- (1.) THIS reference arises out of a doubt expressed by a Division Bench about the correctness of the judgements noted therein on the proposition relating to addition of services as a Teacher in a Government School in Madhya Pradesh towards the services of a Lecturer in an aided Degree College in the State of U.P. for computing pension and other post retiral benefits. The decisions, including those mentioned in the referring order, that are subject matter of resolution through an authoritative pronouncement, are : (I) Dr. Ajita Bhattacharya v/s. State of U.P, Writ Petition No. 1614 of 2000, decided on 18/1/2001. (II) Dr. Jay Prakash Singh v. State of U.P. and others, Writ Petition No. 17417 of 2000, decided on 30/4/2001. (III) Dr. Pradeep Kumar v/s. State of U.P. and others, Writ Petition No. 17418 of 2000, decided on 30/4/2001. (IV) Dr. (Mrs.) Kavita Srivastava v. Principal Secretary, Higher Education, Uttar Pradesh Government, Lucknow, 2003 (1) ESC 643 (All). (V) Hari Om Agrawal v/s. State of U.P. and others, Writ petition No. 35605 of 2004, decided on 31/8/2004. (VI) Harish Kumar Sharma v/s. Director of Education and others, Writ Petition No. 45957 of 2006, decided on 24/8/2006.
(2.) THE controversy appears to have arisen in the background that the petitioner Dr. A.P. Paliwal initially served as an Upper Grade Teacher in a Government Higher Secondary School, Hoshangabad, State of Madhya Pradesh from 1.7.1963 onwards. He came to be appointed as a lecturer on 1st September, 1973 in Dharam Samaj Post Graduate College Aligarh affiliated to the Agra University in the State of Uttar Pradesh and attained his age of superannuation working as such on 24.1.1998. The petitioner claimed that his services between 1.7.1963 to 31.8.1973 as a Teacher in the Government Higher Secondary School in the State of Madhya Pradesh should be added for the purpose of his length of services while computing his pension and other post retiral benefits. The petition as framed, prays for issuance of a writ of certiorari for quashing the order dated 10th January, 2005 passed by the Finance Controller Higher Education Directorate intimating the Principal of the Institution that the petitioner's pensionary benefits have been calculated on the basis of his services rendered within the State of U.P. and in the absence of any Government Order to the contrary or even otherwise, the services rendered by the petitioner outside the State of U.P. in Madhya Pradesh cannot be added for such computation. THE allegations in the writ petition recite the instances of the decisions of this Court to contend that the claim of the petitioner has been discriminated and much stress has been laid on the judgments of Dr. (Mrs.) Kavita Srivastava (supra), the decision in the case of Hari Om Agrawal (supra), and the decision of the Apex Court as relied upon in these two decisions namely Shardendu Bhushan v. Nagpur University, Nagpur and others, 1987 (Suppl.) SCC 53. Reliance is also placed on the Government Orders dated 29/8/1990, 30/6/1992, 19.2.1996, 5.2.2003 and the Government Orders dated 23/7/1973, 13/6/1979, 10/12/1985, 14/10/1999 and 4/1/2001. The Division Bench after having noted the decisions cited at the bar and certain Government Orders framed two questions for being answered by a Larger Bench vide order dated 5.10.2007. Accordingly, the Bench was constituted to answer the aforesaid questions. The referring order is reported in 2008 (3) ESC 1813 and the questions framed are as follows: (1) As to whether the judgement in the case of Shardendu Bhushan (supra) lays down any proposition of law, qua the length of service rendered in a different State to be added for the purpose of computation of pension in respect of Teacher who was subsequently appointed in a degree college affiliated to the University covered by the Act, 1973 and has retired as such. (2) Whether in absence of any statutory provision/Government Order permitting any such addition of length of service rendered in a different State to be computed for the purpose of pension qua the person who has retired as teacher from an affiliated Degree College of a State University a direction can be issued under Article 226 of the Constitution of India for such addition of length of service rendered outside the State for pension. Sri J.P. Singh for the petitioner advanced his submissions by contending that there is no law prohibiting the calculation by way of addition of services rendered in a different State. He submits that the petitioner retired as a Teacher of a Government aided privately managed post graduate college which is affiliated to the Agra University and the terms and conditions of appointment of teachers of affiliated colleges are regulated by the U.P. State Universities Act 1973, the first statutes framed thereunder and the ordinances of the Agra University and the Government Orders issued in this regard from time to time.
(3.) HE further submits that apart from the decisions which have been relied upon and noted hereinabove, the Government Order dated 30th June, 1992, the Government Order dated 19th February 1996, and the Government Orders issued in the case of Sri Amar Pal Singh dated 29.8.1990 and in the case of Dr. Shanker Sahai Srivastava dated 5th February 2003, clearly make out a case reflecting discrimination being practised by the State Government which militates irrationally against the petitioner. He submits that if such similar benefits have been extended in specific matters of computation of length of service for award of pension, then it is not open to the State Government to say that they were isolated instances and cannot be treated as precedents. He submits that in view of the provisions of Section 33 of the State Universities Act 1973 read with word "Government" as defined in Section 3(23) of General Clauses Act 1897, the respondent State is bound to add the services of the petitioner rendered in the State of Madhya Pradesh for calculating his qualifying years of service in order to compute the pensionary benefits to which the petitioner is entitled. He submits that the State Government cannot adopt a pick and choose policy and award the said benefit to one and discriminate the petitioner on the other hand. Sri M.C. Chaturvedi learned Chief Standing Counsel submits that the Government orders dated 30th June, 1992 and 19th February 1996 nowhere extend any such benefit as a general proposition and the cases cited at the bar in relation to some specific instances namely the Government Order dated 29.8.1990 in the case of Amar Pal Singh, the Government Order dated 19th February 1996 in the case of Dr. Jagdish Prasad Gaur and the case of Dr. Shanker Sahai Srivastava and the Government Order dated 5.2.2003 are all instances which do not give rise to any right or claim founded on the equality clause contained in Article 14 of the Constitution of India. He submits that the decision in the case of Shardendu Bhushan (supra) the Apex Court was nowhere concerned with the addition and computation of services for the purpose of pension and placing reliance thereon in the subsequent decisions rendered by this Court relied upon by the petitioner do not lay down the correct law and hence deserve to be over ruled. He submits that without taking notice of the relevant provisions of the State Universities Act and discussing the Government Orders in relation to award of pensionary benefits the judgments have been rendered against the existing Government Orders and the relevant provisions relating to award of pension. Sri Chaturvedi has invited the attention of the Court to the Government Orders specifically making a provision for computation of pension with a clear intention not to include any other services except that which is provided for in the Government Order dated 24.12.1983.;