Kerala High Court
M.G.Sreekumar vs Indian Institute Of Management, ... on 5 February, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
WP(C) NO. 20174 OF 2021
PETITIONER/S:
M.G.SREEKUMAR
AGED 61 YEARS
FLAT NO.1302, SATHYAM MAJESTIC, PLOT NO.28, SECTOR 18,
ULWE, NAVI MUMBAI-410 206
BY ADVS.
SHAJI THOMAS
MOHAN PULIKKAL(K/64A/1985)
JEN JAISON(K/000208/2017)
RESPONDENT/S:
1 INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE (IIMK)
KOZHIKODE, IIM KOZHIKODE CAMPUS P.O, KOZHIKODE-673 570,
REPRESENTED BY ITS CHAIRMAN
2 THE CHIEF MANAGER (HR),
INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE, IIM
KOZHIKODE CAMPUS P.O, KOZHIKODE-673 570
3 ASSISTANT ADMINISTRAIVE OFFICER (HR) (STAFF MATTERS),
INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE, IIM
KOZHIKODE CAMPUS P.O, KOZHIKODE-673 570
4 ADDL.R4 COMPTROLLER AND AUDITOR GENERAL OF INDIA,
DEEN DAYAL UPADHYAYA MARG NEAR MATA SUNDARI RAILWAY
COLLEGE, NEW DELHI- 110 002
5 ADDL.R5 PRINCIPAL DIRECTOR OF AUDIT (GENERAL) ,
INDIAN AUDIT & ACCOUNTS DEPARTMENT, CHENNAI KOCHI
BRANCH GOLDEN JUBILEE ROAD, KALOOR, KOCHI- 682 017
6 ADDL.R6 MINISTRY OF HUMAN RESOURCE DEVELOPMENT,
DEPARTMENT OF HIGHER EDUCATION, SHASTRI BHAWAN, NEW
DELHI- 110 001 [ADDL.R4 TO R6 IMPLEADED AS PER ORDER
WP(C) No.20174/2021 2
2024:KER:98369
DATED 13.02.2024 IN I.A-3/2023 IN WP(C) 20174/2021]
BY ADVS.
R1 BY SHRI.M.GOPIKRISHNAN NAMBIAR
R5 BY SHRI.MAYANKUTTY MATHER K.I
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
JAI MOHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.11.2024 THE COURT ON 05.02.2025 DELIVERED THE FOLLOWING:
WP(C) No.20174/2021 3
2024:KER:98369
JUDGMENT
The petitioner, who was the Chief Librarian and Information Officer of the 1st respondent, the Indian Institute of Management, Kozhikode, has approached this Court with this Writ Petition, being aggrieved by the non-disbursal of the pension payable to him under the GPF-cum-Pension Scheme.
2. The facts that led to the filing of this Writ Petition are as follows:
2.1. The petitioner commenced his career as a Senior Librarian at the National Institute of Research in Tuberculosis (NIRT), Chennai, on 15.06.1992. While working in the NIRT, which is an institution under the Indian Council of Medical Research, the petitioner joined GPF-cum-Pension Scheme of the Central Government. While continuing in NIRT, the petitioner applied for the post of Librarian under the 1st respondent and on getting selected, the petitioner resigned from NIRT with effect from 19.11.1997.
Thereafter, he joined the 1st respondent as a Librarian on 20.11.1997. WP(C) No.20174/2021 4
2024:KER:98369 st 2.2. On 24.10.2000, the 1 respondent issued Ext.P1 Circular by which they have taken a decision to introduce GPF-cum-Pension scheme for the employees who were the members of the Scheme in the organizations in which they had worked earlier, subject to the condition that, the pro-rata pension under the previous employer should be transferred to the 1st respondent within a reasonable time. Accordingly, the petitioner opted for the GPF-cum-Pension Scheme in the light of Ext.P1 Circular. It is to be noted in this regard that, the employees of the 1st respondent were governed by the contributory pension scheme. Later, as per Ext.P2, the 1 st respondent decided to implement the National Pension Scheme (NPS) for regular faculty and staff of the Institute who joined the 1 st respondent on or after 01.01.2004. In Ext.P2 also, it was clearly mentioned that, the GPF- cum-Pension Scheme would be applicable only to those employees working in other organizations before joining the 1 st respondent, and were members of the GPF-cum-Pension Scheme, subject to the condition of the previous employer undertaking to transfer pro rata pensionary benefits of such employees to the 1st respondent-Institute. WP(C) No.20174/2021 5
2024:KER:98369 2.3. As the petitioner submitted options to continue as a member of the GPF-cum-Pension Scheme, the 1 st respondent issued a series of letters totalling six in numbers to the NIRT requiring them to transfer the pro-rata pension in the account of the 1 st respondent to enable the petitioner to avail the benefits of Ext.P1 Circular. The petitioner had also made similar requests before the NIRT. However, the said requests were turned down by the NIRT by contending that, as the petitioner resigned from the post, he had forfeited his service benefits. In such circumstances, the petitioner was constrained to approach the Central Administrative Tribunal, Chennai, by filing O.A.No.310/1731/2015. The said O.A. was ultimately decided by the C.A.T as per the order dated 26.11.2018, holding that the stand taken by the NIRT is not proper and, therefore, a direction was issued to reconsider the claim of the petitioner. Accordingly, in compliance with the directions issued by the CAT, Ext.P4 Office Memorandum dated 10.04.2019 was issued by the NIRT granting approval to the release of the pro-rata pension in respect of the service of the petitioner from 15.06.1992 to 19.11.1997. Exhibit P4 was WP(C) No.20174/2021 6 2024:KER:98369 implemented by transferring an amount of Rs 8,57,260/- as the pro- rata pension to the account of the 1st respondent, as evidenced by the Ext P5 OM dated 13.11.2019.
2.4. However, the 1st respondent did not take any steps to include the petitioner in the pension scheme, and accordingly, Ext.P6 representation was submitted by him before the 1 st respondent. In reply to the same, Ext.P7 was issued by the 1 st respondent, stating that, the request of the petitioner cannot be considered as the same can be done only after receiving orders from the Parliamentary Committee/Public Accounts Committee.
2.5. This Writ petition was submitted by the petitioner in such circumstances inter alia seeking to quash Ext.P6 order and to direct the 1st respondent to disburse the pension payable to the petitioner under GPF-cum-Pension Scheme with effect from 16.01.2021, the date on which the petitioner availed voluntary retirement .
3. A detailed counter affidavit was submitted by the 1 st respondent by justifying the stand taken by them in Ext.P7. It was averred that, apart from the petitioner, the 1 st respondent granted the WP(C) No.20174/2021 7 2024:KER:98369 benefits of Ext.P1 to nine other employees, but the same was objected to by the CAG unit Chennai branch on the reason that, the GPF pension was sanctioned to the said employees, without getting any specific order from the Administrative Ministry. Exhibits R1(a) and R1(b) were relied on to substantiate the same. According to the 1st respondent, it was due to that reason, the amounts were not disbursed to the petitioner.
4. Besides, it was also averred that the benefits of Ext.P1 were extended to those persons who joined the 1 st respondent after leaving the other organizations governed by the GPF pension scheme and whose previous employer, had transferred the pro-rata pension within a reasonable time. It was further averred that, as far as the petitioner is concerned, the pro-rata pension was expressly declined by the previous employer initially, and the same was ultimately received only in the year 2019. By that time, audit objection by the CAG was there and hence it was not possible for them to grant the benefits to the petitioner.
5. A reply affidavit was submitted by the petitioner to the WP(C) No.20174/2021 8 2024:KER:98369 counter affidavit, wherein it is mentioned that, after the objection raised by the CAG, some of the employees who were included in the GPF-cum-Pension Scheme in the light of Ext.P1 Circular were granted pension as per the said Scheme. The petitioner specifically named five such persons who availed of the said benefits. It was also pointed out that, now, the 1st respondent had notified the Indian Institute of Management, Kozhikode Regulations 2021 (hereinafter referred to as Regulations 2021), wherein a statutory coverage is provided to the benefits contemplated under Ext.P1 Circular. It was pointed out that, in Regulation 11 thereof, it is specifically mentioned that, the GPF-cum-Pension Scheme would be applicable only to those regular employees who, before joining IIM, Kozhikode on or before 31.12.2003 were working in organizations where the GPF- cum-Pension Scheme was in operation and had opted for the same, by transferring their pension from the earlier organizations to IIM, Kozhikode.
6. An additional counter affidavit was also submitted by the 1st respondent wherein they further explained the stand taken by WP(C) No.20174/2021 9 2024:KER:98369 them. It was reiterated that, as far as the other employees, to whom the pension under GPF was disbursed are concerned, the pro-rata pension amounts of such employees were transferred to the 1 st respondent within a reasonable time, whereas it was not so in the case of the petitioner. The petitioner submitted an additional reply to the aforesaid counter by reiterating his contentions and also producing the details indicating the claim made by the petitioner before the authorities concerned.
7. The 5th respondent in the writ petition, the Controller and Auditor General of India has also submitted a counter affidavit. Among other contentions, it was also pointed out by referring to the audit objections that, the Ministry expressed its agreement with the facts and figures included in the paragraph 13.8 of the CAG report 12 of 2017 and stated that, the Ministry of HRD is taking up the matter to the Ministry of Finance for regularization of nine employees under GPF-cum-Pension Scheme as a special case keeping in view that, the IIM, Kozhikode is a self sustained central autonomous body and not getting any grant-in-aid from the Government of India for its WP(C) No.20174/2021 10 2024:KER:98369 recurring and non recurring expenditure. It was also pointed out that, the petitioner was not among the nine employees referred to therein. In the said counter affidavit, they also referred to the reply issued by the 1st respondent to them, when the explanation was sought by the 5th respondent for granting pension to the said employees under GPF- cum Pension Scheme. It is averred that, in the said reply, it was stated that the same was granted based on the letter dated 12.07.2000 of the MHRD which stipulated that, the faculty and staff from the institutions enjoying pensionary benefits shall be allowed to retain the same in new Indian Institute of Management.
8. Heard Sri. Shaji Thomas, the learned counsel appearing for the petitioner, Sri.M. Gopikrishan Nambiar, the learned counsel appearing for the 1st respondent and Sri. K.I.Mayankutty Mather, the learned counsel appearing for the 5th respondent.
9. The question that arises in this case is as to whether the stand taken by the 1st respondent while denying the pension to the petitioner under GPF-cum-Pension Scheme is justifiable or not. The objections raised by the 1st respondent in this regard are two fold: The WP(C) No.20174/2021 11 2024:KER:98369 first objection is that, as per Ext.P1 Circular, the benefit of being included in the GPF-cum-Pension Scheme was available to only those employees whose pro-rata pension from the previous organization where they worked, was transferred to the 1 st respondent within a reasonable time. However, in the case of the petitioner, the amount was transferred only in the year, 2019 even though the option was submitted in this regard in the year, 2000. The second objection was regarding the audit objection raised by the CAG in respect of the employees who were already granted the benefits of Ext.P1.
10. As far as the first objection viz., the delay in transferring of the pro-rata pension is concerned, I am of the view that, the same cannot be a reason to deny the benefits to the petitioner. This is mainly because, the delay cannot be attributed to the petitioner under any circumstances. It is an undisputed fact that the 1 st respondent itself has issued six communications to the NIRT requesting the transfer of the pro-rata pension of the petitioner, which did not evoke any positive response. Ultimately, the petitioner was constrained to move the CAT and only as per the directions issued by the CAT in its WP(C) No.20174/2021 12 2024:KER:98369 order dated 26.11.2018, the amounts were disbursed to the 1 st respondent by the NIRT by issuing Exts.P4 and P5 dated 10.4.2019 and 13.11.2019 respectively. It is also evident that, the petitioner had also submitted requests before the NIRT in this regard. Therefore, the petitioner was diligently pursuing his claim and it was ultimately upheld by the CAT as well. Therefore, in view of the fact that the delay, if any occurred, in transferring the pro-rata pension was not due to any lapses on the part of the petitioner, I do not find any justification for denying the benefits to the petitioner on account of the same.
11. While considering this aspect, another important aspect to be noticed is that, later, the 1 st respondent formulated Regulation 2021 (Ext.P9) and Regulation 11(1) thereof reads as follows:
11. Constitution of pension, insurance and provident funds for the benefit of the academic, administrative, technical and other staff.-
(1) The Institute adopted the "National
Pension System" (NPS) for the regular
employees who joined IIM Kozhikode on or after 01.01.2004 and the Contributory Provident Fund (CPF) for the regular employees who joined on or before 31.12.2003 as per Notification No.4(1)-EV/2006(1) of MHRD dated 12.7.2007.
GPF cum Pension scheme would be applicable only to those regular employees who prior to WP(C) No.20174/2021 13 2024:KER:98369 joining IIM Kozhikode on or before 31.12.2003, were working in organizations where the GPF cum Pension scheme was in operation and had opted for the same by transferring their Pension from the earlier Organization to IIM Kozhikode. Other regular employees who entered into service on or before 31.12.2003 and were governed by the CPF Scheme, are not eligible for switch over to the GPF-cum- Pension Scheme. They will continue to be governed by the CPF Scheme."
(Underlined for emphasis)
12. From the reading of the aforesaid provision, it is evident that, the GPF-cum-Pension Scheme was made applicable to those regular employees who, prior to joining the 1 st respondent on or before 31.12.2003, were working in organizations where, the GPF pension scheme was in operation and the employees have opted for the same by transferring the pension from the earlier organization to the 1st respondent. As far as the petitioner is concerned, the petitioner had complied with the said conditions. Even though there was some delay in transferring the pro-rata pension, this Court has already found that, the same cannot be a reason to deny the benefits to the petitioner. Thus, in the light of the introduction of the Regulation 2021 which was done in exercise of the powers conferred upon the 1 st WP(C) No.20174/2021 14 2024:KER:98369 respondent under section 35 of the Indian Institute of Management Act, 2017, the right of the petitioner to get the pension has become a statutory right as well. Therefore, the petitioner has every right to get the said right enforced by invoking the powers of this Court under Art. 226 of the Constitution of India.
13. When moving on to the second objection, I find that the same is also not justifiable. It is true that the CAG has raised certain objections with regard to the decision taken by the Board of Governors of the 1st respondent as per Ext.P1 to extend the benefits of GPF-cum-Pension Scheme to the employees who joined the 1 st respondent from the organizations where the GPF-cum-Pension Scheme was applicable. The said objection was raised by the CAG mainly on the reason that such a decision was taken without the approval of the concerned Ministry in this regard. However, the fact remains that, even after the said objections, the benefits as per Ext.P1 were granted to nine employees, in respect of whom the audit objection was raised. Besides, in the counter affidavit filed by the 5 th respondent, after referring to the draft Action Taken Note submitted WP(C) No.20174/2021 15 2024:KER:98369 by the MHRD, it was averred that, the Ministry expressed its agreement with facts and figures included in the paragraph 13.8 of the CAG's report 12 of 2017 and stated that the Ministry of HRD has treated the regularization of nine employees under GPF cum pension scheme as a special case keeping in view that, IIM, Kozhikode is a self sustained central autonomous body. Therefore, the said objection cannot be treated as a valid ground for denying the said benefits to the petitioner, as the petitioner is a similarly situated person with that of the said employees.
14. This is particularly so, in view of the fact that, the 1 st respondent, vide Ext P1, has consciously taken a decision to extend the benefits of GPF cum Pension Scheme to a class of employees who were enjoying the benefits of the said scheme prior to the joining the 1st respondent. It is evident from the averments made by the 5th respondent that, as per the reply submitted by the 1 st respondent to them, the 1st respondent extended the said benefits to such employees in view of the letter dated 12.07.2000 issued by the MHRD, which stipulated that, the faculty and staff from the WP(C) No.20174/2021 16 2024:KER:98369 Institutions enjoying pensionary benefits shall be allowed to retain the same in the new Indian Institute of Management. Moreover, now the benefits contemplated as per Ext.P1 have been escalated into a statutory benefit by virtue of the introduction of Regulation 11 of the Institute of Management, Kozhikode Regulation 2021 (Ext.P9). That apart, all the nine other persons, who were similarly situated persons of the petitioner were granted the said benefits and therefore, denial of the same to the petitioner would amount to discrimination, which is prohibited as per Art. l4 of the Constitution of India. Therefore, the stand taken by the 1st respondent in not extending the said benefits to the petitioner is not all justifiable.
15. Of course, the learned counsel for the 1st respondent made available a note regarding the financial implications on the 1 st respondent upon including the petitioner in GPF scheme, instead of the contributory pension fund (CPF). However, I am of the view that, the same cannot be a reason to deny the said benefits to the petitioner in view of Ext.P1 Circular and also the statutory stipulation contained in clause 11 of Regulations, 2021. The fact that, the WP(C) No.20174/2021 17 2024:KER:98369 similarly situated persons were admittedly granted the said benefits fortifies the contentions of the petitioner. Therefore, the reliefs sought in the writ petition are only to be allowed.
Accordingly, this Writ Petition is disposed of quashing Ext.P7, with a direction to the 1st respondent to sanction and release the pension payable to the petitioner by including him in the GPF cum Pension Scheme. The necessary steps in this regard shall be taken, and the amounts shall be released within a period of three months from the date of receipt of a copy of this judgment.
Sd/-
ZIYAD RAHMAN A.A. JUDGE pkk WP(C) No.20174/2021 18 2024:KER:98369 APPENDIX OF WP(C) 20174/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF CIRCULAR DATED 24.10.2000 ISSUED BY THE 1ST RESPONDENT EXHIBIT P2 TRUE COPY OF OFFICE ORDER DATED 24.1.2014 ISSUED BY THE 1ST RESPONDENT EXHIBIT P3 TRUE COPY OF LETTER DATED 8.7.2015 FROM THE 1ST RESPONDENT OT NIRT EXHIBIT P4 TRUE COPY OF OM DATED 10.04.2019 ISSUED BY THE NIRT EXHIBIT P5 TRUE COPY OF OM DATED 13.11.2019 ISSUED BY NIRT EXHIBIT P6 TRUE COPY OF LETTER DATED 4.11.2020 FROM THE PETITIONER TO THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF OM DATED 13.11.2020 ISSUED BY THE 3RD RESPONDENT EXHIBIT P8 TRUE PHOTOCOPY OF REQUEST DATED 01.11.2000 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS EXHIBIT P9 TRUE PHOTOCOPY OF THE INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE REGULATIONS 2021 EXHIBIT P10 TRUE PHOTOCOPY OF LETTER DATED 27.11.2000 SENT BY THE OFFICER ON SPECIAL DUTY OF IIM KOZHIKODE EXHIBIT P12 TRUE PHOTOCOPY OF THE LETTER DATED 15.01.2021 ISSUED BY THE DIRECTOR OF IIM KOZHIKODE EXHIBIT P11 TRUE PHOTOCOPY OF THE APPLICATION DATED 06.11.2020 SUBMITTED BY THE PETITIONER RESPONDENT EXHIBITS EXHIBIT -R5(A) TRUE COPY OF THE RELEVANT EXTRACT OF WP(C) No.20174/2021 19 2024:KER:98369 COMPTROLLER AND AUDITOR GENERAL OF INDIA REPORT NO. 12 OF 2017 CONTAINING THE OBSERVATION AS PARAGRAPH 13.8 EXHIBIT R1(A) TRUE COPY OF THE LETTER FROM THE DEPUTY DIRECTOR, OFFICE OF THE PRINCIPAL DIRECTOR OF AUDIT (CENTRAL)CHENNAI DATED 31.05.2016 TO THE 1ST RESPONDENT ALONG WITH THE STATEMENT OF FACTS ON AVOIDABLE PAYMENT TOWARDS PENSIONARY PAYMENTS.
EXHIBIT R1(B) TRUE COPY OF THE LETTER DATED 10.08.2016 ISSUED BY THE SENIOR AUDIT OFFICER, DEPUTY DIRECTOR, INDIAN AUDIT AND ACCOUNTS DEPARTMENT TO THE 1ST RESPONDENT.
EXHIBIT R1(C) TRUE COPY OF THE LETTER DATED 16.10.2018 ISSUED BY THE UNDER SECRETARY TO THE GOVT.
OF INDIA, MINISTRY OF HUMAN RESOURCES DEVELOPMENT TO THE 1ST RESPONDENT EXHIBIT R1(D) TRUE COPY OF THE LETTER DATED 10.08.2018 ISSUED BY THE UNDER SECRETARY TO THE GOVT.
OF INDIA, MINISTRY OF HUMAN RESOURCES DEVELOPMENT TO THE 1ST RESPONDENT.
EXHIBIT R1(E) TRUE COPY OF THE NOTICE DATED 12.11.2018 ISSUED BY THE MINISTRY OF HUMAN RESOURCES DEVELOPMENT, GOVT. OF INDIA (WITHOUT ENCLOSURE) EXHIBIT R1(F) TRUE COPY OF THE OFFICE MEMORANDUM DATED 5.11.2018 BY THE PUBLIC ACCOUNTS COMMITTEE, LOK SABHA SECRETARIAT (WITHOUT ENCLOSURE)