# Nand Lal v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 1005
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Writ-A No. 12070 of 2022
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nand-lal-v-state-of-u-p-ors-47928
- **Pages:** 16

## Headnote

Civil Law - Constitution of India,1950 -
Article 226 & 309 - U.P. St. Aided
Education
Institution
Employees
Contributory Provident Fund Insurance
Pension Rules, 1964 (Applicable Rules) -
Rules 2, 3, 4, 5 (g), 17, 19(a), 19(b), 21 &
34 - U.P. Secondary Education Services
Selection Board Act, 1982 - Section 33-G, -
U.P.
Retirement
Benefit
Rules,
1961
(Government Employees Rules) - Rule 2, 3
& 5(g) - Writ of Mandamus - Vacancies arose -
appointment through selection by Committee of
Management on ad-hoc - financial approval
granted by DIOS - Services of petitioners were
regularized - SU.P.erannuation - claim of retiral
dues including pension - Rejected - hence, writ
petition - court finds that, all the petitioners
were teachers working at St.-aided educational
institutions and not St.-owned institutions -
since Rules of 1964 applicable would be
applicable U.P.on the petitioners, not the Govt.
Employees Rules therefore, they are not,
'Officers' of St. Govt. - Policy St.ment contained
in G.O. was not the law - Moreover, modification
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
of Old Pension Scheme with respect to St.-aided
educational institutions made by executive
authority since was contrary to legislative action,
had no legal effect - U.P. Qualifying Services for
Pension & Validation Act, 2021 also does not
create any obstacle in the path of petitioners to
claim pension as they were not officers under
that law - since, petitioners' services were
regularised
as
permanent
employees
by
enforcement of Section 33-G read with Rules of
1964 which Rules were never amended - as
such, their eligibility and entitlement to pension
arising those rules remained preserved and
unaltered - held, order rejecting claim of
petitioners, set side - directions issued to
complete all the formalities to ensure pensionary
benefits within two months failing which petiti

Writ Petition Allowed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,955 of 53,359. This is a partial read: ask again with offset=39955 for what follows._

11 All. Nand Lal Vs. State of U.P. & Ors.
1005
conferred upon the High Courts under
Articles 226/227 and upon the Supreme
Court under Article 32 of the Constitution
is part of the inviolable basic structure of
our Constitution. While this jurisdiction
cannot be ousted, other courts and
Tribunals may perform a supplemental role
in discharging the powers conferred by
Articles 226/227 and 32 of the Constitution.
The Tribunals created under Article 323A
and Article 323B of the Constitution are
possessed of the competence to test the
constitutional
validity
of
statutory
provisions and rules. All decisions of these
Tribunals will, however, be subject to
scrutiny before a Division Bench of the
High Court within whose jurisdiction the
concerned Tribunal falls. The Tribunals
will, nevertheless, continue to act like
Courts of first instance in respect of the
areas of law for which they have been
constituted. It will not, therefore, be open
for litigants to directly approach the High
Courts even in cases where they question
the vires of statutory legislations (except
where the legislation which creates the
particular Tribunal is challenged) by
overlooking
the
jurisdiction
of
the
concerned Tribunal. Section 5(6) of the Act
is valid and constitutional and is to be
interpreted in the manner we have
indicated."

11. Therefore, in light of Section 14
of Act, 1985 as well as law laid down by
the Apex Court, there is no dispute on the
point that CAT is having absolute power to
hear the other cases of Central Government
Employee including quashing of office
memorandum, rules and regulations or
declare ultra vires.

12. Accordingly, the writ petition is
not maintainable and dismissed on the
ground of alternative remedy. However,
petitioner is at liberty to approach the
Central Administrative Tribunal, if so
desired.
----------
(2022) 11 ILRA 1005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ-A No. 12070 of 2022
Along with
Other Connected Cases

Nand Lal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Yadav

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950 -
Article 226 & 309 - U.P. St. Aided
Education
Institution
Employees
Contributory Provident Fund Insurance
Pension Rules, 1964 (Applicable Rules) -
Rules 2, 3, 4, 5 (g), 17, 19(a), 19(b), 21 &
34 - U.P. Secondary Education Services
Selection Board Act, 1982 - Section 33-G, -
U.P.
Retirement
Benefit
Rules,
1961
(Government Employees Rules) - Rule 2, 3
& 5(g) - Writ of Mandamus - Vacancies arose -
appointment through selection by Committee of
Management on ad-hoc - financial approval
granted by DIOS - Services of petitioners were
regularized - SU.P.erannuation - claim of retiral
dues including pension - Rejected - hence, writ
petition - court finds that, all the petitioners
were teachers working at St.-aided educational
institutions and not St.-owned institutions -
since Rules of 1964 applicable would be
applicable U.P.on the petitioners, not the Govt.
Employees Rules therefore, they are not,
'Officers' of St. Govt. - Policy St.ment contained
in G.O. was not the law - Moreover, modification
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
of Old Pension Scheme with respect to St.-aided
educational institutions made by executive
authority since was contrary to legislative action,
had no legal effect - U.P. Qualifying Services for
Pension & Validation Act, 2021 also does not
create any obstacle in the path of petitioners to
claim pension as they were not officers under
that law - since, petitioners' services were
regularised
as
permanent
employees
by
enforcement of Section 33-G read with Rules of
1964 which Rules were never amended - as
such, their eligibility and entitlement to pension
arising those rules remained preserved and
unaltered - held, order rejecting claim of
petitioners, set side - directions issued to
complete all the formalities to ensure pensionary
benefits within two months failing which petiti

Writ Petition Allowed. (E-11)

List of Cases cited: -

1. Sunita Sharma Vs St. of U.P. & ors. (Writ - A
No. 25431 / 2018 decided on 20.12.2018),

2. Shambhu Nath Prasad Vs St. of U.P. & ors. (Writ -
A No. 5951 / 2022 decided on 11.04.2022),

3. Ali Hussain Vs St. of U.P. & ors. (Writ - A No.
8214 / 2020 decided on 17.09.2021),

4. St. of U.P. & ors. Vs Sunita Sharma & anr.
(Special Appeal Defective No. 181 / 2020 -
decided on 11.06.2020),

5. St. of U.P. & ors. Vs Satya Prakash Singh &
anr. (Special Appeal Defective No. 158 / 2021-
decided on 19.02.2021),

6. St. of U.P. & ors. Vs Satya Prakash Singh &
anr. (SLP No. 13644 / 2021 decided on
22.07.2022),

7. Kamaluddin Vs St. of U.P. & ors. Vs St. of U.P.
& ors. (Writ - A No. 17042 / 2021 decided on
06.12.2021),

8. Prem Singh Vs St. of U.P.(2019 vol. 10 SCC 516),

9. Kaushal Kishore Chaubey & ors. Vs St. of U.P.
& ors. (Writ - A No. 58147/2020 decided on
08.10.2021),
10. Dr. Shushma Chandel Vs St. of U.P. & ors.
(2021 ILR vol. 9 Ald 1276),

11. Satyesh Kumar Mishra & ors. Vs St. of U.P. &
ors. (2016 Vol. 6 ADJ 808 LB),

12. Ajay Kumar Das Vs St. of Orissa (2011 Vol.
11 SCC 136),

13. St. of Karn. Vs Umadevi (2006 Vol. 4 SCC 1),

(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. Largely, the issue involved in this
batch of writ petitions is one. Accordingly,
with the consent of parties, all writ
petitions have been heard together. All
counsel were heard on the facts narrated in
the lead case - Writ A No. 12070 of 2022
(Nand Lal vs. State of U.P. & 4 Ors.).

2. Heard Sri Adarsh Singh, Sri
Sankalp Narain, Sri Siddharth Khare, Sri
R.K.Singh Kaosik, Sri Y.K. Srivastava, Sri
Pragyanshu Pandey, Sri Deo Prakash, Sri
Mahendra Singh, Sri Rajnish Kumar
Srivastava, Sri Anil Yadav, Sri Seemant
Singh and Sri Rajesh Kumar learned
counsel for the petitioners; Shri Neeraj
Tripathi, learned Additional Advocate
General along with Shri J.N. Maurya,
learned Chief Standing Counsel, Shri
Shashank
Shekhar
Singh,
learned
Additional Chief Standing Counsel and
Shri Chandan Kumar, learned Standing
Counsel for the State-respondents.

3. Material facts involved in Writ- A
No. 12070 of 2022 are described below.

4. In the year 1994, two vacancies
arose on the post of ad hoc teachers at the
institution,
Adarsh
Inter
College
Maharajganj - one occasioned by the death
(in harness) and the other upon promotion.
11 All. Nand Lal Vs. State of U.P. & Ors.
1007
Vide its first resolution dated 1.5.1994, the
Committee
of
Management
of
that
institution resolved to fill up those posts. It
was backed by a second resolution dated
15.1.1994
constituting
a
Selection
Committee. In compliance thereof, the
petitioner along with one Ram Shankar Rai
were appointed Assistant Teacher(s), on
19.6.1994. The Committee of Management
of the said institution then sought financial
approval from the District Inspector of
Schools, Maharajganj. It was granted on
22.10.1994. It is also not in dispute; the
present petitioner continued to function and
discharge his duties as Assistant Teacher at
the
above-described
institution.
Upon
amendment made to the Uttar Pradesh
Secondary Education Services Selection
Board Act 1982 (hereinafter referred to
as the Act) being U.P. Act no.7 of 2016,
section 33G was introduced in the Act. It
was enforced with effect from 22.03.2016.
In compliance thereof, a Divisional Level
Committee was constituted. Vide its
Resolution dated 22.8.2016, the said
Committee resolved to regularize the
petitioner Nand Lal with effect from
22.03.2016 i.e., by operation of law, arising
from the enforcement of Section 33G of the
Act, from that date. It is also not in dispute,
the petitioner continued to work till
31.02.2021 when he attained the age of
superannuation. All salary dues have been
computed and paid out to the petitioner,
accordingly.

5. The dispute that arises is - upon
his retirement, the petitioner claims
payment of retiral dues including (the
bone of contention), pension. That claim
has been declined. The petitioner is
aggrieved by the impugned order dated
27.6.2022 passed by Deputy Director of
Education, Gorakhpur, rejecting his claim
for payment of pension.

6. Similar fact situation obtains in the
other cases. In some cases, despite a
positive direction earlier issued by this
Court - to grant the benefit of retiral dues in
terms of still earlier decision of this Court
in Sunita Sharma vs. State of U.P. & 5
Ors., Writ- A No. 25431 of 2018 decided
on 20.12.2018, presently, by further order
passed by respondent authorities, that claim
has been declined. In still others, no orders
have been passed. Thus, the petitioners
claim a positive mandamus upon the
respondents to pay up the retiral dues,
including pension.

7. In Writ - A No. 14333 of 2022, the
earlier writ petition filed by the petitioner
Shambhu Nath Prasad being Writ-A No.
5951 of 2022 (Shambhu Nath Prasad vs.
State of U.P. & 5 Ors.) was disposed of by
order dated 11.4.2022 in terms of another
order dated 17.9.2021 in Ali Hussain Vs.
State of U.P. and Others, Writ-A No.
8214 of 2020, decided on 17.9.2021.

8. In such facts, Shri Adarsh Singh,
learned counsel for the petitioner has
referred to the order of this Court in Sunita
Sharma (supra). Upon due consideration
of the provisions of the U.P. State Aided
Educational
Institutions
Employees
Contributory
Funds
Insurance
and
Pension
Rules,
1964
(hereinafter
referred to as the 'Applicable Rules') as
distinct
from
the
Uttar
Pradesh
Retirement
Benefit
Rules,
1961
(hereinafter
referred
to
as
the
'Government Employees Rules'), it was
reasoned, the Rules applicable to the
petitioners in this batch of petitions would
be the 'Applicable Rules' and not the
'Government Employees Rules'. In the
hierarchy of laws, the 'Applicable Rules'
must be placed higher to the Government
Order dated 18.10.1997. Therefore, the
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules were fully enforceable, in its face.
Relevant to our purpose, it was finally
concluded, in that decision:

"Learned
counsel
for
the
petitioner
places
reliance
upon
the
provisions contained under Rule 19(b) of
the Rules of 1964, which is reproduced
hereafter:-.

(b) Continuous temporary or
officiating
service
followed
without
interruption by confirmation in the same or
another post shall also count as qualifying
service.

Rule 3 of 1964 Rules clearly
provides that these Rules shall apply to
permanent employees serving in the State
aided
educational
institution
of
the
category specified thereunder, be it run by
a local body or a private management, if it
is recognized by the competent authority
for the purposes of extending of grant-inaid. It is not in issue that the provisions of
Rules of 1964 are attracted in the facts of
the
present
case,
inasmuch
as
the
Institution is a recognized Institution,
wherein salary is being extended to
teaching and non-teaching staff by the
State by virtue of the provisions contained
in the Act of 1971. On the date of his
retirement, petitioner was a permanent
employee serving in aided educational
institution, which is recognized by a
competent authority for the purposes of aid.
Rule 19(b) of the Act would clearly come to
the rescue of the petitioner, inasmuch as it
clearly provides that continuous temporary
or officiating service followed without
interruption by confirmation in the same or
another post, shall also count as qualifying
service. Petitioner's engagement from 1996
till 2016, when she was regularized, would
be treated as continuous temporary service
followed
without
interruption
by
confirmation on same post. The adhoc
continuance followed with regularisation,
therefore would be covered within the
ambit and scope of Rule 19-B of the 1964
rules, and therefore, such period would
have to be counted towards qualifying
service for the purposes of payment of
pension etc.

Learned Standing Counsel has
not placed any provision whereunder the
Rules of 1964 have either been rescinded,
modified or substituted by any other
provision and the Rules of 1964 therefore
continues to remain in force.

So far as the Government Order
relied upon by learned Standing Counsel is
concerned, it is settled that in hierarchy of
laws a statutory Rule would stand at a
higher
pedestal
than
a
Government
instructions. Once the statutory Rules of
1964 remains in force and is attracted in
the facts of the present case, the provisions
of the Rules cannot be by passed merely by
relying upon a Government instructions.
The defence set up by the respondents,
therefore to non suit the petitioner cannot
be sustained. It appears that though U.P.
Retirement Benefits Rules, 1961 and other
like
provisions
were
amended
w.e.f.
1.4.2005, but no such amendment has been
incorporated in the Rules of 1964. As a
consequence, the benefits admissible under
the Rules of 1964 would continue to be
applicable upon teachers, who are covered
thereunder.

The view, which this Court
proposes to take, is also supported by a
judgment of the Division Bench in Special
Appeal (Defective) No. 678 of 2013 State of
U.P. through its Secretary Secondary
Education vs. Mangali Prasad Verma and
two others, wherein the benefit under the
Rules of 1964 have been made applicable
upon the respondents therein. Relevant
portion of the judgment of the Division
Bench is reproduced thereinafter:-
11 All. Nand Lal Vs. State of U.P. & Ors.
1009

"We may, however, clarify that
the Government Order dated 28.1.2004
which was so heavily relied upon by the
State Government does not alter the legal
position in any manner inasmuch as, the
applicability of Rules 1964 is not depended
upon any declaration being made by the
Governor or by the State Government. If a
teacher was working in an aided institution
prior to the date of his retirement
provisions of rules 1964 become applicable
by operation of law. The manner of
counting the qualifying service stands
explained under the Government Order
dated 26.7.2001.

We may also clarify that the
teachers and employees of institutions
which are brought on the grant-in-aid for
the first time on or subsequent to 1.4.2005
would be covered by the new scheme
enforced on 1.4.2005 and this judgment
will have no application in their case.

We may notice that similar view
has taken by the Division Bench of this
Court in the case of State of U.P. And 6
Ors Vs. Shir Krishna Prasad Yadav and 13
Ors being Special No.228 of 2016 decided
on 24.5.2017.

In view of the aforesaid, we find
no illegality in the judgment and order of
the
learned
Single
Judge,
it
is
accordingly, affirmed. The Appeal is
Dismissed."

In view of the discussions
aforesaid, it is clear that petitioner is
entitled to pensionary benefits under the
Rules of 1964 and for such purposes the
adhoc
continuance
from
1996-2016
followed with regularization would have
to be counted towards qualifying service
for sanction and fixation of pension. A
mandamus is issued accordingly to the
respondents for grant of pensionary
benefits to the petitioner. Necessary
order in that regard could be passed by
the competent authority within a period
of
three
months.
All
consequential
benefits would also be extended to the
petitioner within a further period of two
months thereafter."

9. Then, it has been shown, the said
decision was challenged in an intra-
Court appeal, before a division bench in
Special Defective No. 181 of 2020 (State
of
U.P.
Through
The
Secretary
Secondary
Education
Department,
Governmentt of U.P. & 4 Ors. vs.
Sunita Sharma & Anr.). Upon dealing
with the same objections, as have been
presently raised, the division bench ruled
as below:

"In
appeal,
the
argument
advanced by learned counsel for the
appellant
is
that
the
respondentpetitioner was working in an adhoc
capacity and, therefore, her service does
not fall within the category of temporary
or officiating service and as such Rule 19
(b) is having no application. We do not
find any merit with the arguments
advanced.
As
already
stated
the
appointment was given to the petitioner
against
a
permanent
vacancy
with
assertion in the order of appointment as
"adhoc".
However,
the
appointment
though said to be on ad-hoc basis but that
continued for two decades and ultimately
resulted into regularization in service.
The appointment, as such, was not a stop
gap
arrangement
but
in
temporary
capacity. The same falls under the
categories given in Rule 19(b) of 1964 for
the purpose of computing qualifying
service."

10. The fact that the petitioner in that
case had earlier worked in ad hoc capacity,
was found to be of no consequence to the
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
applicability
of
Rule
19(b)
of
the
'Applicable Rules'. Since the appointment
had been made against a permanent
vacancy, the mere mention of word ''ad
hoc', was found to be no legal consequence.

11. Referring to another division
bench decision of this Court in intra court
appeal in Special Appeal Defective No.
158 of 2021 (State of U.P. & 2 Ors. Vs.
Satya Prakash Singh & Anr.), it has been
next asserted, no reliance may be placed on
U.P. Qualifying Service for Pension and
Validation
Act
2021
(hereinafter
referred to as the 'Qualifying Service
Act'). It would not apply in the present case
since the initial appointment of the
petitioner was against a sanctioned post and
it was not contrary to the law. In fact, it
was in accordance with the law. That
decision is stated to have attained finality
upon dismissal of the Special Leave to
Appeal No. 13644 of 2021 (State of U.P.
& 2 Ors. Vs. Satya Prakash Singh &
Anr.), by the Supreme Court, vide order
dated 22.7.2022.

12. Adopting the submission so
advanced, Sri Sankalp Narain learned counsel
for the petitioner in Writ - A No. 12045 of
2022 would submit, all petitioners were
appointed under U.P. Secondary Education
Services
Commission
(Removal
of
Difficulties)
Order.
That
fact
itself
established - appointments were made wholly
in accordance with law. In fact, these
appointments had become necessary at the
relevant time, as educational institutions were
short staffed in teaching faculty owing to
factors that then existed. Only to tide over
that crisis, appointments were made against
permission
granted
by
the
statutory
authorities. Further, those appointments were
made wholly in accordance with law, after
following due procedure. All petitioners
continued to work for decades. No defect was
ever alleged or discovered in their initial
appointment. In such circumstances giving
effect to the provisions of Section 33G, their
services came to be regularised w.e.f.
22.3.2016.

13. Moreover, it has been strenuously
urged, a wholly artificial dispute is being
raised belatedly, after availing the services
rendered by the petitioners. All throughout,
the petitioners were paid full salary in the pay
scale admissible to regularly appointed
teachers, together with all increments,
promotions etc. In absence of any enabling
law, action taken by the respondents is
wholly discriminatory. Referring to the
'Applicable Rules', he would submit, the
same is a complete Code, amongst others, as
to entitlement and payment of pension.
Chapter-V of the 'Applicable Rules' provides
for eligibility to pension. It also defines
''qualifying service' necessary for the payment
of pension. It recognises and includes
temporary or officiating services followed
without interruption by confirmation in the
same or other post.

14. Thus, according to him, it is too
late in the day and impermissible in law for
the respondent authorities to relook the
status of the petitioners, through a different
pane. Once the petitioners acquired the
status of a regular employee, wholly in
accordance with law, the continuous
services rendered by them prior to their
regularisation cannot be dissected or
ignored for the purpose of their eligibility
to pension. Since the 'Applicable Rules' are
complete, the facts of the case do not
permit invocation of Rule 34 thereof. That
rule would apply to a case of an employee
or person whose case may not have been
specifically provided for or covered under
the 'Applicable Rules'.
11 All. Nand Lal Vs. State of U.P. & Ors.
1011

15. Last, he has placed reliance on
another decision of a learned single- judge
of this Court in Kamaluddin Vs. State of
U.P. and Others, Writ - A No. 17042 of
2021, decided on 06.12.2021 - to invoke
the general principle - even if the
'Government Employees Rules' were to be
looked into, the supervening circumstance
of the petitioners having worked for a long
duration of time would entitle them to
pensionary dues as was held by the
Supreme Court in the case of Prem Singh
Vs. State of U.P. (2019) 10 SCC 516,
which principle was also applied and
followed by a division bench of this Court
in Kaushal Kishore Chaubey and Others
Vs. State of U.P. and Others, Writ-A No.
5817 of 2020.

16. Sri Siddharth Khare learned counsel
for the petitioner appearing in Writ-A No.
14333 of 2022 would also adopt the
submissions noted above. He would further
submit; the rejection order is based on a
complete non-application of mind. Relying
strongly on another decision of a learned
Single Judge of this Court in Dr. Sushma
Chandel Vs. State of U.P. and Others, 2021
(ILR) 9 Ald 1276 as followed in Ali
Hussain (supra), it has been urged,
objections being now raised had been
specifically dealt with and answered against
the State. Those judgments were never tested
in appeal. They have long attained finality.
The effect of the 'Qualifying Service Act' was
also specifically considered in Dr. Sushma
Chandel (supra). It was held, the same could
not obstruct eligibility to pension under the
'Applicable Rules'. In addition, he would
submit, the 'Qualifying Service Act' would
apply to a case where qualifying service may
have been rendered on a temporary or a
permanent
post
at
a
government
establishment. Therefore, the status of the
employee at an educational institution would
not be covered thereunder.

17. Sri Kaosik, Sri Y.K. Srivastava, Sri
Pragyanshu Pandey, Sri Deo Prakash, Sri
Mahendra
Singh,
Sri
Rajnish
Kumar
Srivastava, Sri Anil Yadav, Sri Seemant
Singh, and Sri Rajesh Kumar learned counsel
for
the
petitioners
have
adopted
the
submissions noted above.

18. Opposing the writ petition, Shri.
Neeraj Tripathi learned Additional Advocate
General would submit, there can be no doubt,
the petitioners were appointed under the
Removal of Difficulties Order. However, it
has not been considered in any of the earlier
decisions (relied by learned counsel for the
petitioners), that those petitioners came to be
appointed against short-term vacancies that
existed for a period of six months or till the
employee in whose circumstance such
vacancy had arisen, failed to report back to
duty. Till that time had expired, the
permanent-appointed employee retained his
lien over the post occupied by the petitioners.
Without examining that issue, an omnibus
Mandamus may not be issued for payment of
retiral dues. In short, he would submit,
individual facts merit consideration before
the claim for payment of pension or retiral
dues may be allowed. Then, referring to the
'Applicable Rules', it has been submitted,
those are applicable only to "permanent
employees serving at State aided educational
institutions". Relying on Rule 5(g) of the
'Applicable Rules', it has been urged, none of
the petitioners became eligible to pension till
the time they became permanent employees.
Since that date fell beyond the cut-off date
i.e., 01.04.2005 when the New Pension
Scheme came into force, the petitioners
cannot
claim
retiral
dues
under
the
'Applicable Rules'.
1012 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Also, under Rule 19(a) of the
'Applicable Rules', service rendered would
not count for pension unless the employee
had held a substantive post on a permanent
establishment on 31.03.2005. Since the
petitioners came to first hold that post
beyond the cut-off date 01.04.2005, they
never became eligible to pension under the
'Applicable Rules'.

20. To bolster his submission, the
learned A.A.G. has referred to Rule 34 of
the 'Applicable Rules', that provides -
matters of pension/family pension not
specifically covered under the 'Applicable
Rules' would be governed by Rules and
corresponding procedure laid down in law
with
respect
to
State
Government
employees. Therefore, in is his submission,
it has completely escaped the attention of
the Court (in the earlier decisions referred
to leaned counsel for the petitioners), that a
statutory intervention had been made upon
publication of Notification No. Sa-3379/Ten-2005-301(9)/2003 dated 28 March
2005 whereby w.e.f. 01 April 2005 it was
clearly provided, a New Contributory
Pension Scheme would mandatorily apply
to employees of the State Government and
of the State aided private educational
institutions etc.

21. Corresponding to that change of
policy, statutory intervention followed.
First through Ordinance No. 19/20 and later
through 'Qualifying Service Act', the term
''qualifying service' was given the meaning
- services rendered against appointment on
a
temporary
or
permanent
post,
in
accordance with the provisions of the
service rules prescribed by the government.

22. To actualise that purpose, the
'Government
Employees
Rules'
were
amended vide Notification No. 3-469 dated
07.4.2005. By that, it was specifically
provided, the 'Government Employees
Rules' shall not apply to employees
entering service and post on or after
01.04.2005. The learned A.A.G. has now
relied on the language of Section 33G of
the Act. It is his submission that the date of
regularisation is the relevant date on which
the petitioners may claim to be born in the
cadre. That date (22.03.2016) being well
beyond the cut-off date i.e., 31.03.2005, the
petitioners can never claim entitlement to
payment of pension under the unamended
laws. The appointments granted to the
petitioners - post 01.04.2005, were the first
substantive appointment granted, that too
subject
to
successful
completion
of
probation.

23. Thus, it has been the submission
of learned A.A.G. - by virtue of Rule 34 of
the 'Applicable Rules' read with the
Government Notification dated 28.03.2005,
the amended ''Government Employees
Rules' and the ''Qualifying Service Act', the
petitioners' claim to pension under the
''Applicable Rules' stood overridden by a
non obstante clause employed by the
legislature in Section 2 of the 'Qualifying
Service Act' read with Rule 34 of the
''Applicable Rules'.

24. Further, the learned A.A.G. has
relied on another decision of a learned
single judge of this Court in Satyesh
Kumar Mishra And Others Vs. State of
U.P. And Others, 2016(6) ADJ 808 (LB).
Therein, persons who had joined as
Assistant Teacher after the cut-off date
01.04.2005, were held ineligible to pension
under the 'Applicable Rules'. In reaching
that conclusion, the learned single-Judge
had considered the effect of Government
Notification
No.
Sa-3-379/Ten-2005301(9)/2003
dated
28
March
2005.
11 All. Nand Lal Vs. State of U.P. & Ors.
1013
Decisions to similar effect of other learned
single-Judge bench of this Court have also
been referred to.

25. Last, in the alternative, it has been
submitted a clear cleavage of opinion has
arisen. The matter may, therefore, be
referred to a larger bench.

26. Having heard learned counsel for
the parties and having perused, in the first
place, the provision of Section 33G of the
Act to the extent it merits notice, reads as
below:

"Section 33-G. Regularisation of
certain more appointments against the
short term vacancies - Any teacher, other
than the Principal or the Head Master, who
-

(a) was appointed by promotion
or by direct recruitment in the lecturer's
grade or trained graduate grade on or after
August 7, 1993 but not later than January
25, 1999 against a short term vacancy in
accordance with paragraph 2 of the Uttar
Pradesh Secondary Education Services
Commission
(Removal
of
Difficulties)
(Second) order, 1981 as amended from
time to time, and such vacancy was
subsequently converted into a substantive
vacancy;

(b) was appointed by promotion
or by direct recruitment on or after August
7, 1993, but not later than December 30,
2000 on adhoc basis against substantive
vacancy in accordance with Section 18, in
the Lecturer grade or Trained Graduate
grade;

(e) Has been found suitable for
appointment in a substantive capacity by
the selection committee referred to in
clause (a) of sub-section (2) of Section 33C in accordance with the procedure
prescribed under clause (b) of the said subsection;Shall
be
given
substantive
appointments by the Management.

(6) The services of the adhoc
teachers and the teachers who have been
appointed against short term vacancies
shall be regularised from the date of
commencement of the Uttar Pradesh
Secondary Education Services Selection
Board (Amendment Act), 2016."

27. The date of enforcement of
Section 33G (6) of the Act is 22.03.2016.
Also, there is no dispute to the eligibility of
any of the petitioners - to regularization
from that date. In any case, the stage to
examine that issue is long past. It is an
undisputed
fact;
each
petitioner
was
regularized and has completed his term of
service - upon attaining the age of the
superannuation.
No
petitioner
was
terminated from service or offered like
punishment.

28. Thus, an automatic consequence
arose in law upon regularization offered
under Section 33G of the Act. The
petitioners earned the legal status of a
permanent employee with effect from
22.03.2016, being the date of enforcement
of Section 33G of the Act. That substantive
right got conferred long back could not be
and it has not been altered, till date.

29. Therefore, it is to be seen - which
law was in force on that date, and/or is in
force today, qua the eligibility to pension
claimed by the petitioners. The date of the
petitioners being born in the cadre would
be relevant, if a different law is found to
exist (as may govern the claim for pension
and retiral dues), should the date of
regularization be treated to be the date on
which the petitioners were born in the
cadre. It is so because, if the law i.e., the
'Applicable
Rules'
continued
to
be
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
enforceable on 22.03.2016, despite other
laws relied upon by the learned A.A.G.,
including Government Notification dated
28.03.2005 as has been given effect to by
the 'Qualifying Service Act' as also by
amending the 'Government Employees
Rules', that issue would remain an
academic issue. Therefore, it is the other
aspect of the submission advanced by the
learned Additional Advocate General that
merits consideration, first.

30. There can be no dispute to the
applicability of the fundamental principle.
It is unambiguous - in the hierarchy of
laws, at the top of the ladder is perched the
Constitutional law. Sitting at the next lower
step and therefore subservient to it is the
law enacted by the principal legislature,
followed on the next lower step, by law
made by a delegate of the principal
legislature. Only in the absence of enacted
law or a field lying unoccupied, any
notification issued by the executive in
exercise of power referable to Article 309
or like provision of the Constitution of
India, would come to full life. At the
first/lowest step (and therefore subservient
to all laws sitting above), sit executive
orders including Government Orders, that
may sometimes cause the effect of law,
subject primarily to absence of any
contrary law existing at any higher step of
the ladder.

31. The 'Applicable Rules' (of 1964)
and the 'Government Employees Rules' (of
1964) were both notified in exercise of
Article 309 of the Constitution of India. In
absence of any other law made on the
subject, either by the principal legislature
or its delegate, both sets of Rules noted
above were fully enforceable. Then, by
virtue of Rule 2 of the 'Government
Employees Rules', they applied to officers
under the rule making power of the
Governor. Rules 2 & 3 of those Rules
(unamended) read as below:

"2. Application.- (1) These rules
shall apply to all officers under the rule
making power of the Governor, other than
those who retired before the date of the
coming into force of these rules.

Provided firstly, that [a person
who was an officer]" on the date
immediately
preceding
the
date
of
commencement of these rules shall have the
option to elect for the existing pension rules
applicable to him, in which case he will not
be eligible for any of the benefits granted
under these rules except as provided in
Rule 11. The option shall be exercised
within a period of [six months] from the
date of notification of these rules in the
official Gazette. The option once exercised
shall be final."

3. Definition.- In these rules
unless there is anything repugnant in the
subject or context-

(6)
"Officer"
means
a
Government Servant (whether belonging to
superior or inferior service) who holds a
lien on a permanent pensionable post
under the Government or would have held
a lien on such a post had his lien not been
suspended."

32. On the other hand, Rule 3 of the
'Applicable Rules', apply to permanent
employees
serving
in
State-aided
educational
institutions,
of
specified
categories. Rule 3 and 4 of that set of Rules
reads as below:

"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
11 All. Nand Lal Vs. State of U.P. & Ors.
1015
recognised by a competent authority as
such for purposes of payment of grant-inaid;

(1) Primary Schools;

(2) Junior High Schools;

(3) Higher Secondary Schools;

(4) Degree Colleges;

(5) Training Colleges.

4. (a) These rules are intended to
the
employees
of
the
State
aided
educational institutions, three types of
service
benefits,
viz.,
Contributory
Provident Fund, Insurance and Pension
(Triple Benefit Scheme). The quantum of
the benefits and the conditions by which
they are governed are described in the
succeeding Chapters:

(b) An employee already in
permanent
service
on
the
date
of
enforcement of these rules shall be given an
option to elect these new rules or to
continue to be governed by the existing
rules applicable to him.

(c)
No
employees
shall
be
allowed option to choose only a part of the
scheme except as otherwise specifically
provided for in these rules.

(d) Option once exercise shall be
final."

33. Then, Rule 5(g) of the 'Applicable
Rules' reads as below:

"5(g)
''Employee'
means
a
permanently employed person borne on the
whole-time
teaching
or
non-teaching
establishment of an aided institution,
excluding (a) the inferior staff and (b) the
ministerial staff of institutions maintained
by a Local Body."

No doubt under the ''Applicable
Rules' an employee means a permanent
employee only, yet, it cannot be denied - on
the date of retirement, each petitioner was a
permanent employee upon regularization
granted under section 33G of the Act, w.e.f.
22.3.2016.

34. Then, Rules 17, 19 and 21 of the
''Applicable Rules' read as below:

"17.
An
employee
shall
be
eligible for pension on-

(i) retirement on attaining the age
of superannuation or on the expiry of
extension
granted
beyond
the
superannuation age.

(ii) voluntary retirement........

(iii) retirement before the age of
superannuation
under
a
medical
certificate.........

(iv) discharge due to abolition of
post or closure.........

Note- ..............

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."

21. An employee shall be eligible
for
superannuation/retiring/
invalid
pension only after completing 10 years of
qualifying service at 1/20 of his average
emoluments of the past three years for
every completed years of service subject
to..........................."

35. Thus, under the ''Applicable
Rules' specific to the claim of pension,
employees (such as the petitioners), could
gain eligibility to receive pension, on
attaining the age of superannuation by
virtue of Rule 17, subject to satisfaction of
Rules 19 and 21 of the 'Applicable Rules'.
Thus (i) the concerned employee should
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
have held a substantive post on a
permanent establishment, on the date of his
retirement. Then, relevant to the present
facts - (ii) such employee must have retired
after attaining the age of superannuation
and (iii) he must have performed 10 years
continuous service on the date of his
superannuation.

36. To the first condition noted above,
there can be no dispute. Even a days' length
of substantive post held before retirement,
preceded by fulfilment of condition of
''qualifying service' (as defined under the
''Applicable Rules'), would entitle a retired
employee to pension under those Rules.
Also, as to the second condition (noted
above), there is no dispute.

37. So far as the third eligibly
condition is concerned, per se, the two sets
of Rules noticed above, namely the
''Applicable Rules' and the ''Government
Employees Rules' operate on two different
and
mutually
exclusive
sets
of
persons/employees. Teachers at State-aided
educational institutions, not being ''officers'
as defined under Rule 3(6) of the
''Government
Employees
Rules',
were
never covered under that set of Rules.
Hence, on its own force, the amendment
made to Rule 2 of the latter Rules whereby
sub-Rule 3 was added, never became
applicable
to
teachers
at
State-aided
educational institutions, they being persons
governed by the ''Applicable Rules'. In
absence
of
any
amendment
to
the
''Applicable Rules', their eligibility and
entitlement to pension arising those Rules
remained preserved and unaltered.

38. As to the concept of ''qualifying
service' that may fructify the eligibility
(established by the employee) to an
entitlement to receive pensionary relief,
Rule 19(a) of the ''Applicable Rules' read
with Rule 21 thereof prescribe ten years'
continuous service. It is this eligibility issue
that Rule 19(b) addresses in the context of
the present petitioners. It includes therein
continuous temporary or officiating service,
followed
without
interruption,
by
confirmation, as the ''qualifying service'.
That condition stood satisfied, in case of
each petitioner. There is no dispute to that
fact either.

39. Seen in that light, Rule 19(b),
only furnishes a clarification that perhaps
became necessary - upon the language
employed by Rule 19(a) read with Rule 21
of the Rules. Therefore, Rule 19(b) enables,
substantive post held even for one day
preceded with continuous service rendered
as may add up to ten years in all, to be
eligibility to be earned by a retired
employee - to avail pensionary benefits
under the ''Applicable Rules'.

40. The policy statement contained in
the Government Order dated 28.03.2005
referred to by the learned Additional
Advocate General is clearly not the law.
Sitting at the lowest step of the law, it
never enjoyed any status as may have ever
allowed it to be read in preference over the
enacted law. Both 'Government Employees
Rules' and the 'Applicable Rules' were preexisting laws, made under Article 309 of
the Constitution of India. In neither case,
there existed any legislation either by the
principal legislature or its delegate. Hence,
they were and continue to be the binding
law.