SMT. SHAKUNTALA MEHRISHIversusNEW DELHI MUNICIPAL COMMIITEE AND ORS.

            SMT. SHAKUNTALA MEHRISHI
                        v.                                                   A
     NEW DELHI MUNICIPAL COMMIITEE AND ORS.

                           MARCH 1, 1990

         [M.N. VENKATACHALIAH, N.D. OJHA AND                                 B
                    J.S. VERMA, JJ.]

      Civil Services: Delhi School Education Rules, 1973: Rule 126-
Pension-Employees of aided Schools-Payment of-Directions
issued.
      The petitioner joined as a primary teacher in 1952 in an aided         c
recognised school. She was making contribution towards compulsory
provident fund. In 1975, the Delhi Administration, in consultation with
the Accountant General, Central Revenue, issud 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          D
aided schools. The petitioner opted for the aforesaid scheme in 1976,
which was duly counter-signed by the Education Officer.

      After the petitfoner retired in 1977, she made a number of rep-
resentations to the authorities concerned for payment of pension and
gratuity. She got a reply in 1987 that her case had been referred to the     E
Government for policy decision. 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 exer-            F
cised 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      G
since the petitioner retired from service in 1977, she was not entitled to
pension prior to the said notification.

      Allowing the Writ Petition, this Conrt,
                                                                             H
      HELD: I. The school in which the petitioner was working was an
                                   753
    754                    SUPREME COURT REPORTS             [ 1990) I S.C.R.

    aided school within the meaning of S. 2(d) of the Delhi Education Act
A   and its employees were entitled to the benefits conferred by the notifica·
                                                                                  ~
    lion dated 17th October, 1975. [7578-C)

       2. Since the Central Civil Services (Pension) Rules, 1972 would
  apply to the petitioner as contemplated by notification dated 17th
B 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
  superannuation. [757F-G)

         3. The said notification having been issued by the competent
  authority and the petitioner, who was an existing employee of an aided
c 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 notifica·
  lion. This is so all the more in view of the fact that the notification dated
D 17th October, 1975 did not contemplate finalisation of the modalities
  about contribution 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             y
  concerned and could have no bearing on the entitlement to the benefits
  of the notification dated 17th October, 1975. Such finalisation could not
E even  defer the date of the entitlement. [758A·Cl

          4. The respondents are directed to pay to the petitioner pension
    admissible to her in pursuance of the notification dated 17th October,
    197S 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      ·i
F   requisite formalities in this behalf within three months and to issue
    payment orders immediately thereafter. [758H; 759A·B)

          CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
    623 of 1989.

G         (Under Article 32 of the Constitution of India).

          Rangarajan and San jay Parekh for the Petitioner.

          G.B. Pai, V.K. Sharma and R.K. Maheshwari for the Respon-
    dents.
H
          The Judgment of the Court was delivered by
               SMT. SHAKUNTALA v. N.D.M.C. [OJHA, J.l               755

       OJHA, J, The gravamen of the grievance of the petitioner is that A
even though she retired on 31st October 1977 on reaching the age of
s•1perannuation 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 B
 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 recogriised 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 C
.him by Rule 126 of the Delhi School Education Rules, 1973 (herein-
 after referred to as the Rules) laying down detailed procedure for
 disbursement of pension and gratuity and accounting of General Pro-
 vident Fund to the employees of the aided schools under the Delhi
 Education Act 1973 (for short the Act) and the Rules framed there- D
 under. The sad notification, inter alia, provided:

            "Further rule 126 of the Delhi School Education Rules
            1973 lays down that the Administrator shall, in consulta-
            tion with the A.G.C.R. specify the detailed procedure for
            accounting of provident fund and payment of pension and        E
            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 provisions of the
            Central Civil Services (Pension) Rules, 1972 as amended        F
            from time to time and other general provisions of the Act/
            Rules shall apply.

                  The employees of the aided schools shall be entitled
            to pension and/or gratuity in accordance with the provi-
            sions and procedure applicable to the employees of the         G
            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 com-
            mencement of the Act/Rules and also to the existing            H
                         1
    756                      SUPREME COURT REPORTS          [1990) 1 S.C.R.

                employees who opt for the pension and gratuity within the       -1'.
A               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 pres-
B   cribed proforma on 29th January 1976 which was duly countersigned              'Jll
    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 petitioner
    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
C   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 proposal is approved
    by the Government of India. By a subsequent letter dated September
D   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 Directo-
    rate of Education, Delhi Administration, promulgated the decision of         Y
    pension scheme in the primary aided schools on 6th December 1988.
    This decision, inter alia, provided for payment of grant-in-aid to the
E   local authorities concerned for the implementation of the pension
    scheme already notified vi de 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".

F          The prayer made in this petition has been opposed by the New
    Delhi Municipal Committee by filing a counter affidavit. The objec-
    tion raised by the said Committee is that since the pension scheme was
    finally promulgated in 1988 and has provided therein that the pensio-
    nary benefits were to apply from the date of issue of the requisite order
    in this behalf namely 6th December, 1988, the petitioner who retired
d   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 Commit-
H   tee that since modalities for grant-in-aid to the local authorities con-
                     SMT. SHAKUNTALA v. N.D.M.C. [OJHA, J.]              757

·~·   cerned for the implementation of the pension scheme were provided
I
      for by order dated 6th December 1988 the petitioner was not entitled      A
      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 Co!llmittee
        have no substance. As seen above, the requirement under the notifica- B
        tion 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 private school
        which is receiving aid in the form of maintenance grant from the Cent-
        ral Government, Administrator or local authority or any other autho-
        rity assigned by the Central Government, Administrator or a local c
        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 D
        challenge what has been stated in paragraph 1 of the petition. It is,
        therefore, apparent that the school in which the petitioner was work-
        ing was such, the employees of which were entitled to the benefits
        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 E
        Central Civil Services (Pension), Rules, 1972 as amended from time to
        time shall apply. Rule 35 of these Rules provides that a superannua-
        tion pension shall be granted to a Government servant who is retired
        on his attaining the age of compulsory retirement. 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 F
        to be borne on the establishment. Since these Rules will apply to the
        petitioner 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 establishment of the school in
        which she was working consequent upon reaching the age of superan-
        nuation. Rule 126 of the Rules under which the notification dated 17th G
        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 notification 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 H
    758                    SUPREME COURT REPORTS            [ 1990] 1 S.C.R.

   in consultation with the Accountant General, Central Revenues. The
A  notification having thus 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 counter-signed by the Education Officer, she obviously
B 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
   contribution 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
c 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 enforcea-
D   bility. 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
    enforceability of the said notification. As seen above, for nearly 10
    years after her retiremenl the petitioner was being informed in reply to
E   her various representations that her case was under active considera-
    tion. 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
F   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
    retirement benefits to them. For ought we know, but for the sincere
    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 retire-
G
    ment 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.

H         In the result, this petition succeeds and is allowed. The respon-
                   SMT. SHAKUNTALA v. N.D.M.C. IOJHA, J.]               759

    dents are directed to pay to the petitioner pension admissible to her in   A
    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 1and2 whiCh is assessed at Rs.2,000.                B

    G.N.                                                  Petition allowed .




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