VIVEK CHAUDHARY,J. - (1.) The appellant has filed the present Special Appeal against the judgment of the learned Single Judge dated 10.09.2009 whereby the learned Single Judge has refused his prayer for being covered under the old Pension Rules namely U.P. State Aided Educational Institution Employees Contributory Provided Fund-Insurance-Pension Rules, 1964 (hereinafter referred to as 'Old Pension Scheme') on the ground that he has been appointed and joined on the post of Headmaster on 01.04.2008 and the same being a fresh appointment, he would be covered by the New Defined Contribution Pension System prescribed by a Notification dated 28.03.2005.
(2.) The undisputed facts of the case are that the appellant was appointed as a Assistant Teacher in Sarvokaya Uchchatar Madhyamik Vidyalaya, Kakather, Ghaziabad, which is a recognised and aided junior high school and is governed by the provisions of U.P. Basic Education Act, 1972 and U.P. Junior High School (Payment of Salary to Teachers and other Employees) Act, 1978. The appellant continued to work as Assistant Teacher till 30.03.2008 and after his due selection and approval, he was appointed and joined as a Headmaster at Bhartiya Samdarsh Inter College at the junior high school level from 1.04.2008. Thus, there was no break in service. The appellant admittedly as a Assistant Teacher was covered by the Old Pension Scheme and due deductions were regularly made for the said scheme from his salary. The said scheme was applicable to both the Assistant Teachers and the Headmaster of the institution. Rule 5 (g) of Rules 1964 defined employees as under: "(Employee" means a permanently employed person borne on the whole-time teaching or non-teaching establishment of an aided institution, excluding- (a) the inferior staff and (b) the ministerial staff of the institutions maintained by a Local Body." Thus, the employee includes both the Assistant Teachers and the Headmaster. By a notification dated 28.03.2005 a new Defined Contribution Pension System was introduced. The said New Pension System was effective from 01.04.2005 and was applicable: "for new entrants to the service of the State Government and of all State controlled Autonomous Institutions and State-aided Private Educational Institutions where the existing pension scheme is patterned on the scheme for Government employees and is funded by the consolidated fund of the State Government."
(3.) Thus, for educational institutions, the Old Pension Scheme was substituted by the New Pension Scheme. However, clause 1 (i) of the New Pension Scheme provided the coverage as follows:- "(i) From 1st of April, 2005, the new defined contribution pension system would mandatorily apply to all new recruits to the service of the State Government and of all State-controlled autonomous/Stateaided Private Educational institutions referred to above. However, employees covered by the existing pension scheme whose service would be of less than ten years on 1st April, 2005, may also voluntarily opt for the new pension system in place of the existing pension scheme." ;