http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: SMT. SHAKUNTALA MEHRISHI

       Vs.

RESPONDENT: NEW DELHI MUNICIPAL COMMITFEE AND ORS:.

DATE OF JUDGMENT01/03/1990

BENCH: OJHA, N.D. (J) BENCH: 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.

HEADNOTE:     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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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]

JUDGMENT:      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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. 760