Karnataka High Court
Sri. Mahadevaswamy vs State Of Karnataka on 3 October, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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WP No. 13001 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 13001 OF 2020 (S-RES)
BETWEEN:
1. SRI. MAHADEVASWAMY
AGED ABOUT 58 YEARS,
S/O. LATE GORAVASETTI,
R/AT AARUSHI, 4TH CROSS,
SHRINIDHI LAYOUT,
SAPTHAGIRI EXTENSION,
TUMKUR-572 102
(HUSBAND OF LATE SMT. RAVIKALA K.L.,
WHO DIED ON 28-07-2016 WHILE WORKING AS
ASSOCIATE PROFESSOR)
2. SMT. T. L. ANASUYAMMA
AGED ABOUT 59 YEARS,
W/O. LATE DR. ESHWAR H.Y,
R/AT POOJA NILAYA,
1ST FLOOR, 4TH MAIN,
Digitally
4TH CROSS, MAHALAXMI NAGAR,
signed by TUMKUR-572 102,
PANKAJA S
Location:
(WIFE OF LATE DR. ESHWAR H.Y.,
HIGH WHO DIED ON 08-01-2019
COURT OF
KARNATAKA WHILE WORKING AS AN ASSOCIATE PROFESSOR)
3. DR. JAYARAMU. M
AGED ABOUT 65 YEARS,
S/O. LATE H. MARI GOWDA,
R/AT NO. KT 249/A, 13TH CROSS,
CHAMUNDESHWARI NAGAR,
KEB COLONY, MANDYA-571 401,
(RETIRED ON 30-09-2016 AS ASSOCIATE
PROFESSOR)
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WP No. 13001 of 2020
4. SRI. HONNESHAIAH
AGED ABOUT 60 YEARS,
S/O.LATE HONAPPA,
R/AT NITHYASHREE NILAYA,
BEHIND AYAPPA SWAMY TEMPLE,
BALAGINAGARA, OORKERE POST,
TUMKUR-572 106.
(RETIRED ON 31-03-2020 AS SUPERINTENDENT)
5. SRI. RAMACHANDRAPPA
AGED ABOUT 64 YEARS,
S/O. THIMMAIAH,
R/AT SIDDARAMESHWARA NILAYA,
3RD CROSS, KRISHNANAGARA,
SIT, TUMKUR-572 102,
(RETIRED ON 30-11-2016 AS PEON)
6. SRI. K. RAMACHANDRAPPA
ASSOCIATE PROFESSOR,
AGED ABOUT 58 YEARS,
S/O. KARIYAPPA,
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
7. SRI. KARIYANNA. B
ASSOCIATE PROFESSOR,
AGED ABOUT 54 YEARS,
S/O. BADEERAPPA,
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
8. SRI. HARIPRASAD. T. N.
ASSOCIATE PROFESSOR,
AGED ABOUT 51 YEARS,
S/O. L. NARASIMHAIAH,
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
9. SMT. DAKSHAYANI. G
ASSOCIATE PROFESSOR,
AGED ABOUT 52 YEARS,
W/O. RAMANJINAIAH. B,
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WP No. 13001 of 2020
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
10. DR. B. L. MUKUNDAPPA
ASSOCIATE PROFESSOR,
AGED ABOUT 58 YEARS,
S/O. K. LINGANNA,
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
11. SMT. SHALINI. B. R.
ASSOCIATE PROFESSOR,
AGED ABOUT 53 YEARS,
W/O. K. L. ANANDKUMAR,
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
12. DR. ASIYA NUZHAT F. B.
ASSOCIATE PROFESSOR,
AGED ABOUT 55 YEARS,
D/O. LATE M.A. REHMAN
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
13. DR. SHET PRAKASH. M
ASSOCIATE PROFESSOR,
AGED ABOUT 51 YEARS,
S/O. MAHABALESHWAR P. SHET,
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
14. DR. SREENIVASA. S
ASSOCIATE PROFESSOR,
AGED ABOUT 54 YEARS,
S/O. SWAMY. T. SREEVARI,
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
15. SMT. SHABEENA ANJUM K. S.
ASSISTANT PROFESSOR,
AGED ABOUT 47 YEARS,
W/O. MOHAMMED KHALID RABBANI,
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WP No. 13001 of 2020
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
16. DR. J. MALLESHAPPA
ASSISTANT PROFESSOR,
AGED ABOUT 47 YEARS,
S/O. JANGAMAPPA,
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
17. DR. RAMAKRISHNA. G
ASSISTANT PROFESSOR,
AGED ABOUT 49 YEARS,
S/O. G. GOVINDAPPA,
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
18. DR. H. M. LALITHA
ASSISTANT PROFESSOR,
AGED ABOUT 49 YEARS,
W/O. M. MAHALINGESH,
R/AT SHIVADWAJA, NEAR
WORKING AT TUMKUR UNIVERSITY,
B.H. ROAD, TUMKUR-572 103.
...PETITIONERS
(BY SRI. P.P.HEGDE, SENIOR COUNSEL APPEARING FOR
SRI.VENKATESH SOMAREDDY., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF EDUCATION
(HIGHER EDUCATION),
GOVERNMENT OF KARNATAKA,
M.S. BUILDING, BENGALURU-560 001.
2. THE COMMISSIONER FOR COLLEGIATE EDUCATION
SHESHADRI ROAD,
BENGALURU-560 001.
3. TUMKUR UNIVERSITY
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WP No. 13001 of 2020
REPRESENTED BY ITS REGISTRAR,
B.H. ROAD, TUMKUR-572 103.
4. THE ACCOUNTANT GENERAL OF
KARNATAKA (A AND E)
PARK HOUSE, BENGALURU-560 001.
5. THE PRINCIPAL SECRETARY
FINANCE DEPARTMENT,
GOVERNMENT OF KARNATAKA,
M.S. BUILDING,BENGALURU-560 001.
...RESPONDENTS
(BY SRI. HARISHA.A.S., AGA FOR R-1, 2, 4 & 5;
SRI.SANTOSH.S.NAGARALE, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARE THAT PETITIONER NO.1 WIFE LATE SMT.RAVIKALA
K.L. AND PETITIONER NO.2 HUSBAND LATE DR.ESWARA H.Y
AND PETITIONER NO.3 TO 14 ARE ENTITLED TO PENSION AND
OTHER SERVICE BENEFITS UNDER KARNATAKA CIVIL
SERVICES RULES AND FURTHER RESTRAIN THE RESPONDENTS
FROM APPLYING THE NEW DEFINED CONTRIBUTORY PENSION
SCHEME DATED.1.4.2006 INTRODUCED BY THE GOVERNMENT
OF KARNATAKA AS PER GOVERNMENT ORDER VIDE
ANNEXURE-D TO THEM, ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. This petition is filed seeking a direction to declare that the petitioners, who are all employees of the Tumkur University, (for short, "the employees") absorbed into the services of the University, are entitled to pension and other service benefits under the Karnataka Civil Service -6- NC: 2023:KHC:35710 WP No. 13001 of 2020 Rules (for short, "the KCSR"), along with an order to restrain the respondents from applying the New Defined Contributory Pension Scheme (for short, "the NPS") dated 01.04.2006.
2. The 1st petitioner and the 2nd petitioner are the wife and husband (respectively) of two erstwhile employees of the Tumkur University ("the University" or "the subject University", for short), whereas, petitioner Nos. 3 to 5 are retired staff; petitioner Nos. 6 to 14 are Associate Professors; and petitioner Nos. 15-18 are Assistant Professors employed in the University. Furthermore, Petitioner Nos. 3, 6-28 are teaching staff and petitioner Nos. 4 and 5 are non-teaching staff.
3. A prayer is also made to forthwith pay and settle the retiral, death and service benefits to the wife of the 1st petitioner and the husband of the 2nd petitioner, and retirement and service benefits to petitioners 3 to 5 by extending the pension and service benefits under the KCSR.
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4. A requisite is also made to award interest at 12% per annum on the arrears from the date of death/retirement of the respective staff.
5. By way of an amendment, the employees have also challenging the statute framed for Absorption of the Opted-in Teaching and Non-Teaching Staff of the erstwhile Government Science College, Tumkur and Government Arts College, Tumkur into the services of the University by respondent No.2 - University, and consequently, declare that the employees are governed by the Old Pension Scheme (for short, "the OPS") which was in force at the time of their original entry into service. A prayer is also made to hold that the service rendered by them in the University is to be considered while calculating the period of service for the purpose of pension and gratuity under the OPS.
6. The essential facts, which are not in dispute, are as follows:
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7. The employees are either the teaching staff or the non-teaching staff in the University. A majority of the employees are Associate Professors, while some of them are Assistant Professors, along with a couple of non- teaching staff.
8. All the employees were working in the erstwhile Government Arts College and Government Science College at Tumkur and they had entered into service between 1987 to 2002, and were, thus, governed by the service conditions applicable to government servants, including the OPS.
9. While the employees were working in their respective Government Colleges, the Karnataka State Universities Act was amended vide Act No.10/2004 (for short, "the Act") and was brought into force with effect from 01.10.2004, by way of a notification, also dated 01.10.2004.
10. By the said amendment, Bangalore University was bifurcated and a separate University was established with -9- NC: 2023:KHC:35710 WP No. 13001 of 2020 its headquarters at Tumkur and it was conferred with the territorial jurisdiction over the Districts of Tumkur, Kolar and Bengaluru Rural (excluding Kanakapura and Hoskote Taluk).
11. The transitory provision of the said Amendment Act, which would be relevant for the purposes of this case i.e., Section 7 of the Act reads as follows:
"7. Transitory provisions.- (1) Notwithstanding anything contained in the principal Act as amended by the Amendment Act the first Vice Chancellor may, with the previous approval of the Chancellor, discharge all or any of the functions of the Tumkur University for the purpose of carrying out the provisions of the principal Act as amended by the Amendment Act and for that purpose may exercise any power or perform any duty which by the principal Act as amended by the Amendment Act is to be exercised or performed by any Authority of the University until such Authority comes into existence as provided by the principal Act as amended by the Amendment Act.
(2) All statutes, ordinances, regulations and rules made by the Bangalore University
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NC: 2023:KHC:35710 WP No. 13001 of 2020 applicable to the affiliated colleges or other educational institutions which are deemed to be affiliated to Tumkur University under section 5 of the principal Act shall be deemed to be statutes, ordinances, regulations and rules made by the Tumkur University and shall continue as such till the Tumkur University makes its own statutes, ordinances, regulations or rules:
Provided that the Vice Chancellor may with the approval of the Chancellor make such modification and adaptations therein as he may consider necessary."
12. Thus, by virtue of this transitory provision, all statutes, ordinances, regulations and rules made by the Bangalore University were deemed to be the statutes made by the University and continued to operate till the University made its own statute, regulations or rules.
13. The existing statutes insofar as it related to pension in respect of Bangalore University, was the Bangalore University (Pension) Statute, 1979 (for short, "the 1979 Statute"). Thus, by operation of Section 7(2) of the Act,
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NC: 2023:KHC:35710 WP No. 13001 of 2020 the provisions in 1979 Statute became applicable for the employees of the subject University.
14. It is not in dispute that the 1979 Statute was in pari materia with the pension regulations relating to Government servants and thus, by virtue of Section 7(2) of the Act, in respect of the employees of the University, the same pension scheme which was applicable to Government servants and consequently, the employees of the Bangalore University, also became applicable to the employees of the subject University.
15. For the purposes of this case, it would also be necessary to state the change in the policy relating to pension pertaining to Government Servants.
16. On 31.03.2006, the Government of Karnataka decided to implement the NPS with effect from 01.04.2006 by issuing a Government Order. This NPS was made mandatory to all the new recruits to the State Government, who joined Government service on or after
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NC: 2023:KHC:35710 WP No. 13001 of 2020 01.04.2006. Under this NPS, 10% of the basic pay and dearness allowance was to be contributed monthly by the employee, and an equal proportion of the amount would have to be contributed by the Government, which would constitute a corpus for payment of pension to the Government servants, upon retirement.
17. Thus, as against the earlier policy of OPS bearing the entire burden cast on the Government for making an allocation for pension to the employees of the Government, the State introduced the NPS wherein the burden was contribution as divided as mentioned above. The effective date for operationalization of the NPS was clearly stipulated to be 01.04.2006.
18. It may also be pertinent to extract the relevant clause relating to applicability of the NPS, which reads as follows:
"(1) The New Defined Contributory Pension Scheme shall be mandatory to all new recruits to the state Government service joining on or after 01.04.2006.
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NC: 2023:KHC:35710 WP No. 13001 of 2020 The monthly contribution shall be 10% of Basic Pay & dearness Allowance thereon to be paid by the employee and matched by the State Government in equal proportion. However, there shall be no contribution from the Government in respect of individuals who are not State Government employees."
19. After the said Government Order was implemented, several doubts arose regarding its operationalization and as a consequence, Government clarification was sought as to whether the Government servants, who were already in service prior to 01.04.2006 in different posts in the State Government and had joined a new post on or after 01.04.2006, would be governed by the NPS or the OPS. The State Government examined the said issue, and by its Official Memorandum dated 12.07.2007, proceeded to issue a clarification in the following terms:
"The Government has examined the above issue. It is hereby clarified that if person who were already in regular Government service prior to 1st April 2006, apply for posts in the same or other departments under the State Government service through proper channel and on selection they are
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NC: 2023:KHC:35710 WP No. 13001 of 2020 relieved by the competent authority or tender technical resignation under rule 252 (b) of Karnataka Civil Service Rules and subsequently join the new posts on or after 1st April 2006, will not be treated as new recruits. Consequently such persons will not be governed by the new defined contributory pension scheme. They shall continue to be governed by the pension benefits under the Karnataka Civil Service Rules."
20. It is, therefore, clear from the above that the persons who were already in Government service prior to 01.04.2006, even if they were selected to any other post on them applying through proper channel or by tendering technical resignation, and thereafter, joined a new post on or after 01.04.2006 in another department, they would still be considered under the OPS and would not be treated as a new recruit.
21. In other words, if a Government servant, who was in the service of the Government prior to 01.04.2006, joined another department of the Government or was selected to another post of the Government after 01.04.2006, notwithstanding the fact that he started his new
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NC: 2023:KHC:35710 WP No. 13001 of 2020 employment after 01.04.2006, he would, nevertheless, be covered under the OPS.
22. On 16.06.2009, the University sought the consent of the employees for being absorbed in the University since the erstwhile Colleges of the employees had become constituent colleges of the University. The petitioners, who were the employees of the erstwhile Colleges, gave their specific and individual consent for being absorbed into services of the University. It may, however, be pertinent to state here that some of them also endorsed on their options that they were agreeable for absorption, provided, their pension/seniority and other benefits were continued.
23. The Government, by an order dated 21.01.2010, approved the proposal of the University to handover the Government Science College and Government Arts College, Tumkur, to the University. Clause (1) of the said order stated that both the Government Science College and Government Arts College would be handed over to the University and that they would be the constituent colleges
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NC: 2023:KHC:35710 WP No. 13001 of 2020 of the University. Clause (2) of the said Order stated that the teaching and non-teaching staff of these two colleges should be given an opportunity to choose to continue in their earlier Government service or in the University. Clause (3) also stated that the seniority of the teaching and non-teaching staff would be governed by the provisions of the Karnataka Government Servants' (Seniority) Regulations, 1957 (for short, "the Seniority Regulations").
24. As stated above, since the employees had already given their options to be absorbed, they were absorbed in the said University.
25. The employees, who had chosen to get absorbed in the University, submitted representations requesting the University to frame statutes and ensure that the applicability of the OPS was made clear. Acceding to the said request, the University framed a draft statute regarding the absorption of teaching and non-teaching staff who had opted to be absorbed in the University.
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26. As far as the question of pension to these employees who had opted to be absorbed is concerned, the draft statute contained the following provisions as per Clause (10):
"10. Pension Contribution: a) The University shall remit the pension contribution proportionately of the absorbed employees who are eligible for old pension scheme to the Government as per their length of service rendered in the University at the end of every financial year starting from 01.03.2011 and submit the pension papers to the Accountant General for authorization of pensionary benefits.
b) University shall contribute its share for employees who are eligible for New Pension Scheme (NPS) and make arrangements for payment of pensionary benefits from the University."
27. As could be seen from Clause (10) of the draft statute, the said draft statute proposed by the University was for the continuation of OPS, whereby the University would remit the pension contribution, proportionately, to the absorbed employees depending on the length of their service rendered in the University. Thus, by its draft
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NC: 2023:KHC:35710 WP No. 13001 of 2020 statute, the University proposed continuation of the OPS which was applicable to the employees.
28. The University, thereafter, sought approval of the Government for its draft statute. The Government, ultimately, responded by a letter dated 16.05.2019, by which it directed the University to give up Clause (10) of the draft statute which provided for continuation of the OPS in respect of the absorbed employees. This communication also suggested that Clause (13) of the draft statute, which provided for counting of past service rendered in the parent department, was to be deleted.
29. In view of the stand taken by the State, the Syndicate, on 30.11.2021, took a decision to revise the draft statute as directed by the State Government, and accordingly, resubmitted the draft statute with a modified Clause (10) and Clause (13) as compared to its earlier draft statute.
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30. The revised Clause (10), which was in relation to pension contribution, reads as follows:
"10.Pension Contribution:
a] The opted-in employees of the erstwhile Government College of Arts and Science, Tumkur who are governed by the defined pension under government shall be entitled to prorate pensionary benefits for the service rendered under the government till the date of absorption under Tumkur University, in accordance with provision of rule 235(A) of KCSR's from the date of absorption under the University they shall be governed by pension rules prevailing as on the date of absorption under the University.
b] The opted-in employees of the erstwhile
Government College of Arts and Science,
Tumkur who are governed by the New
Contributory Pension Scheme under the
government shall continue to be governed by the NPS only to be regulated in accordance with the instructions contained in G.O No:FD[sp1]28 PEN 2009, dated 29.08.2010 read with the Addendum-II No:FD[sp1]118 PEN
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2013, dated:07.05.2014 and Government
Circular No.:FD[sp1] 209 PEN 2012,
dated:21.02.2015."
31. As could be seen from the said clause, the absorbed employees would be governed by the NPS and would be entitled to pro rata pensionary benefits for the service rendered by them under the Government till the date of absorption, and thenceforth, from the date of absorption, they would be governed by the pension rules which prevailed as on the date of absorption in the University. It also stated that those persons who had been absorbed, would continue to be governed by the NPS.
32. Thus, by virtue of this statute, the pension of the absorbed employees was spilt into two components i.e., for the service rendered by them in the Government, they would be entitled to pro rata pension for the period of service rendered under the Government, and for the period post availing the option of absorption, they would be governed by the pension rules that were prevailing as on the date of their absorption by the University.
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33. This statute received the assent of the Chancellor on 12.12.2022 and consequently, a Notification came to be issued on 24.01.2023, notifying the assent accorded by the Chancellor and for implementation of the statute. The effect of this statute was that from the date of absorption, the absorbed employees' pension would be governed as per the Rules that were prevailing as on the date of their absorption.
34. The employees were absorbed into the University on 21.01.2010 and therefore, by virtue of the Government Order dated 01.04.2006 (the date on which the NPS came into force), the NPS was sought to be made applicable to them. The University took the stand that since the employees were absorbed after 31.03.2006, they became employees of the University only after 01.04.2006, and would, therefore, be governed by the NPS from the date of their absorption.
35. The effect of this was that the employees' entitlement to pension stood drastically reduced since they
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NC: 2023:KHC:35710 WP No. 13001 of 2020 had not contributed 10% of their basic pay and dearness allowance from 01.04.2006.
36. It is, therefore, the grievance of the petitioners that treating them as persons who had joined the service after 01.04.2006, by virtue of their absorption pursuant to the Government Order dated 21.01.2010, was illegal. It is their case that they cannot be treated as persons who joined the Government service after 01.04.2006, since they were in Government service much prior to that date and by virtue of establishment of the University, they were merely absorbed into the University. It is, therefore, contended that treating them as new recruits would cause them severe prejudice and lead an unjust situation.
37. It is also stated that if an employee is guaranteed a pension at the time of his initial appointment, he cannot then be deprived of the pension on the basis of a new policy introduced by the Government, especially when the policy itself clearly stated that it would be applicable only
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NC: 2023:KHC:35710 WP No. 13001 of 2020 to the persons who joined Government service after the NPS came into force.
38. It is also urged that the Official Memorandum dated 12.07.2007, had, in fact, clarified that those Government servants, who were in service prior to 01.04.2006 and who had applied for posts in the same or any other department through the proper channel and were selected, they would still be considered as existing Government servants and would not be treated as new recruits, and that in light of the said Official Memorandum, the stand of the University to treat the employees as new recruits would be wholly illegal.
39. It is, however, contended by the University that though they did frame a statute proposing to continue the OPS in respect of the employees, in view of the direction of the State Government, they were forced to revise the statute and submit it as demanded by the Government.
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40. The State Government, on the other hand, contends that the NPS would be applicable to the employees in the present case, since it is applicable to all the new recruits and that would be dependent on the date on which the new recruits joined Government service. It is contended that since the employees of the erstwhile Colleges joined the services of the University only after 1.4.2006 i.e., in 2010, they would have to be considered as new recruits.
41. It was also contended that since the employees had been absorbed in the University after 01.04.2006, by virtue of Rule 235-A of the KCSR, which provided for the manner in which pension should be paid in respect of a Government servant on absorption to another department, their pension would have to be as per the NPS for the period after they were absorbed.
42. It is contended that since the employees were in Government service till 2010, they would be entitled for pro rata pension and for the post absorption period, they would be governed by the Rules applicable to the new
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NC: 2023:KHC:35710 WP No. 13001 of 2020 department and therefore, they cannot claim the pension that they were entitled to as Government servants.
43. Having heard the learned counsel for both the parties, the question that arises for consideration in this case is:
Whether the employees, who were admittedly in Government service prior to 01.04.2006, would be disentitled to OPS on them being absorbed (in 2010) into a University established under the Act?
44. It cannot be in dispute that the Amending Act No.10 of 2004 of the Karnataka State Universities came into force on 01.10.2004 and by virtue of the said amendment, the University was established.
45. The transitory provision i.e., Section 7 of the Amending Act declared that all statutes, ordinances, regulations and rules made by the Bangalore University would be deemed to have been made by the University
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NC: 2023:KHC:35710 WP No. 13001 of 2020 and would continue to operate until a fresh statute is made. Thus, as on the date the University was established, the Bangalore University statutes which were then prevailing, were deemed to have become applicable to the University. As a result of the Bangalore University statutes becoming applicable, the employees of the University would be deemed to be governed by the Bangalore University statutes. As already stated above, it is not in dispute that the pension payable under the Bangalore University statutes are identical in terms of the pension that is payable to a Government servant, and thus, the employees of the University became entitled to the same pension as that of an employee of the Bangalore University i.e., a pension as was admissible to a Government servant.
46. However, this benefit that an employee of the University was entitled, was sought to be undone by absorption of Government Colleges as constituent colleges of the University, by means of a provision in the statute.
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47. It is not in dispute that the Government Arts College and the Government Science College, Tumkur were handed over to the University and became its constituent colleges. As a consequence, the entire college along with its staff stood absorbed into the University. The subsequent absorption of the employees of the Government Colleges, on their express consent, cannot, by no stretch of imagination, be construed as a fresh appointment in respect of the employees who were absorbed from the Government Colleges and into the University.
48. At the very outset, it is to be borne in mind that the Government cannot deprive the benefit that a Government servant was entitled to when he joined the Government service by seeking to absorb him/her into a statutory body, such as the University. This is on the salutary principle that the conditions of service of an employee cannot be altered during the tenure of his service.
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49. An employee of a Government College i.e., a Government servant, whose services are absorbed into a University established under an amendment to a statute and whose college is made a constituent college and handed over to the newly established University, cannot be subjected to financial deprivation merely because he agreed to be absorbed into the University.
50. It is one of the basic principles of service jurisprudence that the pay scales and service conditions of an employee is always maintained and protected, even when he joins another Government department and his entitlement cannot be reduced to his disadvantage.
51. It is to be borne in mind that it would be the desire of both the employer and the employee that an employee should always be entitled to growth and betterment of his career prospects and in the guise of granting him the same, he should not be put to a financial disadvantage.
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52. In light of this basic fact that the employees were working in the Government Arts and Science Colleges, which were made constituent colleges of the University, for which they had no role to play, their service conditions, even if they had opted to be absorbed, cannot be altered to their detriment. The mere giving of an option to be absorbed into another entity cannot result in a situation where the service conditions of a Government servant are adversely affected.
53. It may so happen that a Government servant, for various reasons, may choose not to be absorbed and at the same time, a Government servant may find some advantage by giving his option for absorption in another body set up by the Government. In either of these cases, the service conditions cannot be altered to the disadvantage of the Government servant. Thus, mere giving of a consent should not, in any way, result in an adverse effect on the service conditions of the Government servant. It is, hence, clear that the mere absorption of the
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NC: 2023:KHC:35710 WP No. 13001 of 2020 employees into the University, should not and would not result in deprivation of any benefit that the employees are entitled to.
54. It is also to be noticed here that the argument of the State that the employees would have to be construed as new recruits because they were absorbed into the University only in 2010, is wholly untenable and contrary to its own Official Memorandum dated 12.07.2007 extracted above.
55. Since the Government itself had clarified that a new recruit can only be a person who has been appointed for the first time as a Government servant, it becomes abundantly clear and is beyond doubt that a person who was already in Government service, even if he is appointed in any another Government department, would always be construed as an existing Government servant. Admittedly, in the instant case, the employees, by giving their option to be absorbed into the University, which was obviously helpful to the University and at the behest of the
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NC: 2023:KHC:35710 WP No. 13001 of 2020 Government itself, had merely changed their department and they cannot, therefore, be construed as new recruits and they would have to be considered as Government servants who had been appointed prior to 01.04.2006. Consequently, they would be governed by the OPS and not by the NPS.
56. In light of these facts, the Government could not have issued a direction to the University to revise its draft statute and insist upon a pro rata pension being paid to the employees till the date of absorption and thereafter, deprive them of the pension for the period during which they were absorbed as employees of the University on the ground that the NPS was applicable to them and they had not contributed to the same.
57. It is settled law that the pension payable to a Government servant is not a bounty and the pension is earned by a Government servant for services rendered over a long period of time. This pension, which a Government servant is entitled to and which is conferred
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NC: 2023:KHC:35710 WP No. 13001 of 2020 on him by the relevant rules at the time of his appointment, cannot be deprived by his absorption into another department, and that too, when the absorption is for the benefit of and at the behest of the Government.
58. In the result, it will have to be held that Clause (10)(a) of the pension statute of the University would have to be read down to indicate that the employees of the erstwhile Government Colleges, who were governed by the OPS under the Government and who were absorbed into the University, would still be entitled to pensionary benefits in the same manner as they would have gotten if they had remained in the said Government Colleges even after their absorption under the University. The Government is, therefore, directed to settle the pensionary benefits of the employees by treating them as existing Government employees and by applying the OPS.
59. It is made clear that the NPS which came into effect from 01.04.2006 would not be applicable to the petitioners since they were all existing Government servants as on
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NC: 2023:KHC:35710 WP No. 13001 of 2020 01.04.2006 and cannot be considered as new recruits, and consequently, be subject to NPS.
60. The State Government and the Tumkur University are directed to compute and pay the pension benefits on the above said basis within a period of two months from the date of receipt of a copy of this order.
61. The arrears of pension payable to the employees shall carry interest at the rate of 6% per annum from 18.09.2020 i.e., the date of filing of the petition till payment.
62. It is hereby clarified that the arrears of pension in respect of petitioners 1 and 2 i.e., the pension that was payable to the wife of the 1st petitioner and the husband of the 2nd petitioner, shall be paid to them with interest as aforementioned, and from the date of death of the respective employees, their spouses be paid the family pension.
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NC: 2023:KHC:35710 WP No. 13001 of 2020
63. The question framed above is accordingly answered in favour of the petitioners and it is held that they are entitled to be considered under the OPS by virtue of them being in Government service prior to 01.04.2006, even after their absorption into the University.
Writ Petition is accordingly allowed.
Sd/-
JUDGE PKS