SHIV SINGH NEGI Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner for a writ, order or direction in the nature of Mandamus to command the respondents to fix the pension of the petitioner also for the period between 1.7.1951 to 29.3.1978, which so far has been denied to the petitioner by the respondents.

(2.) THE case of the petitioner in brief is as follows :- In the erstwhile State of Uttar Pradesh primary school education was under a statutory body known as "Basic Siksha Parishad". THE petitioner was appointed on 1.7.1951 as a teacher in a primary school which was run by the said "Parishad", in district Pauri Garhwal. THEreafter, the petitioner was promoted on the post of Head Master in a primary school and later as an Assistant Teacher in a junior high school, which was also run by the "Parishad". While he was working as an Assistant Teacher, he went on a sanctioned leave between 1.9.1973 to 30.4.1974 to undergo some training course. Apart from this, there is a period between 1.5.1974 to 11.8.1974 which remained unexplained in the service record of the petitioner and this has been taken as a "break" in his service which has caused immense hardship and trouble to the petitioner for which he had to carry on this litigation for the last several years. THE case of the petitioner, as it is evident from his pleadings, particularly, his rejoinder affidavit and the documents filed before this Court, is that after the training was over the petitioner reported back to his duty on 1.5.1974 but the Head Master of the school refused to take joining from the petitioner and directed him that unless and until the Deputy Director of Education directs him to take the joining, the same will not be taken. In other words, the petitioner was not given a formal joining in the school in which he was working as an Assistant Teacher on 1.5.1974. Immediately thereafter, the petitioner was selected and appointed as Assistant Teacher, L.T. grade in a grant in aid inter college, namely, Ekeshwar Inter College, Ekeshwar on 12.8.1974. This grant in aid inter college was provincialised by the erstwhile State of Uttar Pradesh on 30.3.1978. THE petitioner continued to teach in the aforesaid inter college and reached his age of superannuation on 30.6.1991. THEreafter, all the petitioner got in terms of his pension and post-retirement benefits was the period which he had worked in the school between 30.3.1978 to 30.6.1991. In other words, the period in which he had worked in the school while it was grant in aid between 12.8.1974 to 29.3.1978 was not counted nor was his earlier service as a teacher in primary and junior high school under the "Parishad" was considered for pensionary benefits. However, the fact that generally the period of service as rendered by the petitioner is counted for pensionery benefit stands admitted, as in the counter affidavit, which the State Government has filed, a reliance has been placed upon a Government Order dated 18.10.1997, which is annexed as Annexure CA-2 to the counter affidavit, which was passed by the Joint Secretary of the Government of Uttar Pradesh. This Government Order states that those teachers who had earlier worked in grant in aid school as well as in any school under the Government including the schools under the "Parishad" shall be given the benefit of pension and their services shall be considered while fixation of their pension. However, the same Government order also clarifies that apart from other eligibility there has to be a continuity of service and the only break which is permissible in service would be that which is given to the Government employees in case of their transfer. On this admitted fact, the stand taken by the State Government is not that the period of service put in by the petitioner in schools run by "Parishad" as well as grant in aid cannot be counted. THE State admits that such a benefit is given to "eligible persons", but the petitioner is not eligible as there is a "break" in his service between 1.5.1974 to 11.8.1974. In the opinion of this Court, this stand of the State Government is wholly misconceived and has caused enough harassment and heart burning already to the petitioner. When on principle the respondent agrees that the benefit of past service of a teacher in a school under the "Parishad" as well as in grant in aid has to be given, the hyper-technical and legalistic obstacle raised by the State authorities and calling the period between 1.5.1974 to 11.8.1974 as "break in service" is wholly unjustified, particularly when this break has been explained when the petitioner reported for duties on 1.5.1974 but he was not given the joining by the Principal. A document has been annexed with his supplementary affidavit dated 1.5.1974 (Annexure- SA-1 which is a letter of the petitioner addressed to the District Basic Education Officer through the Principal which says that the petitioner is giving joining in the school on 1.5.1974. Further, there is a note on the letter of the Principal which says that the petitioner is giving joining in the school after a long leave and unless the petitioner presents himself before the Deputy Director of Education, his joining cannot be accepted. THErefore, in short, there was no fault on the part of the petitioner in reporting back for duties and the period between 1.5.1974 to 11.8.1974 which has been considered as break in service is wholly unacceptable. Even if it is a "break" it is liable to be condoned, under the facts and circumstances of the case.

(3.) THERE is another question which has to be decided by this Court i.e. as to which of the respondents is liable to pay the pension to the petitioner.