Madhya Pradesh High Court
The Devi Ahilya Vishwavidyalaya vs Dr.Ram Krishna Vyas on 20 November, 2017
W.A. No.1022/2017
Indore dated : 20/11/2017
Shri Lucky Jain, learned counsel for the appellant.
Shri L.C. Patne, learned counsel for the respondent No.1.
Shri Rohit Mangal, learned Govt. Advocate for the respondent Nos.2 and 3.
Heard.
Respondent No.1 is a Retired Professor, who has attained the age of superannuation after serving the appellant
- University for almost 30 years. He filed a writ petition for grant of pension on the ground that he was initially appointed on the post of Lecturer in the Department of Business Management, Devi Ahilya Vishwavidyalaya, Indore by order dated 29/6/1987. He was initially appointed on probation and thereafter he successfully completed his probation and was confirmed on the post of Lecturer w.e.f. 8/9/1989 by order dated 15/11/1989.
2. The State of Madhya Pradesh has taken a policy decision to grant pension to all the Teachers serving the Universities in the State of Madhya Pradesh and by virtue of the policy decision, the provisions of M. P. Civil Services (Pension) Rules, 1976 were made applicable to the employees / Officers / Teachers of the University w.e.f. 1/4/1987.
3. An option was invited by all the Teachers / Employees to submit their Option either to have pensionary benefits or for continuing in the erstwhile Contributory Provident Fund Scheme. The respondent No.1 has submitted an option for grant of pension. As the same was not granted and, therefore, he claimed for grant of pension.
4. The University has framed Statute 37 with due approval of the Coordination Committee and the same is in force w.e.f. 1/4/1987. Statute 37 provides for exercise of option and the Option 1 so exercised binding upon the employer as well as the employee.
5. The undisputed fact also reveals that the respondent No.1 has exercised an option for claiming pension. Clause 18 of the Statute 37 also provides for applicability of the M. P. Civil Services (Pension) Rules, 1976 in case of any doubt or in case of any dispute where the Statute is silent. On 20/07/1989, the respondent No. 1 has filed his option exercised by him vide Annexure-P/5.
6. In the year 1997, an Advertisement was issued for appointment on the post of Reader of Management under the International Institute of Professional Studies in the regular pay scale of Rs.3700-5700 and the respondent No. 1 was selected for the post of Reader of the Management studies. He was appointed as a Reader in the International Institute of Professional Studies which is a Department of Devi Ahilya Vishwavidalaya, Indore and an order was issued on 19/9/1997. In the order dated 19/9/1997 the appointment was shown to be on contractual basis, but the appointing authority ie., the Executive Council in its meeting dated 19/6/1998 replaced the word 'Contract' by 'Probation' and the respondent No.1 successfully completed his probationary period also, meaning thereby, his appointment was made as a regular appointment on the post of Reader and, thereafter, the respondent No.1 was promoted to the post of Professor by the Executive Council in its meeting dated 27/6/2009 and the respondent No.1 has also discharged his duties as the Dean, Faculty of Management as well as Faculty of Law. He has attained the age of superannuation on 31/7/2016.
7. The appellant/college has denied the claim of the respondent No.1 on the ground that after the appointment of the respondent No.1 on the post of Reader, he became an employee of an Institute which is a self-financing Institute and, therefore, as the Institute is a self-financing Institute, its employees are not entitled for pension on account of executive instructions issued by the Commissioner, Higher Education, dated 19/5/2006.
8. The Stand of appellants is that the respondent No. 1 was appointed on contractual basis in the Institute in the year 1997 and, therefore, after 1997 he was not a employee of the University like other regular employees and he was working in an Institute which is a self finance institute not receiving Grant- in-Aid and, therefore, the question of grant of pension to the respondent No.1 does not arise.
9. The learned writ court considering the aforesaid, came to the conclusion that respondent No.1 is very much a Teacher in the Department of the University and in the matter of grant of pension, the appellant cannot discriminate between the Teachers working under the same University. At that relevant point of time the respondent No.1 gave an option for pension while serving as a lecturer and has served the University as Professor, in a Department of the University and, therefore, the question of denying pensionary benefits does not arise. Relying on the Clause 4 and 7 of the Statute 37, the learned writ court came to the conclusion that statutory provisions entitles the respondent No.1 for grant of pension and allowed the writ petition by directing the appellant to process the claim of the respondent No.1 for grant of pension and all consequential benefits. Relevant paras of order dated 19/06/2017 reads as under :-
This Court has carefully gone through the return filed by the respondents as well as the Regulations governing the self finance courses. The policy decision take by the State Government is of the year 2006 and the petitioner was appointed as a Reader in the institute which is certainly a teaching Department of the University in the year 1997. The Circular issued in the year 2006 cannot be made applicable with retrospective effect, ie., w.e.f. 1997. It is also argued by the learned counsel for the petitioner that the University at no point of time has informed the petitioner on his promotion to the post of Reader that he shall be deprived of his pensionary benefits. In all fairness, some option should have been given to the petitioner making it categorically clear that he will not be entitled for pension in case he joins the post of Reader. On the other hand, petitioner has given an option for pension in the light of Statute 37 which is applicable w.e.f. 1/4/1987 and at the relevant point of time he was very much an employee of the teaching Department serving on the post of Lecturer.
This Court has carefully gone through the Self Finance Courses Regulations, 1993. It nowhere provides that the employees of the Institutes which are under the self finance are not entitled for pension. The definition of 'Teacher of the University ' under the Vishwavidyalaya Adhiniyam, 1973 reads as under :
(xx) "Teachers of the University" means Professors, Readers, Lecturers and such other persons as may be appointed for imparting instructions or conducting research, with the approval of the Academic Council in the University or the College or Institution maintained or recognised by the University;
The petitioner is very much a Teacher in the Department of the University and in the matter of grant of pension, the respondents cannot discriminate between the Teachers working under the same University. Not only this, the petitioner at the relevant point of time when option for pension was given while serving as a lecturer and has served the University as Professor, in a Department of the University and, therefore, the question of denying pensionary benefits does not arise.
Clause 4 and 7 of the Statute 37 of the Vishwavidyalaya Adhiniyam, reads as under :
4. EXERCISE OF OPTION :
All employees, officer s and teachers who were in the service of the university as on 31/3/1987 and were eligible for employees contributory fund scheme as given in Statute 26 and who are continuing in the service of the university on the date of promulgation of this statute, will be required to give an option to elect either to continue under the existing Employees Contributory Provident Fund Scheme (Scheme A) or to elect to come under the Pension and Gratuity Scheme (Scheme B).
For new entrants in the university after the promulgation of this Statute, the pension and gratuity scheme will be compulsory from the date they fulfill the requirements of clause 2 of this Statute . However, the teacher s as defined under the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 will have option at the time of their appointment to elect to join the Employees Contributory Provident Fund Scheme (Scheme A) or Pension and Gratuity Scheme (Scheme B).
The option once exercised by the above said teachers shall be final and binding.
7. The option once exercised shall be final and binding.
The option of the petitioner is also on record as Annexure P/5 and the statutory provisions entitles the petitioner for grant of pension.
Resultantly, the Writ Petition is allowed. The respondents are directed to process the claim of the petitioner for grant of pension and all consequential benefits. The respondents are directed to release pension and pensionary benefits and all consequential benefits to the petitioner within a period of three months from today. The respondents shall also release Gratuity within the aforesaid period. It is made clear that in case the pension is not released within a period of three months from today, the respondents shall be paying interest @ 8.5% per annum from the date of entitlement till the amount is actually paid to the petitioner.
The Writ Petition is allowed. No order as to costs.
10. Learned counsel for the appellant has drawn our attention to condition Nos.3 and 7 of the order dated 19/09/1997(Annexure-P/7) and Annexure-P/8 and submitted that the word 'Contract' has been replaced by 'Probation' and as per Clause-2 of Statute 37 for grant of Pension and Gratuity to the pensionary would not be applicable in the case of respondent No.1. It is applicable in the case of an employee appointed substantively on a permanent post approved by the Government. He further submitted that the respondent No.1 was on probation and was never confirmed or regularised by the appellant till the respondent No.1 has attained the age of superannuation. The confirmation/regularization is not automatic and, therefore, even if he has completed the maximum period of 3 years of probation as provided under the Clause - 5 of Statute 37 then also his appointment cannot be treated as regular appointment and the learned writ court committed an error in holding that the respondent No.1 has successfully completed his probationary period also and his appointment was made as a regular appointment on the post of Reader. He lastly submitted that the respondent No.1 was appointed on contractual basis in the Institute in the year 1997 and, therefore, after 1997 he was not a employee of the University like other regular employees and he was working in an Institute which is a self finance institute not receiving Grant- in-Aid and, therefore, he is not entitled for pensionary benefits and prays for setting aside of the order.
11. Per Contra, learned counsel for the respondent No.1 has drawn our attention to proviso to Rule 26 of M.P. Civil Services (Pension) Rules, 1976 and submitted that the respondent No.1 is entitled to pensionary benefits. He has also drawn our attention to Clause - 4 of Statute 31 and submitted that the maximum period of probation is 3 years and, thereafter, he shall be deemed to have been confirmed on the post. To support the aforesaid, he has drawn our attention to the laws laid down by the Hon'ble Apex Court in the case of High Court of Madhya Pradesh vs. Satyanarayan Jhavar[(2001) 7 SCC 161] and Rules 14 and 26 of M.P. Civil Services (Pension) Rules, 1976 and submitted that the respondent No.1 is very much a teacher in the Department of the University and the appellant cannot discriminate between the teachers working under the same University or the person working under the International Institute of Professional Studies which is a Department of Devi Ahilya Vishwavidyalaya and, therefore, the order passed by the learned writ court is just and proper and prays for dismissal of the writ appeal.
12. Learned counsel for the appellant has placed reliance in the case of High Court of Gujarat & Anr. vs. C.G. Sharma [(2005) 1 SCC 132]. Para 26 is relevant which reads as under
:-
26. A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that sub-rule 4 of Rule 5 of the Rules is in pari materia with the Rule which was under consideration in the case of State of Maharashtra vs. Veerappa Saboji & Anr. (Supra) and we find that even if the period of two years expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because in terms of the Rules, work has to be satisfactory which is a pre-requisite or pre-condition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation. The language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work if found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the arguments advanced by learned counsel for the respondent on this aspect has no merits and no legs to stand. The learned single Judge and the learned Judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the period of two years and on the expiry of the said period of two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The rule also does not say that the two years' period of probation, as mentioned in the rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent.
13. In the case of High Court of Gujarat & Anr. vs. C.G. Sharma (supra), the Hon'ble Apex Court has held that even if the period of two years expires and the probationer is allowed to continue after a period of two years, there is no question of automatic confirmation. The confirmation is to be ordered. If during probation the work, is found satisfactory, which is a pre- requisite or pre-condition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation.
14. In the case in hand, as per Clause 5 of Statute 31, maximum period of probation is 3 years. It is not a case of the respondent No.1 that his work was not found satisfactory and, therefore, his period of probation was extended or for that reason he is not entitled for confirmation.
15. It is not in dispute that in 1997, the respondent No.1 was appointed as a Reader in the Teaching Department of the University and he was never informed on his promotion to the post of Reader that he shall be deprived of his pensionary benefits. He gave an option for pension in the light of Statute 37 which is applicable w.e.f. 1/04/1987 and at the relevant point of time he was very much an employee of the teaching Department serving on the post of Lecturer. The Self Finance Courses Regulations, 1993 nowhere provides that the employees of the institutes which are under the self finance are not entitled for pension. The respondent No.1 is very much a teacher in the Department of the University and, therefore, the learned writ court rightly directed the appellant to process the claim of the respondent No.1 for grant of pension and directed to release pension, pensionary benefits and all consequential benefits to the respondent No1 within a period of three months from the date of order.
16. For these reasons, the writ appeal has no merit and is accordingly dismissed. No costs.
( P.K. Jaiswal ) ( Virender Singh )
Judge Judge
pn/
Preetha Nair
2017.11.24 11:54:32 +05'30'