# Smt. Vimla Devi Sharma v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 744
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-16
- **Case number:** C.M.W.P. No. 36320 of 2009
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vimla-devi-sharma-v-state-of-u-p-ors-43300
- **Pages:** 6

## Headnote

Rules
1964-Rule-18-Qualifying period of service
for pension-petitioner working assistant
teacher in primary section attached to
intermediate college-taken grant in aid
01.10.89-retired
on
30.06.2001-denied
2 All] Smt. Vimla Devi Sharma Vs. State of U.P. & Ors.
745
pensionary benefit as was working in boys
section while similarly situated other teacher
of girl wings given pensionary benefit-heldcut of date of G.O. 28.01.2004 already
quashed-as
per
rule
18
working
on
temporary or officiating service followed
without interruption by confirmation-would
be counted pension benefit.
Held: Para-21 & 22

## Text

744
 INDIAN LAW REPORTS ALLAHABAD SERIES
gratuity or leave encashment are not
bounty or grace but are earned by the
employee through the years of service of
a company. They are an employee's
security after retirement.
17. In Dr. Dudh Nath Pandey v. The
State of Jharkhand & Ors., 2009 (2) SLJ 105
(Jharkhand),
the
Division
Bench
of
Jharkhand High Court after scanning various
case laws on the subject held that the
conditions precedent for imposing penalty of
withholding pension is that there should be a
finding in departmental enquiry or judicial
proceeding that the pensioner committed
grave misconduct in the discharge of his duty
while in office. The Court held that leave
encashment also cannot be withheld since
that is paid in lieu of unutilized leave as it
partakes the character of salary.
18. In Dr. Dudh Nath Pandey v. The
State of Jharkhand (2007 (2) BLJR 2847),
the Full Bench of Jharkhand High Court has
held that there is no power for the
Government to withhold Gratuity and
Pension during the pendency of the
departmental
proceeding
or
criminal
proceeding. There is no power with the
government to withhold Leave Encashment
at any stage either prior to the proceeding or
after conclusion of the proceeding.
19. In the matter of leave encashment
the Full Bench of Punjab and Haryana High
Court in Punjab State Civil Supplies
Corporation Ltd. & Ors. v. Pyare Lal (Letters
Patent Appeal No.113 of 2012) has held that
the amount of leave encashment is payable to
the retiring employee notwithstanding the
pendency of the departmental enquiry or
criminal proceedings.
20. In the present matter, leave the
question of finding, even the proper
enquiry was not conducted. Only on the
basis of show cause the amount has been
withheld from the encashment without
giving any opportunity to the petitioner,
which is against the principle of natural
justice.
21.
In view of the above, the order
impugned dated 25.07.2007 cannot be
sustained and is hereby set aside. The writ
petition is allowed. The petitioner will be
entitled for all the retiral benefits, which is
due to him. The recovered amount shall be
paid to the petitioner alongwith 9% interest
calculated from the date, when it is payable
till the date of its actual payment. The same
shall be given to the petitioner within a
period of three months from the date a
certified copy of this order is produced
before the authority concerned.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2015
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
C.M.W.P. No. 36320 of 2009
Smt. Vimla Devi Sharma
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Ashok Khare, Sri Siddharth Khare
Counsel for the Respondents:
C.S.C.
Uttar Pradesh State Aided Educational
Institute
Employees
Contribution
Rules
1964-Rule-18-Qualifying period of service
for pension-petitioner working assistant
teacher in primary section attached to
intermediate college-taken grant in aid
01.10.89-retired
on
30.06.2001-denied
2 All] Smt. Vimla Devi Sharma Vs. State of U.P. & Ors.
745
pensionary benefit as was working in boys
section while similarly situated other teacher
of girl wings given pensionary benefit-heldcut of date of G.O. 28.01.2004 already
quashed-as
per
rule
18
working
on
temporary or officiating service followed
without interruption by confirmation-would
be counted pension benefit.
Held: Para-21 & 22
21. Rule-18 of the Rules, 1964 articulates
that the amount of pension that may be
granted shall be determined by the length
of qualifying service. Rule-19 contemplates
that the service will not count for pension
unless the employee holds a substantive
post
on
a
permanent
establishment.
However, in respect of temporary or
officiating service, it provides that the
continuous temporary or officiating service
followed
without
interruption
by
confirmation in the same or another post
shall also count as qualifying service.
22. From a simple reading of the aforesaid
provisions, it instantly brings out that a
teacher of the primary section is entitled for
pension in terms of the Rules, 1964 and the
Government Order dated 28th January,
2004 is merely clarificatory in nature.
Moreover, the cut-off date mentioned in the
said Government order has already been
struck down by this Court in Mangali Prasad
Verma (supra).
Case Law discussed:
Writ-A No. 17819 of 2007; Writ-A No. 28679
of 2009; W.P. No. 75746 of 2005; W.P. No.
17033 of 2012; 2009 (2) UPLBEC 1557.
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
1. The petitioner is a retired
Assistant Teacher of a Primary School.
She has moved this writ petition under
Article 226 of the Constitution for
issuance of a writ of certiorari to quash
the order dated 12th June, 2008 passed by
the Additional Director of Education
(Secondary), U.P., Allahabad, the third
respondent, whereby her representation
for sanction of pension has been rejected.
2.
The essential facts are that Gurukul
Sarvodaya Inter College, Panchali Khurd,
District Meerut1 is a recongnised educational
institution, wherein education is imparted from
Class-I to Class-XII. The Institution receives
the financial aid out of the State fund. It is
governed by the provisions of the Uttar Pradesh
Intermediate Education Act, 1921 (U.P. Act
No. II of 1921)2 and the Uttar Pradesh High
Schools and Intermediate Colleges (Payment
of Salaries of Teachers and other Employees)
Act, 1971 (U.P. Act No. 24 of 1971)3. Initially,
the primary section from Classes I to V,
attached to the Institution, was not receiving
grant-in-aid. It was first time brought on the
grant-in-aid list with effect from 01st October,
1989, therefore, it also came under the purview
of the Act, 1971.
3. The petitioner was initially appointed
as an Assistant Teacher in the primary section
of the Institution on 01st July, 1964. She
reached her age of superannuation on 30th
June, 2001. The grievance of the petitioner is
that she has not been sanctioned pension.
When several representations having been
made by the petitioner for sanction of pension
remained pending, the petitioner along with
four other similarly placed Assistant Teachers
of primary section of another institution,
namely, Gurunanak Girls Inter College,
Kankarkhera, Meerut approached this Court
under Article 226 of the Constitution by
means of Civil Misc. Writ Petition No. 1565
of 2008 (Smt. Sushila Thapar and others v.
State of U.P. and others). The aforesaid four
other Assistant Teachers, who joined the said
writ petition along with the petitioner, were
also appointed between 1966 and 1969 and
they retired from service between 2001 and
2002. The said writ petition was disposed of
by this Court vide order dated 09th January,
746
 INDIAN LAW REPORTS ALLAHABAD SERIES
2008 with a direction upon the authority
concerned to take appropriate decision in the
matter and pass a reasoned and speaking
order.
4.
After the order of this Court, the
petitioner submitted a detailed representation,
wherein she stated that there was regular
deduction from her salary against the
General
Provident
Fund
(GPF)
and
Insurance and she has submitted her option
for the pension. She had also cited the
examples of Sri Radhey Shyam Verma, who
was an Assistant Teacher in the Primary
Section
of
D.A.V.
Inter
College,
Kankarkhera, Meerut, and Sri Ajab Singh,
Assistant Teacher of Primary Section, who
were sanctioned pension on 15th March,
2004. In compliance of the order of this
Court dated 09th January, 2008, the third
respondent vide impugned order dated 12th
June, 2008 rejected the claim of the
petitioner, whereas he sanctioned the pension
to the co-petitioners (aforementioned other
four Assistant Teachers) of Writ Petition No.
1565 of 2008. In the impugned order the
only ground mentioned is that the petitioner
was appointed in the attached Primary
Section of a Boys Higher Secondary School,
whereas the other petitioners of the said writ
petition were appointed in the girls
institution. Against this background, the
petitioner has filed the present writ petition.
5. A counter affidavit has been filed
on behalf of the respondents, wherein it
has been admitted that the Institution is
governed by the provisions of the Act,
1971 and it is receiving financial aid from
the State fund with effect from 01st
October, 1989. It is also stated that the
petitioner has been receiving salary from
the salary-payment account of the State
since 01st October, 1989. The principle stand
taken in the counter affidavit, as averred in
paragraphs-6 and 11 thereof, is that by a
Government Order dated 28th January, 2004
the State Government has sanctioned the
benefit of pension, family pension, gratuity
and G.P.F. to the teachers of attached
boys/girls primary section from the date of
issuance of the said Government Order i.e.
28th January, 2004, and in view of the
provisions of the said Government Order, the
teachers who retired prior to enforcement of
the said Government Order are not entitled
for the pension. Therefore, as the petitioner
stood retired prior to 2004, the said benefit is
not applicable to her.
6. I have heard Sri Ashok Khare,
learned Senior Advocate, assisted by Sri
Siddhartha Khare, learned counsel for the
petitioner, and the learned Standing
Counsel.
7. Sri Ashok Khare submitted that the
petitioner is entitled to pension under the
provisions of the Uttar Pradesh State Aided
Educational
Institution
Employee's
Contributory
Provident
Fund-InsurancePension Rules, 19644, under which the
benefit of pension is available to all categories
of Government aided institutions and the
distinction sought to be drawn by the third
respondent is wholly misconceived and
artificial. He further submitted that the facts of
the identical matters in the cases of Sri
Radhey Shyam Verma and Sri Ajab Singh,
referred to above, have not been properly
addressed in the impugned order. Lastly, Sri
Khare has placed reliance on a judgment of
this Court in the case of Mangali Prasad
Verma v. State of U.P. and others5 and Sri
Krishna Prasad Yadav and others v. State of
U.P. and others6.
8. Learned Standing Counsel has
supported the reasons mentioned in the
impugned order and has also invited the
2 All] Smt. Vimla Devi Sharma Vs. State of U.P. & Ors.
747
attention of the Court to paragraphs-6 and
11 of the counter affidavit.
9. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
record.
10.
It is a common ground of the
parties that the petitioner was appointed as an
Assistant Teacher in the Primary Section of
the Institution on 01st July, 1964 and retired
on 30th June, 2001 and the Institution was
sanctioned the financial aid w.e.f. 01st
October, 1989. The State Government issued
a Government Order dated 28th January,
2004 to the effect that benefit of the pension,
family pension, gratuity and G.P.F. shall be
admissible to the teachers of the primary
sections attached to the higher secondary
schools with effect from the date of issuance
of the said Government Order.
11. The aforesaid Government Order
dated 28th January, 2004 came to be
considered by this Court in Mangali
Prasad Verma (supra) and this Court
found that the condition and the cut off
date mentioned in the said Government
order are arbitrary and discriminatory
amongst the teachers who retired before
28th January, 2004. The Court also found
that the said Government Order is only
clarificatory in nature. The relevant part
of the judgment is extracted hereunder:
"The condition and cut-off date
mentioned in the Government Order dated
28.1.2004 is arbitrary and discrimination
amongst the teachers who retired before
28.1.2004. The pension is not being
claimed or to be provided under the
Government Order dated 28.1.2004 but
that is only clarification. Merely due to
the fault from part of the respondents for
deduction from the salary of the petitioner
towards G.P.F., etc. and delay in issuing
the clarification, it cannot be accepted that
the petitioner is not entitled for the
pension under Rules, 1964, though it was
applicable to the Primary teachers as well
as teachers of the higher secondary
education."
12. In the said case, the Court has
relied upon earlier judgments of this
Court in the cases of Smt. Shanti Solanki
v. State of U.P. and others7, Lal Chandra
Singh v. State of U.P. and others8, and
Smt. Ram Keshi Devi v. State of U.P. and
others9.
13.
From the record it transpires that
when the order of this Court in Mangali
Prasad Verma (supra) was not complied
with,
a
contempt
proceeding,
being
Contempt Application (Civil) No. 6286 of
201310, was taken out by the petitioner
therein. My attention has been drawn to the
short counter affidavit filed by the State
authorities in the said contempt proceeding.
In paragraph-3 of the said short counter
affidavit, which was sworn by the Director of
Education (Secondary), U.P., Lucknow, it
has been stated that the State Government is
sympathetically considering the matter of
such teachers who have retired prior to
issuance of the Government Order dated
28th January, 2004 for making them entitled
to receive pension and there are several
thousands teachers who would get benefit if
the Government takes decision in their
favour.
A supplementary affidavit of
compliance was also filed in that case and the
pension was paid to the petitioner therein.
14. In the case of Mangali Prasad
Verma (supra) the facts were identical to
the case in hand. In the said case also the
primary section of the institution was
748
 INDIAN LAW REPORTS ALLAHABAD SERIES
brought on the grant-in-aid list on the
same date i.e. 01st October, 1989 and the
petitioner therein was appointed in 1961
in the primary section on the post of
Assistant Teacher and he retired on 30th
June, 1995. Thus, the law laid down in the
aforesaid case applies to the present facts
with full force.
15. In Sri Krishna Prasad Yadav
(supra) also similar issue was involved
and this Court following the decision of
Mangali Prasad Verma (supra), allowed
the claim of the petitioner therein.
16. In addition to above, the State
Government has framed the Rules, 1964 and
they have been made applicable w.e.f. 01st
October, 1964. These Rules have been made
applicable to the institutions run either by the
Local Body or by a private management and
recognised by the competent authority for the
purposes of payment of grant-in-aid. The
said Rules have been made applicable to the
following institutions:
(1) Primary Schools;
(2) Junior High Schools;
(3) Higher Secondary Schools;
(4) Degree Colleges; &
(5) Training Colleges.
17. Rule 4 of the Rules, 1964
provides three types of service benefits,
viz.,
contributory
provident
fund,
insurance and pension (Triple Benefit
Scheme). Rule 5(g) defines the word
"employee" in the following terms:
"(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 the institutions maintained by a Local
Body."
18. The expression 'Institution' has
been defined in Section 5(l) of the Rules,
1964, as under:
"(l) 'Institution' means an aided school
or college referred to in Rule 3 above."
19. Rule-5(p) of the Rules, 1964
gives the meaning of 'pension', thus:
"(p) 'Pension' means the pension
payable to an employee under the rules
Chapter V of these Rules."
20. Chapter V of the Rules, 1964
deals with the pension. Rule 17 prescribes
the eligibility for pension which, insofar
as is material for this case, reads as under:
"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
after
completing
25
years
of
qualifying
services;
(iii) retirement before the age of
superannuation under a medical certificate
of permanent incapacity for further
service; and
(iv) discharge due to abolition of post
or closure of an institution due to
withdrawal of recognition or other valid
causes."
21.
Rule-18 of the Rules, 1964
articulates that the amount of pension that
may be granted shall be determined by the
length of qualifying service. Rule-19
2 All] Surendra Nath Pandey Vs. State of U.P. & Ors.
749
contemplates that the service will not count
for pension unless the employee holds a
substantive
post
on
a
permanent
establishment. However, in respect of
temporary or officiating service, it provides
that the continuous temporary or officiating
service followed without interruption by
confirmation in the same or another post
shall also count as qualifying service.
22. From a simple reading of the
aforesaid provisions, it instantly brings
out that a teacher of the primary section is
entitled for pension in terms of the Rules,
1964 and the Government Order dated
28th January, 2004 is merely clarificatory
in nature. Moreover, the cut-off date
mentioned in the said Government order
has already been struck down by this
Court in Mangali Prasad Verma (supra).
23.
After careful consideration of the
matter, I am of the considered opinion that
the petitioner is entitled for pension and the
view taken by the third respondent is not
sustainable. Hence, the impugned order
dated 12th June, 2008 passed by the third
respondent is set aside. As no factual dispute
is involved in the matter and the impugned
order was based on misconstruction of the
Government Order dated 28th January, 2004,
wherein the cut off date has been fixed, no
useful purpose would be served to send the
matter back to the authority concerned for
consideration afresh as this Court has already
declared the cut off date as arbitrary in the
case of Mangali Prasad Verma (supra).
Accordingly, the respondents are directed to
extend the benefit of the Government Order
dated 28th January, 2004 and the Rules,
1964 to the petitioner for payment of pension
with effect from 30th June, 2001 within a
period of four months from the date of
communication of a certified copy of this
order. The petitioner is entitled for the arrears
of pension with interest at the rate of 9% per
annum with effect from 30th June, 2001 till
the date of actual payment. The respondents
are further directed to permit the petitioner to
deposit the Management's contribution, if not
already made, within a period of two months
and after deposit of the contribution, she will
be entitled for the pension, as directed above.
24. Accordingly, the writ petition is
allowed.
25. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2015
BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
C.M.W.P. No. 36900 of 2000
Surendra Nath Pandey
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri S.K. Mishra
Counsel for the Respondents:
C.S.C.
U.P. Police Officers of Subordinate Ranks
(Punishment and Appeal) Rule 1991-Rule4-Punishment withholding integrity-beyond
competence awarding minor or major
punishment- order being contrary to law is
nullity-quashed.
Held: Para-12
Imposing the punishment for a proved
delinquency is regulated and controlled
by the statutory rules. Therefore, while
performing the quasi-judicial functions,
the authority is not permitted to ignore
the
statutory
rules
under
which
punishment is to be imposed. The