Km. Katori Devi v. State Of U.P And Others

Bhanwar Singh, J.:— The petitioner, by filing this petition, seeks review of this Court's judgment of May 21, 2001, whereby her writ petition No. 5004 (SS) of 1998 was dismissed.

2. In brief, it may be stated that Ms. Katori Devi was appointed as Headmistress in Rajkiya Kanya Junior High School, Baldev, District Mathura way back in September, 1968. Barely a month after her appointment, her services were terminated on 31st October, 1968. However, in the year 1970, she was appointed again as Assistant Teacher and posted in Rajkiya Kanya Higher Secondary School, Tugana, District Meerut and she worked there for about six months. After a break of another six months, she was appointed in September, 1971 as a Teacher in the Government Girls Higher Secondary School, Lal Garhi, District Etah. In July, 1972, she was transferred from Lal Garhi to Jalesar but she was not allowed to stay there for long and only a month after she was transferred to Damanpur in District Mirzapur and again from Damanpur to Mahoba, where her services were terminated on 14.5.1973 She pleaded that her termination order was arbitrary and illegal. Then, she worked as Assistant Teacher in Government Girls Inter College, Moradabad from 9.11.1974 to 25.5.1975 According to the petitioner, she felt aggrieved of the arbitrary and illegal actions of the departmental authorities, therefore, she had to resort to agitational means and went on hunger strike at different intervals during 4.1.1982 to 27.2.1996 at different places, namely, Mathura, Agra and Lucknow. In February, 1996, when the President's Rule was clamped in the State of U.P, she was reinstated in pursuance of the orders of His Excellency the Governor and it was in compliance of such orders that she was reappointed on the post of Assistant Teacher again in Government Girls' Inter College, Baldev, District Mathura. She worked there from 1.3.1996 to 9.7.1997 In fact, she was given extension of service for two years after her age of superannuation but the Director of Education issued orders of her reappointment. When she represented with her allegations that it was not a reappointment, rather a reinstatement with extension, the Director sought for a clarification from the Principal Secretary (Education) but with no response. The Director then wrote a letter to the Principal of Government Girls' Higher Secondary School, Baldev, District Mathura directing him to comply with the order of the Government and allow her to join duty. The Principal carried out these orders but her appointment was kept confined upto the age of 60 years. Thereafter, the petitioner approached all the concerned authorities for release of her dues amounting to Rs. 4,17,039/- towards her salary in arrears but all her requests—oral and written, went unheeded. Eventually, His Excellency the Governor, ordered for a payment of Rs. 3,25,000/- in lump-sum without any details or counts thereof. However, she was not allowed to draw any pension. It was in these circumstances that the petitioner filed the aforesiad writ petition for grant of L.T Grade, Promotional Scale, payment of her salary in the revised pay-scale and revised pension accordingly. Also she had prayed for a writ of certiorari quashing the impugned two orders dated 21.11.1997 and 22.2.1996

3. On having heard both the parties, this Court arrived at a conclusion that the petitioner's writ petition was devoid of merit and accordingly dismissed the writ petition vide judgment dated May 21, 2001.

4. Feeling aggrieved of the decision of dismissal, the petitioner filed this review petition reiterating all her claims.

5. The State has not filed any counter-affidavit. However, the learned Standing Counsel for the State argued that the Review Petition is not maintainable as there was no error on the face of the judgment.

6. The main grounds on the basis of which the petitioner has sought for review of the judgment are that His Excellency the Governor of U.P provided for extension/re-appointment for two years service and therefore, she was entitled to work upto the end of academic session; that she was treated to be in service with retrospective effect; that the payment of Rs. 3,25,000/- was not an ex-gratia payment, rather it was a payment of service benefits; that two years extension was to be made after attaining the age of superannuation as per orders of the Governor yet the said benefit was not extended to her; that the order of the Governor under Article 166 (2) of the Constitution of India may not be called in question in the Court; that there was no justification for depriving her from the post-retiral benefits and the pension; that the observations in paras 8 and 9 were totally uncalled for; that she was eligible for the L.T Grade as she had completed 5 years service in C.T grade; that the order of His Excellency the Governor could not be interpreted in a detrimental manner and that the petitioner, having been treated to be in service, could not be deprived of her pension and other post-retiral benefits.

7. What is significant to note is that the main ground on the basis of which the judgment in question is sought to be reviewed is that the order of His Excellency the Governor has not been interpreted in right earnest; and further, the validity of the said order could not be questioned in a court of law in view of the provisions of Article 166 (2) of the Constitution of India. It is undoubtedly true that an order passed by the Governor subject to its authentication in accordance with the rules of business cannot be challenged in any court of law on the ground that it is not made or executed by the Governor but this provision is subject to the limitations—(a) it is does not oust the jurisdiction of the Court to examine the validity of such an order on any other grounds, e.g:

(i) that a condition precedent for making of the order has not been fulfilled;

(ii) that the order violates a provision of the Constitution or proposes to do something which is contrary to existing law or is ultra vires;

(iii) that the person who made the order on behalf of the Government, had no authority to take the decision;

(b) the order was either not duly authenticated or the person authenticating it was not the competent authority.

8. It is thus clear from the above limitations that the authenticity of an order passed by the Government cannot of course be questioned but a High Court is fully competent to scrutinize and examine the validity of any such order on any other ground. In this context, it may be recalled that the order dated 27.2.1996 was signed by Mr. Ashok Priyadarshi, the then Secretary to the Governor. In the judgment under review, the authenticity of the said order has not been questioned at all. However, the said order was examined from a very relevant angle, viz.—as to whether the said order could have been passed against the Fundamental Rules containing the provisions regarding sanction of pension to a government employee. Having scrutinized the terms of the said order, this Court arrived at a conclusion that the Governor had not relaxed the Rules prescribed for pension nor authorised the Director of Intermediate Higher Education Board to sanction the pension to the petitioner by deviating from such relevant Rules. Even if it is assumed as is also apparent on the face of the order that the payment of Rs. 3,25,000/- was made to the petitioner reckoning the entire period from 1968, it does not regularize her services from the very advent of her career until she acquired the age of superannuation with further extension of two years. It appears that the petitioner approached the Office of the Governor during the President's Rule for clarification of the order dated 27.2.1996 whereby she was re-appointed upto the age of 60 years. It was categorically recited in that order that she won't be entitled to pension and the tenure of her reappointment shall remain confined to 60 years. However, when she sought for a clarification from the office of the Governor, it was clarified that she may be paid her dues and pension after retirement and the director shall issue orders accordingly. In this context, as also observed earlier in the judgment under review, the Governor has not relaxed the Rules nor authorized the director to sanction the pension ignoring the rules. The order is very brief having no details regarding regularisation of her service of the period she no longer served the department. In all, she was in service for a period of three years and eight months with irregular intervals. This intervening periods were very long and therefore, it is not understandable as to how such periods of the petitioner being not in service could be ignored and the pension sanctioned. For instance, she did not serve any institution after 1975 and was on protest for nearly 14 years. In this way, the breaks in service cannot be ignored unless she was regularized by the Governor or any other authority competent to have done so. Indeed, the petitioner could have achieved an advantage had it been made clear by the Governor that her services from the inception of her career until she retired would be deemed to have been regularized and as such, she will get the pensionary benefit. It appears from the order dated 27.2.1996 that the direction to the Director of the Education board was given to issue pensionary orders under the Rules. As is evident, the order is silent in all respects. In other words, it does not reply to the plausible queries as referred to above and at the cost of repetition they may be numeralised again:— (i) as to whether the Governor had relaxed the pensionary rules while issuing instructions to the Director; (ii) Whether the entire period of 30 years during which she was actually on duty for a period of 3 years and 8 months only was regularized; and (iii) whether the order dated 27.2.1996 was passed keeping all the relevant rules pertaining to regularisation of service and sanction of pension. No inference can be drawn in favour of the petitioner in oblivion of the response to the above questions. However, the petitioner, if she feels like may approach the government again and the government can still take a decision but this Court is not inclined to ignore the public interest and interpret the order of the Governor to suit the petitioner's interest and give a finding that she is entitled to claim her pension. As can be observed, the discipline of the public offices would be jeopardized, if any teacher or any other government employee having put in merely three years plus service is allowed to draw pension, particularly in violation of the Rules. As observed earlier in the judgment in question, the petitioner, as per Fundamental Rules, would have been entitled to draw her pension had she completed a satisfactory term of 10 years service. Therefore, I am not inclined to review my judgment and take a different view than what has been observed earlier. Accordingly, the contention of the learned counsel for the petitioner that the Governor's order has not been interpreted in right earnest is rejected.

9. Since the Governor's order dated 27.2.1996 clearly confined the period of reappointment of the petitioner upto her acquiring the age of 60 years, there is no question as to how and why the period of two years should be stretched beyond that age. The payment of Rs. 3,25,000/- was a lump-sum payment and in the absence of specific details leading to the total of the calculations it is difficult to uphold the petitioner's contention that it was her dues towards her monthly salary. May be it is true that while sanctioning the aforesaid amount it was in the mind of the authority that had she continued in service she might have been entitled to draw her salary to the tune of the aforesaid amount. But since positive indications were not disclosed, it cannot be held that the said payment was towards her salary or arrears thereof. Merely because the said payment was termed to be as ‘her dues’, pension cannot be sanctioned to her dehors the rules. The observations in paras 8 and 9 were not against anyone, therefore, they cannot be said to be uncalled for. Question of promoting the petitioner to L.T grade does not arise at all as she had not completed 5 years' service, during her chequered period of 30 years, in C.T grade and even the Governor's order had no reference to her claim for promotion.

10. Before parting, this Court came across typographical errors in the judgment. At page 3 in para 2 the date mentioned at S. No. 1 may be recited as 27.9.1968 instead of 27.6.1968 and at page 6, the year ‘1994’ in the 14th line appears to have been wrongly printed, it may be corrected to be as ‘1974’.

11. Keeping all, what has been said above, I am of the view that neither there is any mistake in the judgment in hand nor subsists any error apparent on the face of record. Also, there is no other sufficient reason on the basis of which the judgment in question can be reviewed.

12. In the result, this review petition being devoid of merit is dismissed.

Review Dismissed.