Smt. Shakuntala
Mehrishi Vs. New Delhi Municipal Committee & Ors
[1990] INSC 70 (1 March
1990)
Ojha, N.D. (J) Ojha, N.D. (J) Venkatachalliah, M.N. (J) Verma,
Jagdish Saran (J)
CITATION:
1990 AIR 1229 1990 SCR (1) 753 1990 SCC (3) 521 JT 1990 (1) 386 1990 SCALE
(1)421
ACT:
Civil
Services: Delhi School Education Rules, 1973: Rule 126-Pension--Employees of aided
Schools--Payment of--Directions issued.
HEAD NOTE:
The
petitioner joined as a primary teacher in 1952 in an aided recognised school.
She was making contribution towards compulsory provident fund. In 1975, the
Delhi Administra- tion, in consultation with the Accountant General, Central
Revenue, issued a notification under Rule 126 of the Delhi School Education
Rules, 1973, laying down detailed procedure for disbursement of pension and
gratuity as also accounting of General Provident Fund in respect of the
employees of aided schools. The petitioner opted for the aforesaid scheme in
1976, which was duly counter-signed by the Education Officer.
After the
petitioner retired in 1977, she made a number of representations to the
authorities concerned for payment of pension and gratuity. She got a reply in
1987 that her case had been referred to the Government for policy deci- sion.
Ultimately, Delhi Administration promulgated the pension scheme in the primary
aided schools on and effective from 6th December, 1988.
The
petitioner in her Writ Petition before this Court relied on the scheme
announced by the Delhi Administration and the option exercised by her. She
claimed that to deprive her of the pension and gratuity under the said scheme
was without any justification.
On
behalf of the respondents it was contended that the scheme was brought into
force only in 1988 by the said notification whereby the modalities for
grant-in-aid to the local authorities were finalised and since the petitioner
retired from service in 1977, she was not entitled to pen- sion prior to the
said notification.
Allowing
the Writ Petition, this Court,
HELD:
1. The school in which the petitioner was working was an 754 aided school
within the meaning of S. 2(d) of the Delhi Education Act and its employees were
entitled to the bene- fits conferred by the notification dated 17th October, 1975. [757B-C]
2.
Since the Central Civil Services (Pension) Rules, 1972 would apply to the
petitioner as contemplated by noti- fication dated 17th October, 1975, she is
obviously entitled to get pension with effect from the date on which she ceased
to be borne on the establishment. of the school in which she was working
consequent upon reaching the age of superannua- tion. [757F-G]
3. The
said notification having been issued by the competent authority and the
petitioner, who was an existing employee of an aided school on the date of the
issue of the said notification, having opted for the pension and gratuity
within the stipulated period in the prescribed proforma which was duly
countersigned by the Education Officer, she obviously became entitled to the
benefits conferred by the said notification. This is so all the more in view of
the fact that the notification dated 17th October, 1975 did not contemplate finalisation of
the modalities about contribu- tion towards pension fund as a condition
precedent to the entitlement of the benefits under the said notification. The finalisation
of the said modalities was a matter of details among the authorities concerned
and could have no bearing on the entitlement to the benefits of the
notification dated 17th
October, 1975. Such finalisation
could not even defer the date of the entitlement. [758A-C]
4. The
respondents are directed to pay to the petitioner pension admissible to her in
pursuance of the notification dated 17th October, 1975 with effect from the date of her
retirement and also to pay to her the other retirement benefits. They are
further directed to finalise the requi- site formalities in this behalf within
three mouths and to issue payment orders immediately thereafter. [758H; 759A-B]
CIVIL
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 623 of 1989.
(Under
Article 32 of the Constitution of India).
Rangarajan
and San jay Parokh for the Petitioner.
G.B. Pai,
V.K. Sharma and R.K. Maheshwari for the Respondents.
The
Judgment of the Court was delivered by 755 OJHA, J. The gravamen of the
grievance of the petitioner is that even though she retired on 3 ist October
1977 on reaching the age of superannuation and even though she was entitled to
pension, gratuity and other retirement benefits, the respondents have kept her
deprived therefrom without any justification for all these long years. She has
made a prayer that the respondents may be directed to make the requisite
payments to her at least now when she was almost at the fag end of her life.
Brief facts necessary for the decision of this petition are that the petitioner
joined R.M. Arya Girls Patshala, New Delhi, which was an aided recognised school, as a primary teacher in the year
1952 and had been making contribution towards compulsory Provident Fund. On
17th October, 1975, the Administrator of the Delhi Administration in
consultation with the Accountant General, Central Revenues, issued a
notification in exercise of the power conferred on him by Rule 126 of the Delhi
School Education Rules, 1973 (hereinafter referred to as the Rules) laying down
detailed procedure for disbursement of pension and gratuity and accounting of
General Provident Fund to the employees of the aided schools under the Delhi
Education Act 1973 (for short the Act) and the Rules flamed thereunder.
The
sad notification, inter alia, provided:
"Further
rule 126 of the Delhi School Education Rules 1973 lays down that the
Administrator shall, in consultation with the A.G.C.R. specify the detailed
procedure for accounting of provident fund and payment of pension and gratuity
to the employees of the aided schools.
In
order to implement the provision referred to above the detailed procedure is
prescribed hereafter. In regard to matters not specified in the procedure the provi-
sions of the Central Civil Services (Pension) Rules, 1972 as amended from time
to time and other general provisions of the Act/ Rules shall apply.
The
employees of the aided schools shall be enti- tled to pension and/or gratuity
in accordance with the provisions and procedure applicable to the employees of
the similar categories of Delhi Administration under the exist- ing pension
rules as contained in the Central Civil Services (Pension) Rules, 1972 as
amended from time to time. These rules shall be applicable to these employees
of the aided schools who were appointed on or after the commencement of the
Act/Rules and also to the existing 756 employees who opt for the pension and
gratuity within the stipulated period in the prescribed proforma." The
school in which the petitioner was working being an aided school under the Act
and the notification aforesaid being applicable to its employees the petitioner
made the requisite option in the prescribed proforma on 29th January 1976 which
was duly countersigned by the Education Officer on 2nd April 1976. After her
retirement, the petitioner made several representations for payment of pension
and gratuity etc. to the authorities concerned but each time the peti- tioner
did not get any better response than an information that her case was under
active consideration. By his letter dated 27th February, 1987, i.e. after nearly 10 years of the
petitioner's retirement, the Joint Director of Education (FIN.) Old
Secretariat, Delhi, conveyed to her an additional
information apart from the usual one namely that her case was under active
consideration, that further action in the matter will be taken by the
Department soon after the pro- posal is approved by the Government of India. By
a subse- quent letter dated September 29, 1987, the petitioner was informed by the Education Officer that the
Directorate of Education had referred the case to Government of India on 26th March, 1987 for policy decision. Ultimately the
Direc- torate Of Education, Delhi Administration, promulgated the decision of
pension scheme in the primary aided schools on 6th December 1988. This decision, inter alia, provided for payment of
grant-in-aid to the local authorities concerned for the implementation of the
pension scheme already noti- fied vide notification dated 17th October, 1975. The last paragraph of the decision
provides that "pensionary benefits under these orders would apply with
immediate effect, i.e.
from
the date of issue of these orders".
The
prayer made in this petition has been opposed by the New Delhi Municipal
Committee by filing a counter affidavit.
The
objection raised by the said Committee is that since the pension scheme was
finally promulgated in 1988 and has provided therein that the pensionary
benefits were to apply from the date of issue of the requisite order in this
behalf namely 6th December, 1988, the petitioner who retired on 31st October,
1977 that is more than 11 years before the final promulgation of the scheme was
not entitled to any of the benefits claimed by her simply on the ground that
she had opted for pension before her retirement in pursuance of the scheme
notified on 17th October 1975 which was in the process of finalisation at the
time of her retirement. It has also been contended on behalf of the said
Committee that since modalities for grant-in-aid to the local authorities con-
757 cerned for the implementation of the pension scheme were provided for by
order dated 6th December 1988 the petitioner was not entitled to any pension
before this date in any view of the matter.
Having
heard learned counsel for the parties, we are of the opinion that the pleas
raised on behalf of the Municipal Committee have no substance. As seen above,
the requirement under the notification dated 17th October, 1975 with regard to the school, the employees of which were
entitled to the benefits of the said notification was that it should be an
aided school under the Act. The term "aided school" as defined in
Section 2(d) of the Act means a recognised pri- vate school which is receiving
raid in the form of mainte- nance grant from the Central Government,
Administrator or local authority or any other authority assigned by the Central
Government, Administrator or a 1ocal authority. In paragraph 1 of the petition
under the caption "Facts" it has been specifically stated that R.M. Arya
Girls Patshala was granted permanent recognition on 1.4.1936 and was also given
grant-in-aid. The averments made in this behalf in sub- paragraphs (b) and (c) ot
paragraph III of the counter affidavit do not seem to seriously challenge what
has been stated in paragraph 1 of the petition. It is, therefore, apparent that
the school in which the petitioner was working was such, the employees of which
were entitled to the bene- fits/ conferred by the notification dated 17th October, 1975. The said notification as already
pointed out above, inter alia, provided that in regard to matters not specified
in the procedure the provisions of the Central Civil Serv- ices (Pension),
Rules, 1972 as amended from time to time shall apply. Rule 35 of these Rules
provides that a superan- nuation pension shall be granted to a Government
servant who is retired on his attaining the age of compulsory retire- ment.
Rule 83 of these Rules, on the other hand, inter alia, lays down that the
pension shall become payable from the date on which a government servant ceases
to be borne on the establishment. Since these Rules will apply to the petition-
er as contemplated by notification dated 17th October 1975, she is obviously
entitled to get pension with effect from the date on which she/ceased to be borne
on the establish- ment of the school in which she was working consequent upon
reaching the age of superannuation. Rule 126 of the Rules under which the
notification dated 17th October, 1975 had been issued gives the power to
specify procedure for payment of pay and allowances, pension and gratuity etc.
to the Administrator in consultation with the Accountant General, Central
Revenues. The very opening words of the said notifi- cation make it abundantly
clear that the said notification had been issued in exercise of the powers
conferred by Rule 126 of the Rules by the Administrator 758 in consultation
with the Accountant General, Central Reve- nues. The notification having thus
been issued by the compe- tent authority and the petitioner who was an existing
em- ployee of an aided school on the date of the issue of the said notification
having opted for the pension and gratuity within the stipulated period in the
prescribed proforma which was duly counter-signed by the Education Officer, she
obviously became entitled to the benefits conferred by the said notification.
This is so all the more in view of the fact that the notification dated 17th
October, 1975 did not contemplate finalisation of the modalities about contribu-
tion towards pension fund as a condition precedent to the entitlement of the
benefits under the said notification. The finalisation of the said modalities
was a matter of details among the authorities concerned and could have no
bearing on the entitlement to the benefits of the notification dated 17th
October, 1975. Such finalisation could not even defer the date of the
entitlement:
Likewise
the said notification did not contemplate any approval by the Government of
India as a condition precedent to its enforceability. In this connection, it is
also of significance that no statutory provision has been brought to our notice
which made approval by the Government of India of the notification dated 17th
October, 1975 issued by the competent authority as a condition precedent to the
enforce- ability of the said notification. As seen above, for nearly 10 years
after her retirement the petitioner was being informed in reply to her various
representations that her case was under active consideration. It is only in
1987 that the plea that further action in the matter will be taken by the
Department soon after the proposal is approved by the Government of India was
raised and the case was referred by the Directorate of Education to the
Government of India on 26th March 1987 for policy decision. Why it became
necessary to do so in 1987 is a matter of anybody's guess. If, at all, it only
indicates the callous attitude of the authorities concerned towards the fate of
retired employees of aided schools in the matter of grant of pension and other
retire- ment benefits to them. For ought we know, but for the sin- cere effort
made by the Indian Council for Legal Aid and Advice in this case, which
apparently deserves commendation, the agony which the petitioner must have
suffered during the long years after her retirement may have remained unnoticed
and unmitigated. No acceptable justification having been given for denying the
pension to the petitioner from the date of her retirement as also the other
retirement benefits the petitioner is obviously entitled to these benefits.
In the
result, this petition succeeds and is allowed. The respon- 759 dents are
directed to pay to the petitioner pension admissi- ble to her in pursuance of
the notification dated 17th October, 1975 with effect from the date of her
retirement and also to pay to her the other retirement benefits. They are
further directed to finalise the requisite formalities in this behalf within
three months and to issue payment orders immediately thereafter. The petitioner
shall be entitled to her costs from respondents 1 and 2 which is assessed at
Rs.2,000.
G.N.
Petition allowed.
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