# Udai Narayan Sahu v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 7 ILRA 1507
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-31
- **Case number:** Writ-A No. 8170 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-narayan-sahu-v-state-of-u-p-ors-opp-parties-52223
- **Pages:** 7

## Headnote

A. Service Law - Pension - A bare perusal
of the Rules makes it manifest that
deduction towards C.P.F./G.P.F. is not a
condition precedent for eligibility of an
employee for receiving pension. Therefore,
the mere fact that no deduction was made
towards G.P.F. from the salary of the petitioner
would not affect his eligibility to get pension
after his retirement. (Para 15)

The petitioner has expressed his willingness to
pay his contribution towards G.P.F., the reason
for non deduction of General Provident Fund
from the petitioner's salary was that although
the petitioner was in service since the year
2004, initially he was not paid salary and after
he was paid salary in compliance of the order
passed by this Court in Writ A No. 36436 of
2005, the same was not paid from the date of
his initial appointment. The petitioner was
compelled to file another Writ A No. 6461 of
2011 which was allowed with costs on
01.04.2016, after which he was paid salary from
the date of his initial appointment in the year
2004, but he was allotted a G.P.F. account
number only on 03.10.2022, when less
than
six
months
remained
to
his
retirement. The petitioner was not at all
guilty for non deduction of the amount of
G.P.F. contribution from his salary. (Para
16)

B. No person can be made to suffer for a
fault, for which he is not responsible.
Apparently, the petitioner was in no manner
responsible for non allotment of G.P.F. account
number and for non deduction of contribution
towards G.P.F. by the Authority is concerned.
Therefore, he cannot be penalized in any
manner for non deduction of General Provident
Fund for which he is not responsible. (Para 17)

C.
The
Contributory
Provident
Fund
Scheme
was
replaced
by
General
Provident Fund w.r.f 01.03.1977. It does
not apply to any teacher appointed after
31.03.1978, when Contributory Provident
Fund was no more in existence and it had
been substituted by G.P.F. Scheme. As the
petitioner was appointed in the year 2004 i.e.
much after the closure of the Contributory
Provident Fund Scheme and its replacement by
the G.P.F. Scheme, the provisions of the
aforesaid GO dated 31.03.1978 are not relevant
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
for deciding the claim of petitioner for payment
of retiral dues. (Para 18)

The petitioner would be entitled to receive the
amount of General Provident Fund and directing
the petitioner to deposit the amount merely for
the amount being refund to him immediately
thereafter, would not serve any purpose.
Therefore, this Court does not find it necessary
to direct the petitioner to deposit the amount of
GPF. (Para 19)

Writ petition allowed. (E-4)

The petitioner has prayed for issuance of
a direction to the respondents to pay
pension to him, as he has retired from
the post of Assistant Teacher L.T. Grade
in M.M. Ali Memorial Higher Secondary
School, Bekanganj, Kanpur Nagar and
has
sought
a
direction
to
the
respondents to permit him to deposit the
outstanding
amount
of
contribution
towards General Provident Fund (G.P.F.)
in case the same is to be treated as a
condition
precedent
for
sanction
payment of pension.

## Text

7 All. Udai Narayan Sahu Vs. State of U.P. & Ors.
1507
per the directions of the District Inspector
of Schools.

11. In view of the aforesaid
discussion, this Court is of the considered
opinion that the impugned orders dated
27.03.2024
and
15.04.2024
are
unsustainable in law.

12. Accordingly, the writ petition
is allowed.

13.

Both
the
orders
dated
27.03.2024 and 15.04.2024 passed by the
District Inspector of Schools, Badaun are
hereby quashed.

14. In case, any person affected by
the seniority list files an appeal under
Regulation 3(1)(f) of Chapter II of the U.P.
Intermediate Education Act, 1921 the same
will be decided in accordance with law,
without
being
influenced
by
any
observations made in this order.
---------
(2024) 7 ILRA 1507
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ-A No. 8170 of 2024

Udai Narayan Sahu ...Petitioner
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioner:
Siddharth Khare, Sr. Advocate

Counsel for the Opp. Parties:
C.S.C.

A. Service Law - Pension - A bare perusal
of the Rules makes it manifest that
deduction towards C.P.F./G.P.F. is not a
condition precedent for eligibility of an
employee for receiving pension. Therefore,
the mere fact that no deduction was made
towards G.P.F. from the salary of the petitioner
would not affect his eligibility to get pension
after his retirement. (Para 15)

The petitioner has expressed his willingness to
pay his contribution towards G.P.F., the reason
for non deduction of General Provident Fund
from the petitioner's salary was that although
the petitioner was in service since the year
2004, initially he was not paid salary and after
he was paid salary in compliance of the order
passed by this Court in Writ A No. 36436 of
2005, the same was not paid from the date of
his initial appointment. The petitioner was
compelled to file another Writ A No. 6461 of
2011 which was allowed with costs on
01.04.2016, after which he was paid salary from
the date of his initial appointment in the year
2004, but he was allotted a G.P.F. account
number only on 03.10.2022, when less
than
six
months
remained
to
his
retirement. The petitioner was not at all
guilty for non deduction of the amount of
G.P.F. contribution from his salary. (Para
16)

B. No person can be made to suffer for a
fault, for which he is not responsible.
Apparently, the petitioner was in no manner
responsible for non allotment of G.P.F. account
number and for non deduction of contribution
towards G.P.F. by the Authority is concerned.
Therefore, he cannot be penalized in any
manner for non deduction of General Provident
Fund for which he is not responsible. (Para 17)

C.
The
Contributory
Provident
Fund
Scheme
was
replaced
by
General
Provident Fund w.r.f 01.03.1977. It does
not apply to any teacher appointed after
31.03.1978, when Contributory Provident
Fund was no more in existence and it had
been substituted by G.P.F. Scheme. As the
petitioner was appointed in the year 2004 i.e.
much after the closure of the Contributory
Provident Fund Scheme and its replacement by
the G.P.F. Scheme, the provisions of the
aforesaid GO dated 31.03.1978 are not relevant
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
for deciding the claim of petitioner for payment
of retiral dues. (Para 18)

The petitioner would be entitled to receive the
amount of General Provident Fund and directing
the petitioner to deposit the amount merely for
the amount being refund to him immediately
thereafter, would not serve any purpose.
Therefore, this Court does not find it necessary
to direct the petitioner to deposit the amount of
GPF. (Para 19)

Writ petition allowed. (E-4)

The petitioner has prayed for issuance of
a direction to the respondents to pay
pension to him, as he has retired from
the post of Assistant Teacher L.T. Grade
in M.M. Ali Memorial Higher Secondary
School, Bekanganj, Kanpur Nagar and
has
sought
a
direction
to
the
respondents to permit him to deposit the
outstanding
amount
of
contribution
towards General Provident Fund (G.P.F.)
in case the same is to be treated as a
condition
precedent
for
sanction
payment of pension.

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Upon an oral prayer made by
learned counsel for the petitioner, he is
permitted to implead the Deputy Director
of Education (Secondary) Kanpur Region,
Kanpur as opposite party no. 7.

2. Heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri Siddharth
Khare, learned counsel for the petitioner
and Sri Saurabh, learned counsel appearing
for respondents no. 1 to 5.

3. By means of the instant writ
petition filed under Article 226 of the
Constitution of India, the petitioner has
prayed for issuance of a direction to the
respondents to pay pension to him, as he
has retired from the post of Assistant
Teacher L.T. Grade in M.M. Ali Memorial
Higher Secondary School, Bekanganj,
Kanpur Nagar. The petitioner has also
sought a direction to the respondents to
permit him to deposit the outstanding
amount of contribution towards General
Provident Fund (G.P.F.) in case the same is
to be treated as a condition precedent for
sanction payment of pension.

4.

In
furtherance
of
an
advertisement issued by the Management
of M.M. Ali Memorial Higher Secondary
School,
Kanpur
Nagar
for
making
appointments
against
four
posts
of
Assistant Teacher L.T. Grade in the college,
the petitioner had participated in the
selection process and he was selected. An
appointment letter dated 06.11.2004 was
issued to him after seeking approval from
the District Inspector of Schools, Kanpur
Nagar. The petitioner joined his duties on
08.11.2004.

5. The District Inspector of
Schools passed an order dated 17.03.2005
declining sanction for payment of salary to
the petitioner. The petitioner filed Writ-A
No. 36436 of 2005, which was allowed by
means of a judgment and order dated
23.07.2009, passed by this Court directing
the D.I.O.S. Kanpur to reconsider the
petitioner's case.

6. The D.I.O.S. passed an order
dated 20.11.2009, sanctioning payment of
salary to the petitioner with effect from the
date of the aforesaid order. The petitioner
challenged the order dated 20.11.2009 by
filing Writ-A No. 6461 of 2011, which was
allowed with costs by means of a judgment
and order dated 01.04.2016 and the order
passed by the D.I.O.S., which limited in
payment of salary to the petitioner only
from the date of approval granted by him,
was quashed and it was ordered that the
7 All. Udai Narayan Sahu Vs. State of U.P. & Ors.
1509
petitioner would be paid salary since the
date of his joining i.e. on 08.11.2004.
Thereafter, the D.I.O.S. passed an order
dated 05.09.2016 ordering payment of
arrears of salary to the petitioner in
compliance of an order passed by this
Court. However, while paying salary to the
petitioner, no deduction was made towards
his contribution to the General Provident
Fund.

7. On 13.10.2022, the Finance and
Accounts Officer (Secondary Education),
Office of D.I.O.S. Kanpur sent a letter to
the Principal of M.M. Ali Memorial Higher
Secondary
School,
Kanpur
Nagar
informing that G.P.F. account No. 370407
had been allotted to the petitioner and it
was directed that 10% of the basic salary
payable to the petitioner be deducted
towards G.P.F. contribution. In reply to the
aforesaid letter, the Principal of the college
wrote a letter dated 19.10.2022 to the
Finance and Account Officer stating that
the petitioner was scheduled to retire on
31.03.2023 and as per the relevant Rules,
G.P.F. deduction stops six months prior to
his retirement. Merely 05 months and 13
days remained to petitioner's retirement
and, therefore, monthly deduction towards
G.P.F. contribution of the petitioner was not
permissible as per rules.

8. The college forwarded the
requisite papers for payment of pension to
the petitioner on 20.03.2023. The petitioner
retired on 31.03.2023, but pension has not
been paid to him and the instant writ
petition has been filed by the petitioner for
the aforesaid reason.

9. The D.I.O.S. has filed his
personal affidavit inter alia stating that the
Government
Order
dated
31.03.1978
provided for payment of pension to
teachers who had worked in Governmentaided secondary institutions and it further
provided that 10% of their basic salary
shall be deducted towards GPF. Since, the
G.P.F. account number was allotted to the
petitioner on 13.10.2022 and he was going
to retire on 31.03.2023 i.e. after merely 05
months and 13 days whereas as the rules
deduction of G.P.F. has to stopped six
month prior to the date of retirement of a
teacher, no deduction towards G.P.F. could
be made from the petitioner's salary and
pension is not payable to him for this
reason.

10. A copy of a Government Order
dated 31.03.1978 has been annexed with
the personal affidavit of the D.I.O.S., which
provides that all the permanent, full-time
and regular teachers of aided Higher
Secondary Schools run and managed by
private managements or local bodies who
retire on 01.03.1977 or thereafter, will be
entitled to get pension at the same rate at
which it is payable to the teachers of
similar category of government schools.
This Government Order also provided that
in place of Contributory Provident Fund,
deduction towards G.P.F. will be made
from the salary of such teachers on the
rates
applicable
to
the
teachers
of
Government Schools. The contributions
made by the private managements or local
bodies towards Contributory Provident
Fund of such teachers till 28.02.1977,
alongwith interest accrued thereon, will be
deposited the Government treasury under a
specified account and no contribution will
be made by the Government / Management
with effect from 01.03.1977.

11. The aforesaid Government
Order dated 31.03.1977 further provided
that only such teachers would be entitled to
benefit of parity in pension, contribution
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
payable by the management / local body in
respect of whom and interest thereon is
deposited in the Government treasury.

12. The petitioner has retired while
working as an Assistant Teacher in a
private Government-aided High School and
payment of General provident fund from
insurance and pension to him is governed
by the provisions of U.P. General Provident
Fund, Insurance, Pension Scheme Rules.
Chapter III of the aforesaid rules deals with
General Provident Fund and Rule 6 falling
in this Chapter provides that: -

"6. The employee of the
State aided privately managed
institutions
as
well
as
the
employees
of
the
institution
maintained by a Local Body
shall continue to be governed by
the
existing
Contributory
Provident Fund Rules applicable
to them."

13. However, the Contributory
Provident Scheme ceased to exist with
effect from 28.02.1977 and it was replaced
by the General Provident Fund Scheme
with effect from 01.03.1977.

14. The relevant provisions of the
Uttar Pradesh State Aided-educational
Institution
Employee's
Contributory
Provident Fund-Insurance-Pension Rules
are being reproduced below: -

CHAPTER V

Pension

"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.
Note - (1) The age of compulsory
retirement of an employee shall be such a
prescribed in the relevant rules applicable
to him.
The date of superannuation shall
be reckoned from the date of birth of an
employee as entered in his Service Book or
other records. In case the year of birth only
is known, but not the month, the first July of
the year shall be taken as the date of birth,
similarly when both the year and the month
of birth are known, but not the date, the
16th of the month shall be taken as the date
of birth.
(2) An employee may retire from
service
voluntarily
any
time
after
completing 25 years of qualifying service,
provided that he shall give in this behalf a
notice in writing to the management at
least 3 months before the date on which he
wishes to retire.
18. The amount of pension that
may be granted shall be determined by the
length of qualifying service, vide Rule 31
below. Fractions of a year shall not be
taken into account in the calculation of
pension under these rules. Pension shall be
calculated to the nearest multiple to 5 paise
:
(a)
The
full
pension
admissible under these rules will
not be sanctioned unless the service
rendered
has
been
considered
7 All. Udai Narayan Sahu Vs. State of U.P. & Ors.
1511
satisfactory and is approved by the
Controlling Authority.
(b) If the service has been
thoroughly
satisfactory
the
authority sanctioning the pension
may order such reduction in the
amount as it thinks proper.
19. (a) Service will not
count for pension unless the
employee holds a substantive post
on a permanent establishment.
(b) Continuous temporary
or officiating service followed
without
interruption
by
confirmation in the same or
another post shall also count as
qualifying service. (See also C.S.R.
Para 422).
(c)
Leave
without
allowance, suspension allowed to
stand
as
a
specific
penalty,
overstayed of joining time or leave
not subsequently regularised, and
period of breaks in service shall not
be reckoned as qualifying service.
(d)
Period
of
breaks
between 2 periods of service due to
termination of service, for no fault
of the employee shall not be treated
as interruption involving forfeiture
of post qualifying service. In other
cases breaks due to other causes
shall result in forfeiture of past
service
unless
condoned
by
Government.
(e) Time passed on earned
leave shall fully count as qualifying
service, but time passed on other
kinds leave with allowances shall
count as qualifying service as
follows :
(i) If the total service is not
less.than 13 years, but less than 30
years, one year of such leave shall
count as qualifying service;
(ii) If the total service is not
less than 30 years, two years of
such
leave
shall
counts
as
qualifying service.
Notes -
(1)
The
term
'Earned Leave' means leave on full
average pay.
(2) In case of a married
woman employee time passed on
maternity leave may be allowed to
count
as
qualifying
service,
provided that the period covered by
such leave and also earned leave
shall not exceed what: would have
been admissible had she availed of
the whole of the earned leave to
which she was entitled under the
rules.
(3) 'Total Service' means
total service reckoning from the
date of commencement of service
qualifying
for
pension
and
includes periods of leave referred
to above.
(4) The service put in by an
employee before he has completed
18 years of age or after attaining
the age of superannuation unless
extended by competent authority or
on re-employment after retirement
shall not qualify for pension.
(5) The entry relating to
confirmation of an employee in the
service
book
shall
be
countersigned.
(6) In cases not covered by
these
rules
qualifying
service shall be determined
by Government and its
decision shall be final.
* * *

29. Cases requiring the
grant
of
any
concession
not
contemplated in these rules shall be
1512 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted
to
Government
for
orders.
* * *
34. In matters concerning
pension/family
pension
not
provided to specifically in these
rules, the. corresponding procedure
laid down in respect of State
Government
employees
shall
apply mutatis mutandis.

15. A bare perusal of the aforesaid
Rules makes it manifest that deduction
towards C.P.F./G.P.F. is not a condition
precedent for eligibility of an employee for
receiving pension. Therefore, the mere fact
that no deduction was made towards G.P.F.
from the salary of the petitioner would not
affect his eligibility to get pension after his
retirement.

16. Further, although the petitioner
has expressed his willingness to pay his
contribution towards G.P.F., the reason for
non deduction of General Provident Fund
from the petitioner's salary was that although
the petitioner was in service since the year
2004, initially he was not paid salary and
after he was paid salary in compliance of the
order passed by this Court in Writ A No.
36436 of 2005, the same was not paid from
the date of his initial appointment. The
petitioner was compelled to file another Writ
A No. 6461 of 2011 which was allowed with
costs on 01.04.2016, after which he was paid
salary from the date of his initial appointment
in the year 2004, but he was allotted a G.P.F.
account number only on 03.10.2022, when
less than six months remained to his
retirement. The petitioner was not at all guilty
for non deduction of the amount of G.P.F.
contribution from his salary.

17. It is a rudimentary principle of
law that no person can be made to suffer
for a fault, for which he is not responsible.
Apparently, the petitioner was in no manner
responsible for non allotment of G.P.F.
account number and for non deduction of
contribution
towards
G.P.F.
by
the
Authority is concerned. Therefore, even if
deduction of G.P.F. contribution was
necessary, the petitioner was not at fault for
non-deduction thereof and he cannot be
penalized in any manner for non deduction
of General Provident Fund for which he is
not responsible.

18. The Contributory Provident
Fund Scheme was replaced by General
Provident
Fund
with
effect
from
01.03.1977. Clause 3 of the Government
Order dated 31.03.1978 referred to the
teachers, who were earlier covered by the
Contributory Provident Fund Scheme and
whose contribution had not been deposited.
It does not apply to any teacher appointed
after
31.03.1978,
when
Contributory
Provident Fund was no more in existence
and it had been substituted by G.P.F.
Scheme. As the petitioner was appointed in
the year 2004 i.e. much after the closure of
the Contributory Provident Fund Scheme
and its replacement by the G.P.F. Scheme,
the provisions of the aforesaid Government
Order dated 31.03.1978 are not relevant for
deciding the claim of petitioner for
payment of retiral dues.

19. Keeping in view the aforesaid
discussion, so far as the petitioner's offer of
depositing the amount of General Provident
Fund, this Court does not find it necessary
to direct the petitioner to deposit the
amount of General Provident Fund for
more than one reason. Firstly, the deduction
toward General Provident Fund is not a
condition precedent for eligibility to
receive pension. Secondly, the petitioner
was not at fault for non-deduction of the
7 All. Udai Narayan Sahu Vs. State of U.P. & Ors.
1513
contribution by the authorities. Thirdly,
having been retired, the petitioner would be
entitled to receive the amount of General
Provident Fund and directing the petitioner
to deposit the amount merely for the
amount being refund to him immediately
thereafter, would not serve any purpose.

20. Therefore, this Court finds no
reason to direct the petitioner to deposit his
contribution towards General Provident
Fund at this stage when he already stands
retired.

21. Keeping in view the aforesaid
discussion, the writ petition is allowed.

22. The respondents no. 2 and 7
are directed to ensure payment of pension
and its arrears to the petitioner within a
period of three months from the date of
receipt of a certified copy of this order.
----------