THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.332 OF 2004 DATED : 22.10.2009 BETWEEN Mrs.G.Nakshatram … Petitioner and State of Andhra Pradesh, rep. by its Secretary, Education Department, Secretariat Buildings, Hyderabad, And others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.332 OF 2004 ORDER: The petitioner is aggrieved by the proceedings of the Commissioner and Director of School Education, Andhra Pradesh, Hyderabad, in Rc.No.1732/R2-2/2002 dated 15.01.2003, whereby her request for re-computation of her pension was rejected. She seeks a declaration that she is entitled to count her entire service from 01.06.1962 to 28.02.2002 for the purpose of salary, emoluments, pension and pensionary benefits; and a consequential direction to the respondents to grant the said reliefs as prayed for, along with interest. As per the averments in the writ affidavit, the petitioner was appointed as a Teacher in a grant-in-aid post in Sacred Heart Upper Primary School, Kanchanapally, Warangal District, on 01.06.1962. She worked as such upto June, 1965 when the management transferred her to one of their other Schools viz., Jospeh Thambi Memorial School, Suryapet, Nalgonda District, in an unaided post. Her services were utilized in the said post from June, 1965 to June, 1967 and thereafter, she was transferred to St.Anthony’s Girls High School, Secunderabad, another School under the same Management. The petitioner claims that she was not aware as to the status of the posts to which she was transferred, in so far as their being aided/unaided is concerned. She retired from service on 28.02.2002 and the St.Anthony’s Girls High School, Secunderabad, the fourth respondent, submitted her pension proposals counting her entire service starting from the date of her initial appointment i.e., 01.06.1962 upto the date of her retirement. However, the District Educational Officer, Hyderabad, the third respondent, took into account the service rendered by her from 01.06.1962 to June, 1965 and from 01.11.1989 upto her date of retirement, stating that the rest of the service rendered by her was in unaided posts. Thereupon, the petitioner submitted representation dated 05.05.2002 to the District Educational Officer, Hyderabad, and she claims that the said Officer recommended her case to the Commissioner and Director of School Education, vide his letter dated 26.09.2002. However, the Commissioner and Director of School Education, Andhra Pradesh, by the impugned proceedings dated 15.01.2003, rejected her request to take into account the entire length of her service for the purpose of computing pension and pensionary benefits. Hence, this writ petition. In the counter affidavit filed on behalf of the official respondents, the District Educational Officer, Hyderabad, being the third respondent, admitted that the petitioner was appointed as a Teacher in a grant-in- aid post in Sacred Heart Upper Primary School, Kanchanapally, Warangal District, on 01.06.1962, worked in the said post till June, 1965 and was thereafter transferred to an unaided School under the same Management viz., Joseph Thambi Memorial School, Suryapet, Nalgonda District. The Officer also conceded knowledge of the fact that the petitioner was thereafter transferred to St.Anthony’s Girls High School, Secunderabad, in the year 1967 and that she retired from service in the said School on 28.02.2002. He however stated that the pension payable to the petitioner was to be computed on the basis of her aided service from 01.06.1962 to June, 1965 and from 01.11.1989 to 28.02.2002 only. Reference is made to the Government Memo No.2153/SS.2/91-4 dated 22.06.1992, wherein it was clarified that Teachers who were appointed prior to 01.04.1963 in an aided post and retired subsequently are alone eligible for pensionary benefits. It is stated that though St.Anthony’s Girls High School, Secunderabad, the fourth respondent, is one of the 18 specified Schools which were under aid prior to 1963-64 and the Management of this School had opted to go in for grant-in-aid, accepting its liability to pay 9.5% contribution, the petitioner was not appointed in the said School prior to 01.04.1963. It is further stated that Sacred Heart Upper Primary School, Kanchanapally, Warangal District, was not included in the 18 Schools and therefore the petitioner was not eligible to count her unaided service in the said School for the purpose of pension. Accordingly, the entitlement of the petitioner to seek pension and pensionary benefits, taking into account the said service, was denied. Heard Smt.M.Shalini, learned counsel for the petitioner and the learned Assistant Government Pleader for School Education for the respondent authorities. Smt.Shalini, learned counsel, stressed upon the fact that the petitioner had been appointed in a grant-in-aid post in Sacred Heart Upper Primary School, Kanchanapally, Warangal District, in the year 1962 and asserted that the petitioner could not be penalized for the action of the Management of the said School in transferring her thereafter to an unaided post. She pointed out that the admitted facts clearly establish that the petitioner was made to work in an aided post from 01.06.1962 upto June, 1965 and again from 01.11.1989 upto 28.02.2002, the date of her retirement. The learned counsel submitted that in such circumstances, her client could not be made to lose the benefits of the long service rendered by her under the same Management in different Schools. On the other hand, the learned Assistant Government Pleader for School Education contended that the petitioner was not entitled to ask for the counting of her unaided service in so far as computation of pension and pensionary benefits are concerned. He placed reliance on the Government Memo dated 22.06.1992, referred to in the counter affidavit, and also the provisions of the Andhra Pradesh Private Aided Educational Institutions Employees (Regulation of Pay) Act, 2005 (for brevity, ‘the Act of 2005’). The issue in the present case is whether the petitioner is entitled to seek the counting of her service in unaided posts from 1967 upto 1989 for the purpose of reckoning her pension and pensionary benefits? It is relevant to note that as per the Memo dated 22.06.1992, the Government clarified that Teachers who were appointed prior to 01.04.1963 in an aided post and retired subsequently were alone eligible for pensionary benefits. Such a benefit was not extended to Teachers who were appointed between 01.04.1963 and 01.04.1980, during which period Schools were out of grant-in-aid. In the present case, it is not in dispute that the petitioner was appointed in a grant-in- aid post on 01.06.1962, i.e., long before the date 01.04.1963 specified in the Government Memo. The clarification aforestated issued by the Government is not restricted to the 18 specified Schools in an earlier G.O. Therefore, the stand of the authorities shutting out the aided service rendered by the petitioner in Sacred Heart Upper Primary School, Kanchanapally on the ground that the said School is not one of the 18 specified Schools, cannot be accepted. That being so, this Memo is of no aid to the learned Assistant Government Pleader. The Act of 2005 was promulgated by the Government for the purpose of indicating clear guidelines for counting of aided service for fixation of pay, automatic advancement scheme, career advancement scheme and pension. Section 2(7) of the said Act defines ‘unaided service’ to mean service rendered by an employee of a private educational institution in a post prior to date of admission to grant-in- aid. Reliance is sought to be placed by the learned Assistant Government Pleader on Section 4(2) of the Act of 2005. Section 4 deals with abatement of claims and under clause (2) it states to the effect that no suit or other proceeding shall be maintained or continued by any employee of a private aided educational institution claiming the benefit of unaided service rendered in a post for the purpose of fixation of pay in the aided post or for reckoning of pension. However, Section 4(2) has to be read in tune with the other provisions of the Act of 2005. In this regard, Section 3 of the Act of 2005 is relevant. Section 3 states as hereunder: “3. Counting of service for fixation of pay, Automatic Advancement Scheme, Career Advancement Scheme and pension. Notwithstanding anything contained in any order of the Government or any judgment of any Court or Tribunal every employee of a Private Aided Educational Institution, shall from the date of approval of his appointment in an aided post, be eligible to count the service rendered after such date of approval, for fixation of pay in the said post and Automatic Advancement Scheme, Career Advancement Scheme, Pension made applicable or extended to such employee from time to time.” In the light of the aforestated provision, it is clear that an employee of a private educational institution whose appointment in an aided post has been approved, shall be entitled to count the service rendered after the date of such approval for fixation of pension also. As per the clear language of Section 3, once an employee’s appointment to a grant-in-aid post is approved, such employee is entitled to count the service rendered after the date of such approval for the purpose of fixation of pension. In the present case, it is not in dispute that the petitioner was appointed to a grant-in-aid post on 01.06.1962 and it is not the case of the authorities that the same was done without approval. That being so, Section 4(2) of the Act of 2005 does not come to the aid of the respondents and the case of the petitioner would squarely be covered by Section 3 alone. Being aware of the petitioner’s appointment in a grant-in-aid post on 01.06.1962 in Sacred Heart Upper Primary School, Kanchanapally, Warangal District, the respondent authorities ought to have taken up the issue with the Management of the said School in the event her transfer from the said post to an unaided post was in violation of guidelines. Having kept quiet all these years vis-à- vis the action of the Management of these Schools in transferring the petitioner from aided to unaided to aided posts as per its whims and fancies, it is not open to the respondent authorities to deny the petitioner, the hapless employee so transferred, the benefit of her lengthy service stretching over four decades. In such circumstances, the action of the Commissioner and Director of School Education, Andhra Pradesh, Hyderabad, the second respondent, in baldly rejecting the request of the petitioner for computation of pension taking into account the entire service rendered by her from 01.06.1962 upto the date of her retirement, is clearly unsustainable. The petitioner is entitled to count the entire length of her service from 01.06.1962 upto 28.02.2002 for the purpose of reckoning her pension and pensionary benefits. The respondents are accordingly directed to compute the pension and pensionary benefits payable to the petitioner taking into account the entire length of service rendered by the petitioner as aforestated and make the consequential payment to the petitioner within a period of two months from the date of receipt of a copy of this order. As the petitioner was unlawfully denied her lawful pension and pensionary benefits since 2002, the respondents shall also pay interest upon the amount payable in pursuance of this order at the rate of six per cent per annum. The writ petition is accordingly allowed but in the circumstances of the case, without costs. ____________________ SANJAY KUMAR, J. ______ October, 2009. VGSR