COURT NO.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) 3040/2001 Tej Pal Singh Negi …….Petitioner Versus State of U.P. & Others ……Respondents Sri U.P.S. Negi, learned Counsel for the petitioner. Sri H.M. Raturi, learned Standing Counsel for the State of Uttarakhand. 24th April, 2008 Hon’ble P.C. Verma, J. Petitioner initially served as Instructor, Senior Grade-II for about 14 years w.e.f. 28.11.1960 to 20.9.1974 in the National Discipline Scheme of Government of India. It was a pensionable post. National Discipline Scheme was for imparting discipline and physical education to students in Government Schools as well as Government Aided Schools and Intermediate Colleges. In the year 1976, the said scheme was merged with Education Department of the State of Uttar Pradesh. 2. Pursuant to an advertisement for the post of Lecturer in DAV Intermediate College, Pauri Garhwal, the petitioner applied for the same through the proper channel. Petitioner was allowed to compete for the said post by the District Inspector of Schools, Pauri (respondent no. 4) on the condition that in case of final selection of the petitioner for the said post, he would have to resign. The petitioner was selected for the said post. He joined his new assignment on 21.9.1974 after resigning from the post of Instructor on 20.9.1974. 3. Petitioner retired from service on 30.6.1997 after attaining the age of superannuation. While calculating the qualifying service for the purpose of pension of the petitioner, the college authorities had taken into consideration the service rendered by the petitioner under the National Discipline Scheme and forwarded the same to the respondent no. 4, who also recommended the proposed pension and forwarded all pension papers to pension sanctioning authority. But the pension sanctioning authority did not include the period of service rendered by the petitioner under the National Discipline Scheme for calculating the qualifying service for the purpose of pension and sanctioned the pension of the petitioner excluding his past service. 4. Petitioner has filed a copy of the Government Order dated 22.11.1966 contained as Annexure No. 8, which provides that “resignation of an employee of an institution for taking up appointment in another institution shall not be construed as involving forfeiture of his past qualifying services for purposes of pension”. Petitioner has also filed another Government Order issued in the year 1980, which also provides for counting the past services for calculating the pension. The said Government Order is contained as Annexure 9 to the writ petition. 5. The petitioner was denied the benefit of past service for the purpose of pension on the basis of Government Order dated 18.10.1997 filed as Annexure No. 11 to the writ petition. By the said Government Order it was decided that the past services rendered in Government Departments, schools, colleges by the teacher or an employee of grant in aid institution shall be taken into account in calculating his pension but the condition stipulated in para 5 thereof extends this benefit only to those employees who retired on or after 18.10.1997 i.e. the date of issuance of this Government Order. Learned Counsel for the petitioner vehemently argued that this condition is clear cut violation of Article 14 of the Constitution of India. 6. Learned Counsel for the petitioner invited my attention to clause (b) of Rule 418 of Civil Service Regulations, which is reproduced as under: “Resignation of an appointment to take up another appointment, service in which counts, is not a resignation of the public service.” 7. It is well settled and it does not need restatement on my end that the classification made by the State on the basis of date of retirement among the similarly situated retired government servants is unreasonable and is opposed to the guarantees contained in Article 14 of the Constitution. In D.S. Nakara & Others v. Union of India reported in AIR 1983 Supreme Court 130, the Hon’ble Supreme Court has dealt with a similar question where benefits were made admissible to those who retired from service after a certain date. The Supreme Court held that the same was against the equality clause of Article 14 of the Constitution and observed as under: “If it appears to be undisputable, as it does to us that the petitioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalize the pension scheme, we find no rational behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalization was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worse off then those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension. ……….. A 48 hours’ difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Art. 14.” 8. The principle laid down by the Apex Court in the above authority will squarely apply to the facts of this case also and resultantly the past service rendered by the petitioner as Instructor in National Discipline Scheme, which was also a pensionable post, shall be counted for the purpose of giving him the pensionary benefits. 9. For all the reasons recorded above, the writ petition succeeds and is allowed. The respondents are directed to count the petitioner’s past service for pensionary benefits and treat the Government Order No. 1558/15-8- 97/3004(1)/94 dated 18.10.1997 in relation to the petitioner, as non-est. There shall be no order as to costs. (P.C. Verma, J.) Prabodh