C.W.P. No. 17689 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 17689 of 2009 Date of Decision 22.07.2010 Hasan Lal Yadav -----Petitioner Versus State of Haryana and others ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. Jagbir Malik, Advocate for the petitioner. Ms. Mamta Singhal Talwar, AAG, Haryana for the respondent-State 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. Kumar, J. The petitioner has approached this Court with a prayer for quashing the notification dated 15.12.2005 (Annexure P14) stipulating that the benefit of service beyond the 58 years is not to be given to a retiree for the purpose of pensionary benefit. A further prayer for quashing the action of the respondent-State whereby the pensionary benefit has been released to petitioner by taking into account his last basic pay, which he was drawing at the age of 58 years. Brief facts of the case, which are necessary for disposal of controversy raised in this petitioner may first be noticed. The C.W.P. No. 17689 of 2009 -2- petitioner has been working on the post of Science Master at Hindu Senior Secondary School, Rewari, which is a State aided school. In the year 1992-93, he was selected for grant of State Award as is evident from the order issued by the State Government on 06.09.1994 (Annexure P2). From the date of award, he was granted all the incentives as per instructions dated 24.04.1980. The date of birth of the petitioner is 07.10.1947 and he was to retire on completion of 58 years of age on 31.10.2005. On account of grant of State Award, he was granted two years' service extension and was allowed to continue upto 31.10.2007 as per order passed by the Government on 14.03.2006 and 22.02.2007 (Annexure P3 and P4). On attaining the age of 60 years, his basic pay drawn was Rs. 9000/- and in that regard certificate was issued on 15.04.2009 by respondent No. 4. However, respondent No.3 i.e. District Education Officer, Rewari, District Rewari has shown his basic pay at Rs. 8,650/-, which he was drawing at the age of 58 years instead of pay, which he was drawing on the completion of the age of 60 years. Accordingly, the petitioner is deemed to have retired at the age of 58 years. His retiral benefits and pension have been calculated and sanctioned by taking into consideration his basic pay at Rs. 8,650/- instead of 9,000/- (Annexure P-10 and P-11). He served an advance notice of writ petition-cum-final demand notice of justice on 05.04.2009 (Annexure P-12) and respondent No.3 is said to have orally apprised the petitioner that the extension of two years' service granted to him being State C.W.P. No. 17689 of 2009 -3- Awardee could not be regarded as qualifying service for the purpose of calculating retiral benefits. The petitioner filed C.W.P. No. 6210 of 2009 seeking direction to calculate his retiral benefits taking into consideration the additional period of two years and calculating retiral benefits at Rs. 9,000/-, which was the basic pay at the age of 60 years instead of Rs. 8,650/-, which he was drawing when he was 58 years old. The issue of grant of pension is regulated by the statutory Rule known as Haryana Aided Schools (Special Pension and Contributory Provident Fund) Rules, 2001 (Annexure P13). On 15.12.2005, a note has been added after Sub Rule 1, stipulating that the service of National/ State Awardees of aided schools for the purpose of calculation of pensionary benefits shall be counted upto the age of 58 years irrespective of extension in service beyond the age of superannuation. The petitioner earlier filed C.W.P. No. 6210 of 2009 and was permitted to withdraw the writ petition with a liberty to file fresh one on the same cause of action. Accordingly, in the instant petition, the petitioner has challenged the notification dated 15.12.2005 urging that pensionary benefit of reitree has been calculated as per emoluments drawn by him on the date of his superannuation when he attained the age of 58 years. In that regard, reliance has been placed on Rule 2(d) of Haryana Aided Schools (Special Pension and Contributory Provident Fund) Rules, 2001. It has also been urged that incentives granted by the State Awardee cannot be withdrawn arbitrarily from the teachers working C.W.P. No. 17689 of 2009 -4- in aided schools. The petitioner has also complained of discrimination by pleading the example of one Munshi Ram Sanskrit Teacher who was retired from Government Girls Senior Secondary School, Rewari in the year 2002 on attaining the age of 60 years and he has been granted benefit of two years service. The respondent Nos. 1,2 and 3 have filed their written statements and placed heavy reliance on the note incorporated on 15.12.2005 which clearly stipulates that the services of National/ State Awardee of aided school for the purpose of calculation of pensionary benefits shall be counted upto the age of 58 years irrespective of extension in service beyond the age of superannuation. The respondents have also denied any discrimination and asserted that the petitioner has retired from a non-Government Aided School and not from a Government School like Munshi Ram Sanskrit Teacher who has retired from Government Girls Senior Secondary School, Rewari. According to the additional affidavit of respondents, the aforesaid aspect has further clarified that two sets of employees cannot be treated equally. Those who are working in non-Government aided school have been granted the benefit of extension of service but for the purpose of calculation of pension, they would be deemed to have superannuated at the age of 58 years and retiral benefits are to be calculated. Accordingly, as it is made clear by notification dated 15.12.2005, a teacher serving in Government School is entirely on a different pedestal. We have heard learned counsel for the parties at a C.W.P. No. 17689 of 2009 -5- considerable length, it would first be appropriate to examine the amendment dated 15.12.2005 incorporating Note after Sub Rule 1, which reads as under: “Note- Service of National/ State awardees of aided schools for the purpose of calculation of pensionary benefits shall be counted upto the age of fifty eight years irrespective of extension in service beyond the age of superannuation.” A perusal of the aforesaid Note clearly postulate that the extension of two years' service every grant given to the National/ State Awardee of aided school would not qualify for calculation of retiral benefits and they would be deemed to have superannuated at the age of 58 years. The instructions dated 24.04.1980 postulate that the State Awardee would be granted two advance increments from the date of Award for a period of five years and in addition they would be granted benefit of two years after the age of superannuation. It would be appropriate to read the instructions in extenso, which reads thus: ......2. Sanction of the Governor of Haryana is hereby accorded to the grant of two advance increments to the State Awardees from the date of grant of State Award for five years in addition to two years service benefits after the age of superanuation. C.W.P. No. 17689 of 2009 -6- 3. Sanction is further accorded to the grant of cash Award of Rs. 1000/- instead of Rs. 750/- to the State Awardees with immediate effect. 4. This sanction issues with the concurrence of the Finance Department vide this U.O. No. 932-1 FDII- 80-28.3.80. 5. The head of account to which the amount is debitable may be intimated direct to accountant General Haryana.” A perusal of the aforesaid instructions would clarify that there is no whisper with regard to treating period of two years as qualifying service for the purposes of retiral benefits, which is extended after the age of superannuation. It is admitted case of the petitioner that he superannuated on 31.10.2005 on attaining the age of 60 years after availing extended period of two years. After closely examining the notification dated 15.12.2005, we find that the provision does not suffer from vice of arbitrariness, discrimination or could be regarded as violative of Articles 14 and 16 (1) of the Constitution. The petitioner was given State Award and also an opportunity to serve the school for extended period of two years but his pensionary benefits are to be calculated on the presumption that he superannuated on attaining the age of 58 years. It was not to have the effect of extending the age of superannuation which continues to be 58 years. It is undisputed that the petitioner continued to draw the salary along with increments during the C.W.P. No. 17689 of 2009 -7- extended period of two years and according to the note, his retiral benefit is fixed in accordance with the last pay drawn at the time when he attained the age 58 years, which is the age of superannuation. Merely because the teachers working in the State Government who are the National/ State Awardee are to be granted benefit of extended period in their age of retirement for calculating the pension and other retiral dues would not constitute basis for declaring the notification dated 15.12.2005 and note-1 as ultra vires of the Constitution. The employees of the added school constitute a different class than the one who worked in the Government School as has been held by Hon'ble the Supreme Court rendered in the case of State of Haryana v. Champa Devi (2002) 10 SCC 78. Rejecting the contention that teachers working in the non-government aided schools would also be entitled to all the allowances, their Lordships have observed as under: “5. Coming, however, the question as to whether the benefits given to the government employees under the circulars dated 14.5.1991, 7.8.1992 and 7.1.1994 which were annexed as Annexures P-3, P4 and P-6, we are of the considered opinion that the High Court committed error in granting the benefits of those circulars to the employees of private schools. In State of Punjab v. Om Parkash Kaushal a Bench of this Court examined the question as to what is the true C.W.P. No. 17689 of 2009 -8- meaning of “parity in employment” and ultimately came to the conclusion that all incentives granted to the employees of the Government cannot be claimed as a matter of right by the employees under private management, as that would not be within the expression “parity in employment”. The Court unequivocally said that scale of pay and the dearness allowance to a government servant or the teacher of a government school can be claimed as a matter of right by the teachers of a private school and not other incentives which the Government might be intending to confer on its own employees. This being the position and on examining the aforesaid three circulars which were annexed as Annexures P-3, P-4 and P-6 in the writ petition filed before the High Court, we are of the considered opinion that the High Court committed error in granting the benefit of those circulars also to the teachers of the privately managed schools. We, therefore, set aside that part of the conclusion in the impugned judgment.” It is thus, evident that the petitioner cannot claim parity in all respect with their counter parts working in government school. We find no merit in the challenge to the notification dated 15.12.2005 and are not inclined to declare the same as ultra vires of C.W.P. No. 17689 of 2009 -9- Articles 14 and 16(1) of the Constitution as it seeks to treat unequal unequally. It does not treat the equal unequally or unequal equally. There is, thus, no merit in the petition. Accordingly, the writ petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (A.N. JINDAL) JUDGE July 22, 2010 Atul