Allahabad High Court
Dr. Rajendra Singh Son Of Sri ... vs Vice Chancellor, University Of ... on 22 May, 2007
Author: Sushil Harkauli
Bench: Sushil Harkauli, A.K. Singh
JUDGMENT Sushil Harkauli, J.
1. The Government of India, Ministry of Agriculture, opened certain institutions known as Agro-Economic Research Centres (AERC for short) at various places.
2. These Centres were opened in various Universities as projects of the Universities, but these were not departments of the Universities or integral part of the Universities. Indeed the Central Govt. could not on its own have added extra departments or extra parts to the Universities in U.P. which are governed by the U.P. State Universities Act, 1973. There was provision for appointment of certain staff in these Centres. These Centres were opened by Notification dated 28.10.1963 issued by the Ministry of Food and Agriculture, Government of India, (Department of Agriculture), New Delhi.
3. The petitioner before us, who was an employee in AERC Allahabad, attained the age of superannuation on 02.01.2001 but continued to work upto 30-06-2001 on the strength of an interim order obtained by him in Civil Misc. Writ Petition No. 47829 of 2000.
4. The petitioner then claimed pensionary benefits. The University denied the said claim by the impugned order dated 24.4.2001.
5. During arguments before us, learned Counsel for the petitioner crystallized the claim of the petitioner by saying that the petitioner was basically claiming pension from the Government of India, alleging himself to-be an employee of AERC, and that the University had been impleaded in this writ petition merely as the drawing and disbursing authority. Interestingly in the Writ Petition as originally filed "Union of India" was not even made a respondent.
6. The University and the Union of India have both filed counter affidavits. The University has denied its liability to make payment of the pension, unless funds for the same are released by the Union of India.
THE ISSUE The basic question, therefore, is whether the petitioner has been able to establish that he has a right to receive the pension from the Government of India through the University.
OTHER AERCs A total of 17 AERCs were established all over the country. Nothing has been shown from the record as to whether Government of India has voluntarily granted pension or released funds for payment of pension of employees of any other AERC.
THE PETITIONERS CASE For establishing his right to pension the petitioner relies upon:
(A) a letter dated 27.2.1986 sent to the AERC of the Allahabad University by the Economic and Statistical Advisor, Department of Economics and Statistics, Ministry of Agriculture, Government of India. A copy of that letter is enclosed as Annexure 1 to the writ petition.
According to learned Counsel for the petitioner, the aforesaid letter dated 27.2.1986 amounts to-
(1) a condition of service of the petitioner, and/or (2) a promise by the Government of India to pay pension to the employees of AERC, legally enforceable on the principles of promissory estoppel.
(B) a Memorandum of Understanding (called the 'MOU' for brevity) dated 21.5.1996 executed between the Union of India and the University of Allahabad which contemplates integration of AERC with the University. (Copy enclosed as Annexure 7 to the writ petition).
(C) a letter dated 23.3/6.4.1998 (copy enclosed as Annexure 9 to the writ petition). An Advisor to the Government of India in the Ministry of Agriculture has written this letter to the Vice Chancellor of the Allahabad University. This letter says that after necessary orders/notification for integrating AERC with the Allahabad University are passed by the University and received by the Govt. Of India, the matter would be further processed by the Ministry for the issuance of necessary instructions regarding retirement/pensionary benefits to the staff of AERC.
(D) a resolution passed by the Executive Council of the Allahabad University; being Resolution No. 156 dated 13.7.1978. Item No. 21, paragraph No. (IV)(2) of the said resolution says that the Executive Council agrees to the recommendation of the Ministry of Agriculture that the same rules, regulations and service conditions will apply to officers and employees of the Agro-Economic Research Centre, Allahabad University, as are applicable to the University Professors, Readers, Lecturers and other employees with regard to their pay scales, Provident Fund, salaries & allowances, residential accommodation, House Rent Allowance, medical aid, leave rules and disciplinary action. This resolution does not deal with the pension or pensionary benefits. Moreover, the validity of the resolution is slightly doubtful due to the restriction under Section 21 of the U.P. State University Act 1973.
CONSIDERATION OF THE ISSUE In view of the above materials, we have to examine whether the petitioner has been able to establish a right to compel the Government of India to pay pension. Now, in cases where pension is payable, it is trite that pension is a right of the employee and is not a bounty or charity by the Govt. But the crucial question in the case is whether the pension is payable.
Jurisprudentially, legally enforceable rights can arise from (i) statute, (ii) subordinate legislation, (iii) rules of service, (iv) contract, (v) quasi-contract, or (vi) a promise, which though not amounting to contract, is enforceable under principles of promissory estoppel.
Admittedly, the conditions of service of the petitioner are not regulated by any statute or statutory rules. Also no non-statutory rules of service have been shown. There is no concluded contract between the petitioner and the University, or between the petitioner and the Government of India with regard to payment of pension. The MOU is not a contract but is at best an understanding to enter into a contract in future. Moreover the petitioner is not a party to that MOU. Even for enforcing a concluded contract, privity is necessary, no doubt with certain exceptions. The present case has not been shown to fall within any of the exceptions. It has not been shown that the Govt. of India intended by that MOU to confer any legally enforceable right upon the staff of AERC.
7. For applicability of promissory estoppel, the petitioner has to show (1) that a promise was made or a representation was held out to the petitioner on behalf of the Government of India (2) that the promise was made by a person authorised to make that promise or representation on behalf of the Govt. (3) that it was made with the intention that the promise should be acted upon by the petitioner, and (4) that the petitioner has actually acted upon on that promise and has thereby altered his legal position.
8. There is some divergence of opinion as to whether for application of the principle of promissory estoppel it would also be necessary that acting upon the promise, the promisee has altered his legal position 'to his detriment'. However, for the present case, we assume that altering legal position 'to the detriment' is not necessary, yet the remaining conditions, mentioned in the foregoing paragraph, must necessarily be fulfilled before the petitioner can claim a right to pension on the basis of the principle of promissory estoppel.
9. 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 acted 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.
10. We have not been shown anything in the correspondence, or for that matter in the MOU, which would indicate that it contained any promise or representation made or held out to the AERC employees, which was intended to be acted upon by such employees.
11. In fact, the letter dated 27.2.1986 only indicates 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 crossed the stage of mere negotiations, and 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.
12. For the reasons given above, we are unable to follow the decision of a learned Single Judge of this Court dated 3.1.2003 in Civil Misc. Writ Petition No. 44050 of 2000 Smt. Pratibha Bose v. Union of India and Ors., wherein 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 between the Government and the University, the MOU, the resolution of the Executive Council, etc., 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.
13. 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.