# State of U.P. & Ors v. Uttar Pradesh Senior Basic Shikshak Sangh

- **Citation:** (2023) 9 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-30
- **Case number:** Special Appeal No. 29 of 2022
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-uttar-pradesh-senior-basic-shikshak-sangh-50779
- **Pages:** 20

## Headnote

A. Service Law - Constitution of India -
Article 14 & 16 - Right to equality -
Rational Classification - New Pension
Scheme - GO dated 08.04.2009 clarifying
to cover all such educational institutions,
which
came
under
grant-in-aid
subsequent to 01.04.2005, under the New
Pension Scheme (NPS) - Constitutional
validity
challenged
-
Classification
between aided and unaided institution -
Permissibility - UP St. Aided Educational
Institutions
Employees
Contributory
Provident Fund, Insurance Pension Rules,
1964 is made applicable only to aided
196 INDIAN LAW REPORTS ALLAHABAD SERIES
institution - Effect - Held, distinction
between the institutions receiving grantin-aid and un-aided is embedded in the
Pension Rules itself - When a new scheme
is introduced, a demarcation line has to be
drawn between the employees, who are
wholly covered under the existing scheme
and those who are not. While doing so,
the St. Government has not violated the
spirit of Articles 14 and 16 of the
Constitution of India either in the matter
of fixing the cut-off date or classifying the
educational
institutions.
The
St.
Government while issuing the clarificatory
order dated 08.04.2009 had in mind this
broad classification which does not offend
the rule of equality in any manner -
Classification made is rational and the
same
does
not
suffer
from
any
constitutional or legal infirmity. (Para 14,
31, 32, 35, 42 and 47)

Special Appeal allowed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,961 of 64,511. This is a partial read: ask again with offset=39961 for what follows._

9 All. State of U.P. & Ors. Vs. Uttar Pradesh Senior Basic Shikshak Sangh
195
Smt. Hansaguri P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimant to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
while disbursing the amount.

16.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.

17. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants. As
10 years have elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.

18. Record be sent back to the
tribunal.

19. This Court is thankful to all the
four learned counsels for getting this old
appeal disposed of.
----------
(2023) 9 ILRA 195
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.08.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 29 of 2022
with other connected cases

State of U.P. & Ors. ...Appellants
Versus
Uttar
Pradesh
Senior
Basic Shikshak
Sangh ...Respondent

Counsel for the Appellants:
Mohit Jauhari

Counsel for the Respondent:
Girish Chandra Verma

A. Service Law - Constitution of India -
Article 14 & 16 - Right to equality -
Rational Classification - New Pension
Scheme - GO dated 08.04.2009 clarifying
to cover all such educational institutions,
which
came
under
grant-in-aid
subsequent to 01.04.2005, under the New
Pension Scheme (NPS) - Constitutional
validity
challenged
-
Classification
between aided and unaided institution -
Permissibility - UP St. Aided Educational
Institutions
Employees
Contributory
Provident Fund, Insurance Pension Rules,
1964 is made applicable only to aided
196 INDIAN LAW REPORTS ALLAHABAD SERIES
institution - Effect - Held, distinction
between the institutions receiving grantin-aid and un-aided is embedded in the
Pension Rules itself - When a new scheme
is introduced, a demarcation line has to be
drawn between the employees, who are
wholly covered under the existing scheme
and those who are not. While doing so,
the St. Government has not violated the
spirit of Articles 14 and 16 of the
Constitution of India either in the matter
of fixing the cut-off date or classifying the
educational
institutions.
The
St.
Government while issuing the clarificatory
order dated 08.04.2009 had in mind this
broad classification which does not offend
the rule of equality in any manner -
Classification made is rational and the
same
does
not
suffer
from
any
constitutional or legal infirmity. (Para 14,
31, 32, 35, 42 and 47)

Special Appeal allowed. (E-1)

List of Cases cited:

1. Special Appeal No. 123 of 2013; U.P. Senior
Basic Shikshak Sangh Sindhi Vidyalaya Vs St. of
U.P. & ors.

2. Shailendra Daina & ors. Vs S.P. Dubey & ors.;
2007 (5) SCC 535

3. N. Suresh Nathan & anr. Vs U.O.I.& ors.;
1992 Supp. (1) Scc 584

4. Rajinder Singh (Dr.) Vs St. of Punjab & ors.;
2001 (2) UPLBEC 1502

5. Shyam Sadan Singh (Dr.) Vs Chancellor,
Deen Dayal Upadyyay University of Gorakhpur &
ors.; 2002 (1) UPLBEC 152

6. Girdhari Lal Shankwar Vs St. of U.P. & ors.;
2014 (1) UPLBEC 657

7. Narinder S. Chadha & ors. Vs Municipal
Corporation of Greater Mumbai & ors.; 2015
(33) LCD 1743

8. Buddhiram Vs St. of U.P. & ors.; 2013 (1)
ADJ 254

9. Sudhir Kumar Consul Vs Allahabad Bank;
(2011) 3 SCC 486

(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard Sri Sanjeev Singh, learned
Standing
Counsel
appearing
for
the
appellants-State authorities and Dr. L. P.
Misra along with Sri G.C. Verma, Sri J.B.S.
Rathour, Sri Vinay Misra, Sri P. K. Singh
Bisen, Sri Prashant Arora, Sri Samrendra
Nath Pandey, Sri Hari Prakash Yadav, Sri
Neerav Chaurasiya, Sri Krishna Madhav
Shukla, Sri Ajay Kumar, Pt. S. Chandra, Sri
Mohd. Ateeq Khan, Sri Shobhit Mohan
Shukla, Sri Prasiddha Narayan Singh, Sri
Ram Kumar Maurya, Sri Vindhya Washini
Kumar, Sri Ghaus Beg, Sri Umesh Kumar
Srivastava and Sri Pradeep Kumar Shukla,
learned
Counsel
appearing
for
the
respondents at length.

(2) In Special Appeal Defective No.
98 of 2022, the office has reported a delay
of 38 days.

(3) Having heard learned Standing
Counsel appearing for the appellants and
the learned Counsel for appearing for the
respondents and having gone through the
averments made in the application seeking
condonation of delay, we find that the delay
has
sufficiently
been
explained.
Accordingly, the prayer for condonation of
delay is allowed and the delay in filing the
special appeal is condoned.

(4) The aforesaid Special Appeals
have been filed under Chapter VIII Rule 5
of Allahabad High Court Rules, 1952
assailing the judgment and order dated
16.06.2021, as corrected vide order dated
07.07.2021 passed by the learned Single
Judge in a bunch of writ petitions, leading
Writ Petition No. 3458 (SS) of 2009, U.P.
9 All. State of U.P. & Ors. Vs. Uttar Pradesh Senior Basic Shikshak Sangh
197
Senior Basic Shiksha Sangh v. State of U.P.
and others, whereby the writ petitions filed
by the petitioners/respondents have been
allowed
with
certain
directions. The
operative
portion
of
the
impugned
judgment and order reads as under:-

"The respondents are directed to
treat the petitioners of the connected writ
petitions and members of association of
leading writ petition to be covered under
Old Pension Scheme and to pay pension to
the retired teaching and non teaching staff
accordingly. It is further directed to permit
the managements to deposit manager's
contribution with simple interest excluding
the deducted amount from each of the
petitioner within a period of two months
from the date of production of a certified
copy of this order and to reckon the service
rendered
by
the
petitioners
in
the
institutions from the date of their approval
to the appointment made on their respective
posts and to pay pension under OPS within
a further period of two months from the
date of production of a certified copy of this
order. In case the service required for
reckoning the qualifying service for the
payment of pension is insufficient, the
service rendered prior to taking into
consideration on grant in aid list shall be
counted for the purpose after deposit of
managers contribution and accordingly the
pension shall be released in their favour."

BRIEF HISTORY

(5) Before entering into the real
question involved in the bunch of these
intra-Court appeals, it would be apt to
narrate the chequered history of the dispute
as under:-

(a) One set of litigation traces its
origin at High Court, Lucknow, whereas,
the other having been instituted on the
same issue at High Court of Judicature at
Allahabad has also some bearing for the
purpose of deciding the present bunch of
Special Appeals and a brief discussion in
this regard would be inevitable.

(b) The writ petitions filed at
Lucknow were instituted ranging from the
year 2009 to 2021. Likewise, the writ
petitions instituted before this Court at
Allahabad were also filed from the year
2009 onwards.

(c) It is relevant to clarify at the
very outset that the institutions brought
under grant-in-aid prior to 01.04.2005
having a limited grievance as regards the
deposit of managerial contribution stood
distinguished for the reason that their case
was protected under the New Pension
Scheme (NPS) in its well-defined terms,
therefore, the issue of depositing the
managerial contribution was set at rest and
has been complied with leaving no scope
for any further adjudication and is not the
subject matter of adjudication in the present
bunch of Special Appeals.

(d) The present bunch of Special
Appeals, in fact, relates to the institutions
comprising of the teaching and nonteaching staff appointed therein which were
taken on grant-in-aid after the enforcement
of New Pension Scheme (NPS) w.e.f.
01.04.2005. The controversy might not
have arisen if these 1,000 educational
institutions had not been brought under
grant-in-aid as on 01.12.2006, wherein
these
teachers
working
in
the
said
institutions started agitating their grievance
in the representative capacity through U.P.
Senior
Basic
Shiksha
Sangh
and
individually too for protection of the
benefits under the Old Pension Scheme
(OPS) on various grounds.

(e) The classification spelt out in
the Government Order dated 08.04.2009
198 INDIAN LAW REPORTS ALLAHABAD SERIES
became the cause which the aggrieved
persons took up jointly and severally before
this Court through writ proceedings both at
Allahabad and Lucknow. A writ petition in
representative capacity was also filed by
U.P. Senior Basic Shiksha Sangh at
Lucknow.

(f) For drawing a clear picture of
litigation, it would be relevant to refer to
six writ petitions which were instituted at
Allahabad and came to be decided by a
common judgment rendered on 26.09.2012.
The relevant details with respect to the
aforesaid six writ petitions are described in
the chart below:-

ALLAHABAD

Sl.
No.
Particulars of writ
petition
Description
of Institution
as
on
01.04.2005
Date
of
Judgm
ent
Result
1
Writ-A No. 45217
of
2012,
Budhiram v. State
of U.P. and others
Unaided
26.09.
12

Dismis
sed
2
Writ-A No. 45229
of 2012, Yogndra
Nath Mishra v.
State of U.P. and
others
Unaided
26.09.
12
Dismis
sed
3
Writ-A No. 47000
of
2010,
Ram
Niranjan
Mishra
and another
Unaided
26.09.
12
Dismis
sed
4
Writ-A No. 55778
of
2010,
Ram
Yagya Shukla v.
State of U.P. and
others
Unaided
26.09.
12

Dismis
sed
5
Writ- A No. 47649
of 2012, Khyali
Ram v. State of
U.P. and others
Aided
26.09.
12

Allow
ed
6
Writ-A No. 44742
of 2012, Bhagwan
Das Maurya v.
State of U.P. and
others
Aided
26.09.
12
Allow
ed

(g)
The
aforesaid
six
writ
petitions were decided treating the case of
Budhiram as the leading writ petition. It is
also evident from the chart above that out
of these writ petitions, two writ petitions
which
were
allowed
related
to
the
institutions that were already under grantin-aid prior to 01.04.2005 and with respect
to the same, the controversy has already
been settled. Insofar as the four writ
petitions
which
were
dismissed
are
concerned, one of the petitioners, namely,
Ram Yagya Shukla instituted a Special
Appeal No.1843 of 2012 whereby the
common
judgment
and
order
dated
26.09.2012 was assailed and the same was
dismissed by a Division Bench of this
Court at Allahabad on 29.10.2012.

(h)
The
aforesaid
judgment
rendered on 29.10.2012 being relevant for
our purpose is reproduced hereunder:-

Heard learned counsel for the
parties and perused the order under appeal
whereby the bunch of writ petitions have
been dismissed by a common order.

Learned writ Court has come to
the conclusion that since the institution of
the petitioners have been included in grantin-aid list after 01.04.2005 when the new
pension scheme had been introduced, the
claim of the petitioners would be governed
under the new pension scheme.

Learned counsel for the appellant
has submitted that a more favourable
treatment
has
been
granted
to
the
employees
of
secondary
educational
institutions in the matter of grant of benefit
of old pension scheme. Our attention was
drawn to the averments made in paragraph
Nos. 19 and 20 of the writ petition which
run as follows :-

"19.
That
the
petitioner
is
attaching the departmental order dated
13.04.2007 and 30.03.2007 relating to
Secondary
Education
which
provides
9 All. State of U.P. & Ors. Vs. Uttar Pradesh Senior Basic Shikshak Sangh
199
counting of services rendered in unaided
institution and for deposit of CPF/GPF
with interest for getting the pensionary
benefits as Annexure No. 11 to this writ
petition.

20. That the last two lines of the
order
dated
08.04.2009
it
denies
pensionary benefits to all the employees of
the Institution which came into grant inaid-list after 01.04.2005 is illegal arbitrary
and violative of Article 14 of the
Constitution of India, hence liable to be
quashed."

On considering the aforesaid
submission and the averments extracted
above, we are unable to agree with the
submission that the respondents have made
any hostile discrimination against the
appellant. It is apparent from the pleadings
and materials on record that the benefits of
old pension scheme have been denied to all
the employees of the institutions which
came
into
grant-in-aid
list
after
01.04.2005.

We do not find any good reason
to take a different view than that of the writ
Court.

The appeal is devoid of merit and
is accordingly dismissed."

(i)
The
common
judgment
rendered
on
26.09.2012
was
also
challenged in Special Appeal Defective No.
388 of 2013, Budhiram v. State of U.P. and
others at Allahabad which was allowed in
terms of the order passed on 19.08.2017
which for ready reference is reproduced
below:

"Civil Misc. Delay Condonation
Application No. 111552 of 2013

Cause shown for the delay in
filing of the Special Appeal is to the
satisfaction of the Court.

Delay is condoned.

This application is allowed.

Order on memo of Appeal

The issue raised by means of the
present Special Appeal stands decided
under the Division Bench judgment of this
Court dated 22 September 2016 passed in
Special Appeal Defective No. 560 of 2016
connected with Special Appeal Defective
No. 561 of 2016 filed by the State of U.P.

In view of the said judgment, this
Appeal is also disposed of for the same
reason and with same directions. The
impugned order dated 26.02.2012 is hereby
set aside.

Let the writ petition be listed
afresh before the learned Single Judge for
decision in the light of the observations
made in the judgment dated 22 September
2016.

This Special Appeal is allowed."

(j) The aforesaid order was
passed keeping in view the Division Bench
judgment of the High Court at Allahabad
passed on 22.09.2016 in two intra-Court
Appeals filed by the State i.e., Special
Appeal Defective No. 560 of 2016 decided
alongwith Special Appeal Defective No.
561 of 2016. According to the judgment
dated 22.09.2016 of which reference was
made in the above order, the Special
Appeal No. 388 of 2013 filed by
Budhiram which ought to have been
dismissed, yielded a fortuitous result.

(k) It is relevant to note that the
Division
Bench
judgment
passed
at
Allahabad on 22.09.2016 in the two intraCourt
appeals
filed
by
the
State,
significantly took note of two other
judgments viz the Division Bench decision
in U.P. Senior Basic Shiksha Sangh Sindhi
Vidyalaya as well as Budhiram (Single
Judge) both of which had set the
controversy at rest.

(l) The Division Bench judgment
dated 22.09.2016 somehow could not
mention the Division Bench judgment
dated 29.10.2012 whereby the Single Judge
200 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment in the leading case of Budhiram
was upheld with the dismissal of Special
Appeal No. 1843 of 2012 filed by similarly
situated person as compared to Budhiram
viz. Ram Yagya Shukla.

(6) Now coming to the pending
litigation at Lucknow, it is to be noticed
that the writ petition filed in representative
capacity by U. P. Senior Basic Shiksha
Sangh, i.e., Writ Petition No. 3458 (SS) of
2009 in the meantime was also dismissed
by the High Court at Lucknow on
04.01.2013. The judgment so rendered by
the learned Single Judge at Lucknow did
not derive its strength from the dismissal of
four similar Writ Petitions at Allahabad
vide judgment dated 26.09.2012 or the
dismissal of Special Appeal on 29.10.2012
arising therefrom filed by a similarly
situated person (Ram Yagya Shukla), i.e.,
Special Appeal No. 1843 of 2012. The
principle applied by the Writ Court at
Lucknow, however, stood in line with the
aforesaid judgments rendered at Allahabad.

(7) The U.P. Senior Basic Siksha
Sangh feeling aggrieved against the Writ
Court judgment dated 04.01.2013 chose to
institute Special Appeal No. 123 of 2013
before this Court at Lucknow and the same
was dismissed on merit by a detailed
judgment passed on 04.12.2015. This
judgment rendered in the case of U.P.
Senior Basic Shiksha Sangh on 04.12.2015
was the one which was relied upon by the
Division
Bench
at
Allahabad
while
allowing the two State intra-Court Appeals
vide judgment dated 22.09.2016.

(8) It is interesting to note that the two
State intra-Court Appeals which were
allowed on 22.09.2016 arose out of the two
anomalous orders passed by the Writ Court
on 18.04.2014 which were in conflict with
the judgment of Budhiram decided on
26.09.2012 whereby the four writ petitions
of
similarly
situated
persons
were
dismissed. The Division Bench while
allowing the State Appeals on 22.09.2016
held the Budhiram judgment to be a good
law and rightly so. The reason being that
the Budhiram judgment was already
upheld
by
the
Division
Bench
on
29.10.2012 as a result of dismissal of
Special Appeal No. 1843 of 2012 and
secondly, the Special Appeal No. 123 of
2013 filed by U. P. Senior Basic Shiksha
Sangh relating to the same issue was also
dismissed on 04.12.2015.

(9) It is a travesty of justice that
Special Appeal Defective No. 388 of 2013,
which
was
liable
to
be
dismissed,
fortuitously re-opened a closed controversy
by order dated 19.08.2017 quoted above.
The discrepancy becomes more evident
when the order passed on 19.08.2017 is
seen to have been driven in the light of the
judgment dated 22.09.2016 according to
which the appeal which ought to have been
dismissed stood allowed under some
illusion. The result of Special Appeals on
the same issue both at Lucknow and
Allahabad can be summarized in the chart
below:-

Sl.
No.
Particulars
of Special
Appeal
Place of
Institutio
n
Date of
impugne
d
judgme
nt
Result/ Date of
judgment
(1)
Special
Appeal
No. 1843
of
2012,
Ram
Yagya
Shukla v.
State
of
U.P.
and
others
Allahaba
d
26.09.12
(Budhira
m
judgment
)
Dismissed/
29.10.12
(2)
Special
Luckno
04.01.13 Dismissed/
9 All. State of U.P. & Ors. Vs. Uttar Pradesh Senior Basic Shikshak Sangh
201
Appeal
No. 123 of
2013, U.P.
Senior
Basic
Shiksha
Sangh
v.
State
of
U.P.
and
others
w
04.12.15
(3)
Special
Appeal
Defective
No. 560 of
2016,
State
of
U.P.
and
others
v.
Mahaveer
Singh
Yadav
alongwith
Special
Appeal
Defective
No. 561 of
2016,
State
of
U.P.
and
others
v.
Mahesh
Prasad
Srivastava
Allahaba
d

18.04.14 Allowed/
22.09.16
(4)
Special
Appeal
Defective
No. 388 of
2013,
Budhiram
v. State of
U.P.
and
others

Allahaba
d
26.09.12
(Budhira
m
judgment
)
Allowed/
19.08.17
(Fortui-tously)
(5)
Review
Applicatio
n No. 1502
of 2016 in
Special
Appeal
No. 123 of
2013, U.P.
Senior
Basic
Shiksha
Sangh
v.
State
of
U.P.
and
others
Luckno
w
04.12.15

Allowed/
07.11.19
(As a result of
order
dated
19.08.17)

(10) It is an unfortunate situation that
whatever was settled by two Division
Bench
judgments
dismissing
Special
Appeal No. 1843 of 2012 on 29.10.2012
(Ram Yagya Shukla vs. State of U.P.) and
Special Appeal No. 123 of 2013 filed by
the U.P. Senior Basic Shiksha Sangh on
04.12.2015 which guided to allow the two
State intra-Court Appeals viz., Special
Appeal Defective No. 560 of 2016
alongwith Special Appeal Defective No.
561 of 2016 by relying upon the above
decisions on 22.09.2016, yet the real effect
of law, was miserably misunderstood by
the Division Benches while remitting
Special Appeal Defective No. 388 of 2013
on 19.08.2017 and based thereon, allowing
the Review Application No. 1502 of 2016
thereafter on 07.11.2019. A fortuitous
situation sometimes cannot be ruled out in
judicial process and the mistake is
acknowledged.

(11) The re-opening of a closed issue,
in the aforesaid manner, both at Lucknow
and Allahabad in complete oblivion of
atleast two Division Bench judgments
rendered on 29.10.2012 and 22.09.2016 in
the
respective
Special
Appeals
was
erroneous particularly when both the
abovementioned judgments had become
final and were not assailed at all by the
affected teachers similarly situated.

(12) On an empirical analysis of the
judgment rendered in Review Application
No. 1502 of 2016 at Lucknow or the order
dated 19.08.2017 rendered in Special
Appeal No. 388 of 2013 at Allahabad, it is
quite clear that the applicability of New
Pension Scheme (NPS) enforced by the
State Government vide Government Order
202 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 28.03.2005 though adjudicated upon
finally was fortuitously re-opened in
respect of the unaided institutions brought
under grant-in-aid subsequent to the cut-off
date, i.e., 01.04.2005. The New Pension
Scheme (NPS) which was framed by the
State Government and made applicable
w.e.f. 01.04.2005 vide Government Order
dated 28.03.2005, for ready reference,
reads as under:-

"The
State
Government,
in
consideration of its long term fiscal interest
and following broadly the pattern adopted
by the Central Government, has approved
the following proposal of introducing a new
defined contribution pension system in
place of the existing defined benefit pension
scheme, for new entrants to the service of
the State Government and of all State
controlled autonomous institutions and
State
-
aided
private
educational
institutions where the existing pension
scheme is patterned on the scheme for
Government employees and is funded by
the
consolidated
fund
of
the
State
Government:-

(i) From 1st of April, 2005, the
new defined contribution pension system
would mandatorily apply to all new
recruits to the service of the State
Government and of all State controlled
autonomous/State
aided
private
educational institutions referred to above.
However, employees covered by the existing
pension scheme whose service would be of
less than ten years on 1st April, 2005 may
also voluntarily opt for the new pension
system in place of the existing pension
scheme.

(ii) Under the new defined
contribution pension system, the employee
would make a monthly contribution equal
to 10 percent of the salary and dearness
allowance.
A
matching
employer's
contribution would be made by the State
Government
or
by
the
concerned
autonomous institution/ private educational
institution. However, the State Government
would provide grant to the concerned
autonomous institution private educational
institution
for
making
employer's
contribution until the institutions is at a
position to make the contribution itself. The
contribution and investment returns would
be deposited in an account to be known as
pension tier I account. No withdrawals
would be allowed from this account during
the service period. The existing provisions
of defined benefit pension and GPF would
not be available to the new recruits
covered by the new defined contribution
pension system.

(iii) Since new recruits would not
be able to subscribe to GPF, they may also
have a voluntary tier II account, in addition
to the pension tier I account. However,
employer would not make contribution to
tier II account. The assets in Tier II account
would be invested/managed through exactly
the same procedure as for pension tier I
account. However, the employee would be
free to withdraw part of all the 'second tier'
of his money anytime.

(iv) Employee can normally exit
tier I of the pension system at the time of
retirement. At exit the employee would be
mandatorily required to invest 40 percent
of pension wealth to purchase an annuity
from a recognized insurance company so as
to provide for pension for the lifetime of the
employee and his dependent parents and
his spouse at the time of retirement. The
remaining pension wealth would, however,
be received by the employee as a lump sum
which he would be free to utilise in any
manner. In case of employee exiting the
pension tier I before retirement, the
mandatory annuitisation would be 80
percent of the pension wealth.
9 All. State of U.P. & Ors. Vs. Uttar Pradesh Senior Basic Shikshak Sangh
203

(v) There would be several
pension fund managers who would offer
mainly three categories of investment
options. The pension fund managers and
the record keeper would jointly give out
easily understood information about past
performance so that the employee is able to
make informed choices of the investment
options.

2.
The
effective
date
for
operationalization of the new pension
system shall be 1st of April, 2005."

(13) It is this New Pension Scheme
(NPS) application whereof has become a
subject matter of dispute. The scope of its
applicability is a bone of contention by the
teaching and non-teaching staff working in
about 1,000 educational institutions that
came to be brought within the wings of
grant-in-aid w.e.f. 01.12.2006 or thereafter.

(14) The real dispute revolves
round the interpretation made by the
State Government vide Government
Order dated 08.04.2009 whereby all such
educational institutions which came
under
grant-in-aid
subsequent
to
01.04.2005 were clarified to be covered
under the New Pension Scheme (NPS).

LEGAL PROVISIONS

(15) Briefly stated, the case of the
appellants/respondents is that in 1958,
Education Code was issued and on
17.12.1965, the State Government issued a
Government Order by which Uttar Pradesh
State
Aided-educational
Institution
Employees' Contributory Provident FundInsurance-Pension Rules, 1964 [here-inafter referred to as '1964 Rules'] were
framed. Thereafter, on 19.08.1972, Uttar
Pradesh Basic Education Act, 1972 [briefly,
it is stated as '1972 Act'] has come into
force. Later on, in the year 1975, the State
Government promulgated Uttar Pradesh
Recognized Basic Schools (Recruitment
and Conditions of Service of Teachers and
Other Conditions) Rules, 1975 [in short, it
is referred to as '1975 Rules'] in exercise
of powers conferred under Section 19 (1) of
the 1972 Act.

(16) On 10.03.1978, the State
Government issued a Government Order
wherein it was provided that the teachers of
the aided Junior High Schools who are
governed by the Triple Benefit Scheme of
1964 and who had either retired after
01.03.1977 or due to retire after 01.03.1977
may be given the pension at the rate
applicable to the employees of the State
Government on fulfillment of two primary
conditions - one is that these teachers with
effect from 01.03.1977 would be governed
by General Provident Fund, instead of
Contributory
Provident
Fund
and
accordingly,
GPF
amount
would
be
deducted
w.e.f.
01.03.1977
and
the
managerial
contribution
accrued
upto
28.02.1977 shall be deposited with the
Government alongwith interest there upon
and the next condition is that in case of
death of any teacher, the family of such
Teacher would neither be entitled for deathcum-gratuity nor family pension. The
Government Order has further envisaged
that the Triple Benefit Scheme dated
17.12.1965 and Appendix VIII of the
Education
Code
1958
would
stand
amended to the above extent.

(17) On 13.03.1978, the Uttar Pradesh
Recognized Basic Schools (Junior High
Schools) (Recruitment and Condition of
Service of Teachers) Rules, 1978 [shortly,
they are stated as '1978 Rules'] have been
promulgated. Simultaneously, in the same
year 1978, the State Government notified
204 INDIAN LAW REPORTS ALLAHABAD SERIES
Uttar
Pradesh
Junior
High
Schools
(Payment of Salaries of Teachers and Other
Employees) Act, 1978 [in brevity, it is
stated as '1978 Act'].

(18) On 13.06.1984, the State
Government
issued
Uttar
Pradesh
Recognized Basic Schools (Junior High
Schools) (Recruitment and Conditions of
Service of Ministerial Staff and Group 'D'
Employees) Rules, 1984 [for short, it is
referred to as '1984 Rules'].

(19) During the period 1989-1998,
several basic schools were established in
the State of U.P. On 23.05.1998, the State
Government issued a Government Order
whereby it has been provided that the
period which has been spent by the
teaching staff and non-teaching staff in a
Junior High School prior to the date on
which the said Junior High School was
granted grant-in-aid shall be reckoned for
the purpose of determining qualifying
service for pension provided that up-to-date
amount
of
Managerial
Contribution
Contributory Provident Fund alongwith
interest in respect of the said employee in
the G.P.F. Account is deposited by
31.03.1998. Thereafter, vide Government
Orders dated 17.02.1999 and 26.07.2001,
time limit for depositing the Managerial
Contribution accruing under Triple Benefit
Scheme with interest has been extended
upto
30.06.l999
and
31.03.2002
respectively.

(20) Thereafter, the State Government
issued
a
Government
Order
dated
05.02.2017
permitting
the
institutions
which were taken on grant-in-aid prior to
01.04.2005 to deposit the Managerial
Contribution
with
interest
latest
by
30.06.2017 in respect of duly selected
teaching and non-teaching staff of their
respective schools for the purpose of
counting the service rendered by them
when the schools were not on grant-in-aid.

(21) The issue in the present intraCourt Appeals relates to the educational
institutions brought under grant-in-aid
subsequent to 01.04.2005.

DISCUSSION IN THE CONTEXT
OF SUBMISSIONS MADE

(22) This Court may note that the
educational institutions in which the
members of U.P. Senior Basic Shiksha
Sangh
are
working
have
not
been
impleaded as a party. Moreover, all such
institutions are stated to have been brought
under grant-in-aid subsequent to the date of
enforcement of New Pension Scheme
(NPS) on 01.04.2005. The institutions
brought under grant-in-aid subsequent to
the cut-off date are now regulated under the
New Pension Scheme (NPS) by an order of
the State issued on 28.03.2005 clarified by
Government Order dated 08.04.2009.

(23) It was the clarificatory order
alone which was impugned by the U.P.
Senior Basic Shiksha Sangh and other
petitioners whose writ petitions having
been allowed by a common judgment
passed by the learned Single Judge on
16.06.2021 has given rise to the present
bunch of intra-Court appeals filed by the
State of U.P.

(24) Sri Sanjeev Singh, learned
Standing Counsel for the State has argued
that notwithstanding the fact that Special
Appeal No. 388 of 2013 and Review
Application No. 1502 of 2016 were
allowed, nevertheless, the binding effect of
the two judgments dated 29.10.2012 and
22.09.2016 deciding the respective Special
9 All. State of U.P. & Ors. Vs. Uttar Pradesh Senior Basic Shikshak Sangh
205
Appeals in favour of the State could not be
brushed aside by the learned Single Judge
for it being binding precedents on the issue
and a contrary view expressed by the
learned Single Judge is erroneous and was
impermissible under law.

(25) The next submission made by
learned Counsel for the State is to the effect
that in none of the writ petitions, the
aggrieved parties have questioned the
legality of New Pension Scheme (NPS)
enforced w.e.f. 01.04.2005, therefore, it
was not open to the learned Single Judge to
read down the New Pension Scheme (NPS)
contrary to the clarification made by the
State Government vide Government Order
dated 08.04.2009 on the premise of Rule 19
of 1978 Rules which has ceased to operate
w.e.f.
01.04.2005
by
a
retrospective
amendment in the said Rule remaining
unchallenged.

(26) The learned Counsel for the State
has also argued that the language of Rules 3
and 4 of 1964 Rules in unequivocal terms
says that the Old Pension Scheme (OPS)
would be applicable only to the institutions
already under grant-in-aid, therefore, once
the Old Pension Scheme (OPS) came to an
end on 01.04.2005, the resultant protection
cannot be extended to those institutions
which were brought under grant-in-aid
subsequent to the cut-off date. It has also
been argued by learned Counsel for the
State that the new entrants with respect to
educational institutions have to be given a
purposive interpretation and not the one as
the learned Single Judge has opined in the
impugned judgment.

(27) Learned Counsel for the State
has further argued that the argument of
discrimination advanced by the aggrieved
persons in the light of a cut-off date has no
basis once it is admitted that the institutions
came under grant-in-aid subsequent to the
date of enforcement of New Pension
Scheme (NPS), therefore, any challenge to
the clarificatory order issued on 08.04.2009
would not leave the scheme open for a
different interpretation particularly when
the
argument
of
discrimination
was
repelled under two binding precedents
already rendered.

(28) Per contra, learned Counsel for
the
private
respondents
have
subtly
restricted their argument by highlighting
that the limited controversy which was
delved into by the learned Writ Court is
evident from paragraphs 24 to 30 of the
impugned judgment and the same for
ready reference are extracted hereunder:

"24) Direction was issued by this
Court to the State Government for giving
information in regard to recommendation
made by respondent No.2 for extension of
date. Thereafter, the impugned order dated
08.04.2009 has been passed.

25) Assailing the impugned order,
submission of learned Senior Counsel for
the petitioners is that the impugned order is
neither policy decision nor government
order, therefore, the rider imposed in
regard to applicability of NPS upon the
petitioners is arbitrary and contrary to
applicable rules.

26) Their next submission is that
vide impugned order the Special Secretary
of State Government has tried to modify the
NPS implemented upon the employees who
entered in service on or after 01.04.2005.
In case of petitioners, in bunch of matters,
none of the petitioner has entered in service
on
or
after
01.04.2005.
Thus,
his
submission is that the impugned order is
contrary to NPS and cannot be modified by
206 INDIAN LAW REPORTS ALLAHABAD SERIES
an
executive
order
passed
by
the
respondents.

27) Their further submission is
that the impugned order overlooked Rule
19 of Rules of 1978. Rule 19 does not carve
out the distinction between aided and
unaided institutions. The Special Secretary
has also failed to appreciate the fact that
the service rendered by the teachers and
non teaching staff while the institution was
not on grant in aid list has been made basis
for taking the institution on the list of grant
in aid.

28) The State Government issued
government
orders
according
to
government order issued in year 1978 as
per scheme of 1965 and decisions were
taken for depositing the managerial fund in
regard to adding the service of teachers
and non teaching staff rendered by them
before providing grant in aid for payment
of pensionary benefits.

29) His further submission is that
the Special Secretary was having no
authority to add his own view by passing
the impugned order in the notification
dated 28.03.2005, whereby NPS was
enforced.

30) In support of his submissions,
he relied upon certain judgments, which
are as under:

i) U.P. Senior Basic Shikshak
Sangh Sindhi Vidyalaya Vs. State of U.P.
and others; Special Appeal No.123 of 2013.

ii) Shailendra Daina and others
Vs. S.P. Dubey and others; 2007 (5) SCC
535.

iii) N. Suresh Nathan and another
Vs. Union of India and others; 1992 Supp.
(1) Scc 584.

iv) Rajinder Singh (Dr.) Vs. State
of Punjab and others; 2001 (2) UPLBEC
1502.

v) Shyam Sadan Singh (Dr.) Vs.
Chancellor,
Deen
Dayal
Upadyyay
University of Gorakhpur and others; 2002
(1) UPLBEC 152.

vi) Girdhari Lal Shankwar Vs.
State of U.P. and others; 2014 (1) UPLBEC
657.

vii) Narinder S. Chadha and
others Vs. Municipal Corporation of
Greater Mumbai and others; 2015 (33)
LCD 1743."

(29) It is in the light of aforesaid
submissions and decisions referred to by
the Writ Court that learned counsel for the
respondents have defended the impugned
judgment passed by the learned Single
Judge.

ANALYSIS

(30) Having heard learned counsel for
the parties at length; the first question that
crops up is whether there lies any
distinction
between
the
institutions
operating under grant-in-aid and those
which
are
un-aided
as
far
as
the
applicability
of
pension
scheme
is
concerned. For this purpose, the Court
would refer to Rules 3 and 4 of Uttar
Pradesh State Aided-educational Institution
Employees' Contributory Provident FundInsurance-Pension Rules, 1964 which are
quoted 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
recognized 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;
9 All. State of U.P. & Ors. Vs. Uttar Pradesh Senior Basic Shikshak Sangh
207

(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 exercised shall
be final."

(31) From a plain reading of the
aforesaid Rules, it is clear that for the
purposes of Old Pension Scheme (OPS) a
clear distinction is drawn under the Rules
itself that the same shall apply to the
educational institutions operating under
grant-in-aid.

(32)

The
Writ
Court
while
appreciating the arguments advanced has
essentially ruled in favour of the petitioners
(respondents herein) on two basic grounds.
Firstly that the clarification of the New
Pension Scheme (NPS) by Government
Order dated 08.04.2009 is discriminatory
and secondly that there does not lie any
distinction
between
the
aided
and
unaided institutions for the purposes of
regulating the condition of pension.

(33) Taking up the question of
distinction between the two categories of
institutions first, it is to be noted that vide
Government
Order
dated
17.12.1965,
Triple
Benefit
Scheme,
i.e.,
(I)
Contributory
Provident
Fund,
(ii)
compulsory
Life
Insurance
and
(iii)
Pension including Family Pension was
introduced but this was made applicable
with effect from 01.10.1964 only to
Government aided institutions. Rules 3 and
4 of Chapter I of the Rules provide that the
said Rules shall apply to permanent
employees
serving
in
State
aided
educational institutions viz. (1) Primary
Schools; (2) Junior High Schools; (3)
Higher Secondary Schools; (4) Degree
Colleges and (5) Training Colleges run
either by a Local Body or by a Private
Management
and
recognised
by
a
competent authority.