शिक्षकों की जीपीएफ कटौती कर पुरानी पेंशन का लाभ दिए जाने सम्बन्धी मामले में सुनवाई जारी, मृतक आश्रित श्रेणी के याचिकर्ताओं का पक्ष स्पष्ट करता हुआ 22 फरवरी 2018 का कोर्ट आदेश देखें
शिक्षकों की जीपीएफ कटौती कर पुरानी पेंशन का लाभ दिए जाने सम्बन्धी मामले में सुनवाई जारी, मृतक आश्रित श्रेणी के याचिकर्ताओं का पक्ष स्पष्ट करता हुआ 22 फरवरी 2018 का कोर्ट आदेश देखें
Hon'ble Surya Prakash Kesarwani,J.
List revised. Case called out. Only Sri Anil Tiwari appeared to
argue the case on behalf of the petitioners.Heard Sri Anil Tiwari, learned counsel for the petitioners in the
1st set of writ petitions relating to compassionate appointment.
He submit as under:-
(i) Petitioner were appointed on compassionate ground between
the year 2002 to 2003 as untrained teacher under Rule-5 of the
U.P. Recruitment of dependents of Government Servants Dying
in Harness Rules, 1974 (hereinafter referred to as "Dying in
harness Rules") read with Government Order No.5193/15-05-
2000-400(220)/99, dated 04.09.2000 (para-4) on a fixed pay.
They completed the BTC training in August, 2005. Thereafter
they are being paid salary as per regular pay-scale of Assistant
Teachers.
(ii) Since the initial appointment of the petitioners itself was in
terms of the Dying in harness Rule, read with Government
Order dated 04.09.2000 and as such they are lawfully appointed
Assistant Teachers in terms of the provisions of the Rule-10 of
the the Uttar Pradesh Basic Education (Teachers) Service Rules,
1981 (hereinafter referred to as the "Rules, 1981").
(iii) The petitioners fulfilled the essential qualification of
"qualifying service" as defined in Rule-3(8) of the Uttar
Pradesh Retirment Benefit Rules, 1961( hereinafter referred to
as "the Rules, 1961") as on the date of their first entering into
service on the compassionate appointment, therefore, the Rules,
1961 became applicable on the petitioners in view of the
provisions of Rule2(2). The sub-rule (3) was inserted vide
notification No.G-3-469/X-2005-301(9)-03 dated 07.04.2005
providing for non-applicability of the Rules, 1961 to employees
entering service and posts on or after April 1, 2005 in
connection with the affairs of the State, borne on pensionable
establishment, whether temporary or permanent.
(iv) The definition of qualifying service given in Rule-3(8)
provides that the "qualifying service" means service which
qualifies for pension in accordance with the provisions of
Article 368 of the Civil Service Regulations. Article 361 of the
Civil Service Regulations provides for three conditions of
qualifying service, (Firstly)- The service must be under
Government; (Secondly)- The employment must be substantive
and permanent and (Thirdly)- The service must be paid by
Government. These three conditions have been explained in
subsequent Articles. The second condition as explained in
Article 368 that "Service does not qualify unless the officer
holds a substantive office on a permanent establishment", may
be relied by the State respondents to deny the benefit of the old
pension scheme under the Rules, 1961 and the GPF under the
GPF Rule, 1985 on the ground that the petitioners were not holding a substantive office on a permanent establishment as on
the cut off date i.e.01.04.2005 as provided in Rule-2(3) of the
Rules 1961 and similar provision in the GPF Rules. Such an
objection cannot stand in the way of the claim of the petitioners
in view of the fact that Article 368 as aforementioned, has been
declared ultra vires by a Division Bench of this Court in the
case of Board of Revenue and others Vs.Prashidh Narayan
Upadhyaya, 2006 (1) ESC, 611 (All.)(D.B.) (Paragraph 10 to
15).
(v) Even otherwise the appointment of petitioners on
compassionate ground is a substantive appointment. There is no
dispute that the respondent Department is a permanent
establishment. Therefore the petitioners being substantively
appointed teachers in permanent establishment against
substantive vacancy, are entitled for the benefit of pension as
per old Pension Scheme under the Rules, 1961 and the GPF
under the GPF Rules, 1985.
(vi) Dying in harness is not a source of appointment but an
exception and it shall always be treated to be a permanent
appointment in view of the law laid down by a Division Bench
of this Court in the case of Ravi Kiran Vs. State of U.P. and
others, 1999, All. (L.J.) 1745 LCD 641 (DB).
(vii) Under the Pension Rules 1961, even temporary employees
are also entitled for pension. The petitioners stand on a better
footing being appointees on compassionate ground. The
impugned Government Order No.2997/79-5-2011 dated
15.11.2011 (Annexure-CA-4 to the counter-affidavit of
respondent No.4 to 7). is in conflict with the Pension Rules,
1961 and the GPF Rules, 1985 as amended by notification
dated 07.04.2005. Article 368 and 370 of the Civil Regulation
as amended by Notification dated 20.04.1977 explains Article
361 and provides that even temporary service shall be included
within the meaning of the qualifying service subject to certain
exceptions specified therein.
(viii) The reference of Article 368 of Civil Service Regulation
in Rule 3(8) of the Pension Rules, 1961 is a legislation by
reference and therefore all amendment or invalidity declared by
judicial pronouncement with respect to Article 368 shall be read
at all relevant point of time in Rule-3(8) of the Rules, 1961.
Sri Anil Tiwari, learned counsel has concluded his arguments.
As prayed by Sri Ajeet Kumar Singh, learned Additional
Advocate General assisted by Sri Mohan Srivastava and Sri
Akhilesh Chandra Srivastava, learned counsels for the Staterespondents and the Basic Education Board, put up on
07.03.2018 along with all connected writ petitions for further
hearing.
Order Date :- 22.2.2018
Ashutosh
Hon'ble Surya Prakash Kesarwani,J.
List revised. Case called out. Only Sri Anil Tiwari appeared to
argue the case on behalf of the petitioners.Heard Sri Anil Tiwari, learned counsel for the petitioners in the
1st set of writ petitions relating to compassionate appointment.
He submit as under:-
(i) Petitioner were appointed on compassionate ground between
the year 2002 to 2003 as untrained teacher under Rule-5 of the
U.P. Recruitment of dependents of Government Servants Dying
in Harness Rules, 1974 (hereinafter referred to as "Dying in
harness Rules") read with Government Order No.5193/15-05-
2000-400(220)/99, dated 04.09.2000 (para-4) on a fixed pay.
They completed the BTC training in August, 2005. Thereafter
they are being paid salary as per regular pay-scale of Assistant
Teachers.
(ii) Since the initial appointment of the petitioners itself was in
terms of the Dying in harness Rule, read with Government
Order dated 04.09.2000 and as such they are lawfully appointed
Assistant Teachers in terms of the provisions of the Rule-10 of
the the Uttar Pradesh Basic Education (Teachers) Service Rules,
1981 (hereinafter referred to as the "Rules, 1981").
(iii) The petitioners fulfilled the essential qualification of
"qualifying service" as defined in Rule-3(8) of the Uttar
Pradesh Retirment Benefit Rules, 1961( hereinafter referred to
as "the Rules, 1961") as on the date of their first entering into
service on the compassionate appointment, therefore, the Rules,
1961 became applicable on the petitioners in view of the
provisions of Rule2(2). The sub-rule (3) was inserted vide
notification No.G-3-469/X-2005-301(9)-03 dated 07.04.2005
providing for non-applicability of the Rules, 1961 to employees
entering service and posts on or after April 1, 2005 in
connection with the affairs of the State, borne on pensionable
establishment, whether temporary or permanent.
(iv) The definition of qualifying service given in Rule-3(8)
provides that the "qualifying service" means service which
qualifies for pension in accordance with the provisions of
Article 368 of the Civil Service Regulations. Article 361 of the
Civil Service Regulations provides for three conditions of
qualifying service, (Firstly)- The service must be under
Government; (Secondly)- The employment must be substantive
and permanent and (Thirdly)- The service must be paid by
Government. These three conditions have been explained in
subsequent Articles. The second condition as explained in
Article 368 that "Service does not qualify unless the officer
holds a substantive office on a permanent establishment", may
be relied by the State respondents to deny the benefit of the old
pension scheme under the Rules, 1961 and the GPF under the
GPF Rule, 1985 on the ground that the petitioners were not holding a substantive office on a permanent establishment as on
the cut off date i.e.01.04.2005 as provided in Rule-2(3) of the
Rules 1961 and similar provision in the GPF Rules. Such an
objection cannot stand in the way of the claim of the petitioners
in view of the fact that Article 368 as aforementioned, has been
declared ultra vires by a Division Bench of this Court in the
case of Board of Revenue and others Vs.Prashidh Narayan
Upadhyaya, 2006 (1) ESC, 611 (All.)(D.B.) (Paragraph 10 to
15).
(v) Even otherwise the appointment of petitioners on
compassionate ground is a substantive appointment. There is no
dispute that the respondent Department is a permanent
establishment. Therefore the petitioners being substantively
appointed teachers in permanent establishment against
substantive vacancy, are entitled for the benefit of pension as
per old Pension Scheme under the Rules, 1961 and the GPF
under the GPF Rules, 1985.
(vi) Dying in harness is not a source of appointment but an
exception and it shall always be treated to be a permanent
appointment in view of the law laid down by a Division Bench
of this Court in the case of Ravi Kiran Vs. State of U.P. and
others, 1999, All. (L.J.) 1745 LCD 641 (DB).
(vii) Under the Pension Rules 1961, even temporary employees
are also entitled for pension. The petitioners stand on a better
footing being appointees on compassionate ground. The
impugned Government Order No.2997/79-5-2011 dated
15.11.2011 (Annexure-CA-4 to the counter-affidavit of
respondent No.4 to 7). is in conflict with the Pension Rules,
1961 and the GPF Rules, 1985 as amended by notification
dated 07.04.2005. Article 368 and 370 of the Civil Regulation
as amended by Notification dated 20.04.1977 explains Article
361 and provides that even temporary service shall be included
within the meaning of the qualifying service subject to certain
exceptions specified therein.
(viii) The reference of Article 368 of Civil Service Regulation
in Rule 3(8) of the Pension Rules, 1961 is a legislation by
reference and therefore all amendment or invalidity declared by
judicial pronouncement with respect to Article 368 shall be read
at all relevant point of time in Rule-3(8) of the Rules, 1961.
Sri Anil Tiwari, learned counsel has concluded his arguments.
As prayed by Sri Ajeet Kumar Singh, learned Additional
Advocate General assisted by Sri Mohan Srivastava and Sri
Akhilesh Chandra Srivastava, learned counsels for the Staterespondents and the Basic Education Board, put up on
07.03.2018 along with all connected writ petitions for further
hearing.
Order Date :- 22.2.2018
Ashutosh
शिक्षकों की जीपीएफ कटौती कर पुरानी पेंशन का लाभ दिए जाने सम्बन्धी मामले में सुनवाई जारी, मृतक आश्रित श्रेणी के याचिकर्ताओं का पक्ष स्पष्ट करता हुआ 22 फरवरी 2018 का कोर्ट आदेश देखें
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