THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.A.No.2029 of 2004 ORDER: ( per GM,J) Writ Petition No. 6756 of 2003, dismissal of which by order dated 04.10.2004 is assailed in the present Writ Appeal, was filed by the appellant herein seeking a writ of mandamus to declare the action of the respondents herein in not granting pensionary benefits to him who opted for voluntary retirement as illegal and arbitrary. The impugned order reads: “With reference to your letter cited, I am to state that the voluntary retirement pension proposals of Sri Md. Abdul Hag PET, Vinayakumar Aided High School Ananthapur were returned in this office letter 1st cited as the incumbent does not put to minimum qualifying service (20 years) for taking voluntary retirement. The reasons for sending the proposals through Dy. Educational Officer, Ananthapur instead of D.E.O., Ananthapur may be furnished. Md. Abdul Haq joined as PET in LRO English School in an unaided post and transferred to Vinayakumar High School on 12.06.1981 the post of Sri Md. Abdul Haq was admitted to grant in aid w.e.f. 1.07.1978 and took voluntary retirement on 21.10.1991. The not qualifying service rendered by Sri Md. Abdul Haq is 18 years 4 months only. As per rule 43 of APRS 1980 a Government servant shall have option to retire from service voluntarily after he has the put in not less than twenty years of qualifying service. As the incumbent does not put in minimum 20 years qualifying the service he is not eligible to retire on voluntary basis. Further as per Act 9/2000 and subsequent clarification issued by Government of Andhra Pradesh are relating to protection of pay of aided school teachers for the PET drawn by them to unaided service and for counting of increment and pay finalisation only the enclosed service is not count as qualifying service. Hence Sri Md. Abdul Haq is not eligible for pensionary benefits and voluntary benefits under voluntary retirement.” The brief facts of the case are as follows: The petitioner was appointed as Physical Education Teacher on 29.06.1966 at L.R.G. High School, Anantapur. The said post was admitted to grant-in-aid as per the orders of the Government vide G.O.Ms.No. 1214 Education (F1) Department, dated 29.12.1978, with effect from 01.07.1978. Pursuant to the said orders of the Government, the District Educational Officer, Anantapur issued proceedings in Rc.No.14383/B1/90, dated 09.09.1992 approving the appointment of the petitioner with effect from 29.06.1966. The petitioner filed an application seeking permission to retire voluntarily and the same was considered and he was permitted to retire from service voluntarily with effect from 31.10.1991. After his retirement, the petitioner got his retiral benefits. Thereafter, the petitioner filed a representation to pay the revised pension as well as the family pension by reckoning the unaided service rendered by him in an unaided post from 29.06.1966 onwards. Pursuant to the said representation, the 4th respondent recommended the case of the petitioner and the District Educational Officer in turn vide his proceedings in Rc.No.110, dated 15.10.2002 requested the Accountant General, A.P. Hyderabad-second respondent to consider the case of the petitioner by taking the service rendered by him in an unaided post with effect from 29.06.1966. Pursuant to the said letter dated 15.10.2002, the second respondent passed the impugned order dated 10.01.2003 stating that the petitioner did not put in a minimum qualifying service of 20 years and that the petitioner worked in an unaided post from the date of joining and his post was admitted to grant-in-aid only with effect from 1.07.1978 and he took voluntary retirement on 21.10.1991 and his qualifying service rendered in an aided post is only 13 years 4 months. As per Rule 43 of A.P. Revised Pension Rules, 1980 (for short “the Rules”), a Government servant shall have the option to retire from service voluntarily after he/she has put in not less than twenty years of qualifying service. The petitioner did not put in the minimum of twenty years of qualifying service in the aided post and, therefore, he is not entitled to claim the pension on such voluntary retirement. Further as per the Act 9 of 2000 Andhra Pradesh Aided Educational Staff (Regulation of Pay) Act, 2000, no employee of the Private Aided Educational Institution shall claim to count the service rendered or the increments drawn in the post prior to the date of approval of his/her appointment and, therefore, the petitioner is not entitled for pensionary benefits under the voluntary retirement scheme. The learned single Judge observed that as per Rule 43 of the Rules, a Government Servant is entitled to opt to retire from service voluntarily after he/she has put in not less than twenty years of qualifying service, that as per Rule 14 of the Rules, the service of a Government Servant shall not qualify unless his/her duties and pay are regulated by the Government, or under conditions determined by the Government and that as per Rule 14(2) of the Rules, the expression ‘service’ means the service under the Government and paid by the Government from the consolidated fund of the State but does not include the service in a non-pensionable establishment, unless such service is treated as qualifying service by the Government. As per the note mentioned in Rule 14(2) of the Rules, the services rendered by an employee in an unaided post in a teaching or non-teaching faculty in an aided educational institution, shall not qualify for pension. Admittedly, the Revised Pension Rules, 1980 have no application to the aided teachers working in the private schools or colleges but they are applicable pursuant to the A.P. Private Aided Educational Staff (Regulation of Pay) Act, 2000 (Act No.9 of 2000), which came into force with effect from 10.01.1980. However, insofar as the question of retrospective commencement with effect from 10.01.1980 is concerned, this Court had set aside the same but the other provisions were not interfered with. That being so, as per Section 2 of the A.P. Private Aided Educational Staff (Regulation of Pay) Act, 2000, eligible service for government schemes and pensions in respect of the employees of the private aided educational institutions shall be from the date of approval of his/her appointment in a post duly admitting to grant-in-aid. It is not in dispute that the post of the petitioner was admitted into grant-in-aid by G.O.Ms.No. 1214 Education (F1) Department, dated 29.12.1978 with effect from 1.07.1978. Therefore, the actual date of approval of his post is only with effect from 1.7.1978. The petitioner admittedly retired from service on 21.10.1991 and therefore, he was not having 20 years of service in aided post. Learned counsel for the appellant/petitioner contended that the appellant was appointed on 29.06.1966 and he has completed more than 20 years of service as on the date of his retirement. Therefore, he is entitled for the pensionary benefits. On the other hand, the learned Government Pleader appearing for the respondents contended that the unaided service of the employee cannot be counted for the purpose of pensionary benefits. In support of his contention, he has drawn our attention to Act 37 of 2005 of the Andhra Pradesh Private Aided Educational Institutions Employees (Regulation of Pay) Act, 2005. Sections 3 and 4 of the above said Act read as follows: 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 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. 4. Abatement of claims:- Notwithstanding anything contained in any order of the Government or any judgment of any Court or Tribunal, the claims of employees of the Private Aided Educational Institutions for counting the service rendered, or as the case may be, the increments drawn, in the post prior to the date of approval of their appointment in a post to grant in aid, for the purposes of fixation of pay in the Aided Post, reckoning for Automatic Advancement Scheme, Career Advancement Scheme and Pension shall stand extinguished from the date of commencement of this Act and accordingly. 1) The orders issued by the Government directing to take into account the increments earned by an employee of Private Aided Educational Institution prior to the date of admission of post to grant in aid for the purpose of fixation of pay in the aided post shall stand cancelled: Provided that any amount paid as per the orders now cancelled shall not be recovered. 2) No suit or other proceedings shall be maintained or continued in any Court against the Government or any person or an authority what so ever by any employee of Private Aided Educational Institution claiming for extending the benefit of unaided service rendered in a post for the purpose of fixation of pay in the Aided Post, reckoning or Automatic Advancement Scheme, Career Advancement Scheme or Pension. 3) No Court shall enforce any decree or order directing the court the service rendered by any employee of Private Aided Educational institutions in any post prior to the date of admission to grant in aid for the purpose of fixation of pay in the aided post, reckoning for Automatic Advancement Scheme. Career Advancement Scheme and Person.” On a plain reading of the above Sections, it is clear that the unaided service of an employee cannot be counted for the purpose of pensionary benefits. In the circumstances of the case, there is no infirmity in the order passed by the learned single Judge and therefore, the writ appeal fails and it is accordingly dismissed. However, this order does not preclude the petitioner from making a representation to the Government. No costs. GHULAM MOHAMMED,J K.G.SHANKAR,J Dt. 28.04.2011. Note: C.C. in fifteen days. B/o lvl THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.A.No.2029 of 2004 ( per GM,J) Dt. 28.04.2011