IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 71 of 2005 Dr. H.N. Dixit ……… Petitioner Versus State of Uttaranchal and others .……. . Respondents Present: Ms. Menka Tripathi, Advocate for the petitioner. Mr. H.M. Raturi, Standing Counsel for the State of Uttarakhand/respondent Nos.1, 3 & 6. Ms. Beena Pande, Standing Counsel for the State of U.P./respondent Nos. 2, 4 & 5. Coram:- Hon’ble Barin Ghosh, Chief Justice Hon’ble V.K. Bist, Judge Date : 03.09.2010 JUDGMENT Barin Ghosh, C. J. (Oral) For the period 10th July 1961 to 07th July 1964, the petitioner was a teacher in a private college, which was affiliated to Agra University. On 8th July 1964, the petitioner joined as a teacher in another private college, which too was affiliated to Agra University. Subsequently the college, in which the petitioner joined later, became affiliated to Kumaon University. On 26th March 1982, the said college was taken over by the Government of Uttar Pradesh. The petitioner, while such take over took place, was a teacher of the said college. Petitioner worked at the said college. In a writ petition, filed in the year 1982, petitioner and others contended that in accordance with the policy of the government, they are entitled to opt to become government employees since they are employed in a government college. This writ petition was decided on 18th November 1994. By the said decision, the petitioner and other similarly situated persons were given right to exercise option to become government employees for they were working in the college which was taken over by the 2 Government. The Government accepted the said decision and permitted the petitioner to exercise his option. The option of the petitioner was accepted some times in 1995. In accordance with the Rules governing government employees, the petitioner became obliged to retire at the age of 58 years, which age the petitioner reached some times in 1993. In view of the judgment rendered by the Allahabad High Court granting right to the petitioner to exercise option, the petitioner exercised his option and such option was accepted by the Government, while the petitioner continue to serve the college even after crossing the age of superannuation, which the petitioner could do had he not opted to become a government employee. At the time, when the petitioner retired, he was drawing a salary of ` 4825/- per month. At the time when he ought to have retired, i.e., on attaining the age of 58 years, he was drawing a salary of ` 4250/- per month. While the pension of the petitioner was settled, his last drawn salary of ` 4825/- per month was taken note of instead of ` 4250/- per month. As a result, the pension of the petitioner was settled at ` 2099/- per month instead of ` 1810/- per month. When it came to the notice of the State that a larger pension has been given to the petitioner, than what he was otherwise entitled to, steps were taken to correct the mistake. At that stage, the gratuity payable to the petitioner was calculated and it was held out that he was entitled to a sum of ` 61,625/- on that account. However, since the petitioner worked after attaining the age of superannuation and drew salary, the salary thus paid was decided to be recovered from the petitioner from the amount of gratuity. These are the principal issues in the writ petition. Before the Allahabad High Court rendered the said judgment, the right of the petitioner to exercise option to become a government employee had not been crystallized. Even thereafter, it was not obligatory on the part of the petitioner to exercise such option, which would make him a government employee, entailing retirement at the age of 58. The petitioner, at that stage instead of opting to become a government employee, could continue to serve the college upto the 3 age of 60 years. The petitioner opted to become a government employee and thereby accepted that he, in terms of such option could only work upto the age of 58 years. While he could only work upto the age of 58 years, in terms of the option exercised by him, he could only ask for fixation of his pension at the last drawn salary as on the date he had drawn immediately before attaining the age of 58 years. The petitioner admittedly worked subsequent to attaining the age of 58 years, which he could work if he had not opted to become a government servant, and accordingly, impliedly undertook to return what he had obtained subsequent to attaining the age of 58 years, and as such, a decision to recover the same from the gratuity of the petitioner, according to us, was not unjust and inappropriate. 2. Petitioner contends that the period he served the first private college from 10th July 1961 to 7th July 1964 should be added to the period of service rendered by the petitioner for the purpose of calculation of pension and gratuity. Petitioner has not been able to draw our attention to any decision of the Government which entails payment of pension to teachers of affiliated colleges. Therefore, in the event petitioner had worked in the said college and had not shifted to the taken over college, there is nothing before us which would show, that the petitioner was entitled to pension from the Government on attaining the age of superannuation. 3. The learned counsel for the petitioner has drawn our attention to a judgment of a learned Single Judge of Lucknow Bench of Allahabad High Court, and in particular, the quoted portion of paragraph 6 of a Government Order for the proposition that the Government has decided to add such service period while calculating pension. A look at the paragraph would make it absolutely clear that the said Government Order dealt with a particular college, namely, Sports College, Lucknow and had no relevance, whatsoever, to any other affiliated college. Furthermore, the said paragraph further makes it clear that the benefit, as was given to the petitioner for the services 4 rendered by him in the taken over college, was what had been contemplated in the Government Order referred in the said paragraph and not the benefit of services rendered by the petitioner to a private college before joining the taken over college. 4. We thus conclude the matter and dismiss the writ petition. hat qaccount ( V.K. Bist,J. ) ( Barin Ghosh, C.J.) 03.09.2010 P. Singh