Rajasthan High Court - Jodhpur
A. N. Mathur & Ors vs State (Agriculture) & Ors on 5 April, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters
Order dt:5/4/2012
1/14
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
1. A.N.Mathur & Ors. vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.9843/2011
2. Smt. Asha Devi & Ors. vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.10435/2011
3. Mrs. Sumitra Dhabai & Anr. vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.11495/2011
4. Dr.K.A.Varghese vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.11458/2011
5. Dr.H.L.Choudhary vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.2183/2012
6. Padam Singh Choudhary vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.2384/2012
7. Ashok Kumar Gupta vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.2066/2012
8. Dr. A.K.Kurchania vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.1238/2012
9. K.P.Alexander vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.2067/2012
10. S.N.Sodani & Ors. vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.1108/2012
11. Durga Singh & Anr. vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.11529/2011
12. Mohini Choudhary (Man) vs. State of Rajathan & Ors.
S.B.CIVIL WRIT PETITION NO.213/2012
DATE OF ORDER : 5th April, 2012
PRESENT
HON'BLE DR.JUSTICE VINEET KOTHARI
S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters
Order dt:5/4/2012
2/14
Mr. Vinit Kumar Mathur, for the petitioners.
Mr. G.R.Punia, Addl. Advocate General & Sr. Advocate along with
Mr. B.R.Chaher, for the respondents.
REPORTABLE
BY THE COURT:
1. The petitioners in this batch of writ petitions are either retired employees, lecturers or some are on the verge of retirement or some are their family members like widow of deceased employees of respondent no.2 - Maharana Pratap University of Agriculture and Technology, Udaipur, which was established by the Act of State Legislature in the year 1999 & the employees serving the previous University - Rajasthan Agriculture University, Bikaner and upon the creation of respondent no.2 Maharana Pratap University of Agriculture and Technology, Udaipur were transferred with men and unit to respondent no.2-University.
2. In the year 2001, in pursuance of Resolution dated 7/12/2000, the employees of respondent no.2 University were given the option/re-option to go for pension scheme upon their retirement in place of Contributory Provident Fund Scheme (`CPF' in short). Upon giving their such re-option, the retired employees were also given pension under the Pension Rules, 1990 applicable to the respondent no.2 University and in case of their death, their dependents were also given Family Pension as per the said Pension Rules. S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 3/14
3. Similar resolution is also said to have been again taken on 18/12/2009, vide Annex. 2 in Civil Writ Petition No. 1238/2012 (Dr.A.K.Kurchania vs. State of Raj. & Ors.), giving option or re- option to the employees to switch over from CPF to Pension Scheme.
4. The cause of action to approach this Court arose to these petitioners, since the Agriculture Department of the State Government through its Deputy Secretary vide impugned communication dated 3/6/2011 (Annex.4 in Civil Writ Petition No. 9843/2011 - Dr.A.N.Mathur & Ors. vs. State & Ors.) expressed its dissent with the Resolution dated 7/12/2000 taken by the respondent no.2 University by stating that giving of such re-option to the employees to switch over from CPF to Pension Scheme was not in consonance with the Pension Rules 1990 and those responsible for giving such re-option to the employees of the University would be proceeded against and the University was directed to restore the status prior to the year 2001.
5. In pursuance of the said directions of the State Govt., the University took a resolution dated 30/11/2011 reversing its earlier decision and withdrew the earlier Resolution dated 7/12/2000 and 18/12/2009 vide Minutes of the Thirty-first Meeting of the Board of Management, held on 30th November, 2011 (Annex.R/3 in CWP No.9843/2011) and the University also stopped processing the S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 4/14 pension cases of those employees who are about to retire from the services of University, MPUAT, for short.
6. Learned counsel for the petitioners, Mr. V.K.Mathur, submitted that the State Government had no jurisdiction to direct the respondent University - MPUAT to withdraw such opportunity of re-option given to the employees of respondent No.2 University under validly taken Resolutions in terms of Section 37 of the Maharana Pratap University of Agriculture and Technology Udaipur Act, 2000
7. He submitted that the same could not have been done merely on the ground of lack of finance alone nor the State Government has given any cogent reasons in its communication Annex.4 dated 3/6/2011 as to how giving of such re-option was contrary to the Pension Rules, 1990. He submitted that the coordinate Bench of this Court in the case of Dr.G.D.Sharma vs.Rajasthan Agriculture University, Bikaner & Ors. - SBCWP No. 1738/2003 decided on 18th September, 2007 had clearly noticed that all other similarly situated Universities of Rajasthan had given such opportunities to its employees for exercising their re-option for pension and their employees are accordingly availing the benefit of Pension Scheme and this Court had even given mandamus direction in said judgment that Board of Management of Rajasthan Agriculture University shall give such opportunity to the petitioner to give his option for pension S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 5/14 & Board of Management to consider and decide the same. The relevant extract of the judgment is reproduced hereunder for ready reference:-
" An another important fact that is to be noticed that in State of Rajasthan all the universities such as the Rajasthan University, Jaipur; Jai Narain Vyas University, Jodhpur; Kota Open University, Kota; Mohanlal Sukhadia University, Udaipur; and Maharishi Dayanand Saraswati University, Ajmer have given opportunity to its employees for exercising options relating to pension/contributory provident fund afresh. Though the universities are different, their entire set up is different, they were created by separate enactments but it is the position admitted that all these universities implemented pension schemes under the instructions of Government of Rajasthan and they are mainly dependent to the State of Rajasthan so far as grant of finance is concerned. It is also not in dispute that all the universities are having analogous provisions with regard to grant of pension.
On basis of factual background as discussed above, I am of considered opinion that denial of exercising re-option for accepting pension under the pension regulations of 1990 by respondent Rajasthan Agriculture University, Bikaner to the petitioner is not just and proper.
Accordingly, this petition for writ deserves acceptance. The same, therefore, is allowed. The Registrar of the Rajasthan Agriculture University, S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 6/14 Bikaner is directed to place case of the petitioner before the Board of Management of the University within a period of one month from today to consider the issue to provide an opportunity to revise his option for pension. The Board of Management shall decide the same as expeditiously as possible while keeping in mind the law laid down as above. In the event Board of Management allow to revise the option for pension to the petitioner, the State Government shall also provide requisite finance to meet financial burden so arising for the university.
No order to costs."
8. Learned counsel for the appellants, Mr. V.K.Mathur also drew the attention of this Court towards a Division Bench judgment of this Court, copy of which decision dated 24/9/2010 in D.B.Civil Writ Petition (PIL) No. 1914/2010 (Retired Agriculture Lecturers Employees of Agriculture University Vs. State of Rajasthan & Ors.), is placed on record as Annex.3 in which the Division Bench of this court taking suo motu cognizance on the basis of daily newspaper report in this regard gave directions to the State Government and concerned University in the following terms:
"This suo-motu writ petition was registered on the basis of news item that appeared in daily newspaper `Rajasthan Patrika' in its issue dated 08.02.2010 under caption "Sewanivrata Krishi Shikshak-karmchari Do Maaha Se Pareshan - 1100 S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 7/14 ko Pension Nahi".
From perusal of that news item it appears that 1100 personnel of various categories such as Lecturers and other employees, who retired from service of Swami Keshvanand Rajasthan Agriculture University, Bikaner and Maharana Pratap Technical & Agriculture University, Udaipur were not being paid pension for last two months whereas, this was the only source of income and despite number of representations made, the Universities/State of Rajasthan have not taken any action in the matter....."
" Having regard to nature of controversy and keeping in view of the fact that it has not been disputed by respondents that retired employees are entitled to pension as also arrears thereof, the respondents Universities and the State of Rajasthan are directed to pay them all arrears including all benefits payable to them consequent upon implementation of recommendation of 6th Pay Commission together with interest at the rate of 6% per annum, within a period of three months.
Writ petition accordingly stands disposed of with aforesaid directions."
9. Mr. V.K.Mathur, learned counsel for the petitioners, therefore, urged that the impugned communication dated 3/6/2011 (Annex.4), the review order by the respondent No.2 University vide Minutes of the 31st meeting dated 31/11/2011 and subsequent communication of S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 8/14 the State Government in this regard deserve to be quashed and the petitioners deserve to be protected and the pension benefits received by them for considerable period since 2001 in pursuance of resolution dated 7/12/2000 could not be stopped and impugned orders could not have been passed at least without giving them opportunity of hearing in this regard and such orders are not only illegal but in breach of principles of natural justice and same, therefore, deserve to the quashed.
10. On the other hand, learned Addl. Advocate General Mr. G.R.Punia assisted by Mr. B.R.Chaher, appearing for the State Government and the respondent no.2 University submitted that re- option was given without any specific rule in this regard in Pension Rules, 1990 and, therefore, there was no sanction of law behind this and consequently the State Government was justified in asking the University to withdraw such re-option for pension given to the employees of the respondent no.2 University and since the petitioner were entitled to only CPF benefit as per their original option given by them in Rajasthan Agriculture University, Bikaner and the benefit of pension was wrongly extended to them by giving them option/re- option, therefore, the writ petitions deserve to the dismissed.
11. I have heard the learned counsels at length and also perused the record of the case and judgments relied upon by the learned counsels.
S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 9/14
12. Upon giving the benefit of pension scheme to the employees upon exercise of re-option given to them in pursuance of Resolution dated 7/12/2000 and subsequent Resolution dated 18/12/2009, a vested right accrued to the petitioners, who are either retired employees, family members of deceased employees or employees still in service but on the verge of retirement and the withdrawal of such Resolutions all of sudden without any valid rhyme or reason or at least without giving them an opportunity of hearing in this regard can hardly be sustained. The reason assigned in the impugned order of Deputy Secretary, Annex.4 dated 3/6/2011 in para 2 is only this that the Administrative Department of the State Government is not agreeable to such Resolutions. It was further stated that such Resolution was contrary to the Pension Rules, 1990. How such resolution is contrary to Pension Rules, 1990 or why the Administrative Department of the State Government is not agreeable to same is not even explained in the said communication, nor the same has been explained in the subsequent pleadings taken in reply filed by the respondents State & University and the only argument raised by Mr. G.R.Punia, Addl.Advocate General was that there was no specific provision in the Pension Rules, 1990 for giving such option or re-option & therefore the withdrawal of the same, even after 10 years was valid.
13. At the time of creation of Respondent No.2 - Maharana Pratap S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 10/14 University of Agriculture and Technology, Udaipur by the Act of State Legislature in the year 1999 upon bifurcation of Rajasthan Agriculture University, Bikaner, the employees with unit were shifted to from Bikaner to Udaipur. The power of University to provide for the pension scheme for the employees of Maharana Pratap University of Agriculture and Technology, Udaipur is contained in Section 38 of the Maharana Pratap University of Agriculture and Technology Udaipur Act, 2000 and relevant provision is quoted below for ready reference:
38. Statutes.-
Subject to the provisions of this Act, the Statutes of the University may provide for any matter connected with the affairs of the University and shall in particular, provide for the following namely;-
(1) constitution, powers and duties of the
Authorities
(2) .......
(3) .......
(4) .......
(5) .......
(6) .......
(7) establishment of pension and insurance
schemes for the benefit of officers, teachers and other employees of the University and the rules, terms and conditions of such schemes;"
14. There is no answer from the side of respondent State or the S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 11/14 University as to how when in pursuance of the directions of Division Bench and learned Single Judge of this Court other similarly created Universities are giving benefit of Pension Scheme to similarly situated employees of independent and autonomous Universities of the State, then why the State Government is not agreeable to switching over from CPF Scheme to Pension Scheme in the case of respondent no.2 University alone. Such singling out of respondent no.2 University, MPUAT alone and denying the benefit of Pension Scheme to its employees upon exercise of re-option in pursuance of the resolutions dated 7/12/2000 & 18/12/2009 is not at all explained by the State Government. The only stand taken by the State is that there is no provision for giving such chance of re-option and, therefore, switching over from CPF Scheme to Pension Scheme was not permissible, is an argument without substance and the same deserves to be rejected and is accordingly rejected.
15. The respondent no.2 University is created by the Act of State Legislature and is govered by the Act of 2000 and Section 38(7) empowers the said University to provide for any matter connected with respect to establishment of pension and insurance schemes for the benefit of its officers/teachers and other employees. Therefore, passing of resolution dated 7/12/2000 and 18/12/2009 cannot be said to be de hors the statutory powers of the University to take such resolution and allow its employees to switch over to Pension Scheme S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 12/14 from CPF Scheme and more so in consonance with the directions of this court in the case of its parent University - Rajasthan Agriculture University, Bikaner itself, this Court does not see any justification to countenance the stand that in the absence of any statutory provisions no such re-option opportunity could be given to the employees or lecturers of the MPUAT University.
16. Therefore, besides lacking the statutory foundation, the argument of learned counsel for the State and the University also falls short of the requirement of compliance with the principles of natural justice and, therefore, this Court finds the impugned order dated 3/6/2011 to be unsustainable on both these counts. In fact, the concerned authority of the State Government, namely; Deputy Secretary of the Agriculture Department nor any competent authority of the respondent Univsersity gave any such prior show cause notice or opportunity of hearing to the petitioners in the present case. In fact passing of such orders after a lapse of long period without cogent reasons and without complying with the principles of natural justice is like a shock to the present petitioners and some of them are widows of the deceased employees, who had faithfully served the respondent University and its parent University earlier and passed away from this world & they were getting their family pension which was suddenly stopped on account of such unthoughtful & illegal order like the one dated 3/6/2011 impugned in the present writ S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 13/14 petitions.
17. Learned counsel for the petitioners was also right in submitting that the lack of finance could not be a ground to deny such re-option because the resolution was passed on 7/12/2000 by the Board of Management of the respondent University, which included the Secretary to the Government, Finance Department besides Secretary to the Government, Agriculture Department as member and Comptroller as Ex-Officio Secretary. Therefore, giving of option/re- option to the employees was with their concurrence & that of the State Government and, therefore, at subsequent point of time, the State Government cannot express a contrary view that Administrative Department of the State Government is not agreeable to giving of such re-option, nor earlier option given by the employees for CPF when they were employees of Rajasthan Agriculture University, Bikaner, can be a bar for such employees to switchover to Pension Scheme when such re-option opportunity was made available to them in pursuance of the resolution dated 7/12/2000 & 18/12/2009.
18. Consequently, the present writ petitions deserve to be allowed and same are accordinlgy allowed. The impugned orders dated 3/6/2011 of the Deputy Secretary, Agriculture Department (Group III), Government of Rajasthan, impugned resolution No. MPUAT/BOM-31/2011-03/15 taken by the Board of Management of S.B.CIVIL WRIT PETITION NO.9843/2011-A.N.Mathur & Ors.vs.State of Rajathan & Ors.
& other 11 connected matters Order dt:5/4/2012 14/14 the respondent University on 30/11/2011 as a consequence of State Government order dated 3/6/2011 & subsequent communication dated 5/7.1.2012 passed by the Comptroller of the Maharana Pratap University of Agriculture & Technology, Udaipur are liable to be quashed and same are accordingly quashed. The respondent University shall continue to pay pension/family pension to the petitioners/their family members in accordance with the Pension Rules in pursuance of re-option already exercised by them and it is further directed that the petitioners, who are going to retire from the service of respondent University, now, their cases will also be considered accordingly for the pension.
19. The writ petitions are allowed with no order as to costs.
(DR.VINEET KOTHARI), J.
Item no. s/122 to s/133