Tripura High Court
Prof. Dr. Kamalakant Sharma vs The Union Of India on 20 October, 2020
Author: Akil Kureshi
Bench: Akil Kureshi
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.1361/2019
Prof. Dr. Kamalakant Sharma, S/O Late Ram Gopal Sharma, Residing
formerly at Flat No.1703, CARLTON CHS, Hiranandani Estate,
Ghodbunder Road, Patlipada, Thane-400 607, Maharashtra. And Presently
at Flat No.A2/503, Celina Apartments, Behind Ranka Jewellers, Baner
Road, Pune-411 045, Maharashtra.
----Petitioner(s)
Versus
1. The Union of India, Represented by the Secretary to the Government of
India, Ministry of Human Resources Development, Department of Higher
Education, New Delhi-110 001.
2. The University Grants Commission, Represented by the Chairman,
Bahadur Shah Zafar Marg, New Delhi-110 002.
3. The Tripura University (A Central University), Represented by the
Registrar, Tripura University, Surjyamaninagar-799 022, P.O.-Tripura
University Sub-Post Office, P.S.- Amtali, District-West Tripura.
4. The State of Tripura, Represented by the Secretary to the Government of
Tripura, Education (Higher) Department, New Secretariat Complex, P.O.-
Kunjaban-799 006, P.S.- East Agartala, West Tripura
-----Respondent(s)
For Petitioner(s) : Prof. Dr. Kamalakant Sharma in-person. For Respondent(s) : Mr. A.K. Bhowmik, Advocate General, Mr. Bidyut Majumder, Asstt. S.G., Mr. Raju Datta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
Date of hearing : 7th October, 2020.
Date of judgment : 20th October, 2020.
Whether fit for reporting : NO.
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JUDGMENT & ORDER
This petition is drafted and argued by a party-in-person, a retired Professor. It was difficult to fully comprehend his grievances since the drafting of the petition is not by a legally trained person and, therefore, the sequence of events has not been property stated. The fact that the petition was heard through video conferencing has only compounded my difficulties. However, the petitioner is an aged person who has retired from a teaching post several years back and he had stated that his wife is suffering from serious illnesses. He was, therefore, pressing hard for final disposal of the petition in which he has claimed unpaid monetary benefits which according to him were payable. I have gone through the entire record and tried to understand and appreciate the grievances of the petitioner.
2. The petitioner has made following prayers:
"PRAYER:
In the premises aforesaid it is prayed that your Lordships may please issue Rule NISI calling upon the Respondents to Show-Cause as to why a Writ of Certiorari should not be issued directing the Respondents to produce all relevant records and to declare that the Petitioner is entitled to Gratuity amount of Rs.10,00,000/- (Rupees Ten Lakhs) only Page 3 of 13 from Tripura University with compound interest @ 12% per annum in view of perpetual denial of legitimate claims and dues etc. of the Petitioner, appropriate writ of mandamus or any other writ, order or direction of similar nature to AND/OR As to why a Writ of Certiorari should not be issued declaring that the Petitioner is entitled to get Pension under CCS (Pension) Rules 1972, CCS (Gratuity) Rules 1972, GFR 2005, FR & SR etc. as amended from time to time and not under West Bengal State aided University (Death cum Retirement Benefits) Scheme 1986 and he is entitled to get 50% of his last basic pay etc. as Pension AND/OR As to why a Writ of Certiorari should not be issued declaring that the Petitioner is entitled to get Arrears on Promotion under CAS to the Post of Professor of Mathematics w.e.f. the date of eligibility i.e. 05.12.1993 and not from 29.04.2003 as per Memo dated 30.09.2005 and that he is entitled to get fixation of his pay in the Post of Professor and to get increment of his pay w.e.f. 01.01.1994 and to get all arrear of Salary accordingly as well as with compound interest @ 12% per annum AND/OR As to why a Writ of Mandamus should not be issued directing the Tripura University to shift the CPF Scheme account to the GPF Scheme account from his date of appoint and joining i.e. 05.12.1984 in the Calcutta University Post Graduate Centre and also for a direction to grant the aforesaid reliefs to the Petitioner Page 4 of 13 AND/OR As to why a Writ of Mandamus should not be issued directing Tripura University to protect Seniority of Petitioner on Promotion under CAS to the Post of Professor in Mathematics w.e.f. his date of eligibility i.e. 05.12.1993 and not from 29.04.2003 AND/OR As to why a Writ of Mandamus should not be issued directing Tripura University to Pay Rs.98,029/- (Rupees Ninety-eight Thousand and Twenty nine) only with compound interest @ 12% per annum on account of expenditure for shifting to his Home town on retirement Pension under CCS (Pension) Rules 1972, CCS (Gratuity) Rules 1972, GFR 2005, FR & SR etc. as amended from time to time AND/OR As to why a Writ of Mandamus be not issued directing that Respondent No.3 Tripura University compensate Petitioner for damage(s), loss etc. incurred to him and his family thereon including all service and pecuniary benefits treating his service as continued and uninterrupted since 01.04.2007 upto age of 70 years as well as consideration for his continuation in service upto age of 75 years.
AND/OR As to why appropriate order should not be issued to Respondent No.3 as may be necessary by this Hon'ble Court to grant the reliefs expeditiously under the circumstances that the Petitioner is now 72 years old.
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To pass such other appropriate order and directions as are considered necessary by this Hon'ble Court to bring urgent relief in the facts and circumstances of the case."
3. Background facts are as under:
The petitioner joined the Calcutta University Post Graduate Centre at Agartala on 05.12.1984 on the post of Reader. In due course he was promoted to the post of Professor of Mathematics w.e.f. 29.04.2003. The said centre became a full-fledged State University called Tripura University under Tripura University Act, 1987. At that time, the petitioner was informed that he would retire as a Professor on attaining the age of 60 years. Accordingly, he retired w.e.f. 31.03.2007 when he crossed the age of 60 years on 16.03.2007. He made representations to the authorities contending that he should have been continued in service till the age of 65 years. This request was not accepted. He thereupon filed WP(C) No.303 of 2010 before the Gauhati High Court. Learned Single Judge of the High Court disposed of this petition by a judgment dated 22.12.2011. The contention of the petitioner was that Tripura University being a Central University the age of retirement should have been 65. He alternatively contended that the University Grants Commission had recommended increasing the retirement age to 62 years which the State Government had accepted. While dismissing the writ petition, the learned Single Judge held Page 6 of 13 that the petitioner retired before the Tripura University became a Central University and, therefore, the petitioner cannot claim higher retirement age.
It was also held that the university was not even centrally funded institution.
4. Dissatisfied by the judgment of the learned Single Judge, the petitioner preferred Writ Appeal No.07 of 2012 which was dismissed by a judgment dated 25.04.2012. The Division Bench confirmed the decision of the learned Single Judge. The petitioner thereupon filed SLP before the Supreme Court in which a detailed order was passed on 21.11.2016. The petitioner's first contention that as an employee of the Central University his retirement age was 65 years was rejected. It was noted that Tripura University became Central University after the petitioner retired from service. The Supreme Court then adverted to the petitioner's alternative argument that the Tripura State University was a centrally funded university and, therefore, as per the decision of the Central Government his retirement age was 62 years. The Supreme Court observed that the question whether the university was funded by the Central Government is, therefore, a moot question on which the Court was required to record a finding. This can be done satisfactorily only if the Central Government responds to the contention of the appellant. The Court requested the Addl. Solicitor General to take instructions in this respect of the matter and simultaneously joined Page 7 of 13 UGC as an additional respondent who would state whether Tripura University was a centrally funded university.
5. Thereafter, by an order dated 13.02.2017 after recording a finding on the basis of affidavits filed by the Central Government as well as the UGC that Tripura University was not a centrally funded university, the SLP of the petitioner was dismissed. Petitioner's review and curative petitions were also dismissed.
6. The petitioner thereafter filed yet another petition before the High Court of Tripura being WP(C) No.577 of 2019 in which the prayers made were substantially similar to those made in the present petition. This petition was disposed of by an order dated 08.05.2019. The learned Single Judge was of the opinion that the petitioner's grievances should be first examined by the Vice Chancellor of the Tripura University. Appropriate directions were, therefore, issued. Petition was disposed of with a liberty to file a fresh petition, if needed.
7. The petitioner thereupon made a representation to the Vice Chancellor of the Tripura University on 15.05.2019 in which he made several claims. Significantly, he reiterated his request for fixing his retirement age as 65 or at least 62 years. He claimed gratuity as per the CCS Page 8 of 13 (Gratuity) Rules. He also questioned his date of promotion as a Professor contending that he ought to have been granted such promotion with effect of his eligibility i.e. 05.12.1993 under Career Advancement Scheme instead of 29.04.2003 which was granted to him. He also requested that he should be allowed to shift from Contributory Provident Fund Scheme to GPF Scheme.
8. The Vice Chancellor of the University communicated to him on 09.07.2019 in which most of his prayers were rejected. However, he was offered settlement of his pension and other retirement dues. Point-wise he met with the petitioner's different prayers gist of which is as under:
(a) With respect to higher retirement age he stated that the same was not applicable to the employees of the university since at the time of his retirement the university was neither a Central University nor a centrally funded university;
(b) With respect to changing over to GPF it was conveyed that he had opted for CPF Scheme which cannot be changed. He, however, stated that the University had written a letter requesting him to collect a cheque for the amount of pension and other retirement dues which were already sanctioned. The date of this letter is stated to be 09.07.2010 but it prima facie appears to me to be a typographical error and in any case, a copy Page 9 of 13 of this letter is not produced on record by the respondents. This aspect would be discussed later;
(c) Regarding the claim of promotion it was stated that the promotion was given under the recommendation of a committee which after examining all the relevant criteria had recommended the promotion to the petitioner under CAS w.e.f. 29.04.2003 which was granted to him;
(d) Regarding Ph.D. increment it was stated that he was granted the incentive increment w.e.f. 01.04.2002 upon his acquiring the Doctorate degree;
(e) Regarding his claim for T.A. bill it was stated that the petitioner had not produced necessary bills within one year of his retirement which was a requirement.
9. The petitioner thereupon filed this fresh petition in which he has made several prayers which are reproduced above. His prayers need to be examined in light of the previous judgments of the Courts. Before we examine individual prayers, the contents of the affidavit-in-reply filed by the University may be noted in brief. In such affidavit in addition to giving the history of the previous litigation, it is further stated that the Vice Chancellor had examined the grievances of the petitioner in detail and point-wise answers have been given. It is stated that the pensionary benefits were Page 10 of 13 sanctioned on 26.09.2019 and deposited in the petitioner's bank account on 01.10.2019. A communication dated 01.10.2019 made by the Assistant Registrar of the University to the Branch Manager shows that a total sum of Rs.51,62,074/- (Rupees fifty one lakh sixty two thousand seventy four) was credited in the Savings Bank account of the petitioner which was towards his leave salary, pension arrears and gratuity. Regarding his further claims, the stand taken by the Vice Chancellor in his communication dated 09.07.2019 was reiterated.
10. It can thus be seen that the petitioner has lost his main battle for higher retirement age right up to the Supreme Court. Single Judge of this Court as well as Division Bench and the Supreme Court had rejected his claim on merits. His requests for applying the retirement age of 65 years or at least 62 years have been turned down. He cannot raise the same issue over and over again. Though not previously paid, his gratuity and the pension have also been paid on 01.10.2019. There is nothing on the record to suggest that the gratuity paid is inadequate. Being a CPF optee, the petitioner cannot claim the benefit of pension under the CCS (Pension) Rules. His request for shifting over from CPF to GPF was also correctly not accepted. Firstly, such a prayer was made long after retirement. Secondly, there is no basis shown under which such a fresh option was made available to the employees by the Page 11 of 13 University. Regarding his date of promotion under CAS, the University's stand is that as per the recommendation of the committee he was granted such promotion w.e.f. 29.04.2003. His case is that the same should have been granted w.e.f. 05.12.1993 from the date of his eligibility. It is well settled that mere eligibility for promotion does not automatically result into right of promotion. Such promotion depends on range of factors including suitability of the employee concerned. Nothing is produced on record to suggest that the decision of the University based on the recommendations of the expert committee was irregular or illegal. More importantly, if according to the petitioner, he should have been promoted in the year 1993, he ought to have ventilated his grievances before appropriate forum within reasonable time. First time he raised this issue in the previous writ petition being WP(C) No.577 of 2019. Any such prayer would thus be hopelessly barred by delay and laches. Lastly, his request for reimbursement of amount of expenditure for his shifting to home town cannot be granted since as pointed out by the University he does not seem to have raised the bills timely.
11. None of the principal claims of the petitioner can, therefore, be allowed. However, there is one aspect which still remains to be examined and that is of delay in releasing his post retiral benefits such as, leave encashment, gratuity and payable pension. As noted, a sum of Page 12 of 13 Rs.51,62,074/- was paid to the petitioner on 01.10.2019 whereas he retired as far back as on 31.03.2007. In the communication dated 09.07.2019 the Vice Chancellor, as noted above, had stated that an offer for payment of such dues was made under letter dated 09.07.2010 but no such letter is produced on record. I am sure there is a typographical error and the correct date of the communication may be 09.07.2019. In the affidavit in reply, the University has stated that the such dues were sanctioned on 26.9.2019. In any case, there is no explanation why the petitioner was not earlier paid such post retirement benefits. The petitioner may be agitating his various claims of higher retirement age or higher pension under CCS (Pension) Rules. Whether his claims were justified or not is not important. The University on its own ought to have released his legitimate dues which according to the University he was entitled to. Merely because the petitioner was clamouring for higher benefits, would not permit the University to withhold his such post retiral benefits which even according to the University were payable to him. These benefits were not in the nature of mutually exclusive claims. Pendency of the litigation initiated by the petitioner, therefore, cannot be the ground on which the University could have withheld such dues. Claim for interest may not have been specifically made in the petition, however, it is consequential in nature. The University, therefore, must pay interest on such Page 13 of 13 delayed payment. The petitioner retired w.e.f. 31.03.2007. Considering three months of period as reasonable for clearing all such dues, the respondents shall pay simple interest @ 7% per annum on the said sum of Rs.51,62,074/- from 01.07.2007 till payment i.e. 01.10.2019. Such amount shall be paid over within a period of 4(four) weeks from today. Rest of the claims of the petitioner are rejected.
12. Petition is disposed of accordingly.
Pending application(s), if any, also stands disposed of.
(AKIL KURESHI), CJ Pulak