying in Harness Rules on compassionate ground subsequent to 01.04.2005 and it is late in a day to quarrel that appointment of person on compassionate ground under Dying in Harness Rules is of a permanent nature as held by a Division Bench of this Court in the case of Ravi Karan Singh vs. State of U.P. and Ors. (1993) 3 UPLBEC 2263 which is quoted herein below:-
"This petition has come up before us on a reference made by the learned Single Judge by his order dated 19.12.1997. The point involved is very simple, that is, whether an appointment under the Dying in Harness Rules is a permanent appointment or temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under Dying in Harness Rules is a permanent appoint vide Budhi Sagar Dubey v. D.O.I.S., (1993) 1 UPLBEC 197; Gulab Yadav v. State of U.P. and others, (1991) 2 UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. & Others. (1991) 1 UPLBEC 427. The learned Single Judge who passed the referring order dated 19.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench.
In our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rule because such appointment is intended to provide immediate relief to the family on the sudden death of the breadearner. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments.
The petition is disposed of accordingly."
Thus, keeping in view the above said facts as well as Rule 4 of General Provident Fund (U.P.) (Amendment) Rules, 2005 and the order dated 7.5.2015 passed by this Court in Writ Petition No.2520 (SS) of 2014, as an interim measure, it is provided that till the next date of listing, opposite party shall deduct the amount towards G.P.F. from the salary of the petitioners each and every month w.e.f. February, 2015.
Learned counsel for the respondents prays for and is granted four weeks' time to file counter affidavit, rejoinder affidavit, if any, may be filed within two weeks thereafter.
List thereafter.
Order Date :- 19.2.2015
Mahesh
Learned counsel for the petitioners, for the purpose of interim relief submits that petitioners were appointed on the post of Assistant Teacher under Dying in Harness Rules by order dated 13.11.2000, 19.07.2003 and 11.08.2003 in Primary School. Thereafter, on 06.08.2005, they were sent for BTC training course and have successfully completed the training. After completing the said training, deduction towards G.P.F. from their salary has been made uptil December, 2014.
Subsequently, in view of the Government Order dated 15.11.2011 contained in Annexure No.1 to the writ petition issued by opposite party no.1 thereby not deducting towards the G.P.F. as they are un-trained teachers under Dying in Harness Rules and their appointment has not been considered as regular appointment.
He further submits that the said Government Order is not applicable on the petitioners as they were appointed on permanent nature under Dying in Harness Rules read with Rule 4 for deduction of GPF known as General Provident Fund (U.P.) (Amendment) Rules, 2005, as such, the impugned order is liable to be stayed.
In addition to the said facts, learned counsel for the petitioner submits that this Court, in an identical circumstances has passed an order in Writ Petition No.2520 (SS) of 2014 which on reproduction reads as under :-
"Notice on behalf of opposite parties no. 1 & 2 has been accepted by learned Chief Standing Counsel and Sri Neeraj Chaurasiya, Advocate has accepted notices on behalf of opposite parties no. 3 & 4.
I have heard learned counsel for parties and perused the record.
By means of present writ petition, the petitioners pray for a writ in the nature of mandamus commanding the opposite parties no. 3 & 4 to permit them to contribute in premium of GPF amount w.e.f. 29.10.2005 & 31.12.2005, respectively, the date on which petitioners have completed one year's service, treating their appointment as permanent appointment
The petitioners were appointed as Assistant Teachers under Dying in Harness Rules on 29.10.2005 & 31.12.2005, respectively. The orders of appointment are Annexures No. 1 & 2 to this petition. The petitioners although have been appointed on a fix pay scale but the order of appointment itself says that they will be considered as temporary appointees. The petitioners say that according to General Provident Fund (Uttar Pradesh) (Amendment) Rules, 2005 they are entitled for benefit of G.P.F. deductions from the date of their appointments. In this regard they have drawn the attention of this Court towards Rule-4 of the said rules.
For convenience, the said Rule-4 is being quoted below:-
"4. Conditions of eligibility:-All permanent government servants and all temporary government servants, other than those appointed on contract and re-employed pensioners, whose services are likely to continue for more than a year shall subscribe to the fund from the date of joining the service:
Provided that no government servant entering service on or after April 1, 2005 shall subscribe to the fund.
Note 1.- Apprentices and probationers shall be treated as temporary government servants for the purpose of this rule."
Learned Standing counsel as well as counsel for Basic Education Officer have argued that since the petitioners have completed their training after 2005, hence their case is not covered by the said rules. According to them, cut off date has been fixed as April 1, 2005.
Learned counsel for the petitioners vehemently argued that Rule 4 is very clear about the date of joining. Rule 4 is explicit that date of joining will be the date of making subscription to the G.P.F. Argument of learned Standing counsel that only date of confirmation will give a right of G.P.F. subscription appears to be misconceived prima facie. The said Rule further clarifies that trainees as well as probationers will be considered temporary government servant for the purpose this scheme. He further argues that even if he has to be considered as a trainee then too he qualifies on April 1, 2005. In any view of the matter, the argument of the petitioner appears to be correct.
Learned counsel for the opposite parties may file counter affidavit.
Meanwhile, the opposite parties are directed to allow deduction of G.P.F. amount from the salary of the petitioners under old pension scheme."
In view of the above said facts, learned counsel for the petitioners requests that opposite party may be directed to make deduction towards G.P.F. from the salary of the petitioners.
You are reading this copy of the court case at www.primarykamaster.com
Basic Education Officer have argued that as the petitioners were appointed under Dying in Harness Rules subject to the condition that they were sent for training and only entitled for salary at the time of appointment. Admittedly, petitioners have completed their training and paid regular salary w.e.f. 01.04.2005. So, in view of the above said facts, the Government Order dated 15.11.2011 is applicable in the present case and petitioners are not entitled for the relief as claimed by them.
After hearing learned counsel for the parties who are present today and going through the records as well as taking into consideration that the petitioners were appointed under Dying in Harness Rules on compassionate ground subsequent to 01.04.2005 and it is late in a day to quarrel that appointment of person on compassionate ground under Dying in Harness Rules is of a permanent nature as held by a Division Bench of this Court in the case of Ravi Karan Singh vs. State of U.P. and Ors. (1993) 3 UPLBEC 2263 which is quoted herein below:-
"This petition has come up before us on a reference made by the learned Single Judge by his order dated 19.12.1997. The point involved is very simple, that is, whether an appointment under the Dying in Harness Rules is a permanent appointment or temporary appointment. According to the learned Single Judge, this Court had earlier held that an appointment under Dying in Harness Rules is a permanent appoint vide Budhi Sagar Dubey v. D.O.I.S., (1993) 1 UPLBEC 197; Gulab Yadav v. State of U.P. and others, (1991) 2 UPLBEC 995 and Dhirendra Pratap Singh v. D.I.O.S. & Others. (1991) 1 UPLBEC 427. The learned Single Judge who passed the referring order dated 19.12.1997 disagreed with the above mentioned decisions and hence has referred the matter to a larger Bench.
In our opinion, an appointment under the Dying in Harness Rules has to be treated as a permanent appointment otherwise if such appointment is treated to be a temporary appointment then it will follow that soon after the appointment the service can be terminated and this will nullify the very purpose of the Dying in Harness Rule because such appointment is intended to provide immediate relief to the family on the sudden death of the breadearner. We, therefore, hold that the appointment under Dying in Harness Rule is a permanent appointment and not a temporary appointment and hence the provisions of U.P. Temporary Government Servant (Termination of Services) Rules, 1975 will not apply to such appointments.
The petition is disposed of accordingly."
Thus, keeping in view the above said facts as well as Rule 4 of General Provident Fund (U.P.) (Amendment) Rules, 2005 and the order dated 7.5.2015 passed by this Court in Writ Petition No.2520 (SS) of 2014, as an interim measure, it is provided that till the next date of listing, opposite party shall deduct the amount towards G.P.F. from the salary of the petitioners each and every month w.e.f. February, 2015.
Learned counsel for the respondents prays for and is granted four weeks' time to file counter affidavit, rejoinder affidavit, if any, may be filed within two weeks thereafter.
List thereafter.
Order Date :- 19.2.2015
Mahesh
मृतक आश्रित नियुक्ति को स्थायी बताते हुए 1 अप्रैल 2005 से पूर्व नियुक्त शिक्षकों को हाईकोर्ट ने दी राहत, GPF काटे जाने के सम्बन्ध में न्यायालय के निर्णय की प्रति देखें!
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Reviewed by प्रवीण त्रिवेदी
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