# Girdhari Tiwari v. State Of U.P. & Ors

- **Citation:** (2025) 11 ILRA 1216
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-18
- **Case number:** Writ A No. 29618 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girdhari-tiwari-v-state-of-u-p-ors-52640
- **Pages:** 18

## Headnote

Ajal Krishna, C.S.C., Rajeshwar Tripathi,
Rohit Pandey, Roopesh Tewari, Vevek
Varma

Issue(s) for consideration
 (a) Whether the petitioner has a right to
receive pension in absence of rules or a scheme
providing for it?
(b) Whether an employer, being a State
instrumentality can act arbitrarily by applying an
ad hoc method of granting pension to some
teachers and employees and denying others, in
absence of a uniform policy?

Headnotes
11 All. Girdhari Tiwari Vs. State of U.P. & Ors.
1217
A. Service Law - Uttar Pradesh State
Universities Act, 1973: Section 21(3) - The
position of the law that the right to
receive pension, though not a bounty, can
be claimed by an employee only if
provided by statute, a rule or a scheme,
not otherwise, is well crystallized. (Para 24,
25)

Although true it is, that the petitioner has no
right to receive a superannuation pension,
either from the University or the Government, in
the absence of rules or a scheme, providing for
it, it does seem constitutionally offensive
that some employees or teachers of the
University have been sanctioned pension
under directions of the Chancellor by the
University themselves, whereas others,
like the petitioner, as a matter of routine,
are
not
being
extended
the
same
treatment. Since the right to receive pension is
a right grounded in a statute, rule or scheme,
we cannot direct the respondents to grant
pension to the petitioner by invoking the
equality clause u/Article 14 of the Constitution.
At the same time, this ad hoc method of
granting pension to some teachers and
employees and denying others, does
require to be remedied. (Para 26, 27)

B. Payment of superannuation pension is
essentially a matter of executive policy,
which involves financial consequences and
an informed decision by the Executive,
has, therefore, to precede the framing of
any rule or policy to grant pension to
retired employees of any State Body. A
policy of that kind has to be formulated by the
State or the employer themselves and reflected
in a rule with a requisite statutory backing or a
scheme. (Para 28)

C. There has to be a uniform policy
reflected in terms of rules or a scheme,
providing for pension to employees of the
University, whether teaching or nonteaching, or it has not to be given at all to
anyone. The only matter, that requires
consideration by the University as well as the
State Government, acting together, is that,
being the State or a State instrumentality
in one case, they cannot act arbitrarily or
on a pick and choose basis and follow a
policy of ad hocism to grant pension to
some employees, teachers or others,
retiring from the University in terms of special or
indulgent orders of the Chancellor, or otherwise,
by denying it to others, because there are no
rules or scheme governing the subject. (Para
29)

Pension paid to the retired employees should
not be a matter of whim or ad hocism, as
appears to be the current statement of things,
prevalent in the University. (Para 30)

D. There is no distinction between selffinancing courses taught in the University
or others, as the entire University is selffinanced. The burden of the policy, if rules or a
scheme to pay pension, are made or framed,
either by the State Government or the
University or the two of them together, under
the existing state of things, would fall upon the
resources of the University, may be their corpus
fund. It is also possible for the State
Government, while participating with the
University in the making of a uniform policy, to
think of extending some aid for the
purpose. These are all matters, which the State
Government and the University have to decide
upon. (Para 30)

E. Right to claim gratuity - In the absence
of a rule or scheme in the University
providing for gratuity, they would still be
liable to pay gratuity to the petitioner
under the Payment of Gratuity Act, 1972,
but the issue is not delved further because
a right based on that statute has not been
pleade

## Text

_Characters 0–39,857 of 62,396. This is a partial read: ask again with offset=39857 for what follows._

1216 INDIAN LAW REPORTS ALLAHABAD SERIES
supplement the rules and issue instructions
not inconsistent with the rules already
framed.

The above legal position has been
followed and reiterated by this court time
and again. ".

39. In view of the above, I hold that
the life span of the waiting list would be
one year only and that too from the date of
substantial recommendations made by the
Public
Service
Commission
against
substantial number of vacancies under the
Service Rule 1990.

40.
In
the
given
facts
and
circumstances of the case in hand since the
recommendation was made against the
substantive number of 566 on 28.05.2020
then the waiting list would start from
28.05.2020 and would last will 27.05.2020,
much prior to the filing of present petitions,
hence, the questions No. 3 and 4 stand
answered against the petitioner.

41. An issue may arise that since the
Public Service Commission did not prepare
the waiting list why should its term start
from the date of first recommendation and
no from the date of last recommendation
made on 10.01.2022. Since I have already
held
above
that
the
Public
Service
Commission was not justified in not
preparing the waiting list I could have
directed for the same and those could have
been adjusted and accommodated against
the available vacancies but in the instant
case I find that subsequently left over
vacancies were requisitioned by the Public
Service Commission on 27.05.2025 itself
and rights have accrued to the selected
candidates and hence, this relief now
cannot be granted. Thus no such relief
cannot be granted at this stage in this
petition when neither the requisitions were
challenged, nor subsequent selection was
challenged.

42. However, directions are issued to
the Public Service Commission to prepare
waiting list in those cases where the
statutory rules do provide in matter of
selection upon requisitioned post as in the
present case Service Rules 1990 provides.

43. With this aforesaid observations
and directions all these petitions stand
disposed of.
----------
(2025) 11 ILRA 1216
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 29618 of 2014

Girdhari Tiwari ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Bharti Kashyap, Rajni Ojha

Counsel for the Respondents:
Ajal Krishna, C.S.C., Rajeshwar Tripathi,
Rohit Pandey, Roopesh Tewari, Vevek
Varma

Issue(s) for consideration
 (a) Whether the petitioner has a right to
receive pension in absence of rules or a scheme
providing for it?
(b) Whether an employer, being a State
instrumentality can act arbitrarily by applying an
ad hoc method of granting pension to some
teachers and employees and denying others, in
absence of a uniform policy?

Headnotes
11 All. Girdhari Tiwari Vs. State of U.P. & Ors.
1217
A. Service Law - Uttar Pradesh State
Universities Act, 1973: Section 21(3) - The
position of the law that the right to
receive pension, though not a bounty, can
be claimed by an employee only if
provided by statute, a rule or a scheme,
not otherwise, is well crystallized. (Para 24,
25)

Although true it is, that the petitioner has no
right to receive a superannuation pension,
either from the University or the Government, in
the absence of rules or a scheme, providing for
it, it does seem constitutionally offensive
that some employees or teachers of the
University have been sanctioned pension
under directions of the Chancellor by the
University themselves, whereas others,
like the petitioner, as a matter of routine,
are
not
being
extended
the
same
treatment. Since the right to receive pension is
a right grounded in a statute, rule or scheme,
we cannot direct the respondents to grant
pension to the petitioner by invoking the
equality clause u/Article 14 of the Constitution.
At the same time, this ad hoc method of
granting pension to some teachers and
employees and denying others, does
require to be remedied. (Para 26, 27)

B. Payment of superannuation pension is
essentially a matter of executive policy,
which involves financial consequences and
an informed decision by the Executive,
has, therefore, to precede the framing of
any rule or policy to grant pension to
retired employees of any State Body. A
policy of that kind has to be formulated by the
State or the employer themselves and reflected
in a rule with a requisite statutory backing or a
scheme. (Para 28)

C. There has to be a uniform policy
reflected in terms of rules or a scheme,
providing for pension to employees of the
University, whether teaching or nonteaching, or it has not to be given at all to
anyone. The only matter, that requires
consideration by the University as well as the
State Government, acting together, is that,
being the State or a State instrumentality
in one case, they cannot act arbitrarily or
on a pick and choose basis and follow a
policy of ad hocism to grant pension to
some employees, teachers or others,
retiring from the University in terms of special or
indulgent orders of the Chancellor, or otherwise,
by denying it to others, because there are no
rules or scheme governing the subject. (Para
29)

Pension paid to the retired employees should
not be a matter of whim or ad hocism, as
appears to be the current statement of things,
prevalent in the University. (Para 30)

D. There is no distinction between selffinancing courses taught in the University
or others, as the entire University is selffinanced. The burden of the policy, if rules or a
scheme to pay pension, are made or framed,
either by the State Government or the
University or the two of them together, under
the existing state of things, would fall upon the
resources of the University, may be their corpus
fund. It is also possible for the State
Government, while participating with the
University in the making of a uniform policy, to
think of extending some aid for the
purpose. These are all matters, which the State
Government and the University have to decide
upon. (Para 30)

E. Right to claim gratuity - In the absence
of a rule or scheme in the University
providing for gratuity, they would still be
liable to pay gratuity to the petitioner
under the Payment of Gratuity Act, 1972,
but the issue is not delved further because
a right based on that statute has not been
pleaded
by
the
petitioner
at
all.
Nevertheless, the Payment of Gratuity Act
being a beneficial legislation, petitioner's
right should not be foreclosed, even if no
scheme for payment of pension and other post
retiral benefits is there in the University to
enforce his right, if one is finally established
by invoking the provisions of the Payment
of Gratuity Act. This, the petitioner would
have to do by approaching the Controlling
Authority under the Payment of Gratuity Act, in
such manner as advised. (Para 31, 32)

Writ petition decided with directions. (E-4)

Case Law Cited
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
1. D.S. Nakara and others Vs. Union of India,
(1983) 1 SCC 305 (Para 23)
2. State of Madhya Pradesh and others Vs.
Hitkishore Goswami, (2015) 11 SCC 199. (Para
24)
3. Uttar Pradesh Roadways Retired Officials and
Officers Association Vs. State of Uttar Pradesh
and another, (2024) 9 SCC 331 (Para 25)
4. State of Maharashtra and others Vs. Dr. Hari
Shankar Vaidhya and others, (1997) 9 SCC 521
(Para 28)

List of Acts
 Uttar Pradesh State Universities Act, 1973.

List of Keywords
 post
retiral
benefits,
service,
pension,
increment, gratuity, discretion.

Appearances for Parties
For Petitioner(s): Bharti Kashyap, Rajni Ojha
For Respondent(s): Ajal Krishna, C.S.C.,
Rajeshwar Tripathi, Rohit Pandey, Roopesh
Tewari, Vevek Varma

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
the order of the Registrar, Mahatma Jyotiba
Phule Rohilkhand University, Bareilly (for
short, 'the University) dated 21.03.2014, the
resolution of the Executive Council dated
26.03.2014 and the order dated 21.03.2014
passed
by
the
Principal
Secretary,
Government
of
U.P.,
Lucknow,
all
declining the petitioner's claim to receive
post retiral benefits, including pension,
gratuity and family pension.

2. The petitioner was a Lab Technician
in the Institute of Engineering and
Technology of the University. He was
selected by a duly constituted Selection
Committee, whose recommendations were
accepted by the Executive Council, leading
to
the
petitioner's
appointment
on
18.01.1999. The petitioner served as a Lab
Technician
with
the
Institute
of
Engineering
and
Technology
of
the
University from 05.02.1999 to 30.06.2012,
that is to say, till the date of his
superannuation. He was granted one
increment vide memo dated 13.01.2009
issued by the Registrar of the University.
After
the
petitioner's
retirement,
the
Registrar of the University addressed a
memo dated 28.08.2012 to the Finance
Officer, saying that the petitioner had
retired from service as a Lab Technician
and that for the purpose of sanction of his
pension, gratuity, commutation of pension
etc., necessary papers in two sets be drawn
up and presented in order that pension and
gratuity may be paid to him. The petitioner
did not receive any pension, gratuity or
other post retiral benefits, despite the
Registrar's memo aforesaid, addressed to
the Finance Officer. According to the
petitioner, he was appointed on a regular
basis and it is nowhere mentioned in his
letter of appointment that he had been
appointed to the post of a Lab Technician
in establishment of the University, that was
run on the basis of a self-financing regime.
The petitioner claims that he is entitled to
pension, gratuity and other retirement
benefits in view of the Government Orders
dated 22.09.1995 and 22.08.1996, that
squarely govern his rights in the matter.
After his retirement, the petitioner waited
for a year, during which there was much
correspondence on the subject between him
and the University. He instituted Writ-A
No.58517 of 2013 before this Court,
seeking to claim his post retiral benefits.
The aforesaid writ petition was disposed of
by this Court vide order dated 31.10.2013
in terms of the following orders:

"Considering
the
facts
and
circumstances of the case, this petition is
disposed of with a direction to the Principal
Secretary, Higher Education, Government
11 All. Girdhari Tiwari Vs. State of U.P. & Ors.
1219
of U.P. as also the Registrar, Mahatama
Jyotiba
Phule
Rohilkhand
University,
Bareilly
(respondent
nos.1
and
3
respectively) to get the matter sorted out
and an appropriate decision be taken
strictly in accordance to law within a period
of two months from the date of production
of a certified copy of this order before both
the aforesaid Authorities."

3. The aforesaid orders, though
received by the Principal Secretary and the
Registrar of the University, did not move
them to take a decision in the matter, as
directed by this Court. The petitioner was
driven to file Contempt Application (Civil)
No.1063 of 2014. Notice was issued in the
contempt application on 14.02.2014. After
issue of notice, the Registrar of the
University passed the impugned order
dated 21.03.2014, rejecting the petitioner's
claim on ground that the petitioner was
appointed to the Institute of Engineering
and Technology, where the entire course of
programme was run without aid or grant
from the State Government as a selffinancing course. There was no government
order, making provision for the grant of
pension, gratuity or family pension to
teaching
or
non-teaching
employees,
appointed to the Institute of Engineering
and Technology, teaching the B. Tech. and
B. Pharma. courses. In the absence of a
government order, making a provision of
that kind, it was not possible to grant any
pension, gratuity or family pension to the
petitioner. The said decision of the
Registrar was affirmed by the Executive
Council, in a meeting held a few days later
on 26.05.2014. Both these orders are
impugned in the present writ petition.

4. The orders of this Court passed on
31.03.2013 in Writ-A No.58517 of 2013
did not stand exhausted with the University
and their Authorities taking a decision in
the matter. This Court had commanded the
Principal Secretary, Department of Higher
Education as well to take a decision in the
matter.
Accordingly,
the
Principal
Secretary too passed an order dated
21.03.2014, rejecting the petitioner's claim
for pension etc. on the selfsame basis that
had weighed with the University in
refusing the petitioner's claim. The order of
the Principal Secretary dated 21.03.2014
was not formally impugned by the
petitioner at the time of institution of this
writ petition. Accordingly, the order dated
21.03.2014
passed
by
the
Principal
Secretary was challenged by moving Civil
Misc. Amendment Application No.26 of
2018, which was allowed by this Court
vide order dated 12.02.2020.

5. Heard Mr. Rajni Ojha, learned
Counsel appearing on behalf of the
petitioner, Mr. Sharad Chandra Upadhyay,
learned Standing Counsel appearing on
behalf of respondent no. 1, Mr. Radha Kant
Ojha, learned Senior Counsel assisted by
Mr. Rajeshwar Tripathi, learned Counsel
appearing on behalf of respondent nos. 2 to
4 and Mr. Ajal Krishna, learned Counsel
appearing on behalf of respondent no. 5,
AICTE.

6. In this writ petition, a number of
affidavits have been filed by parties, which
include
the
University,
the
State
Government and the All India Council of
Technical
Education
(for
short,
'the
AICTE'). The petitioner too has filed a
number
of
affidavits.
Mostly,
these
affidavits were called pursuant to very
detailed orders made during the course of
hearing, the purpose whereof was to find
out, if the Institute of Engineering and
Technology, the establishment of the
University, where the petitioner was
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
appointed as a Lab Technician, was an
establishment that taught courses supported
by State grant or self-financing courses
alone, that is to say, courses funded by the
University out of their own resources.

7. It is true that the University, while
applying to the AICTE, did not correctly
disclose the fact that they taught selffinancing courses in the Institute of
Engineering and Technology, but that does
not derogate from the fact that the courses
taught in the Institute of Engineering and
Technology are self-financed and not
funded by the State Government. The
AICTE, for this reason, has taken exception
to the aforesaid non-disclosure and the
Standing Appellate Committee of the
AICTE have proceeded to take punitive
action against the University under the
provisions of Paragraph 7.3 (h) of the
Approval Process Handbook, directing that
the University would be ineligible to
receive any grant from the AICTE.

8. The distinction between a particular
course or faculty or institute in the
University, being self-financed or funded by
the State, appears to be quite illusory. The
reason why we say that it is illusory is that
the University seems to be one, which is run
as a whole as a self-financed organization,
not funded by the State. It is governed by the
Uttar Pradesh State Universities Act, 1973
(for short, 'the Act of 1973') and the statutes
framed thereunder, which require posts to be
sanctioned and appointments made according
to the prescribed procedure with candidates
fulfilling
eligibility
requirements.
Appointments made to the University,
irrespective of the fact that funds to defray
salaries to pay the employees are met by the
University
themselves,
are
regular
appointments nevertheless against sanctioned
posts.

9. In the petitioner's case too, the post,
against which he was appointed, was created
by the State Government vide order dated
24.01.1996. An advertisement was published
by the University for posts of Laboratory/
Workshop Assistants along with other
Technical and Non-teaching posts, in the
Institute of Engineering and Technology on
27.07.1997.
The
petitioner
applied
in
response to the said advertisement and faced
a selection committee held on 24.12.1998.
The Selection Committee recommended him
for appointment and those recommendations
were placed before the Executive Council of
the University on 06.01.1999 and approved
by a resolution of that date passed by the said
Council. This was followed by the issue of an
appointment letter dated 18.01.1999 in the
petitioner's favour and he joined service on
05.02.1999. These are facts pleaded in
paragraph Nos.7 to 12 of the supplementary
counter affidavit filed on behalf of the
University. It is, therefore, not a case where
the petitioner is working against a nonsanctioned post or on contract. He is an
employee of the University, selected and
appointed against a sanctioned post in
accordance with rules. Therefore, in our
opinion, it is quite immaterial, whether funds
to pay his salary and other emoluments are
those of the University themselves and not
some kind of a maintenance grant, provided
by the State Government.

10.
We
must
remark
that
the
University and the State Government both,
have unnecessarily whipped up a confusion
in this case about the Institute of
Engineering and Technology or the faculty
of Engineering and Technology, being in
someway different from other faculties,
teaching other courses in the University by
dubbing this institute or faculty and the
courses taught therein as self-financing.
Form the material on record, we find that
11 All. Girdhari Tiwari Vs. State of U.P. & Ors.
1221
the University, as a whole, though
governed by the Act of 1973 and the
statutes framed thereunder, and, a fortiori,
subject to the control and directions of the
State Government under the law, is a selffinanced and funded Institution. It is not
that the establishment of the University is
dichotomous with some part of it being
State funded and the other self-financed, to
which different sets of rules apply. The
entire University, with all its faculties, is
uniformly governed by the Act of 1973 and
statutes framed thereunder applicable to the
University, or rules, regulations, ordinances
framed by the appropriate governing bodies
of the University. In the supplementary
affidavit dated 16.05.2025 filed by the
petitioner, it is averred in paragraph Nos.3
to 11:

"3. That, it is also pertinent to
mention here that the various teaching and
not
teaching
retired
employees
of
University
of
different
courses
and
departments are getting their pension from
the
University,
pension
fund
(Corpus/account/fund) which is contributed
by the University from their own sources.
The pension account of different retired
employees are already shown in the
Annexure
No.SA-1
of
Supplementary
affidavit dated 27.10.2014 and other list of
pension release of University pensioner of
February, 2016
also
shows different
pension account which are paid by
university from their own sources. A true
copy of list of pensioner with pension
release order to bank from the University
showing their pension account is being
filed herewith and marked as Annexure
No.SA-1 to this affidavit.

4.
That,
the
letter
dated
21.03.2025 of respondent no.3 to the Joint
Secretary, Higher Education, Anubhag-4,
Government of Uttar Pradesh, Lucknow,
clearly states that all the courses in these
department, i.e., Engineering, English,
Social work's and also includes clinical
psychology
and
post
created
by
Government in Regular pay scale are
financially on similar footing that means
'Regular'. A true copy of letter dated
21.03.2025
send
by
the
Registrar
(Respondent No.3) is being filed herewith
and marked as Annexure No.SA-2 to this
affidavit.

5.
That,
the
letter
dated
01.12.2023
send
by
the
Registrar
(Respondent No.3) to the Joint Secretary,
Higher Education, Anubhag-4, Government
of Uttar Pradesh, Lucknow, supports the
case of the petitioner that the B.Tech
courses are regular and his appointment
was on pay scale as regular and Executive
Council
Meeting
dated
07.08.2022,
supports the case of petitioner that B.Tech
course is regular and his appointment was
on regular pay scale as regular. Further it is
stated in Executive Council meeting dated
07.08.2022 that all the appointments of
teaching and non-teaching staff before
04.02.2000 created by Government are
considered as permanent and regular. A
true copy of letter dated 01.12.2023 and
Executive
Council
Meeting
dated
07.08.2022 are being collectively filed
herewith and marked as Annexure No.SA3 & 4 to this affidavit.

6. That, in the case of one of the
retired professor Dr. Paras Nath Ram who
was appointed on 01.04.1996 in I.E.T.
(Institute of Engineering and Technology)
department as physics professor and retired
on 30.06.2008 from the same. He was also
not paid his pension. Hence after a long
legal battle and applications he got an order
dated 27.01.2021 passed by Chancellor by
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
which the University order was cancelled,
after which his matter was referred to
Executive Council and on 15.12.2003 the
Executive Council approved to pay him his
pension and other benefits. Similar case
was of professor Asha Chaubey retired on
30.06.2022, also after a long wait and legal
fight got an Executive Council decision in
her favour in meeting dated 30.09.2024. A
true copy of order dated 27.01.2021 and
decision of Executive Council meeting
dated 30.09.2024 are being collectively
filed herewith and marked as Annexure
No.SA-5 & 6 to this affidavit.

7. That, the petitioner was denied
the pension only on the basis of that his
appointment was on a self financed
courses. Here it is pertinent to point out that
various letters and decisions of the
Executive Council dated 29.05.2010 and
07.08.2022 clearly state that the University
is an non aided self maintained State
University and all courses of I.E.T. (i.e.
Engineering department) other department
are on same financial footing i.e. regular.

8. That, it is also pertinent to
draw the attention of the Hon'ble Court that
the University is paying pension to various
teaching and non-teaching staff of different
departments by its own fund which is a
Corpus fund created for this very purpose,
in which the University is contributing 10%
of amount of its own sources. The pension
and post retiral benefits are being paid to
the teaching and non teaching employees of
regular. This itself is mentioned in the letter
dated 20.05.2013 already annexed as
Annexure No.9 of this writ petition.

9. That, it is also necessary to
mention here that G.P.F. was deducted
from
petitioner
payment
as
regular
employee and pension contribution was
done in the University pension contribution
fund. This fact is clear from the letter of the
respondent no.3 to the Secretary, Higher
Education
Section
dated
10.04.2013
already annexed as Annexure No.RA-2 of
Rejoinder
Affidavit
filed
on
dated
30.08.2016.

10. That, here it is also necessary
to point out that one Rajesh Verma, Senior
Lab Technician who retired on 31.10.2013
is getting pension from the University
pension fund. It is also pertinent to mention
that seniority list of Lab Technician as on
01.01.2012 consist of name of petitioner
and Sri Rajesh Verma, in the same list. It is
also necessary to point out that as per state
government higher education department
letter dated 02 January, 2006 annexed as
Annexure No. RA-4 in Rejoinder Affidavit
dated
30.08.2016,
a
committee
was
established to call for vacant post for
reserved employee after forming roster of
regular employees. this roster also consist
of name of petitioner and Sri Rajesh Verma
in regular lab technician employee list.

11. That, in view of the above
facts and circumstances, it is crystal clear
that the petitioner is entitled for the
payment of his pension, gratuity and other
retirement benefits, if any, after his
retirement, w.e.f. 30.06.2012 with 12%
interest."

11. This supplementary affidavit has
been answered by the University by means
of their affidavit dated 02.07.2025, which
in substance is a supplementary counter
affidavit on their behalf, vis-a-vis the
supplementary affidavit dated 16.05.2025.
This affidavit on behalf of the University is
one filed by the Registrar himself. The
contents of paragraph Nos.3 to 11 of the
supplementary affidavit are answered in
11 All. Girdhari Tiwari Vs. State of U.P. & Ors.
1223
paragraph Nos.4 to 10 of the supplementary
counter affidavit, where it is averred:

"4. That in reply to the contents
of paragraph No.3 of the supplementary
affidavit it is submitted that the employees
(teaching and non-teaching) mentioned in
the list annexed as Annexure no.SA-1 to
the supplementary affidavit were appointed
on the post sanctioned by the government
and the pension was paid to them in
accordance with law by the University.

5. That the contents of paragraph
No.4 and 5 of the supplementary affidavit
being matter of record, hence need no
comments.

6. That in reply to the contents of
paragraph No.6 of the supplementary
affidavit it is submitted that the Executive
Council has taken decision to grant
pensionary benefits to the Professor Paras
Nath Ram and Dr. Asha Chaubey in the
light of the order passed by the Chancellor.
In the matter of Dr. Asha Chaubey, letter
has been sent to the Principal Secretary,
Higher Education, Govt. of U.P. In the case
of petitioner, if any direction is issued by
the government, the same will be complied,
because as per section 21(3) of the 'Act of
1973' no financial liability can be incurred
without prior approval of the government.
Granting
pensionary
benefit
to
the
petitioner is asuch category of matter which
requires prior approval of the government.
The true copy of the letter dated 06.05.2025
sent to the Principal Secretary is being filed
herewith as Annexure No.1 to this
affidavit.

7. That in reply to the contents of
paragraph No.7 of the supplementary
affidavit it is submitted that without prior
approval of the government as require
under section 21(3) and 21(4) of the 'Act of
1973', no action can be taken by the
University.

8. That the contents of paragraph
No.8 and 9 of the supplementary affidavit
need no reply by means of present
affidavit.

9. That the contents of paragraph
No.10 of the supplementary affidavit is not
admitted in the manner as stated, hence
denied. In reply thereto it is submitted that
Shri Rajesh Verma was appointed on
18.10.1985 against the post of Junior Lab
Assistant sanctioned by State Government
in the pay-scale of 354-550 and vide order
dated
03.12.1998
he
was
accorded
promotion on the post of Senior Lab
Technician while petitioner was appointed
vide order dated 18.01.1999 in pursuance
to the government order dated 24.01.1996.
The case of the petitioner is different than
the case of Mr. Rajesh Verma.

10.
That
the
contents
of
paragraph Nos.11, 12, 13 and 14 of the
supplementary affidavit are not admitted in
the manner as stated, hence denied. The
suitable reply shall be given at the time of
argument."

12. It would be apposite here to notice
the stand of the State Government as well,
as regards the petitioner's case in his
supplementary affidavit dated 16.05.2025.
The State Government have answered it by
their supplementary counter affidavit dated
03.07.2025. For one it is an affidavit, which
purports to be on behalf of the State
Government, represented by the Principal
Secretary, Higher Education, but the
affidavit has been filed by Dr. Shashi
Kapoor, a Joint Director in the Department
of Higher Education, posted at Prayagraj. It
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
is an established position of the law that the
State Government have to file their
affidavits, sworn by a Secretary to the
Government
and
not
by
an
officer
appointed to a Directorate under the control
of the Government. Nevertheless, we have
looked into this affidavit. It is averred in
paragraph Nos.5, 6, 7 and 8 of the
supplementary counter affidavit:

"5. That before giving parawise
reply to the instant writ petition, it would
be in the interest of justice to bring before
the Hon'ble Court some vital facts that have
crucial bearing upon the basic issues
involved in the writ petition. These facts
are as follows:

a.
That
the
Institute
of
Engineering
and
Technology
was
established by Mahatama Jyotiba Phule
Rohilkhand
University,
Bareilly,
hereinafter referred to as the 'University',
imparting B.Tech Courses under selffinanced scheme. The said institute is not in
grant-in-aid list of the State Government
and as such, the liability for payment of
salary to the academic staff and the
employee of the institute is borne by the
University from its own resources.

b. That the State Government
does not pay any maintenance grant to the
institute and the employees of the institute
do not fall within the definition of
employee as contemplated under Section
60 (A) of the U.P. State Universities Act,
1973, hereinafter referred to as the 'Act'.
Accordingly, the State Government is not
liable in respect of salary and other
benefits under Section 60 (E) of the Act
in
respect
of
the
employees
engaged/employed by the Institute of
Engineering and Technology.

c. That the State Government
vide order dated 29th April 1996 while
according approval to the temporary
creation of the posts in respect of academic
& non-academic staff including Lab
Technician specifically provided therein
that as B.Tech Course is self-financed
course the financial burden of the aforesaid
posts so created would be borne by the
University and the State Government will
not pay any grant/maintenance grant
therefor.

d. That the State Government
vide subsequent order dated 29th April
1998 accorded approval to additional
academic posts on the same terms and
conditions of order dated 29.04.1996.

e. That while laying down the
amended norms in self-financed courses by
the
Universities,
it
was
specifically
provided that the appointments in the said
courses would be contractual on payments
of honorarium and the Government Order
dated 04.02.2000 would be applicable to
the posts created prior to Government
Order. Photocopy of order dated 4.2.2000
is being marked and annexed as Annexure
No. 1 to this supplementary counter
affidavit.

f.
That
therefore,
the
state
government vide letter dated 27.06.2025
has directed to Registrar, Mahatma Jyotiba
Phule Ruhelkhand University, Bareilly to
ensure the compliance of this issue
according
to
the
office
Memoranda
Number-
361/
Sattar-4-2014,
dated
government order for self finance courses
dated
15.07.2015
21.03.2014,
and
13.03.2020. Photocopy of order dated
27.06.2025, 21.03.2014, 15.07.2015 and
13.03.2020 are being marked and annexed
11 All. Girdhari Tiwari Vs. State of U.P. & Ors.
1225
as Annexure No. 2, 3, 4 and 5 to this
supplementary counter affidavit.

g. That the U.P. Government by
office memorandam number 361/sattar-42014 dated 21.3.2014, it was clearly
directed
to
the
University
that
the
representation of the petitioner was already
decided vide order dated 13.11.2013. It is
clearly mentioned in the order dated
13.11.2013 that no benefit of pension,
gratuity and family pension is permissible
to the teacher and employees working in
department running under self-finance
scheme. In this way no pensionary benefit
is permissible to the petitioner. Photocopy
of letter dated 21.03.2014 is already being
annexed as Annexure no. 3 to this
supplementary counter affidavit.

h. That accordingly the payment of
salary/honorarium, if any, to the petitioner,
employed in the Institute of Engineering and
Technology, was paid as per the norms of
self-financed courses. It is reiterated that the
State
Government
never
paid
any
grant/maintenance grant to the Institute of
Engineering and Technology at any point of
time, as such there was no occasion for the
State Government to assume the liability
towards the payment of salary and other
benefits, if any, to the petitioner.

i. That in view of the facts and
circumstances referred above the claim of
the petitioner for post retirement benefits
including
pension
from
the
State
Government is wholly misconceived and
not tenable in the eyes of law. There is no
statutory provision for payment of pension
to
the
academic/non-academic
staff
employed in self-financed courses.

REPLY
TO
THE
SUPPLEMENTARY AFFIDAVIT

6. That the contents of paragraph
nos. 1 and 2 of the supplementary affidavit
filed by the petitioner in the aforesaid writ
petition, hereinafter referred to as the
'supplementary affidavit', need no reply.

7. That the contents of paragraph
nos. 3 to 5 of the supplementary affidavit
filed by the petitioner in the aforesaid writ
petition are admitted as stated. Admittedly,
the petitioner was employed in the Institute
of Engineering and Technology imparting
self-financed B.Tech Course, the petitioner
is not entitled to any pensionary benefits
from the State Exchequer in the absence of
any statutory provision therefor.

8. That the contents of paragraph
nos. 6 to 10 of the supplementary affidavit
filed by the petitioner in the aforesaid writ
petition are denied. It is submitted that for
Prof. Dr. Paras Nath Ram and Prof. Dr.
Asha Chaubey, the State has not approved
to pay pension and other benefits."

13. Upon a perusal of the stand taken
by the University as well as the State
Government and what is evident from the
record, we find, as already remarked, that
an illusory dichotomy has been created by
the respondents between different faculties
and institutes of the University and courses
on the basis that some, like the Institute
of Engineering and Technology, are selffinanced, whereas others are funded by
the State. The distinction further drawn to
the effect that it is only in case of
employees
or
teachers
serving
in
faculties, teaching courses, that are
funded by the Government, is also
without the slightest of basis. This
classification for the purpose of grant of
pension and other post retiral benefits is
illusory and non-existent. Why we say so,
we would presently show.
1226 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In the affidavit dated 02.07.2025
filed by the Registrar of the University, the
foremost stand taken is that teaching and
non-teaching employees, whose list is
appended as Annexure No.1 to the
supplementary affidavit dated 16.05.2025,
who are receiving pension paid by the
University, comprises employees appointed
against
posts
sanctioned
by
the
Government. The suggestion, though not
said explicitly, is that the petitioner is not
working against a sanctioned post. This fact
is
belied
by
the
University's
own
supplementary
counter
affidavit
dated
07.01.2018, also sworn by the Registrar of
the University, where it is acknowledged in
paragraph No.7 that the State Government
vide order dated 24.01.1996 created a
number of teaching and non-teaching/
technical posts, including that of Lab
Technicians under the self-financed scheme
with a direction that all outlay relating to
these posts would be borne by the
University themselves.

15. We notice that the order dated
24.01.1996, annexed to the University's
supplementary
counter
affidavit
dated
07.01.2018, sanctions the posts of Lab
Technicians, numbering five in the Institute
of Engineering and Technology, albeit
temporary. There is also an advertisement
published in the Amar Ujala relating to the
post of Lab Technician, described there as
Laboratory Assistant, dated 27.07.1997. It
is acknowledged by the University in the
supplementary counter affidavit that the
petitioner applied in response to the said
advertisement and participated in the
selections held on 24.12.1998. He was
recommended by the Selection Committee
and the Executive Council resolved to
appoint him by their resolution dated
06.01.1999. He admittedly joined on
05.02.1999 and worked as such till his
superannuation on 30.06.2012. The post
sanctioned by the State Government, as a
temporary post initially up to 30.06.1996,
was apparently sanctioned as a permanent
post, whereagainst the petitioner continued
to function till his retirement and received
salary, of course, borne by the University.

16. In the face of such state of things
to say in paragraph No.4 of the affidavit
dated 02.07.2025 filed by the Registrar of
the University that employees of the
University, who are detailed in the list
appended as Annexure No. SA-1 to the
supplementary
counter
affidavit,
were
appointed on posts sanctioned by the
Government and for the said reason
receiving pensions, is without basis.

17. To demonstrate that there is no
distinction between the posts in other
faculties of the University and the Institute
of Engineering and Technology, there is a
communication dated 21.03.2025, annexed
to the supplementary affidavit filed by the
petitioner dated 16.05.2025. It is mentioned
in paragraph No.4 of the said affidavit,
which has already been quoted above,
Paragraph
Nos.4
and
5
of
the
supplementary affidavit have not been
denied in the affidavit dated 02.07.2025
filed by the University. It is relevant to
refer
to
the
communication
dated
21.03.2025 from the Registrar of the
University to the Joint Secretary, Higher
Education, Government of U.P., Lucknow,
which reads:

"पत्रॉक : रू0मव0/कु0स0/2025/65 मदनाांक
: 21.03.2025

सेवा में,

िी प्रेम कुमार पाण्र्ेय

सांयुक्त समचव

उच्च मशिा अनुभाग-4
11 All. Girdhari Tiwari Vs. State of U.P. & Ors.
1227

उ0प्र0 शासन, लखनऊ।

मवषय- महात्मा ज्योमतबा िुले रुहेलखण्र्
मवश्वमवद्यालय, बरेली में कमतपय पाठ्यक्रमों के मशिकों को मनयममत
वेतन भुगतान के सांबांध में।

महोदय,

उपयुटक्त मवषयक आपके पत्राांक सांख्या
327/सत्तर-4-2025 मदनाांक 21 माचट 2025 के सन्दभट में
आपको अवगत कराना है मक सांसद द्वारा स्थामपत सांवैधामनक
सांस्थाओां यथा ए0आई0सी0टी0ई0 द्वारा मनयममत पाठ्यकमों के
रूप में स्वीकृमत, शासन द्वारा मनयममत वेतनमान में पदों का सृजन,
कायट पररषद के मनणटय मदनाांक 29.05.2010 एवां
07.08.2022, मा0 कुलामधपमत/िी राज्यपाल द्वारा उ0प्र0
राज्य मवश्वमवद्यालय अमधमनयम 1973 की धारा 68 के अन्तगटत
पाररत मवमभन्न आदेशों यथा आदेश सां0 ई-11318/G.S./1812-2017. आदेश सां0 ई-3536/G.S./08-05-2018
आदेश सां0 ई-5308/G.S./02-07-2018, आदेश सां0 ई6987/G.S./28-08-2018 एवां उ0प्र0 राज्य मवश्वमवद्यालय
अमधमनयम 1973 की धारा 60 (A) एवां 60 (E) के अनुसार
मवश्वमवद्यालय के सभी सांकायों मजनमें इांजीमनयररांग सांकाय, दशटन
शास्त्र, अांग्रेजी, सोशल वकट तथा क्लीमनकल साइकोलॉजी भी
समम्ममलत है, में पूवट से सांचामलत समस्त पाठ्यक्रमों एवां उनमें शासन
द्वारा मनयममत वेतनमान में सृमजत समस्त पदों की मवत्तीय मस्थमत एक
समान अथाटत मनयममत है।

सादर,

 भवदीय,

 ह0 अपमठत

 कुलसमचव"

18. There is then a communication
dated 06.05.2025 from the Registrar of the
University to the Principal Secretary,
Higher Education, Government of U.P.,
annexed to the affidavit dated 02.07.2025
filed on behalf of the University, in
response to the supplementary affidavit
dated 16.05.2025 filed by the petitioner.
The letter dated 06.05.2025 must be quoted
for every word of it. It reads:

"1. शासन द्वारा समस्त पदों का सृजन
यू.जी.सी./ए.आई.सी. ई. द्वारा मनधाटररत मनयममत वेतनमान में मकया
गया है एवां िी राज्यपाल/कुलामधपमत के मवमधक परामशटदाता, उत्तर
प्रदेश के पत्र सांख्या ई-6983/जी.एस. मदनाांक 15 नवम्बर,
1995 के द्वारा रूहेलखण्र् मवश्वमवद्यालय में स्वपोमषत योजना के
अन्तगटत बी0टेक0 प्रारम्भ करने के सांबांध में पररमनयमावली में
सांशोधन की अनुममत प्रदान की गयी। (सांलग्नक-1) माननीय
कुलामधपमत द्वारा अपने मवमभन्न आदेशों में उक्त की व्याख्या Self
Maintained के रूप में की गयी है न मक Self Financed
(स्वमवत्त पोमषत) के रूप में। मवश्वमवद्यालय के समस्त सृमजत पद
चाहें वह मकसी भी मवभाग अथवा सांकाय के हों का सृजन इस
प्रमतबन्ध के साथ मकया गया है मक उनका मवत्तीय भार मवश्वमवद्यालय
अपने मनजी स्त्रोतों से वहन करेगा एवां सम्पूणट मवश्वमवद्यालय स्वपोमषत
है।

2.