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2017 DIGILAW 964 (GAU)

Anil Roy Choudhury v. State of Assam

2017-07-20

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. S. Bikash, learned counsel for the petitioner as well as Mr. D. Saikia, Senior Additional Advocate General, Assam for respondent Nos. 1 (A) and 2. Also heard Mr. A. Chetry, learned counsel representing respondent No. 1(B) and Mr. N.C. Das, Senior Counsel representing respondent Nos. 3, 4 and 5. Section 3 of the Gauhati University (Amendment) Act, 2013 inserted a new Section 36A in the parent Act i.e. The Gauhati University Act, 1947 extending the benefit of pension to the existing permanent employees of the University, both teaching and non-teaching, who entered service before 01.02.2005. The eligibility of such pension was made effective from the 1st day of April, 2013. The petitioner herein entered service in Gauhati University as Lower Division Assistant on 09.04.1951 and retired on attaining age of superannuation on 30.09.1988 as Office Superintendent by availing the benefit of Gratuity and Contributory Provident Fund (CPF). He is aggrieved of the word "existing" in the newly inserted Section 36A(1) as it goes to deny him the benefit of pension. In this regard, prayer made in the writ petition is for an appropriate direction to severe the word "existing" from Section 36A(1) and to declare the petitioner's eligibility for pension with effect from 01.04.2013. Before proceeding further, it would be apposite to reproduce Section 36 A(1), as brought in by the Gauhati University (Amendment) Act, 2013. "36 A(1) The existing permanent employees of the University, both teaching and non-teaching who have entered service before 1-2-2005, shall be eligible for pension on their retirement from the service of the University with effect from the 1st day of April, 2013." 2. The petitioner alleges Discrimination, in that, the retired employees of Gauhati University like him is sought to be treated differently from the retired employees of Dibrugarh University where the offending word "existing" do not appear in the newly inserted section 30A(1), as brought about by the Dibrugarh University (Amendment) Act, 2013. In case of Dibrugarh University, all permanent employees, both teaching and non-teaching, who entered service before 01.02.2005 have been made eligible for pension on their retirement, with effect from 01.04.2013. Whether the ground of challenge is sustainable in law or not, the same will be addressed at a later stage of this judgment. First, certain basic facts having utmost significance for adjudication of this case needs to be noticed. 3. Whether the ground of challenge is sustainable in law or not, the same will be addressed at a later stage of this judgment. First, certain basic facts having utmost significance for adjudication of this case needs to be noticed. 3. As indicated above, the petitioner retired from service on attaining age of superannuation on 30.09.1988. During the period of service, the Gauhati University had framed the Retirement Benefit Rules, 1974 (in short the Rules, 1974) by virtue of power conferred under Section 36(1) of the Gauhati University Act, 1947. The said Rules was put into force with effect from 01.04.1974. Rule 3(i) of the Rules, 1974 stipulated that it shall apply to all employees of the Gauhati University, both academic and non-academic, other than part-time employees, re-employed pensioners, deputationists, temporary and daily- wage staff. At Clause (a) thereof, it was prescribed that those employees who joined service of the University before 01.04.1974 shall be entitled to opt for one of the two alternative schemes set out in Appendices 'A' and 'B' to the Rules. Whereas the scheme under Appendix-A pertained to General Provident Fund -cum-Pension-cum-Gratuity Rule, Appendix-B pertained to Contributory Provident Fund and Gratuity. From the pleadings on record, which is not controverted, the petitioner who was originally under the CPF Scheme, did not opt for availing benefit under Appendix-A in terms of the Rules, 1974. He retired from service by getting the benefit under the CPF Scheme with Gratuity. Pertinent to note, there is no whisper in the writ petition as regards the Retirement Benefit Rules, 1974 and to the two options made available under Appendix-A and B thereof. The Rules of 1974 had also undergone amendment by Retirement Benefit (Amendment) Rules, 1978, on a date prior to the retirement of the petitioner. Rule 7(a) thereof clearly prescribed that an employee who has opted for CPF under the Retirement Benefit Rules, 1974 shall not be entitled to pension. 4. In Krishena Kumar v. Union of India, reported in (1990) 4 SCC 207 , a Constitution Bench of the Supreme Court distinguished the status of Provident Fund retirees from the pension retirees. It was held that the Government's obligation towards an employee under CPF Scheme to give matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government in respect of the Provident Fund is finally crystallised. It was held that the Government's obligation towards an employee under CPF Scheme to give matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government in respect of the Provident Fund is finally crystallised. Thereafter, no statutory obligation continues. As regards Pension Scheme, the Government's obligation does not begin until the employee retires, when only it commences and continues till the death of the employee. Thus, on the retirement of an employee, the Government's legal obligation under the Provident Fund Account ends while under the Pension Scheme it begins. 5. In V.K. Ramamurthy v. Union of India & Anr., reported in (1996) 10 SCC 73 , the question that arose for consideration was whether the Pension Scheme though was in operation while the petitioner was in service and option was sought for but the petitioner never opted for the same but had opted for Provident Fund Scheme, will be entitled to come over to the Pension Scheme after 24 years of his retirement. The Supreme Court answered in the negative by holding that as the petitioner therein, who retired in the year 1972, did not exercise his option to come over to the Pension Scheme despite being granted opportunities, would not be entitled to opt for Pension Scheme at the far distance of time. In the present case, the petitioner retired from service in the year 1988 and after more than 25 years from the date of his retirement he is seeking benefit of pension, which he deliberately did not opt for under the Rules of 1974. 6. In Hari Ram Gupta (Dead) Through L.R. Kasturi Devi v. State of UP., reported in (1998) 6 SCC 328 , the question arising for consideration was whether pension could be made available to employees who had already retired from service. In the said case, the appellant therein had retired from service on superannuation in the year 1980. He claimed benefit of pension under the Uttar Pradesh Palika (Centralised) Service Retirement Benefit Rules, 1981. On this aspect, the Supreme Court observed that the appellant having superannuated prior to the Rules coming into force cannot claim the right to pension under the Rules as the Rules do not have any retrospective operation. In the present case, again, the petitioner herein retired on superannuation on 30.09.1988. On this aspect, the Supreme Court observed that the appellant having superannuated prior to the Rules coming into force cannot claim the right to pension under the Rules as the Rules do not have any retrospective operation. In the present case, again, the petitioner herein retired on superannuation on 30.09.1988. His claim for benefit of pension is under the Gauhati University (Amendment) Act, 2013 with effect from 01.04.2013 by taking out the word "existing" from the newly inserted Section 36A(1) thereof. Even assuming that the word "existing" does not exist in Section 36A(1), having regard to the ratio laid down in Hari Ram Gupta (supra) and also having regard to the fact that the petitioner retired on superannuation well before the Amendment Act, 2013 was brought into force, he cannot be made entitled to the benefit of pension as the said Amendment Act, 2013, particularly, Section 36A(1) do not have any retrospective operation. 7. As to the prayer made for severing the word "existing" from Section 36A(1) on the ground assigned, this Court is of the considered opinion that in terms of the golden rule of construction, the words in the statute must be given its ordinary meaning, without omission or addition. The reference made to Section 30 A(1) as inserted in the Dibrugarh University (Amendment) Act, 1965 by the Dibrugarh University (Amendment) Act, 2013 cannot, ipso facto, be made the basis to make interference to the word "existing" in Section 36A(1) of the Gauhati University (Amendment) Act, 2013. The legislature in its wisdom had included the word "existing" and short of demonstrating injustice, absurdity in the employment of the said word "existing", it is not in the domain of this Court to make interference and take out the word "existing" from the statute book. 8. From the facts above, it clearly appears that the petitioner had suppressed material particulars as regards the existence of the Gauhati University Retirement Benefit Rules, 1974, where two options were made available to him under Appendix- A and Appendix-B. It is not his case that he had opted for the Scheme under Appendix-Abut was made to retire with Gratuity and Contributory Provident Fund. The petitioner, apparently, have not approached this Court with clean hands and in that view of the matter, he cannot claim any equity. The petitioner, apparently, have not approached this Court with clean hands and in that view of the matter, he cannot claim any equity. Moreover, no case is made out warranting interference of this Court to the word "existing" in Section 36A(1) of the Gauhati University Act, 1947, as inserted by the Gauhati University (Amendment) Act, 2013. The law as laid down by the Supreme Court in the decisions, as referred to above, also do not find favour with the petitioner. In view of the foregoing, this writ petition does not merit consideration and stands accordingly dismissed, however, without any order as to cost. Petition Dismissed.