JAI DUTT BRIJWASI Vs. DIRECTOR OF EDUCATION

JUDGEMENT

(1.) The petitioner started his career as a trained teacher in the Nagar Palika Primary School, Railway Bazar, Haldwani, on 3.1.1951. He worked there till 29.8.1960. With effect from 30.8.1960 the petitioner joined the Nagar Palika Junior High School, Rajpura, Haldwani. He continued their till 29.7.1971. In the meantime in 1970, the petitioner acquired the B. Ed. degree. With effect from 30.7.1971 he joined the Nagar Palika Inter College.. Kathgodam. He retired from service on 30.6.1988. Upon his retirement, the retirement benefits were allowed to him only for the period from 30.7.1971 till 30.6.1988 during his service in the Nagar Palika Inter College, Kathgodam, as a separate and distinct service ignoring his services between the period 3.1.51 and 29.8.1960 in the Nagar Palika Primary School, Railway Bazar, Haldwani and for the period between 30.8.1960 and 29.7.1971 in the Nagar Palika Junior High School, Rajpura, Haldwani, The Petitioner has claimed retirement benefits in respect of the entire period of his career right from 3.1.1951 till 30.6.1988 by means of this writ petition.

(2.) Mr. T.S. Dabas, learned counsel for the petitioner contends that there was no break even for a single day in between any of the periods. He further points out that all these schools were being managed by the same Nagar Palika. In paragraph 4 of the writ petition it has been stated that both Kathgodam and Haldwani were managed by one common Nagar Palika. According to him, the petitioner was a teacher appointed by the Nagar Palika and was so transferred and promoted from one school to other under the said Nagar Palika, and, therefore, his service is continuous without any notional break and therefore the grant of retirement benefit only in respect of his service with the Inter College is wholly arbitrary and illegal. He relies on the provisions of the Rules of the U. P. School and College Teachers Gratuity Fund in order to contend that the petitioner's services in all the three schools are to be treated as continuous service in view of definition of "continuous service' contained in Rule 5 (2) of the said Rules. He then contends that similar benefit is to be made available to the petitioner in respect of other retirement benefits in view of the U. P. State Aided-Educational Institution Employees' Contributory Provident Fund-insurance-Pension Rules. He contends that continuous service has not been defined in the said Rules. In the absence of any such definition, the question is to be interpreted on the basis of the definition meant in the gratuity rules. Inasmuch as there cannot be two approach in respect of payment of retirement in respect of one person treating him to be in continuous service in respect of gratuity and treating differently in respect of pension and other retirement benefits. He also contends that the qualifying service as provided in Rule 19 (b) should be interpreted in commensurate with the definition of continuous service contained in gratuity rules so that both these rules are reconciled and are not in conflict with each other, since both the rules are dealing with the question of retirement benefit in respect of one or the other item. He contends further that as soon these rules have been interpreted, the petitioner though worked under the Municipalities he would no more be governed by the U. P. Municipal Board Educational Establishment Services Rules, 1954 because of a specific provision provided in Gratuity and Pension Rules respectively. He contends further that there being nothing provided in the Municipal Manual with regard to Gratuity and Pension and there being no express provision in the U. P. Municipal Board Education Establishment Services Rules, 1954 there cannot be any conflict between the 1954 Rules and the Gratuity and Pension Rules. The only provision that is included in the Municipal Manual is with regard to the General Provident Fund. There having been provided no provision with regard to the pension and gratuity and nothing having been mentioned in 1954 Rules with regard to pension and gratuity, the rules relating to gratuity and pension shall be applicable. He also relies on a circular dated 4.12.1978 in order to contend that the entire past service is to be taken into account. He relics on the decision in the case of Ramjee Das v. State of U. P. and others, (1997) (1) ESC 243 (All), in support of his contention.

(3.) Mr. K.R. Singh, learned standing counsel on the other hand contends that the petitioner cannot claim benefit of his past service since his employment in the Inter College being distinct and separate appointment, Therefore he is entitled to the service benefit only in respect of his service in the Inter College. He further contends that the petitioner was governed by the 1954 Rules which prescribes that service condition be governed according to the Municipal Manual Volume I. He cannot claim benefit in respect of the pension and gratuity in respect of his past service. According to him his past service was governed by the Basic Education Act. There is no scope for promotion or transfer from the Primary School or the Junior High School to the Inter College. He alternatively argues that even if he is eligible to pension and gratuity under the said rules the same is to be confined only with regard to the services of the petitioner in the Inter College and it cannot extend to his service either in the Junior High School or in the Primary School, According to him, there is no provision by which his past service could be taken into account for the purpose of calculation of retirement benefits.