IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7864 of 2008
=========================================================== The Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Sahid Jeet Singh Marg, New Delhi- 110016
.... Petitioner/ Original Respondent 2
1. Raghu Nandan Singh S/o Late Bhirgu Singh, permanent resident of Village- Bagwara, P.O. Suhird Nagar, P.S. Singhaul, O.P. District Begusarai, presently residing in Janki Niwas, Kachahari Road, P.O. Begusarai, P.S. Begusarai Town, District- Begusarai (Bihar)
.... Respondent 1st Set (original Applicant)
2. The District Education Officer, Begusarai (Bihar)
3. The Principal, Nationalized, J. L. High School, Sahebpur Kamal, District Begusarai ( Bihar)
.... Respondent 2nd Set (Original Respondents 7 and 8)
4. The Union of India represented through the Chairman of Kendriya Vidyalaya Sangathan, J.N.U. Campus, New Mehrauli Road, New Delhi- 110067
5. The Deputy Commissioner (Admn.), Kendriya Vidyalaya Sangathan, 18, Institutional Area, Sahid Jeet Singh Marg, New Delhi- 110016
6. The Assistant Commissioner (Personnel- Administration), Kendriya Vidyalaya Sangathan, 18, Institutional Area, Sahid Jeet Singh Marg, New Delhi- 110016
7. The Education Officer, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Sahid Jeet Singh Marg, New Delhi- 110016
8. The Section Officer, Kendriya Vidyalaya Sangathan (Central Grievance Cell), 18, Institutional Area, Sahid Jeet Singh Marg, New Delhi- 110016 =========================================================== Appearance :
For the Petitioner/s : Mr. G. K. Agrawal, Advocate Mr Kumar Ravish, Advocate
For the Respondent No.1 : Mr. Vivekanand Pd. Singh, Advocate For the Respondents No.2 & 3 : Mr Sunil Kr. Mandal, SC 24 Mr Bipin Kumar, AC to SC 24
=========================================================== CORAM: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH and
HONOURABLE MR. JUSTICE VIKASH JAIN
(Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH) Date: 09-05-2012
Heard learned counsel for the petitioner and learned counsel for the respondent no.1.
2. This writ petition has been filed by the Commissioner, Patna High Court CWJC No.7864 of 2008 dt.09-05-2012 2/ 8
Kendriya Vidyalaya Sangathan, New Delhi against order dated 4.8.2006 and 5.11.2007 passed in OA No.487 of 2004 and Review Application No.38 of 2007 respectively by the learned Central Administrative Tribunal, Patna Bench, Patna.
3. The Tribunal allowed the claim of the respondent no.1 a retired Principal of Kendriya Vidyalaya Sangathan (KVS) and directed for counting 9 years 5 months and 18 days of service rendered by the respondent/ applicant as qualifying service for the purpose of pension and determining his post retiral benefits accordingly. It is not in dispute that the respondent applicant was a teacher in J. L. High School, Begusarai during the period 17.1.1955 to 4.7.1964. He resigned from that post after he was selected as a Post Graduate Teacher in KVS. He joined under KVS on 7.7.1964. He earned promotion to the post of Vice Principal and Principal and retired from service on 31.12.1989. He received his pension on the basis of service rendered in KVS for a number of years and filed OA No.487 only in the year 2004 raising two grievances.
4. For redressal of his first grievance, he made a prayer for refixation of his pay for the period 1.1.1986 to 31.12.1989 on the ground that earlier pay fixation was erroneous. In respect of second grievance relating to calculation of earlier service for the purpose of pension, the prayer was for counting the period of service rendered by Patna High Court CWJC No.7864 of 2008 dt.09-05-2012 3/ 8
him in J.L. High School, Begusarai for the benefit of pension. The learned Tribunal found no mistake in fixation of pay as claimed by the applicant and hence, no relief was granted on that account. However, as noted above, the second relief has been allowed and against that the petitioner has preferred this writ petition. Prior to filing of this writ petition, the petitioner preferred a review application before the Tribunal bearing No.38 of 2007 but the same was dismissed on 5.11.2007.
5. It appears that after superannuating from service on 31.12.1989, the respondent applicant approached the authorities through representation for counting his past service in another school for the purpose of pension. Such representations said to have been filed in the year 1990 and later came to be rejected on 1.11.1996 vide Annexure-1. According to authorities, the benefit of past service could not count for enhanced pension as claimed by the applicant because the earlier school was not having the scheme of GPF/ CPF during the period of service of the applicant and (2) as per Government of India Rules, unless the previous institution was either a Government institution or an institution receiving grant-in-aid to the tune of more than 50 per cent, the previous service could not be counted for the purpose of pension.
6. The Tribunal has allowed the OA preferred by the Patna High Court CWJC No.7864 of 2008 dt.09-05-2012 4/ 8
respondent by relying upon paragraph 5 of OM No.28-10/84- Pension Unit dated 29.8.1984 issued by the Government of India, Department of Personnel and A.R. According to the Tribunal, paragraph 5 of the memorandum stipulates that where no terminal benefits for the previous service has been received, the previous service in such cases will be counted as qualifying service. Since, admittedly no terminal benefits were received by the applicant from previous service, the Tribunal accepted the case of the applicant for counting his previous service as qualifying service for pension.
7. On behalf of the petitioner it has been submitted that the OA was barred by limitation and the facts available on record show that the school in question was a privately managed school and the teachers at the relevant time were not in a pensionable establishment and the school was getting a meagre amount as aid by the State and not 50 per cent funding as required by the policy decision of the Central Government. In this regard our attention was drawn to circular dated 29.8.1984 contained in Annexure-3. It is not in dispute that by subsequent policy decision even employees moving from State Government or Autonomous Bodies under it having requisite qualification, to Central Government or Autonomous Bodies under it became entitled to the benefit of the circular dated 29.8.1984. The relevant circular in this context dated 7.2.1986 followed by other Patna High Court CWJC No.7864 of 2008 dt.09-05-2012 5/ 8
circulars have also been annexed as part of Annexure-3. The definition of Central Autonomous Body which could be applied to State Autonomous Body also describes such Body as one which is financed wholly or substantially from cess or State Government grants. "Substantially" means that more than 50 per cent of the expenditure of the Autonomous Body is met through cess or Government grants. From paragraph 5 of the circular dated 29.8.1984, it is evident that the employees of State Autonomous Body or State Government, as the case may be, who have already been sanctioned or have received pro- rata retiral benefits or terminal benefits for their past service will have the option either to retain such benefits and in that event their earlier service will not qualify for pension under the Body or the Government where they subsequently served or they will have the option to have the past service counted as qualifying service for pension under the Government organization in which case the pro- rata retirement or other terminal benefits, if already received by them, will have to be deposited along with interest thereon from the date of receipt of those benefits till the date of deposit in the Government organization. The right to count previous service as qualifying service shall not revive until the whole amount has been refunded. In case where pro- rata retirement benefits has been sanctioned but has not become payable, the concerned Patna High Court CWJC No.7864 of 2008 dt.09-05-2012 6/ 8
authority shall cancel the sanction as soon as the concerned employee opts for counting of his previous service for pension and information in this regard shall be given to the concerned employee in writing that his option has been accepted and sanction has been cancelled. Paragraph 5 (2) of the said circular postulates that where no terminal benefits for the previous service has been received, the previous service will be counted as qualifying service for pension only if the previous employer accepts pension liability for the service in accordance with principles laid down in the circular. There is an additional requirement in paragraph 6 that the concerned provisions in the circular will be applicable only where the transfer of the employee from one organization to another was/ is with the consent of the organization under which he was serving earlier.
8. In reply to the submissions noted above, it has been argued on behalf of the respondent that the transfer was after filing application through proper channel and, therefore, consent of the previous organization is apparent. It was then argued that subsequently the school in question was taken over as government school on 2.10.1980 and the teachers then working in the school came in pensionable establishment and hence, the applicant/ respondent should also be treated to have become entitled for pension in the earlier organization i.e. private school which was subsequently taken Patna High Court CWJC No.7864 of 2008 dt.09-05-2012 7/ 8
over by the Government and hence, the Tribunal has rightly permitted counting of his past service in the private school as qualifying service for pension under KVS.
9. Through second supplementary affidavit filed on behalf of the petitioner certain facts have been clarified after obtaining reply from the authorities related to the school where the applicant/ respondent was earlier working. The information has been annexed as Annexure-5 and described as check list. That shows that at the relevant time the institution was not in receipt of grants- in- aid rather it was in receipt of Rs.2000- 2500 only and teachers were paid DA at the rate of Rs.12/- per head per month. The information also reveals that GPF/ CPF was not introduced in the school during service time of the applicant/ respondent.
10. In our considered view, the Tribunal misread the stipulation and requirements mentioned in the circular of the Central Government dated 29.8.1984 read with circular dated 7.2.1986 and other relevant circulars which are part of Anenxure-3 series. Since the applicant/ respondent was not in a pensionable establishment and the school where he was earlier working did not even qualify to be treated as a State Autonomous Body, he was not entitled for counting of his service rendered in such a school as qualifying service for pension under the KVS. The impugned order of the Tribunal suffers from Patna High Court CWJC No.7864 of 2008 dt.09-05-2012 8/ 8
error of law as well as from apparent error in not appreciating the relevant facts. The submission on behalf of the respondent that earlier employees of the J.L. High School, Begusarai like the applicant/ respondent would gain by subsequent developments whereunder the school was taken over by the State Government, is found to be without any merits. The benefit of take over by the State Government can go only to the employees and teachers working in the school at the time of take over. It is also evident that claim of the applicant before the Tribunal was belated, stale and barred by limitation.
11. For the aforesaid reasons, this writ petition is allowed and the impugned order of the Tribunal is set aside. There shall be no order as to costs.
(Shiva Kirti Singh, J)
(Vikash Jain, J)