Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) NO. 1402 OF 2004 Shiv Singh Negi ………..Petitioner. Versus State of Uttaranchal and others ……..Respondents. Mr. Raman Kumar Sah, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Ms. Beena Pande, Standing Counsel for the State of Uttar Pradesh. Sudhanshu Dhulia, J. This writ petition has been filed by the petitioner for a writ, order or direction in the nature of Mandamus to command the respondents to fix the pension of the petitioner also for the period between 1.7.1951 to 29.3.1978, which so far has been denied to the petitioner by the respondents. The case of the petitioner in brief is as follows :- In the erstwhile State of Uttar Pradesh primary school education was under a statutory body known as “Basic Siksha Parishad”. The petitioner was appointed on 1.7.1951 as a teacher in a primary school which was run by the said “Parishad”, in district Pauri Garhwal. Thereafter, the petitioner was promoted on the post of Head Master in a primary school and later as an Assistant Teacher in a junior high school, which was also run by the “Parishad”. While he was working as an Assistant Teacher, he went on a sanctioned leave between 1.9.1973 to 30.4.1974 to undergo some training course. Apart from this, there is a period between 1.5.1974 to 11.8.1974 which remained unexplained in 2 the service record of the petitioner and this has been taken as a “break” in his service which has caused immense hardship and trouble to the petitioner for which he had to carry on this litigation for the last several years. The case of the petitioner, as it is evident from his pleadings, particularly, his rejoinder affidavit and the documents filed before this Court, is that after the training was over the petitioner reported back to his duty on 1.5.1974 but the Head Master of the school refused to take joining from the petitioner and directed him that unless and until the Deputy Director of Education directs him to take the joining, the same will not be taken. In other words, the petitioner was not given a formal joining in the school in which he was working as an Assistant Teacher on 1.5.1974. Immediately thereafter, the petitioner was selected and appointed as Assistant Teacher, L.T. grade in a grant in aid inter college, namely, Ekeshwar Inter College, Ekeshwar on 12.8.1974. This grant in aid inter college was provincialised by the erstwhile State of Uttar Pradesh on 30.3.1978. The petitioner continued to teach in the aforesaid inter college and reached his age of superannuation on 30.6.1991. Thereafter, all the petitioner got in terms of his pension and post-retirement benefits was the period which he had worked in the school between 30.3.1978 to 30.6.1991. In other words, the period in which he had worked in the school while it was grant in aid between 12.8.1974 to 29.3.1978 was not counted nor was his earlier service as a teacher in primary and junior high school under the “Parishad” was considered for pensionary benefits. However, the fact that generally the period of service as rendered by the petitioner is counted for pensionery benefit stands admitted, as in the counter 3 affidavit, which the State Government has filed, a reliance has been placed upon a Government Order dated 18.10.1997, which is annexed as Annexure CA-2 to the counter affidavit, which was passed by the Joint Secretary of the Government of Uttar Pradesh. This Government Order states that those teachers who had earlier worked in grant in aid school as well as in any school under the Government including the schools under the “Parishad” shall be given the benefit of pension and their services shall be considered while fixation of their pension. However, the same Government order also clarifies that apart from other eligibility there has to be a continuity of service and the only break which is permissible in service would be that which is given to the Government employees in case of their transfer. On this admitted fact, the stand taken by the State Government is not that the period of service put in by the petitioner in schools run by “Parishad” as well as grant in aid cannot be counted. The State admits that such a benefit is given to “eligible persons”, but the petitioner is not eligible as there is a “break” in his service between 1.5.1974 to 11.8.1974. In the opinion of this Court, this stand of the State Government is wholly misconceived and has caused enough harassment and heart burning already to the petitioner. When on principle the respondent agrees that the benefit of past service of a teacher in a school under the “Parishad” as well as in grant in aid has to be given, the hyper-technical and legalistic obstacle raised by the State authorities and calling the period between 1.5.1974 to 11.8.1974 as “break in service” is wholly unjustified, particularly when this break has been explained when the petitioner reported for duties on 1.5.1974 but he was not given the joining by the Principal. A document has 4 been annexed with his supplementary affidavit dated 1.5.1974 (Annexure- SA-1 which is a letter of the petitioner addressed to the District Basic Education Officer through the Principal which says that the petitioner is giving joining in the school on 1.5.1974. Further, there is a note on the letter of the Principal which says that the petitioner is giving joining in the school after a long leave and unless the petitioner presents himself before the Deputy Director of Education, his joining cannot be accepted. Therefore, in short, there was no fault on the part of the petitioner in reporting back for duties and the period between 1.5.1974 to 11.8.1974 which has been considered as break in service is wholly unacceptable. Even if it is a “break” it is liable to be condoned, under the facts and circumstances of the case. There was no dispute that the petitioner joined a grant in aid inter college on 12.8.1974 which was subsequently provincialised in 1978. This Court has also been informed at the bar that during the pendency of the writ petition the period which the petitioner had worked in the school between 1974 to 1978 has now been calculated for his pensionary benefits. Therefore, the only dispute which remains is the period of service which the petitioner has put in as a teacher in primary and junior high school. There is no objection on record by the respondents where on principle they disagree that services of those teachers who have worked in school under the U.P. Basic Siksha Parishad will not be counted as far as the fixation of pension is concerned. The only objection raised by the State is break in service of the petitioner. The relevant paragraph in which these objections have been raised are paragraph 3 (iii) and 12 5 of the counter affidavit which are being quoted as follows :- “3. (iii) That the claim of the petitioner in the present writ petition for counting of service w.e.f. 1/7/1951 to 1973 is totally misconceived as the services rendered by the petitioner (as per record of service) is with the Basic Shiksha Parishad and the said services were not eligible services for pensionary benefit due to his break in service and the Govt. Order No. 1558/15-8-97/3000 (1)/94 dated 18th October, 1997 cannot be extended to the petitioner, which clearly provides that benefit of said Govt. Order for calculation of service rendered by a person in different institution i.e. Govt. and aided institutions for pensionary benefit shall available from the date of issuance of the order. Para 3 of the said Govt. Order further provides that the period of joining from an institution to another institution will be condoned maximum to a period which is admissible for joining after transfer from an institution to another institution. In such circumstances, the claim of the petitioner is wholly misconceived and denied. Copy of the Govt. Order dt. 18.10.1997 is being annexed as Annexure CA-2 to this affidavit. In view of the facts and circumstances of the case, the writ petition is wholly misconceived, devoid of merit and as such the same is liable to be dismissed. Further in Paragraph 12 of the counter affidavit, it has been stated as under: 12. That the contents of para 11 of the writ petition are matters of record, hence, need no comments. The referred Govt. Order dated 5/9/1970 is not applicable in the case of the petitioner as the services of the petitioner had been break w.e.f. 1/5/1974 to 11/8/1974 and the said service break was never condoned by the competent authority.” As has already been stated above, these objections are not sustainable in law. Therefore, a Mandamus is being issued to the respondents to re-fix the pension of the petitioner and grant the petitioner the pensionary benefit calculating his period of service from 1.7.1951 to 6 30.6.1991 i.e. including the period the petitioner had put in as a teacher (primary school), Head Master (primary school) and an Assistant Teacher (junior high school) treating the break in service i.e. between 1.5.1974 to 11.8.1974 as having been condoned by this Court. The pension shall be released by the respondents and the pension so re-fixed shall be given to the petitioner including the entire arrears which shall carry an interest at the rate of 7 %, within a period of three months from today. There is another question which has to be decided by this Court i.e. as to which of the respondents is liable to pay the pension to the petitioner. Evidently, the petitioner retired from service in the year 1991 i.e. before the creation of State of Uttarakhand. As per Section 54 of the Uttar Pradesh Reorganisation Act, 2000 read with the Eighth Schedule of the Act, it is clear that the liability to pay the pension rests with State of Uttar Pradesh. Section 54 of the U.P. Reorganisation Act, 2000 and paragraphs 1, 2 and 3 of the Eighth Schedule reads as follows :- “54. Pensions. – The liability of the existing State of Uttar Pradesh in respect of pensions shall pass to, or be apportioned between, the successor States of Uttar Pradesh and Uttaranchal in accordance with the provisions contained in the Eighth Schedule to this Act. The Eighth Schedule 1. Subject to the adjustments mentioned in paragraph 3, each of the successor States shall, in respect of pensions granted before the appointed day by the existing State of Uttar Pradesh, pay the pensions drawn in its treasuries. 7 2. Subject to the said adjustments, the liability in respect of pensions of officers serving in connection with the affairs of the existing State of Uttar Pradesh who retire or proceed on leave preparatory to retirement before the appointed day, but whose claims for pensions are outstanding immediately before that day, shall be the liability of the State of Uttar Pradesh. 3. There shall be computed, in respect of the period commencing on the appointed day and ending on such date after the appointed day, as may be fixed by the Central Government and in respect of each subsequent financial year, the total payments made in all the successor States in respect of pensions referred to in paragraphs 1 and 2. The total representing the liability of the existing State of Uttar Pradesh in respect of pensions shall be apportioned between the successor States in the population ratio and any successor State paying the State paying more than its due share shall be reimbursed the excess amount by the successor State or State paying less.” Therefore, a Mandamus is being issued to respondent no. 5 i.e. the Secretary (Secondary Education), U.P. Government, at Lucknow to immediately re-fix the pension of the petitioner in terms of the order of this Court and give such pension, as referred above, within a period of three months from today including the entire arrears with an interest at the rate of 7 % . On these directions, as stated above, the writ petition is allowed. No order as to costs. (Sudhanshu Dhulia, J.) 18.6.2010 Avneet