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2024 DIGILAW 1309 (KER)

Vilfred v. Central University of Kerala

2024-10-15

HARISANKAR V.MENON

body2024
JUDGMENT : The petitioner was working in an aided college under the Government of Tamil Nadu, from 1982 onwards. In the year 2015, pursuant to an application made, the petitioner was appointed as an Associate Professor in the Department of Mathematics in the Central University of Kerala – the 1st respondent herein. The dispute in this writ petition is essentially as to whether the petitioner’s service in the aided college in the State of Tamil Nadu from 1982 to 2015 ought to have been considered or not, while arriving at his pensionary benefits, upon his retirement in 2023. 2. Though, the petitioner made such a request, by Ext.P3 dated 08.03.2019, the 1st respondent University pointed out that, insofar as it was constituted in the year 2009, under an Act of the Parliament, the employees like the petitioner are governed by the National Pension Scheme (NPS) and not by the CCS (Pension) Rules, 1972. Therefore, the claim of the petitioner stood rejected as early as in the year 2019, further advising the petitioner to seek pension from the Tamil Nadu Government for the period during which he worked there. Later, Ext.P14 dated 05.08.2019 is issued by the 2nd respondent, relying on certain clauses in Ext.P15 Office Memorandum issued by the Government of India, again holding that the request for pension in the manner sought for by the petitioner cannot be extended to him. This is followed with Ext.P13 communication dated 07.11.2022, again advising the petitioner to avail pension from the previous employer for the period when he was working in the State of Tamil Nadu as noticed afore. 3. It is in the afore situation that the petitioner has presented the captioned writ petition, essentially challenging Exts.P13 and P14. The petitioner also seeks a declaration that he is entitled to count his service from 1982 to 2015, while arriving at the pensionary benefits from the 1st respondent University, upon his retirement as above. 4. A detailed counter affidavit dated 11.03.2024 is filed by respondents 1 and 2, pointing out that the petitioner is governed by the NPS as regards the claim for pension and not by the 1972 Rules. The petitioner has filed a reply affidavit dated 11.06.2024, placing reliance on Ext.P19, a communication from the Ministry of Finance, Department of Expenditure, Government of India, whereby similar benefits were extended as regards the employees of the Central University of Himachal Pradesh. The petitioner has filed a reply affidavit dated 11.06.2024, placing reliance on Ext.P19, a communication from the Ministry of Finance, Department of Expenditure, Government of India, whereby similar benefits were extended as regards the employees of the Central University of Himachal Pradesh. He also relies on Ext.P20 judgment of the High Court of Himachal Pradesh, closing a writ petition, placing reliance on the instructions obtained by the learned Senior Panel Counsel. 5. I have heard Sri.S.Vishnu, the learned counsel for the petitioner and Sri.T.Ramprasad Unni, the learned Standing Counsel for respondents 1 and 2. 6. Sri.Vishnu, the learned counsel for the petitioner, would contend that; i. By virtue of the provisions under the 1972 Rules, the petitioner was entitled to take into account his earlier service in the aided college in the State of Tamil Nadu for arriving at pensionary benefits. ii. He would also rely on Ext.P19 issued by the Ministry of Finance, extending similar benefits as regards the Central University of Himachal Pradesh. iii. He would also point out that the provisions under Ext.P15 office Memorandum, relied on in Ext.P14, impugned in this writ petition is out of place, since, as per the said Ext.P15 itself, the petitioner was entitled for the benefits. 7. Per contra, Sri.Ramprasad Unni, the learned Standing Counsel for the University, would contend that; i. The 1972 Rules relied on by the petitioner are not applicable as regards the Central University. ii. The Central University of Kerala, being a creature of a Central Statute, the employees thereunder are governed by the provisions of the said statute alone. iii. He would refer to Ext.P1(a) appointment order and the various clauses contained thereunder and point out that the petitioner has specifically accepted the various terms of the said appointment order, one among them being clause No.7, as per which, the petitioner is governed by the provisions of NPS and the subsequent amendments thereto and not the 1972 Rules. He would also point out with reference to Clause 5 that the petitioner had already entered into an agreement with the University, and his service conditions are governed by the said agreement and not by the 1972 Rules. 8. I have considered the rival submissions as well as the connected records. 9. He would also point out with reference to Clause 5 that the petitioner had already entered into an agreement with the University, and his service conditions are governed by the said agreement and not by the 1972 Rules. 8. I have considered the rival submissions as well as the connected records. 9. The petitioner’s grievance in this writ petition as regards Exts.P13 and P14, is the refusal to take into account the past service in the aided college coming under the Government of Tamil Nadu. The fact that the petitioner had so worked in the State of Tamil Nadu is not under dispute. The petitioner was appointed in the 1st respondent University pursuant to Ext.P1(a) in the year 2015. Thereafter, the petitioner worked in the University till 2023. At this juncture, the provisions of the 1972 Rules relied on by the petitioner is to be taken into account. Rule 2 of the said Rules, under which, the extent of application of the said Rules is prescribed, reads as under; “2. Application Save as otherwise provided in these rules, these rules shall apply to Government servants appointed on or before the 31st day of December, 2003, including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to- (a) railway servants; (b) persons in casual and daily–rated employment; (c) persons paid from contingencies; (d) persons entitled to the benefit of a Contributory Provident Fund; (e) members of the All India Services; (f) persons locally recruited for service in diplomatic, consular or other Indian establishments in foreign countries; (g) persons employed on contract except when the contract provides otherwise; and (h) persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force.” A reading of the above provision shows that the 1972 Rules are applicable as against; i. Government servants appointed on or before 31.12.2003. ii. Civilian Government servants in the Defence services. iii. Those appointed to civil services / posts in connection with the affairs of the Union. Thus, 1972 Rules limit the application thereof to employees working under the Union and also including civilian Government servants in the Defence services. ii. Civilian Government servants in the Defence services. iii. Those appointed to civil services / posts in connection with the affairs of the Union. Thus, 1972 Rules limit the application thereof to employees working under the Union and also including civilian Government servants in the Defence services. In my opinion, the said Rules excludes its application as against the employees who have been appointed in the 1st respondent University under a Central Statute. Admittedly, the 1st respondent is established under Act 25 of 2009. The employees of the said University stand on a different footing from the employees working under the Union. In such a situation, the petitioner may not be justified in contending that he is to be extended the benefits with reference to the provisions under the 1972 Rules. 10. Apart from this, the fact that the petitioner was appointed on the basis of Ext.P1(a) appointment order is also not in dispute. Under Ext.P1(a), the fact that the petitioner is appointed with reference to the provisions of the NPS of the Government of India is not in dispute. When that be the case, there was no requirement for the petitioner to have made an application to the 1st respondent University to apply the provisions of the 1972 Rules. 11. In this connection, I also notice that in March, 2019 itself, the University had advised the petitioner to vent its grievances with the Government of Tamil Nadu by making an appropriate application, seeking pension with reference to the period during which the petitioner had worked in the State of Tamil Nadu in the aided college as afore. In such a situation, the petitioner ought to have made applications in that regard and sought redressal of his grievances with reference to the eligibility of pension for the period he worked in the State of Tamil Nadu. 12. Though Sri.Vishnu, the learned counsel for the petitioner, vehemently made submissions on the basis of Exts.P19 and P20, it is noticed that Ext.P19 is only a communication from the Ministry of Finance, Department of Expenditure, as per which an Office Memorandum from the Ministry of HRD, seeking extension of similar benefits to ten employees of the Central University of Himachal Pradesh, stood accepted. But the said acceptance was specifically with reference to the Central University of Himachal Pradesh. But the said acceptance was specifically with reference to the Central University of Himachal Pradesh. The learned counsel may be justified in saying that similar benefits are to be extended to the petitioner also. However, in my opinion, insofar as Ext.P19 was specifically with reference to the employees of the Central University of Himachal Pradesh, the same cannot be applied as regards the case of the petitioner herein. However, the petitioner would be entitled to make an appropriate application to the 1st respondent herein, placing reliance on Ext.P19, in which event the 1st respondent may consider the same and take an appropriate decision in that regard. 13. In the result, this writ petition would stand ordered as under; i. The challenge to Ext.P13 and P14 issued by the respondent University would stand repelled. ii. The petitioner is granted liberty to make an application to the 1st respondent herein, relying on Ext.P19, seeking similar benefits to be extended to the petitioner. iii. In the event of the petitioner making such an application, it would be for the 1st respondent University to take a decision in that regard, as expeditiously as possible, at any rate, within a period of three months thereafter.