Gujarat High Court
Cost Of Cultivation Scheme Staff ... vs Chairman- Governing Body/Vice ... on 17 January, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/SCA/25157/2007 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 25157 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR
BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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COST OF CULTIVATION SCHEME STAFF ASSOCIATION
(CCSSA)....Petitioner(s)
Versus
CHAIRMAN- GOVERNING BODY/VICE CHANCELLOR SARDAR PATEL &
2....Respondent(s)
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Appearance:
MR AS ASTHAVADI, ADVOCATE for the Petitioner(s) No. 1
MR MD CHAUHAN, ADVOCATE for the Petitioner(s) No. 1
MR VH KANARA, ADVOCATE for the Respondent(s) No. 3
MRS VD NANAVATI, ADVOCATE for the Respondent(s) No. 2
MS MITA S PANCHAL, ADVOCATE for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1 - 3
Page 1 of 37
C/SCA/25157/2007 CAV JUDGEMNT
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/01/2014
CAV JUDGEMNT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By this writ-application under Article 226 of the Constitution of India, the petitioner, an association of the members of the staff engaged in "Cost of Cultivation Scheme of Agro Economic Research Center", seeks to challenge the action of the respondents in denying their legal right to get the pension in accordance with the service rules.
2. The case made out by the petitioner may be summarized as under:
2.1 In order to promote and study the agro-economic problems experienced in the various parts of the country, the respondent no.3-
Union of India proposed to set up "Agro Economic Research Center"
for western India at Vallabh Vidhyanagar under the then Vallabhbhai Vidhyapith (now known as "Sardar Patel University").
2.2 The said center covered the State of Rajasthan as well as the State of Gujarat. Likewise, similar centers were opened in different Page 2 of 37 C/SCA/25157/2007 CAV JUDGEMNT parts of the country.
2.3 The center for Gujarat and Rajasthan started functioning with effect from 1st May 1961. According to the terms and conditions laid down in para no.2 (iii) of letter dated 1st May 1961 addressed by the Respondent no.3-Union of India to the respondent no.1, Sardar Patel University, the scale of pay and other allowances for the staff of the center were made applicable to the corresponding posts in the University.
2.4 In response to the letter dated 1st May 1961, the respondent no.1 acknowledged and confirmed the application of pay scales of the Sardar Patel University.
2.5 The case of the petitioner is that the teaching/non-teaching staff of the Sardar Patel University, Vallabh Vidhyanagar is getting pay-allowances-gratuity and pensionary benefits according to the University Rules. However, the members of the petitioner-
association, who are identically situated and are to be treated at par in accordance with the University Rules are denied the pensionary benefits.
2.6 It is also the case of the petitioner-association that some of its members are on the verge of retirement and have been denied the pension by the respondents.Page 3 of 37
C/SCA/25157/2007 CAV JUDGEMNT 2.7 Many representations were addressed from time to time to the respondent no.3 but of no avail.
2.8 It is also the case of the petitioner that by virtue of order dated 21st May 1990 passed by the respondent no.3, the Agro Economic Research Center was declared permanent.
2.9 The respondent no.3 vide its letter dated 26th December 1990 had called for the details of the officials, who had retired since 18 th February 1987 in order to grant pensionary benefits to such retired employees. However, thereafter, there has been complete inaction on the part of the respondent no.3 in implementing the said letter.
2.10 It is the case of the petitioner that a committee was constituted by the respondent no.3 known as "Poduval Committee" to examine the structure and functioning of "comprehensive scheme for studying cost of cultivation of principal crops in India" and the said committee in its report has recommended that pension be paid to all the employees retired from the implementing agencies under the scheme on the pattern followed in Karnataka.
2.11 The committee also recommended that the staff of the Agro Economic Research Center should be considered at par with the regular employees of the University for the benefits like pension, gratuity, provident fund etc. Page 4 of 37 C/SCA/25157/2007 CAV JUDGEMNT 2.12 It is also the case of the petitioner that they were informed by the Indian Institute of Management, (IIM) vide letter dated 16th July 2012 that they were following the Government of India pension scheme in toto. According to the petitioner, the University has been granting the benefit of pension to the new appointees in terms of the notification dated 18.1.2005, annexed as Annexure-I to this petition.
2.13 In such circumstances, referred to above, the petitioner has prayed for an appropriate writ, order or direction to the respondent no.3 to grant benefit of pension to all the members including the one who have retired at par with the corresponding staff employed in the Sardar Vallabhbhai Patel University, Vallabh Vidhyanagar, Anand.
3. This petition has been opposed by the respondents. The respondent no.2 Agro Economic Research Center, Sardar Patel University has filed an affidavit-in-reply duly sworn by its honourary director, inter alia, stating as under:
"4. I further submit that the Comprehensive Scheme to Study the Cost of Cultivation and Agro-Economic Research Centre are separate scheme to achieve different objects and the staff pattern is, therefore, also different. I submit that the institute - Agro-Economic Research Centre is wholly funded by the government of India and it is the government of India that determines the condition of the service and no financial commitment can be made without approval of the Government Page 5 of 37 C/SCA/25157/2007 CAV JUDGEMNT of India.
5. The government of India proposed to set up an Agro- Economic Research Centre for Western India at Vallabh Vidyanagar in order to promote and conduct research in agro economic problems. The terms and conditions of appointment of the director and Dy. Director were subject to approval of the Government of India and the Scale of pay and other allowances were to be the same as applicable to the other employees of the University. The centre was set up pursuant to the communication dated 1.5.1961.
5.1 The Government of India by its letter dated 22.6.1970 approved a comprehensive scheme for studying the cost of cultivation of principal crops for implementation by the Sardar Patel University. Annexed hereto and marked as ANNEXURE-I is a copy of the said letter dated 26.6.1970.
5.2 The appointment of the employees under the scheme was made by the Honorary Director of the Center with due approval of the Chair person and the term of appointment provided that the employees will be entitled to the pay scale as provided in the said order and were subject tot he rules and regulation of the center. Annexed hereto and marked as ANNEXURE-II is a one such copy of the order dated 28.8.1984 issued in favour of an employee.
5.3 At present there are 66 employees working in the Scheme and 38 employees either have resigned or expired or retired prior to 1.12.2007. Annexed hereto and marked as ANNEXURE-III (Colly.) are the copies of statement showing names of the employees working in the Scheme and those employees who have retired from the institute.Page 6 of 37
C/SCA/25157/2007 CAV JUDGEMNT 5.4 By communication dated 18.4.1983 the Government of
India informed the Director of the institute that any decision involving the financial implication should not be implemented without obtaining approval of the Government of India. Annexed hereto and marked as ANNEXURE-IV is a copy of the said letter dated 18.4.1983.
5.5 The Government by its letter dated 17.7.2002 clarified that the Government of India cannot finance pension scheme for the Agro Economic Research Centre on the pattern of Government of India Pension Scheme. Annexed hereto and marked as Agro Economic Research Centre is a copy of letter dated 17.7.2002.
5.6 The Sardar Patel University is incorporated under the Sardar Patel University Act. It is fully funded by the State Government. The Sardar Patel University has not taken any responsibility regarding the finances of the center. While agreeing for the implementation of the scheme under the aegis of the Sardar Patel University the then Vice Chancellor of Sardar Patel University by letter dated 6.10.1994 informed that Sardar Patel University cannot undertake any financial responsibility for the employees of the Center. The institute is managed by the Advisory Committee consisting of the Vice Chancellor and the representative of the Government of India and other eminent persons. I, therefore submit that Sardar Patel University cannot finance and cannot undertake any financial responsibility in respect of payment of pension. The Government of India has also not accepted any financial liability in respect of incorporating pension scheme for the employees.
6. I submit that the petitioners have made reference to recommendations of Poduwal Committee. The Government of Page 7 of 37 C/SCA/25157/2007 CAV JUDGEMNT India has not agreed to the recommendations regarding grant of person. I submit that recommendations of the Poduwal Committee for grant of pension were for the staff of AERC. I submit that it was not recommended for the present scheme. The Government of India did not agree to the said recommendations.
7. I submit that the conditions of the service do not provide for a pension Scheme for the employee. The employees are governed by the Contributory Fund Scheme. In view of above, I submit that there is no legal right for entitlement to the benefit of pension as claimed for by the petitioner, I therefore, submit that petition deserves to be dismissed in limine."
3.1 An additional affidavit-in-reply has been filed on behalf of the respondent no.2, inter alia, stating as under:
5. I submit that the Agro-Economic Research Centre and Cost of Cultivation Scheme were entrusted to the Sardar Patel University, Vidyanagar. The Government of India has provided separate Scheme for both and separate staff is being employed for both the Centre.
5.1 I further submit that Sardar Patel University has not accepted any financial responsibility for running the cost of cultivation scheme. The said scheme is funded by Ministry of Agriculture, Government of India. The Government of India has not sanctioned benefit of pension and no finance is provided for grant of pension scheme as claimed by the petitioner.
6. I further submit that Poduwal Expert Committee constituted by the Government was for evaluating the work of Page 8 of 37 C/SCA/25157/2007 CAV JUDGEMNT Agro-Economic Research Centre. It was not competent for the said Committee to make any remarks for the cost of Scheme.
The Agro-Economic Research Centre is established by separate Notification by the government of India. The cost and cultivation scheme is established by the Notification issued in 1970.
7. I further submit in writ petition Nos. 47829 of 2000 and 6801 of 2002 before the Allahabad High Court the Hon'ble Court has stated as under;
"It is well settled that, for succeeding in a writ petition of this nature, the petitioner must first establish that there is a right vested in the petitioner."
The petitioner can claim relief, provided such a right exist. The petitioner is not entitled to seek any pension from the Government of India and petitioner is governed by the separate rules, condition of service. Annexed hereto and marked as ANNEXURE-I is a copy of the judgment of the Allahabad High Court.
8. I submit that the Government of India has by its communication dated 17.12.2007 clarified that the Scheme is not of permanent nature and that there is no provisions for pension under the said Scheme or thereafter. I may be permitted to produce copies of the appointment order in favour of the employees which clearly show that they have been informed that they will be governed by the rules and regulation led by the governing body. In a matter of appointment in favour of Shri K.S. Raj it is stated that he will get dearness allowance, contributory provident fund and other allowances as per the rules of Centre. I submit that the petitioners are not the employees of the Sardar Patel University, the petitioners are Page 9 of 37 C/SCA/25157/2007 CAV JUDGEMNT employees of the Centre. Annexed hereto and marked as ANNEXURE-II is a copy of the appointment order of Shri. K.S. Raj."
3.2 One additional affidavit-in-reply has been filed on behalf of the respondent no.3, duly sworn by the Additional Statistical Advisor, Directorate of Economics and Statistics, Ministry of Agriculture, New Delhi, inter alia, stating as under:
"4. I say that in fact, it is a matter of record that AER Scheme has been reviewed in the year 1984 by Poduval Committee (known as "Review Committee"). I say that the said Review Committee which considered the utility of the Scheme and favoured the strengthening of AER Scheme; this Committee had also recommended inter alia, that the AER Centres may be declared as permanent institutions and be integrated with the respective University / Institution.
5. I say that it is a matter of record, that pursuance to the letter dated 15th May 1985, which was issued by the Directorate of Economic and Statistics, only to communicate the recommendation of the said Review Committee to all AER Centres / Units with a view to inform the respective institutions regarding the recommendation of the Review Committee. A copy of the said letter dated 15th May 1985 is annexed herewith and marked as ANNEXURE.R-1 to this affidavit.
6. I further say and submit that pursuant to the said Poduval Committee recommendations, initially, the implementation was made in a phased manner, to begin with 13 AER Centres / units including AERC, Vallabh Vidhyanagar, were declared permanent with effect from 21.5.1990. It is Page 10 of 37 C/SCA/25157/2007 CAV JUDGEMNT pertinent to note here that in the said letter dated 21.5.1990, it is specifically mentioned that there will not be any extra increased financial implication on account of making the AER Centres permanent and it was further clarified that the level of expenditure will not be exceeded. It is also further stated that to implement the recommendation of the Poduval Committee i.e. to make the AER Centre / Unit as an integral part of the respective University / Institution may enter into a Memorandum of Understanding (MOU) be signed between the AER Centre / Unit and the Ministry of Agriculture. It is pertinent to note here that the said MOU has not been signed with Sardar Patel university (SPU) to which, the present AERC, Vallabh Vidyanagar is attached. In short, the functioning of the AERC, Vallabh Vidyanagar is under the administration and control of SPU and the employees of AERC, Vidyanagar have been appointed by SPU. Therefore, it is upto SPU to extend the service condition of the staff of the AERC, Vallabh Vidyanagar as per the University Rules. I say that the liability of Government of India / Ministry of Agriculture is restricted only to provide for grant-in-aid on annual basis for the research studies awarded to the Centre. It is also stated that as per the Government policy, the pensionary benefits have not been extended to the employees of AER Centre, but the employees of AER Centre are entitled for Contributory Provident Fund (CPF) benefits and not the pensionary benefits as claimed by the petitioner. A copy of the letter dated 21.5.1990 is annexed herewith and marked as ANNEXURE.R-2 to this affidavit.
7. I further say and submit that it is also a matter of record that the contents of the letter dated 21.5.1990 annexed with the present affidavit at Annexure-R-2 issued by the Government of India / Ministry of Agriculture had been Page 11 of 37 C/SCA/25157/2007 CAV JUDGEMNT communicated to AERC that it will not be necessary for the concurrence of this Department for revision of pay scales and allowances to other staff in the Centre whenever the pay scales of equated posts in the University are revised subject to the conditions that necessary equivalence between the posts and the pay scales in the University and in AERC staff have been established and duly approved by this Department.
8. I say that in short, the role of the Government is limited to provide grant-in-aid and technical guidance from time to time for smooth functioning of the Scheme. The employees deployed in the Scheme are governed by the Rules and Regulations of the respective University and in the instant case, SPU, Gujarat. It is mentioned in the service conditions that there will not be any provisions of pension as envisaged under both, i.e. Cost of cultivation and AER Schemes and no financial demand was made towards the pension provision from the Government of India to the implementing agency including SPU, Vidyanagar, Gujarat. Thus, when there no such provision is envisaged in the service conditions of the petitioner, there is no financial benefits granted towards pension to the petitioner by the Government of India to SPU. I say that with regard to the statement of different Universities / Institutions specified in paragraph 7 of the further affidavit dated 4.4.2011 is concerned, I say that each University / Institution is governed by its own Rules and Regulations in providing pensionary benefits. Therefore, it is in no way arbitrary or illegal action which can be challenged in writ petition as prayed for by the petitioner. However, I am showing a detailed list of all the Universities which will make the implementation of the scheme in respect of the Universities, but it will not give any favourable right in favour of the petitioner because they are abiding by the service conditions Page 12 of 37 C/SCA/25157/2007 CAV JUDGEMNT imposed by the SPU and once no provision has been envisaged for the pension under Cost of Cultivation and AER Scheme, the Government of India cannot go beyond the Scheme of the University i.e. SPU and hence, in view of this, the petition is required to be dismissed. A Copy of the list of status of different Universities is annexed herewith and marked as ANNEXURE.R-3 to the affidavit for ready reference of this Hon'ble Court to show the different Schemes prevailing in different Universities, which cannot be said to be arbitrary action as claimed by the petitioner and hence, considering all these aspects, the petition may e dismissed in limine." 3.3 A bare reading of the contents of the afore noted reply on behalf of the respondents would indicate that their stance is that the Directorate of Economics and Statistics (DES) entrusted the planned schemes (i) Agro Economic Research Center Scheme and (ii) Comprehensive Scheme for studying cost of cultivation of principal crops in India to the Vice Chancellor, SPU, Vallabh Vidhyanagar, Gujarat, in the years 1961-62 and 1970-71 respectively to implement the same according to the rules and regulations of the University. The role of the government is limited to providing grant in aid and technical guidance from time to time for the smooth functioning of the scheme. The Sardar Patel University has overall control over the schemes and its employees have been appointed by the University and the service conditions as applicable to the University employees are applicable to the members of the petitioner association. The schemes under reference are planned schemes and approved on plan to plan basis keeping in view the need and necessity of the schemes. Page 13 of 37
C/SCA/25157/2007 CAV JUDGEMNT No provision for pension was envisaged under both the schemes and no financial commitment was made towards the pension by the Government of India to the implementing agencies including the Sardar Patel University. These schemes are not of permanent nature and are being evaluated from time to time and are also liable to be closed.
4. Mr.A.S.Asthawadi, the learned advocate appearing for the petitioner submitted that the action on the part of the respondents in denying the pension to the members of the association is violative of Article 14 of the Constitution of India. Mr.Asthawadi invited our attention to a letter dated 1st May 1961 addressed by the Government of India to the Vice Chancellor, Sardar Vallabhbhai Vidhyapith and relying on the same submitted that the scale of pay and other allowances for the staff of the center was to be the same as applicable to the corresponding posts prescribed by the University. According to Mr.Asthawadi, it was also made clear vide letter dated 1st May 1961 that the staff of the center would be governed by the rules of the University in all matters including recruitment, service conditions of the staff, allowances, leave, provident fund etc. 4.1 According to Mr.Asthawadi, such being the position there is no justifiable reason for not providing pension to the members of the association. Mr.Asthawadi also invited our attention to the report of the Poduval Committee, which has recommended grant of pension to Page 14 of 37 C/SCA/25157/2007 CAV JUDGEMNT the employees working under the scheme. Mr.Asthawadi has also drawn our attention to a decision of the Delhi High Court rendered by a learned Single Judge in the case of Shri Radharanjan Patnaik and Others v. Union of India and Others, wherein the same issue was adjudicated and the High Court directed to grant the pensionary benefits in favour of the petitioner.
4.2 Mr.Asthawadi submitted that all agro economic research centers in India have been made permanent since May 1990 and in July 1990 it was informed that all the categories of the staff of the centers would be entitled to avail of the facilities at par with the other staff members of the universities. He also submitted that the center for management (CMA) in the Indian Institute of Management, Ahmedabad, IIM-A, and few other departments of the ICAR are providing pension schemes to their staff members. These institutes are having their own autonomous body and they also belong to the Ministry of Agriculture, Government of India. 4.3 In such circumstances, referred to above, Mr.Asthawadi prays that this is a fit case for issue of appropriate writ or direction on the respondents to grant the benefit of pension to the members of the petitioner association.
5. On the other hand, Mr.S.N.Shelat, the learned Senior Advocate appearing for the respondent no.2 - Agro Economic Research Center, Page 15 of 37 C/SCA/25157/2007 CAV JUDGEMNT Sardar Vallabhbhai Patel University, opposed the afore noted contentions canvassed on behalf of the petitioner and submitted that the members of the petitioner association are not entitled to pension since the conditions of service do not provide for grant of pension to the employees of the institute. Mr.Shelat submitted that the members of the petitioner-association are extended retiral benefits under the contributory provident fund scheme. 5.1 Mr.Shelat submitted that the Sardar Patel University is incorporated under the Sardar Patel University Act. It is fully funded by the State Government. The Sardar Patel University has not taken any responsibility regarding the finances of the Center. 5.2 Mr.Shelat made it very clear that his client cannot finance and undertake any financial responsibility in respect of the payment of pension. The Government of India has also not accepted any financial liability in respect of incorporating pension scheme for the employees.
5.3 In such circumstances, Mr.Shelat submits that there being no merit in this petition, the same may be rejected.
6. Ms.Mita Panchal, the learned advocate appearing for the Union of India submitted that pursuant to the recommendations made by the Poduval Committee, the implementation of the same was made in a phased manner, to begin with 13 EER Centers/units including EERC, Vallabh Vidhyanagar, and they were declared permanent with effect Page 16 of 37 C/SCA/25157/2007 CAV JUDGEMNT from 21st May 1990. Ms.Panchal submitted that to implement the recommendations of the Poduval Committee, the EER Center may enter into a Memorandum of Understanding with the University. However, according to Ms.Panchal, such MoU has not been signed with Sardar Patel University. According to Ms.Panchal, the functioning of the EERC, Vallabh Vidhyanagar is under the administration and control of Sardar Patel University and the employees of the EERC, Vallabh Vidhyanagar, have been appointed by Sardar Patel University. In such circumstances, it is upto the Sardar Patel University to extend the service conditions of the staff of the EERC, Vallabh Vidhyanagar, according to the University Rules. 6.1 Ms.Panchal submitted that the liability of the Government of India is restricted only to provide for grant in aid on annual basis for the research studies conducted by the centers. 6.2 In such circumstances, Ms.Panchal prays that there being no merit in this petition, the same may be rejected.
7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our determination is whether the members of the petitioner association are entitled to draw pension or not.
8. It is now well settled that pension is granted in lieu of long Page 17 of 37 C/SCA/25157/2007 CAV JUDGEMNT service rendered by an employee and is considered as a deferred portion of compensation for past service. It cannot be termed as a charity or a bounty nor is it a gratuitous payment solely dependent upon the whim or sweet-will of the employer. It is in fact in the nature of a social security plan to provide for the December of life of a superannuated employee. Such social security plans are consistent with the socio-economic requirements of the Constitution, more particularly, when the employer is a State within the meaning of Article 12 of the Constitution of India (see All India Reserve Bank Retired Officers Association and others v/s. Union of India and others, reported in AIR 1992 SC 767).
9. To pass the test of permissible classification, two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and
(ii) that the differentia must have a rational relation to the object sought to be achieved by the Statute in question. The fundamental principle flowing from catena of decisions of the Supreme Court and various High Courts is that that Article 14 of the Constitution forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the above twin tests.
10. Before adverting to the rival submissions canvassed on either side, we deem it necessary to first refer to the letter dated 1 st May Page 18 of 37 C/SCA/25157/2007 CAV JUDGEMNT 1961 addressed by the Government of India, Ministry of Food and Agriculture, to the Vice Chancellor, Sardar Vallabhbhai Vidhyapith, Vallabh Vidhyanagar, in pursuance of the Government of India's policy of promoting and delegating research in agro economic problems in various parts of the country. In the said letter, it has been stated that the Center may start functioning with effect from 1st May 1961 on certain terms and conditions. Since we are concerned with condition nos.3 and 4, the same are quoted below:
"(iii) The scale of pay and other allowances for the staff of the Centre will be the same as are applicable to the corresponding posts as prescribe by Vallabhbhai Vidyapeeth.
(iv) The staff of the Centre will be governed by the rules of the Vidyapeeth in all matters including recruitment, service conditions of the staff, allowances, leave, provident fund etc., subject to the conditions of the Ministry given in the attached note."
10.1 It has also been stated as under:
"The detailed terms and conditions which at present apply to the existing six Agro-Economic Research Centers are given in the attached note and this would be applicable mutatis mutandis to the proposed Agro-Economic Research Center, Gujarat."
10.2 Thus, on plain reading of the aforesaid terms and conditions, it is evident that the extent of pay and other allowances for the staff of the center was to be the same as applicable to the corresponding Page 19 of 37 C/SCA/25157/2007 CAV JUDGEMNT posts as prescribed by the University and further the staff of the Center would be governed by the rules of the University in all matters including recruitment, service conditions of the staff, allowances, leave, provident fund etc.
11. It is not in dispute that the employees of the University other than the one at the center are extended the benefit of pension on attaining superannuation.
12. We shall now look into the recommendations made by the Poduval Committee in this regard. The committee, with regard to the pensionary benefits, in its report observed as under:
"3.10.1 Pensionary Benefits 3.10.1.1 During interaction with implementing Agencies, IMC noted that once serious issue relates to non-payment of pension to employees of four Implementing Agencies, namely Assam Agricultural University, Jorhat, Sardar Patel University, Anand (Gujarat), University of Kerala, Thiruvannanthapuran and RBS College, Agra. IMC noted with concern that a number of employees after waiting helplessly for years, were forced to approach the Courts of law for grant of pension to them. IMC was informed that unlike in other States, in Kerala the employees retire at the age of 55 years and it was also informed that an amount of Rs. 30 lakhs accumulated as employer's contribution (out of grants - in - aid) to CPF in respect of the Implementing Agency in Kerala would be adequate to pay the pension arrears to the retired employees.Page 20 of 37
C/SCA/25157/2007 CAV JUDGEMNT Similar fund is also reported to be available with Implementing Agency at Agra.
3.10.1.2 IMC also noted that the principle followed in regard to pension in the case of central government employees recruited on or after January 1, 2004 involves contribution by both employer and employee towards pension fund. Though the existing pension payment for central government employees, who joined before January 1, 2004, is fully funded by the employer (Central government), the same cannot be applied to the employees of the cost of cultivation scheme in view of differences in mode of recruitment, differences in terms and conditions of service (like transfer, hours, of work, etc.) as well as overall resource constraint.
3.10.1.3 Keeping the factual position noted above in view, IMC collected information on the practice / system followed in pension payment in 12 out of 16 Implementing Agencies. Which pay pension to their retired employees. IMC noted that quite a few employees at different levels generally possess higher qualifications than the minimum essential qualifications laid down for the purpose. After serving the concerned Implementing Agencies for a considerably long period, they have legitimate expectations to be taken care of after their superannuation. It is, however, noted that not all Implementing Agencies treat the employees working under the Scheme at par with their counterparts in the University / College. As there exits no clause in the existing terms and conditions governing pension matter, different Implementing Agencies follow different patterns / procedures in the matter of payment of pension for the staff under the Scheme. For instance, Tamil Nadu Agriculture University pays full pension out of their own resources, whereas some other Universities like University of Page 21 of 37 C/SCA/25157/2007 CAV JUDGEMNT Agriculture Sciences, Bangalore (Karnataka) and University of Agriculture and Technology, Bhubaneshwar (Orissa) pay pension out of 'pension funds' created by debiting a fixed percentage (12.5% and 10% respectively) of the basis pay of employees to the grants - in -aid released by the DES towards pension funds. As may be seen from the Annexure-3.2, four Implementing Agencies do not pay any pension at all to the employees retired from the Scheme. When these employees compare themselves with their counterparts elsewhere, it causes a sense of frustration and disappointment to them which may consequently affect the delivery of quality output.
3.10.1.4 The IMC is of the considered view that denial of pension to employees of certain Implementing Agencies while allowing the same to other violates the principle of equity. Therefore, the issue of non-payment of pension to retiring employees of certain Implementing Agencies needs to be addressed in the large interest of smooth functioning of the Scheme. The IMC is of the considered opinion that pension (in lieu of CPF / EPF) be paid to all employees retired from aforesaid four Implementing Agencies under the scheme on the pattern followed in Karnataka. This is also expected to pave the way of closure of all cases relating to pension filed by employees' of the respective Universities.
3.10.1.5 It may, however, be clarified here that the pension as proposed in the preceding para will be applicable to only those who have joined the service on regular basis on or before 31.12.2003. New regular employees as and when recruited should be governed by the new Pension Rules applicable to Central Government employees with effect from January 1, 2004.Page 22 of 37
C/SCA/25157/2007 CAV JUDGEMNT
4.7.1 Pensionary Benefits
Certain Implementing Agencies do pay pension to their retired employees as per the rules of concerned State Government /University while some others do not pay such retirement benefits. Following the principle of equity, IMC recommends that a Pension Fund be created, wherever it does not exist, by deducting from grants - in - aid every month an amount equivalent to 12.5 per cent of the basic pay of each employee towards the University's Pension Fund. The employees who would superannuate from the Scheme be paid pension at the rates admissible to other employees of the concerned University / College out of the Pension Fund."
13. It will be profitable to even look into some of the provisions of the Gujarat Agricultural University Act, 1969 and few provisions of the Gujarat Agricultural University Employees Pension Rules. 13.1 Section 2 (8) defines the term "officer", which reads as under:
"2 (8). "officer" means an officer of the University as specified in Section 9 or any other person in the employment of the University declared as an officer by the Statutes;"
13.2 Section 2 (15) defines the term "statutes", which reads as under:
"2 (15). "Statutes" means the Statutes made by the Board under the provisions of this Act;"
13.3 Section 9 falling in Chapter III prescribes who shall be the Page 23 of 37 C/SCA/25157/2007 CAV JUDGEMNT Officers of the University, which reads as under:
"9. Officers of the University.- The following shall be the officers of the University, namely :-
(1) The Chancellor
(2) The Vice-Chancellor
(3) The Directors of Campuses.
(4) The Registrar.
(5) The Comptroller.
(6) The Director of Purchase and Properties.
(7) The Librarian.
(8) The Director of Student Affairs.
(9) The Deans of faculties.
(10) The Director of Research and Dean of Post-
graduate Studies.
(11) The Director of Studies in Basic Sciences and
Humanities.
(12) The Director of Extension Education.
(13) Such other officers in the service of the University
as may be declared by the Statutes to be Officers of the University."
13.4 Section 38 provides for pension, provident fund etc., which reads as under:
"38. Pension, provident funds etc. - (1) The University shall constitute for the benefit of its officers, teachers and other employees in such manner and subject to such conditions as may be prescribed such pension, provident and insurance funds as it deem fit.
(2) The State Government may declare that the provisions of the Provident Fund Act, 1925 (XIX of 1925) shall apply to fund constituted under sub-section (1) as if they were Government Page 24 of 37 C/SCA/25157/2007 CAV JUDGEMNT provident funds.
[xxxx] [38A. Provident Fund to be deposited in Government Treasury.- (1) Where the University has constituted a provident fund for the benefit of its officers, teachers and other employees under section 38, such fund shall , notwithstanding anything contained in any law for the time being in force, be deposited in the State Government treasury in accordance with such directions as the State Government may, from time to time, by an order in writing give and thereupon,-
(i) the subscriber to the fund shall be entitled to interest on the balance in his provident fund account at the same rate at which, the State Government servant is for the time being entitled to on the balance in his provident fund account, and
(ii) the rules for the time being in force relating to the limits of withdrawals from the provident fund as applicable to such Government servant shall, so far as may be, apply to the subscriber.
(2) Nothing in this section shall apply to a provident fund constituted by the University to which the Employees Provident Fund Act, 1952 (XIX 1952) applies.] 13.5 Rule 3.15 of the Pension Rules, defines the term "pension", which reads as under:
"3.15 "Pension" means an amount payable monthly under Rule 14.1 to a person who retired from service and in recognition of the service rendered by him to the University or to the Government before absorption in the University, except Page 25 of 37 C/SCA/25157/2007 CAV JUDGEMNT where the term 'Pension' is used in contradiction includes gratuity also."
13.6 Rule 3.18 defines the term "retirement benefits" which reads as under:
"3.18 "Retirement Benefits" means and includes all kinds of pension and gratuity, commuted value of pension and temporary increase sanctioned by University from time to time which may be granted under these rules."
13.7 Rule 3.20 defines the term "University Employee" which reads as under:
"3.20 "University Employee" means:-
(i) An officer of the University as defined in Section 2 (8) of the Gujarat Agricultural University Act, 1969; excluding the Chancellor, Vice-Chancellor and the Directors of Campuses.
(ii) A teacher in the University as defined in Section 2 (17) of the Gujarat Agricultural University Act, 1969 and
(iii) an employee of the University other than an officer or a teacher."
13.8 Rule 14.1 of the Rules provides for calculation of pension, which reads as under:
"14.1 An employee retiring after completing qualifying service of 10 years or more on superannuation, retiring, invalid or compensatory pension, shall be granted pension arrived as under:-
Page 26 of 37
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completed Pensionable Pension per month subject to
years of pay (subject to a minimum of Rs.40 including
qualifying maximum of of temporary increase and a
services X Rs.1800/-) maximum of Rs.675 exclusive
(subject to of temporary increase."
maximum
of 30
years)
=
13.9 It is evident from the above referred provisions of the Act as well as the Rules that the members of the association are officers of the University as specified in Section 9, which includes any other person in the employment of the University declared as an officer by the statutes. Rule 3.20 also makes it clear that the University employee means an officer of the University as defined in Section 2 (8) of the Act.
14. In such circumstances, referred to above, we are of the opinion that the members of the association are entitled to draw pension on attaining superannuation, more particularly, when the scale of pay and other allowances for the staff of the center is the same as applicable to the corresponding posts as prescribed by the University. We have also noticed that practically all over the country excluding Sardar Patel University, Gujarat, Assam Agriculture University, Assam, University of Kerala, Kerala, and RVS College, Agra, UP, pension is being paid to the employees working under the comprehensive scheme for studying the cost of cultivation of principal crops in India. Page 27 of 37
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15. We shall now look into the decision of the Delhi High Court in the case of Radharanjan Patnaik (supra) wherein an identical issue was decided by the High Court. In the said case, the Court took cognizance of the Memorandum of Understanding dated 23rd March 2000 between the Union of India and the Vishwa Bharati Shantiniketan West Bengal University. The Court took cognizance of Clause 12 of the MoU which provided that the future revisions in the scale of pay and allowance in the posts in the Center would be as per the provisions effective for similar posts in the University. The Court took the view that on a plain reading of the MoU it was evident that the employees of the EERC would become employees of the University with complete parity. The Court also observed that if the employees of the University had the benefits towards the pay scales or pension or provident fund or residential accommodation or any other service benefits, the employees of the EERC would have to be extended the identical benefits. The Court observed that the employees of the EERC after the MoU came into effect from 1st April 1995 became employees of the University and the Union of India took the burden to given grants in aid with respect to such employees in terms of budgetary allocation to be made/provided each year. We may quote with profit the observations by the High Court in paragraph nos.8, 9, 10, 11 and 12 of the judgment as under:
"8. Therefore, even on a plain reading of the MoU the same leaves absolutely no manner of doubt that the employees of AERC would Page 28 of 37 C/SCA/25157/2007 CAV JUDGEMNT become the employees of the respondent No.4-University with complete parity with the employees of the respondent No.4- University. If the employees of the respondent No.4-University have benefits towards pay scales or pension or provident fund or residential accommodation or any other service benefits, the employees of AERC were to have identical benefits. Employees of AERC after the MoU came into effect from 1.4.1995 became employees of the respondent No.4-University and the respondent No.1-Union of India, Ministry of Agriculture took the burden to give grants-in-aid with respect to these employees in terms of budgetary allocation to be made/provided each year.
9. The issue is that can the respondent No.1 take up a stand that merely because it has subsequently written various letters after implementation of the MoU that the respondent No.1 will not be liable for making payments of pension because it is against its policies, can the same exempt the respondent No.4 from making payments of pensions to the petitioners when the same benefit is not denied to other employees of the respondent No.4-University. Also, can the respondent No.1 deny necessary grants-in-aid/budgetary allocation for meeting the financial requirements of the respondent No.4 for its employees such as the petitioners and who are otherwise entitled to pension under the pension scheme.
I may note that it is not an issue before me that the petitioners have not opted for the pension under the pension scheme which came into effect in terms of the notification dated 13.6.1998 w.e.f 1.1.1998 i.e the petitioners have opted for the pension scheme. As already stated above, a reading of the MoU dated 23.3.2000 which came into effect from 1.4.1995 leaves no manner of doubt that the respondent No.1 Page 29 of 37 C/SCA/25157/2007 CAV JUDGEMNT will provide all grants-in-aid/financial resources which would be consequent upon employees of AERC becoming employees of the respondent No.4-University on account of integration of AERC with the respondent No.4-University pursuant to MoU without in any manner freezing of budgetary allocation. I am surprised that the respondent No.1 is in fact taking up a stand which does violation to the language of the MoU because MoU both in letter and spirit provides for entitlement of respondent No.4-University to necessary budgetary allocation consequent upon employees of AERC becoming employees of the respondent No.4-University. As already stated above, no less than the Secretary of the respondent No.1/Ministry of Agriculture signed the MoU. I do not understand therefore how can there at all be any doubt of necessary budget allocation by respondent No.1 to respondent No.4. Not only there can be no doubt that the budgetary allocation will be given each year so required for the employees of AERC who had become employees of the University, the MoU also takes into care by virtue of Clause (xii) the requirement of additional budgetary allocation because of future revision of scales of pay and allowances. I therefore do not understand how Union of India can argue on the basis of the notification dated 21.5.1990 that clause (3) of the said notification states that there will be no extra financial implications on account of making AERC permanent and the current level of expenditure will not be exceeded. Though para (3) of the notification dated 21.5.1990 surely cannot be read for making level of expenditure constant because surely there were bound to be appropriate pay revisions, in any case, the notification which is relied upon is 21.5.1990 and the same clearly stands superseded by the categorical terms of the later MoU dated 23.3.2000. Therefore, Page 30 of 37 C/SCA/25157/2007 CAV JUDGEMNT it is not open to the UOI to canvass and contend that budgetary allocation will remain fixed by virtue of the notification dated 21.5.1990, and which in my opinion quite clearly was no longer operative once the MoU dated 23.3.2000 became operative.
10. In the course of arguments, great stress was sought to be placed by the respondent No.1 upon the judgment of the Allahabad High Court in the case of Dr. Rajendra Singh Vs. Vice Chancellor, University of Allahabad in Civil Misc. Writ Petition No.6801/2002 decided on 22.5.2007 to contend that the facts in the case of Dr. Rajendra Singh (supra) are similar to the facts of the present case and therefore the present writ petitions have also to be dismissed. It is also argued that the judgment of Division Bench of Allahabad High Court was upheld by the Supreme Court by its order dated 30.3.2012, and therefore this Court is bound or in any case must apply the findings and conclusions of the Allahabad High Court in the case of Dr. Rajendra Singh (supra).
In my opinion, the argument on behalf of respondent No.1 relying upon the judgment in the case of Dr. Rajendra Singh (supra) is totally fallacious. This I say so because we do not know what was the term of MoU between the parties which was to operate in the case of Dr. Rajendra Singh (supra). Unless and until the MoU in the case of Dr. Rajendra Singh (supra) is before this Court and whose terms were no different than the terms of MoU in the present case dated 23.3.2000, no benefit can be derived by the respondent No.1 of the judgment of the Allahabad High Court in the case of Dr. Rajendra Singh (supra). The following paragraphs in the judgment in the case of Dr. Rajendra Singh (supra) in my opinion quite Page 31 of 37 C/SCA/25157/2007 CAV JUDGEMNT clearly distinguish the facts of the present case with the facts of the case of Dr. Rajendra Singh:
"What has been relied upon by the petitioner are certain communications between the government of India and the AERC, or between the Govt. of India and the Allahabad University. It has not been shown to us that these communications, or declaration of intentions, on part of the govt., were intended or calculated to be communicated to, or act upon by, the AERC employees so as to confer any legally enforceable rights on such employees. A reading of these documents suggests merely a contingent scheme in contemplation with regard to pension and other benefits, which was required to be crystallized by further action.
We have not been shown anything in the correspondence, or for that matter in the MOU, which would indicate that in contained any promise or representation made or held out to the AERC employees, which was intended to be acted upon by such employees.
In fact, the letter dated 27.2.1986 only indicated that certain recommendations of a „Review Committee‟ have been considered by an Empowered committee appointed by the Ministry, and the empowered committee has agreed to the recommendations with certain conditions. It also says that crucial recommendations need follow up action at the end of the University. The last part of that letter says that detailed proposals should be sent, to enable obtaining of sanction of the competent authority for their implementation. Thus, the matter had not reached the stage of final commitment of any kind. We are, therefore, unable to translate any of these documents, correspondence, MOU, or the resolution of the executive council into a right, crystallized in favour of the petitioner, to get pension.
For the reasons given above, we are unable to follow the succession of a learned Single Judge of this Court dated 3.1.2003 in Civil Misc. Writ Petition No.44050 of 2000 Smt. Pratibha Sose Vs. Union of India & Others, whether a mandamus has been issued to the University of Allahabad to pay pension and other post- retirement benefits to the petitioner of that case and also directing the Government of India to reimburse the amount so paid. That decision has no doubt gone into details of the correspondence Page 32 of 37 C/SCA/25157/2007 CAV JUDGEMNT between the government and the University, the MOU, the resolution of the Executive council., but we are unable to find from that decision on what principle of law these documents have been translated into a right to receive pension.
It is well settled that, for succeeding in a writ petition of this nature, the petitioner must first establish that there is a right vested in the petitioner and only then the petitioner can claim a writ for enforcement of the right established by the petitioner. Because we have held above that the petitioner has not been able to establish any right to receive pension from the government of India therefore the writ petition fails and is hereby dismissed."
11. The Allahabad High Court in the case of Dr. Rajendra Singh (supra) proceeded on the issue of existence of legal rights as per the terms of MoU of respondent No.1 with Allahabad University. In that case it was held that no enforceable right arose because of specific language of the MoU before the Allahabad High Court in that case. In the facts of the present case a reading of the clauses of the MoU dated 23.3.2000 leaves us with no manner of doubt that all employees of AERC who became employees of the respondent No.4- University by virtue of the MoU were entitled to all the service benefits including the pension, as those available to the other employees of the respondent No.4-University. These clauses of the MoU quite clearly operate as an estoppel in favour of the petitioners and against both respondent Nos.1 and 4. In fact, the observations made by the Allahabad High Court seem to suggest that the scheme was only tentative and there was no finalization to the scheme for operation. So far as the „judgment‟ of the Supreme Court dated 30.3.2012 is concerned, it is not a judgment but it only records the withdrawal of the SLP by the petitioner who was an employee of the Allahabad University for making of a representation to the Central Government for grant of pension as per the applicable MoU of the Page 33 of 37 C/SCA/25157/2007 CAV JUDGEMNT Allahabad University with the Union of India in that case. In fact, I may note that by the order dated 30.3.2012, Supreme Court dismissed the transfer petitions which were filed by the Union of India so as to consolidate various cases which arose of various Universities. Therefore, there does not arise the issue of any applicability of binding precedent by the order dated 30.3.2012 passed by the Supreme Court in S.L.P.(C) No.18441/2007.
12. The petitioners have legal rights as the employees of respondent No.4, and as per rules/ regulations/circulars of respondent No.4. Refusal to give petitioners pension is arbitrary and violative of Article 14 of the Constitution. Refusal by respondent No.1 to give necessary budgetary allocation is also arbitrary hence also violative of Article 14 in view of the categorical language of the MoU. Petitioners have enforceable legal rights which are violated." 15.1 We are in respectful agreement with the views expressed by His Lordship of the Delhi High Court so far as the discrimination in grant of pension is concerned. However, we may note one distinguishable feature. In the case before the Delhi High Court there was a Memorandum of Understanding entered into between the Union and the University and the terms of the Memorandum of Understanding were interpreted by the Court on the basis of which it reached to the conclusion that the employees of the EERC, who became employees of the University by virtue of the Memorandum of Understanding, were entitled to all the service benefits including the pension as those which were available to the other employees of the University. Although in the present case there is no such Page 34 of 37 C/SCA/25157/2007 CAV JUDGEMNT Memorandum of Understanding entered into between the Union and the University, yet that, by itself, would not be sufficient to hold that the members of the petitioner association are not entitled to draw pension. As discussed above, when the members of the petitioner association were to be treated at par with the other employees of the University and when the service conditions including the rules and regulations governing the same were also to be applied mutatis mutandis, then in such circumstances, we do not find any justifiable reason for denying pension to the members of the association.
16. In the present case also, the letter dated 1st May 1961 addressed by the Union of India, Ministry of Food and Agriculture, to the Vice Chancellor of the Sardar Vallabhbhai University, makes it clear that all recurring expenses of the Center would be met by the Government of India as approved. Accordingly, a budgetary provision of Rs.40,000/- was made for the financial year 1961-62. The Union also clarified that the proposed Center could not be set up without the active assistance of the Vidhyapith and although the Government of India would bear the total recurring and some of the non-recurring costs, the non-recurring expenditure such as provision of building etc. would have to be borne by the Vidhyapith.
17. It appears to us that the issue as regards payment of pension to the members of the association could not be resolved as the Union of India is trying to throw the entire burden on the shoulders of the Page 35 of 37 C/SCA/25157/2007 CAV JUDGEMNT University and the University's stance is that it does not have the funds to provide for pension to the retired employees of the Center. In our opinion, the confrontation between the Union of India and the University should not come in the way of the employees so far as grant of pension is concerned. This issue ought to have been resolved amicably long back but unfortunately neither of the two thought fit to take the initiative and ultimately the matter had to be adjudicated by the Court.
18. For the foregoing reasons, we hold that there is merit in this petition and the same deserves to be allowed.
19. The petition is allowed. It is declared that the members of the petitioner association are entitled to all the pensionary benefits as available to the employees of the Sardar Patel University. The respondent no.3-Union of India is directed to provide the necessary financial resources by making necessary budgetary allocation for ensuring that the respondent no.1, Sardar Patel University, gets the finances for the payment of pensionary benefits to the members of the association. The respondent no.1 University is directed to release the pensionary benefits, including the arrears accumulated so far, within a period of three months from today. The respondent no.3, Union of India, is directed to ensure that within the present financial year the necessary financial resources according to the Business Page 36 of 37 C/SCA/25157/2007 CAV JUDGEMNT Rules are transferred to the respondent no.1-University so that the pensionary benefits can be granted to the members of the petitioner association.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) *malek Page 37 of 37