- (1.) SUDHIR Agarwal, J. The grievance of the petitioner is that ser vices rendered by him prior to 18th July, 1961 at Mahatma Gandhi Vidyalaya Kaushalpuri, Kanpur (hereinafter referred to as the 'institution') is not being counted towards qualifying service for the purpose of pension though in view of law laid down by this Court in Ram Raksh Pal v. State of U. P. and others, (Writ Petition No. 34579 of 1993) decided on 1. 9. 1995; Ram Janam Singh v. Deputy Director of Education and others, (Writ Petition No. 11855 of 1994) decided on 14. 9. 1995; Ramjee Das v. State of U. P. and others, (Civil Misc. Writ Petition No. 14395 of 1992) decided on 20. 11. 1996; Ram Adhar Lal Srivastava v. State of U. P. and others, (2001) 1 UPLBEC 916 and Shital Prasad Tripathi v. State of U. P. and others, 1990 AWC 1453 and Rule 19 (a) and (b) of U. P. State Aided Educational Institution Employee's Contributory Provident Fund-Insurance-Pension Rules, (hereinafter referred to as "the Rules") the petitioner is entitled to count the same and, therefore, the impugned order dated 11. 6. 2001 (Annexure 10 to the writ petition) passed by Joint Director of Education, Kanpur Region, denying the said benefit is illegal.
(2.) IN brief facts giving rise to the present dispute are that the petitioner claims to have worked as Assistant Teacher from 26. 7. 1957 to 17. 7. 1961 at the institu tion and thereafter he was appointed as Teacher in Sri Ram Lala Uchchatar Madhyamik Vidyalaya, Rawatpur, Kanpur from 18. 7. 1961 to 30. 6. 1990 and on attaining the age of superannuation, he retired on 30. 6. 1990. While computing the qualifying service of petitioner for the purpose of pension, the same has been taken into account from 18. 7. 1961. The petitioner contended that his earlier ser vices rendered in the institution should also have been included and for the said purpose, he made representation to the concerned authority and when the same remained unheeded, he filed a writ petition No. 13456 of 2001 which was dis posed of on 13. 4. 2001 directing the concerned authority to decide his representa tion, pursuant whereto the impugned order has been passed. Learned Counsel for the petitioner contended that in respect of secondary educational institutions, service rendered by the teachers in the earlier institution is liable to be counted as directed by this Court in various cases referred to above and, therefore, he is also entitled to the same benefit and any other view would be contrary thereto. He also placed reliance on Government Order dated 5. 1. 1996 in support of his claim that he is entitled to count the aforesaid service. The respondents through learned Standing Counsel have filed counter affi davit supporting the decision taken by the competent authority denying the claim of the petitioner and it has been stated that the institution was brought in grant-in-aid list in March 1962. In para 3 of the counter affidavit respondents have made this statement as a matter of fact and in reply thereto in para 4 of the rejoinder affidavit the petitioner has not said anything regarding the aforesaid averment and there is not even a whisper or suggestion that the aforesaid institution was brought on grant-in-aid list prior to March 1962. Besides that no provision has been brought to the notice of this Court applicable to Junior High School wherein services rendered in unaided non-government Junior High School can be counted for the purpose of pension. The G. O. and rulings cited at the Bar on behalf of the peti tioner are in respect to secondary educational institution and contain different provision. Where the provisions are different, GO. dated 5. 1. 1996 is in respect to secondary educational institutions and provides for counting service rendered in unaided recognised educational institution provided it is the same institution where-from the teacher ultimately retired and for the period he has served when the institution was unaided, the management deposits its share of provident fund in Government treasury by 31 st of March, 1996.
(3.) THE judgment of this Court in Ram Raksh Pal (supra) refers to G. Os dated 13. 6. 1979, 10. 1. 1986 and 16. 9. 1988 which were for counting of service in non government institutions of such teachers who were ultimately appointed in Gov ernment institutions and retired there from and provides that service rendered in private institution may be counted towards retiral benefits provided the management's share of provident fund is deposited in Government Treasury within the time prescribed. This Court held that if the Management's share of Provident Fund is not deposited by the time mentioned in the GOs, merely that reason would not be sufficient to deny the benefit to a teacher provided such deposit is subsequently made by the Management. Ram Janam (supra) was a case where the institution was aided and only the service rendered by the teacher while he was working as clerk in the institution was not included which was found to be incorrect in the light of the provisions of the relevant Rules and it was held that such period is also liable to be taken into account. THE aforesaid two judgments were followed in Ramjee Das (supra ). THErefore, none of the aforesaid judgments are applicable to the facts and dispute involved in the present case. In Shital Prasad Tripathi (supra) the issue was with respect to cut off date on the question as to whether services rendered in aided or unaided institution can be counted or not provided the Management deposits share of provident fund. Even the said authority would not help the petitioner. For the purpose of qualifying service U. P. Contributory Provident Fund Insurance Pension Rules are applicable wherein Rule 19 (a) and (b) reads as under: "19 (a) Service will not count for pension unless the employee holds a substantive post on a permanent establishment. (b) Continuous temporary or officiating service followed without interrup tion by confirmation in the same or another post shall also count as qualify ing service. (See also C. S. R. Para 422 ). ";