# Chandra Bhushan Bajpai v. Joint Director of Education, Kanpur Mandal Kanpur and others

- **Citation:** (2008) 3 ILRA 972
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-21
- **Case number:** Civil Misc. Writ Petition No. 32132 of 2001
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-bhushan-bajpai-v-joint-director-of-education-kanpur-mandal-kanpur-and-41290
- **Pages:** 4

## Headnote

Insurance Pension Rules Rule-19 (a)(b)-
Benefit of pension-retirement prior to
enforcement of Rules-petitioner claiming
to count the period of working in unaided recognized institution-institution
brought under grant in aid in March
1961-provisions of pension rule becomes
effective on 1.10.1964-held-No person
can claim particular service in particular
employment
for
counting
towards
qualifying service.

Held: Para 8

It is clear case of the respondents that
the institution in question was brought
in grant-in-aid list in March 1961 though
the
petitioner
served
therein
prior
thereto. Therefore, U.P. Contributory
Provident-Insurance-Pension
Rules
which came into force on 1.10.1964 are
not applicable at all. Learned counsel for
the petitioner could not place any other
provision to substantiate his claim that
the said service can be counted. Pension
is not a bounty but as a matter of fact, a
right, yet the mode and manner of its
payment is governed strictly by relevant
Rules. Unless the Rules provide, no
3 All] Chandra Bhushan Bajpai V. Joint Director of Education and others
973
person can claim a particular service in a
particular employment for counting as
qualifying service.
Case law discussed:
Writ Petition No. 34579 of 1993), Writ Petition
No. 11855 of 1994, Civil Misc. Writ Petition No.
14395 of 1992, (2001) 1 UPLBEC 916, 1990
AWC 1453, 1983 (1) SCC 305,

## Text

972 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
appellate court the respondents have not
taken any cross objection in this regard or
assailed the findings on issue no.2. I have
perused the written statement of the
defendant/respondents and find that the
defendant/respondents
have
nowhere
pleaded any such easementary right over
the land. In the absence of the foundation
in the pleadings to this effect, I do not
find any error on the part of the court of
first instance in deciding issue no.2
against the defendant/respondents. Even
the appellate court has not recorded any
specific
finding
that
the
defendant/respondents have acquired any
easementary right over the said 'Rasta'.
Therefore, this submission of the learned
counsel for the defendant/respondents
cannot be sustained and must fail.

25. In view of above discussion and
the answer to the substantial question of
law the appeal deserves to be allowed and
is hereby allowed. The judgment and
orders of the two courts below dated
1.6.1976 and 14.5.1973 passed in Civil
Appeal No.128 of 1973 and Original Suit
No.553 of 1968, respectively are set aside
and the suit of the plaintiff/appellants is
decreed in part for permanent prohibitory
injunction
restraining
the
defendant/respondents from encroaching
the disputed 'Rasta' by making any
construction or projection thereon and
from interfering in the plaintiff/appellants'
use and occupation of the same. Appeal
allowed.

No costs.
---------
O
RIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.8.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 32132 of 2001

Chandra Bhushan Bajpai
...Petitioner
Versus
Joint Director of Education, Kanpur
Mandal Kanpur and others ..Respondents

Counsel for the Petitioner:
Sri Vishnu Bihari Tiwari

Counsel for the Respondents:
S.C.

U.P. State Aided Educational Institution
Employees Contributory Provident Fund
Insurance Pension Rules Rule-19 (a)(b)-
Benefit of pension-retirement prior to
enforcement of Rules-petitioner claiming
to count the period of working in unaided recognized institution-institution
brought under grant in aid in March
1961-provisions of pension rule becomes
effective on 1.10.1964-held-No person
can claim particular service in particular
employment
for
counting
towards
qualifying service.

Held: Para 8

It is clear case of the respondents that
the institution in question was brought
in grant-in-aid list in March 1961 though
the
petitioner
served
therein
prior
thereto. Therefore, U.P. Contributory
Provident-Insurance-Pension
Rules
which came into force on 1.10.1964 are
not applicable at all. Learned counsel for
the petitioner could not place any other
provision to substantiate his claim that
the said service can be counted. Pension
is not a bounty but as a matter of fact, a
right, yet the mode and manner of its
payment is governed strictly by relevant
Rules. Unless the Rules provide, no
3 All] Chandra Bhushan Bajpai V. Joint Director of Education and others
973
person can claim a particular service in a
particular employment for counting as
qualifying service.
Case law discussed:
Writ Petition No. 34579 of 1993), Writ Petition
No. 11855 of 1994, Civil Misc. Writ Petition No.
14395 of 1992, (2001) 1 UPLBEC 916, 1990
AWC 1453, 1983 (1) SCC 305,

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The grievance of the petitioner is
that services rendered by him prior to
18th July 1961 at Mahatma Gandhi
Vidyalaya
Kaushalpuri,
Kanpur
(hereinafter referred to as the 'institution')
is not being counted towards qualifying
service for the purpose of pension though
in view of law laid down by this Court in
Ram Raksh Pal Vs. State of U.P. and
others (Writ Petition No. 34579 of
1993) decided on 1.9.1995, Ram Janam
Singh Vs. Deputy Director of Education
and others (Writ Petition No. 11855 of
1994) decided on 14.9.1995, Ramjee
Das vs. State of U.P. and others (Civil
Misc. Writ Petition No. 14395 of 1992)
decided on 20.11.1996, Ram Adhar Lal
Srivastava Vs. State of U.P. and others
(2001) 1 UPLBEC 916 and Shital
Prasad Tripathi vs. State of U.P. and
others 1990 AWC 1453 and Rule 19(a)
and (b) of U.P. State Aided Educational
Institution
Employee's
Contributory
Provident Fund-Insurance-Pension Rules,
(hereinafter referred to as "the Rules")
the petitioner is entitled to count the same
and, therefore, the impugned order dated
11.6.2001 (Annexure 10 to the writ
petition) passed by Joint Director of
Education, Kanpur Region, denying the
said benefit is illegal.

2. In brief facts giving rise to the
present dispute are that the petitioner
claims to have worked as Assistant
Teacher from 26.7.1957 to 17.7.1961 at
the institution and thereafter he was
appointed as Teacher in Sri Ram Lala
Uchchatar
Madhyamik
Vidyalaya,
Rawatpur, Kanpur from 18.7.1961 to
30.6.1990 and on attaining the age of
superannuation, he retired on 30.6.1990.
While computing the qualifying service of
petitioner for the purpose of pension, the
same has been taken into account from
18.7.1961. The petitioner contended that
his earlier services rendered in the
institution should also have been included
and for the said purpose, he made
representation to the concerned authority
and when the same remained unheeded,
he filed a writ petition no. 13456 of 2001
which was disposed of on 13.4.2001
directing the concerned authority to
decide
his
representation,
pursuant
whereto the impugned order has been
passed.

3. Learned Counsel for the petitioner
contended that in respect of secondary
educational institutions, service rendered
by the teachers in the earlier institution is
liable to be counted as directed by this
Court in various cases referred to above
and, therefore, he is also entitled to the
same benefit and any other view would be
contrary thereto. He also placed reliance
on Government Order dated 5.1.1996 in
support of his claim that he is entitled to
count the aforesaid service.

4. The respondents through learned
Standing Counsel have filed counter
affidavit supporting the decision taken by
the competent authority denying the claim
of the petitioner and it has been stated that
the institution was brought in grant-in-aid
list in March 1962. In para 3 of the
counter affidavit respondents have made
this statement as a matter of fact and in
974 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
reply thereto in para 4 of the rejoinder
affidavit the petitioner has not said
anything regarding the aforesaid averment
and there is not even a whisper or
suggestion that the aforesaid institution
was brought on grant-in-aid list prior to
March 1962. Besides that no provision
has been brought to the notice of this
Court applicable to Junior High School
wherein services rendered in unaided nongovernment Junior High School can be
counted for the purpose of pension. The
G.O. and rulings cited at the Bar on behalf
of the petitioner are in respect to
secondary
education
institution
and
contain different provision. where the
provisions are different. G.O. dated
5.1.1996 is in respect to secondary
educational institutions and provides for
counting service rendered in unaided
recognised
educational
institution
provided it is the same institution
wherefrom the teacher ultimately retired
and for the period he has served when the
institution was unaided, the management
deposits its share of provident fund in
Government treasury by 31st of March
1996.

5. The judgment of this Court in
Ram Raksh Pal (supra) refers to G.Os
dated 13.6.1979, 10.1.1986 and 16.9.1988
which were for counting of service in
non-government
institutions
of
such
teachers who were ultimately appointed in
Government
institutions
and
retired
therefrom and provides that service
rendered in private institution may be
counted towards retiral benefits provided
the management's share of provident fund
is deposited in Government Treasury
within the time prescribed. This Court
held that if the Management's share of
Provident Fund is not deposited by the
time mentioned in the G.Os, merely that
reason would not be sufficient to deny the
benefit to a teacher provided such deposit
is subsequently made by the Management.
Ram Janam (Supra) was a case where
the institution was aided and only the
service rendered by the teacher while he
was working as clerk in the institution
was not included which was found to be
incorrect in the light of the provisions of
the relevant Rules and it was held that
such period is also liable to be taken into
account. The aforesaid two judgments
were followed in Ramjee Das (supra).
Therefore,
none
of
the
aforesaid
judgments are applicable to the facts and
dispute involved in the present case. In
Shital Prasad Tripathi (supra) the issue
was with respect to cut off date on the
question as to whether services rendered
in aided or unaided institution can be
counted or not provided the Management
deposits share of provident fund. Even the
said authority would not help the
petitioner.

6. For the purpose of qualifying
service U.P. Contributory Provident Fund
Insurance Pension Rules are applicable
wherein Rule 19(a) and (b) reads as
under:

"19 (a) Service will not count for
pension unless the employee holds a
substantive
post
on
a
permanent
establishment.
(b) Continuous
temporary
or
officiating
service
followed
without
interruption by confirmation in the same
or another post shall also count as
qualifying service. (See also C.S.R. Para
422)."

7. The benefit of the aforesaid Rule
would have been attracted to the case in
hand provided the petitioner would have
3 All] Km. Poonam Baghel V. State of U.P. and others
975
worked in a institution which was
provided grant in aid. Rule 3 of the
aforesaid Rules clearly provides that it is
applicable
to
permanent
employees
serving
in
State
aided
education
institutions. Rule 3 reads as under:

"3. These rules shall apply to permanent
employees
serving
in
State
aided
educational institutions of the following
categories run either by a Local Body or
by a Private management and recognised
by a competent authority as such for
purposes of payment of grant-in-aid.

(1) Primary Schools;
(2) Junior High Schools;
(3) Higher Secondary Schools;
(4) Degree Colleges;
(5) Training Colleges."

8. It is clear case of the respondents
that the institution in question was
brought in grant-in-aid list in March 1961
though the petitioner served therein prior
thereto. Therefore, U.P. Contributory
Provident-Insurance-Pension Rules which
came into force on 1.10.1964 are not
applicable at all. Learned counsel for the
petitioner could not place any other
provision to substantiate his claim that the
said service can be counted. Pension is
not a bounty but as a matter of fact, a
right, yet the mode and manner of its
payment is governed strictly by relevant
Rules. Unless the Rules provide, no
person can claim a particular service in a
particular employment for counting as
qualifying service. The Apex Court, in
D.S. Nakara Vs. Union of India 1983 (1)
SCC 305 while holding pension as a right,
observed as follows:

"pension is a right and the payment
of it does not depend upon the discretion
of the Government but is governed by the
rules and a government servant coming
within those rules is entitled to claim
pension. It was further held that the grant
of pension does not depend upon anyone's
discretion." (Para 20)

9. Learned counsel for the petitioner
could not place before the Court any
provision under which the services
rendered in a recognised but un-aided
Non-Government Junior High School
could have been counted.

10. In view of the aforementioned
discussion, I do not find any merit in this
petition. It is accordingly, dismissed. No
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.08.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 43867 of 2008

Km. Poonam Baghel

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. H.N. Sharma

Counsel for the Respondents:
S.C.

Constitution of India, Article 226-Tenure
appointment-terminable without noticeautomatically comes to an end after
expiry of particular term-cannot be
extended by judicial order-no mandamus
can be issued.

Held: Para 5