Tripura High Court
Onkar Sadhan Adhikari vs Tripura University on 16 April, 2021
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 404 of 2020
Onkar Sadhan Adhikari
son of late Bibhuti Bhusan Adhikari,
Ex-Registrar, Tripura University,
presently residing at Flat No. 1, 4D/8,
Dharmatala Road, Kolkata-700 039
-----Petitioner(s)
Versus
1. Tripura University
represented by the Registrar,
Tripura University,
P.O-Suryamaninagar, P.S-Amtali,
District-West Tripura, Pin-799022
2. The Vice-Chancellor,
Tripura University, P.O- Suryamaninagar,
P.S-Amtali, District-West Tripura, Pin-799022
3. Mahesh Kumar Singh,
Department of Chemistry,
Senior Most Professor and Vice-Chancellor (In-charge),
Tripura University, P.O-Suryamaninagar,
P.S-Amtali, District-West Tripura, Pin-799022
4. The Registrar,
Tripura University,
P.O-Suryamaninagar, P.S-Amtali,
District-West Tripura, Pin-799022
5. The Finance Officer,
Tripura University,
P.O-Suryamaninagar,
P.S-Amtali, District-West Tripura, Pin-799022
-----Respondent(s)
For Petitioner(s) : Mr. T. Debbarma, Adv.
For Respondent(s) : Mr. B. N. Majumder, Sr. Adv.
Mr. Raju Datta, Adv.
Mr. R. Tewari, Adv.
Date of hearing
& date of delivery of
judgment and order :16.04.2021
Whether fit for reporting : Yes
Page 2 of 69
HON‟BLE MR. JUSTICE S. TALAPATRA
Judgment & Order (Oral)
Heard Mr. T. Debbarma learned counsel appearing for the petitioner as well as Mr. B. N. Majumder, learned senior counsel assisted by Mr. R. Datta and Mr. R.Tewari, learned counsel appearing for the respondents.
[2] By means of this petition, the petitioner has challenged the decision of the executive council taken in its 32nd meeting (Annexure-23 to the writ petition). In the said meeting, it was resolved as under:
"(ii) The Report of the Committee constituted vide letter No.TU/REG/EC/29/2017, dated 27.01.2017 was placed in the meeting. The members of the Council resolved that the existing pension at the rate of Central University be stopped to Shri Onkar Sadhan Adhikari, Ex-
Registrr, T.U Instead, Shri Adhikari be allowed pension as per the norms and rules of the University of Calcutta where he held the substantive pot before joining to the tenure post of the Registrar at Tripura University. Further, it is resolved that necessary steps be taken to recover the excess amount paid to Shri Adhikari beyond the admissible rules.
Further, it has been resolved that adequate steps be taken by the University to fix the responsibilities for the breach of rules for showing undue favour to Shir O.S. Adhikari, Ex-Registrar and necessary action be taken as per the established rules."
[Emphasis added] [3] It is evident from the notification dated 27.11.2017 (Annexure-R3 to the reply filed by the University respondents) that a committee was constituted to look into the matter relating to the pension for employees of Tripura University and to the matter of pension of the petitioner who has served as the Registrar of Tripura University, hereinafter referred to as the University, even though there had been no express reference. The said committee, as referred, in the Page 3 of 69 resolution as adopted in the 32nd meeting of the Executive Council has made certain observation in respect of the pension that has been accorded by the Tripura University in respect of the petitioner:
2] The matter of pension of Shri O.S. Adhikari, Former Registrar of Tripura University Following documents were examined in detail.
(i) Fundamental Rule and Supplementary Rules of Govt. of India.
(ii) Tripura University Act, 2006 No.9 of 2007;
(iii) Copy of appointment letter issued to Sri O.S. Adhikari, Ex-Registrar stating terms of appointment/
(iv) Copy of Memo No.F.TU/REG/PF-OFFICER/29/2014 dated 12th February, 2018 issued by Tripura University in favour of Sri O.S. Adhikari, former Registrar.
Observation of the Committee:
1. Registrar‟s post of Tripura University as per the Tripura University Act, 2006 is a „Tenure post;
2. According to the Fundamental Rules of Govt. of India point no.(22), page no.9, „Permanent post‟ means a post carrying a definite rate of payment sanctioned without limit of time; whereas „Tenure Post‟ means a permanent post which an individual Government servant may not hold for more than a limited period;
3. Tripura University Act, 2006 does not provide for a „Probationary Period‟ to a tenure post;
4. Sri O. S. Adhikari, former Registrar was serving as the Controller of Examination at University of Kolkata on a substantive post under West Bengal State University Act prior to Joining Tripura University.
5. However, appointment letter no.TU/REG/PF-
OFFICER/29/2014, dated 30.01.2014 issued by Tripura University to Sri O. S. Adhikari, former Registrar, states in the third paragraph "He will be on probation for a period of one year from the date of joining".
6. Tripura University through its memo no.F.TU/REG/PF- OFFICER/29/2014 dated 12.02.2015 state "Sri Onkar Sadhan Adhikari, Registrar, Tripura University has successfully completed one year of his service period and the University authority has been pleased to absorb him permanently to the post of Registrar for a tenure of five years or till the attainment of sixty tow years of age from the date of his joining to this Universtiy from 12th February, 2014 onwards."
Page 4 of 69
7. Now the appointment letter and the memo (aforesaid point No. 5 and 6 respectively) do not conform to the provisions of the Fundamental Rules of Govt. of India & Tripura University Act, 2006 regarding the appointment to the post of Registrar.
Under the circumstances, it found that pensionary benefits extended to Sri O.S. Adhikari, former Registrar as per the Central University norms is not in conformity to the existing "Fundamental Rule"
of Govt. of India and Tripura University Act, 2006 and the Committee felt this matter requires further clarifications, if necessary.
[4] The said report has been accepted by the said resolution. As the said report is subsidiary material, the petitioner has preferred not to challenge the said report. Further, it has been also pointed out by the petitioner that the notification that has been issued for constituting the committee has not been issued in conformity to the resolution taken in the 29th meeting of the Executive Council held on 14.11.2017. in this regard, reference has been made to Agenda is 14/29/2015 as recorded in the proceeding minutes (Annexure-22 of the writ petition). For purpose of reference, the agenda and the resolution as taken are reproduced hereunder:
Agenda 14/29/2017: To place the letter of the Dean, Faculty of Science, Tripura University regarding "Pension scheme for employees of Tripura University who joined after July 2007".
Recommended that a committee be
constituted to look into the matter.
[5] It has been asserted that the committee at the time of
issuing the notification has been unauthorisedly expanded its authority for extraneous reasons.
[6] Further, the petitioner has challenged the memorandum dated 27.05.2020 (Annexure-19 to the writ petition). By the said Page 5 of 69 memorandum dated 27.05.2020, the pension of the petitioner was determined under West Bengal State Aided Universities (Death-cum-
Retirement Benefit ) Scheme, 2010. The petitioner being the officer of the Central University was supposed to be guided by CCS(Pension) Rules, 1972. However, for purpose of reference, the entire text of the said memorandum (Annexure-19 to the writ petition) is reproduced below:
No.F.TU/REG/PF-OFFICE/29/2014 Dated 27th May, 2020 MEMO Sub: Sanction of Provisional Pension in favour of Shri Onkar Sadhan Adhkari, Ex. Registrar, Tripura University.
In pursuance of the decision of the Executive Council of Tripura University in its 32nd & 33rd meeting held on 13.12.2018 and 30.08.2019 (vide Agenda No.01/32/2018 & 02/33/2019) the Provisioal Pension in respect of Shri Onkar Sadhan Adhikari, Ex. Pregistrar Tripura University, retired from service on 30.06.2017 sanctioned to him as per West Bengal State Aided Universities (Death-cum-Retirement Benefit) Scheme, 2010 at the rate and as per details shown below:-
Provisional At the rate of Rs.35,520.00 Rupees
Pension Thirty Five Thousand Five Hundred
w.e.f. Twenty) only p.m. plus D.R. 58% of
01.07.2017 Rs.55520/- Rs.20602/- and Medical
Allowances (M.A.) Rs.300/- as
admissible under Rules from time to
time.
This is issued in modification of earlier Memo of even No.datd 14th June, 2017 in accordance with the decidion of the Executive Council (EC) in its 32nd and 33rd meeting held on 13.12.2018 and 30.08.2019.
The expenditure involved on this account is debitable against the Head of Account for Pension and other retirement benefit.
(Dr. K. B. Jamatia) Registrar (I/C) [7] On the foundation of the said challenge, the petitioner has urged this court to issue the mandamus directing the respondents to Page 6 of 69 release all terminal benefits considering him the officer of the Central University with interest. The petitioner has admitted however, that the petitioner was paid provisional pension counting his service rendered in the University of Calcutta w.e.f. 27.07.1998 to 11.02.2014. In terms of Rules 13 and 14 read with Rule 26(2) of the CCS(Pension) Rules, 1972, it has been declared that the period from 27.07.1988 to 11.02.2014 has to be counted as qualifying service for pension and other benefits by the memorandum dated 01.06.2017 (Annexure-8 to the writ petition). For purpose of reference, the text of the said memorandum dated 01.06.2017 is extracted hereunder:
Tripura University (A Central University) Suryamaninagar Tripura West PIN: 799022 No.F.TU/REG/PF-OFFICER/29/2014 dated 1st June, 2017 MEMO Whereas, Sri O.S Adhikar, Registrar had been serving as Asstt. Controller of Examinations w.e.f. 27.07.1988 to 31.08.2001 and from 31.08.2001 (A.N)to 11.02.2014 (A.N) as Controller of Examinations in the University of Calcutta on substantive basis.
And, whereas, Sri Adhikari applied for the post of Registrar, T.U. through proper Channel in response to advertisement and, being selected joined the post of Registrar, Tripura University on 12.02.2014 (F.N.) without any break and retaining his lien in post of Controller of Examinations, Calcutta University.
And, whereas, Sri Adhikari has been absorbed permanently in the post of Registrar, Tripura university, w.e.f. 12.02.2014 and the university of Calcutta suspended his lien to the post of Calcutta University from the same date.
And, whereas, the University of Calcutta has already remitted pro-rata pension and other retirement benefits in respect of Sri Adhikari and all those amount has been deposited in the account of Tripura University.
Page 7 of 69
Therefore, the service rendered by Sri O.S. Adhkari in the University of Calcutta w.e.f. 27.07.1988 to 11.02.2014 has been counted as qualifying service for pension & other retirement benefits under Rule 13 & 14 read with Rule 26(2) of CCS (Pension) Rules, 1972.
This is issued with the approval of Hon‟ble Vice-
Chancellor, Tripura University.
(M.M. Reang) Joint Registrar [8] Despite issuance of the said memorandum dated 01.06.2017, the petitioner was not getting the full pension, gratuity, leave salary etc. By the memorandum dated 14.06.2017 (Annexure-9 to the writ petition) the petitioner‟s provisional pension w.e.f. 01.07.2017 @ Rs.38,500/- was sanctioned and issued. Thereafter, by the memorandum No.F.TU/REG/PN/16/2018 dated 11.10.2018, the revisional pension was introduced for the employees who retired after 01.01.2016. It has been provided in the said memorandum that amount of the monthly pension/family pension/retirement gratuity/cash equivalent of leave salary (CELS) in respect of 17 pensioners and family pensioners stood revised along with admissibility of arrear death-cum- retirement gratuity and CELS as per the statement as enclosed with the said memorandum subject to adjustment of the amount already drawn by dint of the orders issued from time to time.
[9] After the issuance of the memorandum the entitlement has been recalibrated. It would be apparent from the statement showing the details of the due for fixation of the revised pay and other retiral benefits w.e.f. 01.01.2016 as per recommendation of 7 th CPC. The petitioner has been found to be entitled to an outstanding of Rs.1,99,600/-
Page 8 of 69[10] In view of the revision that has been effected from 01.07.2017, the revised pay of the petitioner as on 01.01.2016 rose to Rs.1,99,600/-. On that basis, the revised pension was calculated at Rs.99,800/-. Similarly, arrear gratuity rose to Rs.20,00,000/-. The revised CELS rose to Rs.20,75,840/- It may be further noted that the petitioner received a sum of Rs.10,00,000/- as gratuity and on the account of CELS - Rs.18,17,200/-. Thus, the petitioner is entitled to get further amount, on account of gratuity to the extent of Rs.10,00,000/- whereas on account of CELS, the petitioner is entitled to get further sum of Rs.2,53,640/-
[11] When the petitioner was not getting the due entitlement, he had represented to the Registrar, Tripura University for expediting the process so that he can get that amount, by the representations dated 06.04.2019, which was followed by the remainders dated 20.06.2019, 26.07.2019, 30.08.2019, 25.11.2019 and 06.04.2020. The petitioner has further urged that a writ of prohibition be issued by this court against the recovery from him on the basis of the calculation as made by the University-respondent. By the letter dated 08.04.2020 (Annexure-17 to the writ petition), the petitioner was apprised that in the 32nd meeting of the Executive Council it has been decided to fix the pecuniary benefits as entitled to the petitioner. It has been observed in the said letter dated 08.04.2020 that the said decision as taken in the said 32nd meeting of the Executive Council, held on 13.11.2020, shall strictly be followed.
Page 9 of 69[12] The petitioner has further challenged the consequential memorandum No.F.2/FIN/175/Pension/2020 dated 26.06.2020 (Annexure- 25 to the writ petition) whereby the Registrar in charge Tripura University communicated the petitioner that by the memorandum No.F.TU/FIN/175/Pension/2020 dated 26.06.2020, it has been decided that the "excess amount" as received as the pensionary benefit by the petitioner be recovered. According to the respondents, the said memorandum dated 26.06.2020 was issued with approval of the Vice Chancellor, Tripura University. For purpose of record, it may be noted that by the order dated 17.07.2020, it had been ordered by this court that till the next date i.e. 07.08.2020, the said memorandum dated 26.06.2020 shall not be given effect to. The said interim order has been continuing till this date of hearing.
[13] The brief facts as are necessary for appreciating the challenge as projected in this writ petition are that in response to the advertisement No.TU/01/2013 dated 20.03.2013 (Annexure 1 to the writ petition), the petitioner being eligible for appointment to the post of Registrar (tenure post for 5 years) applied for selection. Essential qualifications as required for such selection had also been mentioned in the said advertisement. The petitioner got selected by the Selection Committee as constituted by the Tripura University. On recommendation of the Selection Committee, the offer of appointment dated 30.01.2014 (Annexure 3 to the writ petition) was issued. It is pertinent to note that in the offer of appointment, it had been clearly laid down that the petitioner will be placed on probation for a period of Page 10 of 69 one year from the date of joining. The petitioner resigned from the University of Calcutta where he had held the post of the Controller of Examinations on 11.02.2014 afternoon to enable him to join the post of the Registrar Tripura University. The University of Calcutta had issued the release certificate on 11.02.2014 (Annexure-4 to the writ petition). By the notification dated 14.02.2014 (Annexure-5 to the writ petition) the taking over of charge by the petitioner as the Registrar, Tripura University on 12.02.2014 [forenoon] has been acknowledged. On 16.05.2017, by a communication (Annexure-7 to the writ petition), the petitioner was apprised that he would retire from the services on 30.06.2017 [afternoon] on attaining the age of 62 years being his date of birth on 06.06.1955. Accordingly, the petitioner was asked to take clearance from the library, laboratory, if applicable updating of service book and adjustment of advance, etc. As stated earlier, by the memorandum dated 01.06.2017 (Annexure-8 to the writ petition), it has notified by Tripura University how the pension of the petitioner would be determined. Even the revision of pension and other benefits had also been decided. Since the petitioner‟s legal entertainment was being deferred for inaction of the respondents, the petitioner made several representations for undoing the injustice. [14] As pointed out earlier on the basis of one committee report, the executive council took the decision for releasing the pension and other retirement benefits of the petitioner from the Tripura University, but at the rate of University of Calcutta. But when the said decision reached to the petitioner, he had reacted sharply. Page 11 of 69 [15] The petitioner has asserted that in terms of his representation dated 03.02.2014, the Vice-Chancellor, University of Calcutta allowed him leave without pay to keep lien on the substantive post of the Controller of Examinations, University of Calcutta for a period of one year. The said decision was subsequently ratified by the Syndicate of University of Calcutta in its meeting held on 03.02.2014. The petitioner was released from the post of the Controller of Examinations, University of Calcutta on 11.02.2014. By the communication dated 11.02.2014 (Annexure 4 to the writ petition). On the following day, the petitioner took charge of the post of Registrar in Tripura University (the respondent No.1). The petitioner had successfully completed his probation, even though no probation is called for, by the recruitment rules, and by the memo dated 12.02.2015 (Annexure 6 to the writ petition), the petitioner was informed that he had been absorbed permanently in the post of Registrar for a period of five years or till he attained the age of 62 years from the date of joining in the Tripura University. It had been clearly stated by the memorandum dated 12.02.2015 that the services of the petitioner will be governed by the Tripura University Act, 2006, Statutes, Ordinances, Regulation and rules of the University. Having considered the relevance of the memorandum dated 12.02.2015 (Annexure 6 to the writ petition) its text is reproduced hereunder:
TRIPURA UNIVERSITY (A Central University) Suryamaninagar-799022, Tripura India Page 12 of 69 No.F. TU/REG/PF-OFFICER/29/2014 Date: 12th February, 2015 MEMO Sri Onkar Sadhan Adhikari, Registrar, Tripura University has successfully completed one year of his service period and the University authority has been pleased to absorb him permanently to the post of Registrar for a tenure of five years or till the attainment of sixty two years of age from the date of his joining to this University from 12 th February, 2014 onwards.
The others terms and service of Sri Adhikari, Registrar will continue to be governed by the Tripura University Act 2006, Statutes, Ordinances, Regulations and Rules of the University.
This is issued with the approval of the Hon‟ble Vice- Chancellor, Tripura University.
(M.M. Reang) Joint Registrar To Sri O.S. Adhikari, Registrar Tripura University [16] Later on, by the communication dated 16.05.2017 (Annexure 7 to the writ petition) the Joint Registrar of Tripura University asked the petitioner to get clearance from the various departments so that his pension and other retirement benefits can be settled. In this regard, it is pertinent to note that by issuing a memorandum dated 1.6.2017 the Joint Registrar of Tripura University had apprised the petitioner with approval of the Vice-Chancellor that the petitioner had been absorbed permanently in the post of the Registrar of Tripura University w.e.f. 12.02.2014. It was recorded that the University of Calcutta had suspended the lien over the post as held by the petitioner before joining the post of the Registrar Tripura University w.e.f. 12.02.2014. It has been placed on record that the University of Calcutta had remitted pro-rata pension and retirement benefits in Page 13 of 69 respect of the petitioner and the said amount had been deposited in the account of Tripura University. It is further evident from the said memorandum dated 01.06.2017 (Annexure 8 to the writ petition) that the petitioner had rendered his services in University of Calcutta from 27.07.1988 to 11.02.2014. The petitioner had rendered his services in Tripura University from 12.02.2014 to 30.06.2017. If those period are counted, the petitioner has completed the qualifying service for pension and other retirement benefits under Rule 13 & 14 read with Rule 26(2) of Central Civil Service (Pension) Rules 1972 and it has been indicated that the said memorandum had been issued with approval of the Vice-
Chancellor of Tripura University. The said memorandum dated 01.06.2017 (Annexure-8 to the writ petition), has been reproduced before.
[17] By the memorandum dated 14.06.2017 (Annexure 9 to the writ petition), the Joint Registrar of Tripura University conveyed the sanction of Provisional Pension as admissible under the Rules at Rs.38,500 w.e.f. 01.07.2017. That apart, the petitioner was paid the terminal benefits as per 6th CPC including the gratuity to the extent of Rs.10,00,000 and leave salary to the extent Rs.18,17,200/- and GPF withdrawal to the extent of Rs.61,300/- But the petitioner has not been given the commuted value of pension. By the memorandum dated 11.10.2018 (Annexure-10 to the writ petition), the Registrar (In Charge) of Tripura University revised the pension retirement gratuity and cash equivalent of leave salary of the petitioner along with other 17 pensioners. From a reading of the said memorandum dated 11.10.2018 Page 14 of 69 (Annexure 10 to the writ petition), it is apparent that in the following manner, the pension, arrears, gratuity and leave salary were worked out.
Sl. Name of Date of Date from which Revised pay as
No. Pensioner/Family retirement pension/Family on 01.01.2006
Pensioner pension is
effective
17 Shri Onkar Sadhan 30.06.2017 01.07.2017 Rs.1,99,600/-
Adhikari, Retd,
Registrar
Revised Arrear Gratuity Arrear Cash Equivalent of
Pension/Family Leave Salary (CELS)
Pension
Rs.99,800/- Revises Gratuity Rs.20,00,000/- Revised CELS Rs.20,75,840
Less Drawn Rs.10,00,000/- Less drawn Rs.18,17,200
Net Payable: Rs.10,00,000/- Net Payable Rs.2,58,640
[18] The petitioner has asserted that he wrote few letters to the
Registrar of Tripura University on 06.04.2019, 20.06.2019 and
26.07.2019 for release of arrears of gratuity and arrears of cash equivalent of salary, but it seems that his claim had fallen on deaf ears of the respondents, so far it is concerned with release of those benefits. The letters/representations (Annexure-11 to the writ petition) has clearly demonstrated the entitlement of the petitioner. Even, on 30.08.2019, 25.11.2019 and 06.04.2020, the petitioner urged the respondents by three representations, issued on those days, for release of his retirement benefits viz; gratuity, leave salary and the commuted value of pension. Those representations (Annexure-12 to the writ petition) had not been responded to. The petitioner has come across a communication dated 09.10.2019 (Annexure-13 to the writ petition) whereby the Accountant General (Audit) Tripura, Agartala had informed Page 15 of 69 the Vice-chancellor (Acting) of Tripura University as regards the audit queries dated 03.07.2018 made in the course of the performance audit of on functioning on of University Grant Commission (UGC) for the period 2012-2018. During the said performance audit, the matter relating to the retirement benefits including the pension given to the petitioner was verified, based on the documents provided for audit as per audit requisition, but no irregularities were noticed. [19] By the representation dated 19.12.2019 (Annexure-14 to the writ petition), the petitioner had urged the Secretary University Grant Commission (UGC) to intervene as despite the salary and retirement benefits had been revised in tune with the recommendation of 7th Central Pay Commission, the petitioner was yet to receive the arrears of gratuity, arrears of leave salary and the commuted value of pension. By the letter dated 15.02.2020 (Annexure-15 to the writ petition), the Deputy Secretary University Grant Commission requested the Registrar of Tripura University to look into the complaint of the petitioner (Annexure-14 to the writ petition). Even, thereafter, the petitioner made representation to the Joint Secretary (Central University) Ministry of Human Resources Development on 16.02.2020 (Annexure-16 to the writ petition) complaining about inaction of Tripura University in releasing of arrears of gratuity, the cash equivalent to leave salary and the commuted value of pension and requested the said Ministry to intervene in the matter.
[20] The petitioner received on email on 08.04.2020 from the Registrar (Acting) Tripura University whereby he was informed that a Page 16 of 69 report of the Committee constituted by the letter NO.TU/IG/EC/29/2017 dated 27.11.2017 was placed in the meeting of the Executive Council held on 13.12.2018. In that meeting, the Council had resolved that the existing pension of the petitioner as per Central University Rules be stopped and the petitioner be allowed to draw pension as per rules of the University of Calcutta where the petitioner held substantive post before his joining to the tenure post of the Registrar of Tripura University. It was further resolved that necessary steps be taken to recover the amount drawn in excess beyond what is admissible under the rules. It was further informed that the decision taken in the 32 nd Meeting of Executive Council, was approved and confirmed in the 33rd meeting of the Executive Council, held on 13.08.2019. The said communication dated 08.04.2020 (Annexure-17 to the writ petition) is instrumental to the challenge, made in this writ petition. The petitioner was taken aback having received the communication dated 08.04.2020 (Annexure-17 to the writ petition) inasmuch as the Executive Council of Tripura University had acted behind his back and keeping him absolutely in the dark. Without affording any opportunity of hearing, the University-respondent stopped the pension of the petitioner as per Central University rules.
[21] The petitioner has expressed his dismay ON discovering the fact that the pension as determined with approval of the Vice-Chancellor had been revised arbitrarily when the Vice-Chancellor is the Chairman of the Executive Council. As per the recommendation of 7th CPC, the petitioner received his due arrear pension from July, 2017 to July, 2018 Page 17 of 69 at the rate of Rs.1,01,205/- but for the change of the decision abruptly and refixation of the pension based on the report of the committee as stated before the petitioner has claimed to have suffered serious detriment. The petitioner on 26.04.2020 made a detailed representation to the Registrar (Acting), Tripura University. According to the petitioner, the decision that had been taken in the 32nd meeting of the Executive Council was taken ignoring the terms and conditions of the offer of appointment as issued to the petitioner. The said decision as well stands contrary to the observation of the Accountant General (Audit), Tripura. The petitioner had intended to have the various records as relied by the Executive Council or the committee that was constituted by them for purpose of finding out the rationale. According to the petitioner, the Tripura University Act, 2006 extends power to the Vice-Chancellor to exercise any power conferred on any authority of the University by or under the said Act. For purpose of reference, the relevant provisions in this regard are reproduced below:
12. The Chancellor --(1) The Chancellor shall be appointed by the Visitor in such manner as may be prescribed by the Statutes.
(2) The Chancellor shall, by virtue of his office, be the head of the University and shall, if present, preside at the Convocations of the University held for conferring degrees and meetings of the Court.
13. The Vice-Chancellor.--(1) The Vice-Chancellor shall be appointed by the Visitor in such manner as may be prescribed by the Statutes.
(2) The Vice-Chancellor shall be the principal executive and academic officer of the University and shall exercise general supervision and control over the affairs of the University and give effect to the decisions of all the authorities of the University.
Page 18 of 69(3) The Vice-Chancellor may, if he is of opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority at its next meeting the action taken by him on such matter:
Provided that if the authority concerned is of the opinion that such action ought not to have been taken, it may refer the matter to the Visitor whose decision thereon shall be final:
Provided further that any person in the service of the University who is aggrieved by the action taken by the Vice-Chancellor under this sub-section shall have the right to represent against such action to the Executive Council within three months from the date on which decision on such action is communicated to him and thereupon the Executive Council may confirm, modify or reverse the action taken by the ViceChancellor.
(4) The Vice-Chancellor, if he is of the opinion that any decision of any authority of the University is beyond the powers of the authority conferred by the provisions of this Act, the Statutes or the Ordinances or that any decision taken is not in the interest of the University, may ask the authority concerned to review its decision within sixty days of such decision and if the authority refuses to review the decision either in whole or in part or no decision is taken by it within the said period of sixty days, the matter shall be referred to the Visitor whose decision thereon shall be final.
(5) The Vice-Chancellor shall exercise such other powers and perform such other duties as may be prescribed by the Statutes or the Ordinances.
[Emphasis added] [22] The petitioner has submitted that on 27.05.2020, he received the notification dated 27.05.2020 issued by the Registrar (Acting), Tripura University fixing the provisional pension of the petitioner w.e.f. 01.07.2017 as per the West Bengal State Aided Universities (Death-cum-Retirement Benefits) Scheme, 2010. In sequel to the said decision taken in the 32nd and 33rd meeting of the Executive Council respectively held 13.12.2018 and 30.08.2019, the quantum of provisional pension as was sanctioned from 01.07.2017, was reduced to Rs.35,520/- with DR 58% i.e. 26.602/- and the medical allowance of Page 19 of 69 Rs.300/- as admissible. The petitioner without prejudice to his contention against the said decision, reflected in the notification dated 27.05.2020 (Annexure-19 to the writ petition), has stated that the said quantum of pension has been determined on the basis of the last pay drawn by the petitioner in the University of Calcutta, whereas the same ought to have been fixed on the last pay as drawn by him in Tripura University assuming but denying, at the rate admissible under the revised rate under the West Bengal State Aided Universities (Death- cum-Retirement Benefits) Scheme, 2010.
[23] The petitioner has admitted that the he had received an amount of 51,422/- as pension for the month of May 2020, which was disbursed as per the West Bengal State Aided Universities (Death-cum- Retirement Benefits) Scheme, 2010. The amount was less than half of the pension which the petitioner is entitled to, under the Central University Rules .
[24] Mr. T. Debbarma, learned counsel appearing for the petitioner has contended that some statements has been made by the respondent without any basis and in complete violation of principle of natural justice, meaning without affording any opportunity of hearing. According to Mr. Debbarma, learned counsel appearing for the petitioner, the decision of 32nd and 33rd meeting of the Executive Council is in contrast to the provisions of the relevant rules. The entire decision is a mala-fide action. In this respect, a reference has been made to the resolution of the 29th meeting of the Executive Council held on 14.11.2017 where a resolution was adopted to the effect that the Page 20 of 69 pension scheme for employees of Tripura University who joined after July, 2007 would be studied by a committee. The said committee as constituted, placed their report in 32nd meeting of the Executive Council held on 13.12.2018 and on the basis of the said report the Executive Council had resolved to stop the pension as had been determined earlier by the authority of Tripura University.
[25] Mr. Debbarma, learned counsel has pointed out that for purpose of arriving at that decision, the permanent post of Registrar Tripura University has been termed only as the tenure post, whereas the said post according to the recruitment rules, is a post having the whole time salaried post [permanent post] but the term is determined for five years or till attaining the age [superannuation] of 62 years. Even the Accountant General (Audit) Tripura had on due verification did not raise any objection in respect of determination of pension prior to the impugned decision as has been taken in 32nd meeting. It has been also asserted that since the petitioner had asked for payment of the revised pension as per the 7th CPC, the earlier decision was revisited and reversed by the said resolution as adopted in 32nd meeting of the Executive Council. Since the petitioner was not afforded any opportunity, according the petitioner, the said decision of recalculating the pension under the West Bengal State Aided Universities (Death- cum-Retirement Benefits) Scheme, 2010 on the basis of the last pay drawn in the University of Calcutta in the post of the Controller of Examinations is unsustainable. Even after filing of the writ petition on 29.06.2020, the petitioner had received a memorandum via e-mail Page 21 of 69 from the university respondent on 26.06.2020 under No.F.TU/FIN/175/Pension/2020 (Annexure-26 to the writ petition) for recovering the excess payment as made in terms of the earlier decision of the university authority.
[26] According to the petitioner, the said action of the respondent suffers from serious illegality for violation of the statutory right and for mala-fide action. Hence, the resolution of the Executive Council adopted in 32nd meeting and confirmed in 33rd meeting as communicated to the petitioners by the letter and memorandum respectively dated 08.04.2020 and 27.05.2020 is required to be set aside and the respondent be prohibited from giving any effect of the said decision as taken in 32nd meeting of the Executive Council concerning the petitioner.
[27] As consequence thereof, the memorandum dated 27.05.2020 (Annexure-19 to the writ petition) shall also be interfered with and set aside. Further, the respondents be directed to make payment of the balance benefits as entitled to the petitioner under Central University Rules with interest within a stipulated time. Further, the subsequent memorandum dated 26.06.2020 (Annexure-26 to the writ petition) be interfered with and set aside inasmuch as the decision taken by the Executive Council in its 32nd meeting is grossly illegal and in contrast to the statutory rules.
[28] Mr. Debbarma, learned counsel has finally referred to the recruitment rules for the post of the Registrar in the Tripura University, which was in force at the time of recruitment of the petitioner. For Page 22 of 69 purpose of reference, the entire text of the recruitment rules is reproduced hereunder.
TRIPURA UNIVERSITY RECRUITMENT RULES FOR THE POST OF REGISTRAR 1 Name of post Registrar 2 Number of Post(s) 1 No. 3 Classification Group „A‟ 4 Scale of pay Pay Band: Rs.37400-67000/-
Grade Pay: 10000/-
5 Whether selection or Not applicable non-selection post 6 Whether benefit of No added years of service admissible under Rule 30 of the CCS(Pension) Rules, 1972 7 Age Limit for direct Preferably below 57 years.
recruits
8 Educational and other (i) A Master‟s degree with at least
qualifications required 55% of the marks or its equivalent
for direct recruits grade of B in the UGC seven-point
scale from a recognized
University/Institute.
(ii) At least 15 years of experience
as Assistant Professor in the AGP of
Rs.7000 and above or with 8 years of
service in AGP of Rs.8000/- and
above including as Associate
Professor along with experience in
educational administration
Or
Comparable experience in research
establishment and/or other
institutions of higher education
Or
15 years of administrative
experience of which 8 years as
Deputy Registrar or an equivalent
post.
9 Whether age and Not applicable
educational
qualifications
prescribed for direct
recruits will apply in
the case of promotes.
10 Period of probation, if No Probation
any
11 Method of Deputation or on contract for a
recruitment: whether tenure upto 5 years or till attaining
by direct recruitment the age of 62 years whichever is
or by earlier.
Page 23 of 69
promotion/absorption (shall be eligible for re-appointment)
and percentage of the
posts to be filled by
various methods.
12 In case of recruitment Deputation or on Contract by promotion As indicated in Col.8 /deputation/absorptio n, grades from which promotion/deputation /absorption to be made 13 Composition of DPC or As per Tripura University Act, 2006 Selection Committee Note: (i) The minimum requirement of 55% shall not be insisted upon for the Registrars, Deputy Registrars or its equivalent and for the existing incumbents who are already in the university system. However, these marks should be insisted upon for those entering the system from outside and those at the entry points of Assistant Registrars and its equivalent.
(ii) Recruitment for the post of Registrar shall be through open advertisement.
[29] On the basis of the said recruitment rules, Mr. Debbarma, learned counsel has contended that the post of Registrar is a permanent post. Mr. Debbarma, learned counsel has submitted that from the advertisement dated 20.03.2013 (Annexure-1 to the writ petition), it will be also apparent that the post of the Registrar is under the Regular pay band of 37,000-67000 with the Grade Pay of Rs.10000. In this regard, specific reference has been made to the offer of appointment dated 30.01.2014 (Annexure-3 to the writ petition) to show the „contract‟ of the recruitment. The conditions of appointment has been shortly recited therein. The entire text of the offer of appointment has been reproduced below.
Tripura University A Central University Suryamananagar, West Tripura- 799022 F.No/TU/REG/PF-OFFICER/29/2014 dated 30.01.2014 Page 24 of 69 OFFER OF APPOINTMENT Shri Onkar Sadhan Adhikari is hereby appointed as Registrar, Tripura University for a term of five years or till the attainment of 62 years which ever is earlier in the Pay Band of Rs.37,000/- 67,000/- with GP of Rs.10,000/- plus admissible allowances as per Rules with effect from the date his joining the post.
His pay in the above scale will be fixed by the University as per University rues.
He will be on probation for a period of one years from the date of joining.
His services under the university will be governed by the Tripura University Act, 2006 Statutes, Ordinances, Regulations, Rules and Orders as are in force and as may be prescribed and amended from time to time.
He shall have to join with one month from the date of issue of this offer of appointment by submitting Medical Fitness Certificate. If the candidate fails to join within the prescribed date the offer will be treated as cancelled.
No TA DA shall be paid for joining the post.
This is issued in pursuance of the decision of the twenty second Meeting of the Executive Council Tripura University held on 25th January, 2014.
(S. Debbarma) Registrar (Officiating) To Shri Onkar Sadhan Adhikari, S/O. Lt. Bibhuti Bhusan Adhikari 84/B/16 Dumdum Cossipore Road, Aikatan Abasan, Kolkata-700074 No other „contract‟ has been placed.
[30] According to Mr. Debbarma, the petitioner was paid his salaries from the consolidated fund of India [as the Tripura University is a Central University] or was paid from the local fund administered by the state government. He was working all through under the pensionable establishment. From the offer of appointment, it is quite evident that the petitioner was not appointed on deputation. The past service of the petitioner rendered in the post from which he had Page 25 of 69 resigned for joining the post of the Registrar in Tripura University without any interruption shall not entail forfeiture as that had been so done with proper permission to take up another appointment whether temporary or permanent under the government where the service qualifies (see Rule 26(2) of CCS (Pension) Rules, 1972). Thus, Mr. Debbarma, learned counsel has contended that the impugned decision as taken in the 32nd meeting of the Executive Council and confirmed in the 33rd meeting of the Executive Council is grossly inappropriate, arbitrary and illegal. The said decision was communicated to the petitioner by e-mail dated 08.04.2020 - Annexure 17 to the writ petition) . Hence, the principal memorandum dated 27.05.2020 (Annexure 19 to the writ petition) is liable to be interfered with. He has urged for release of the pensionary benefits to the petitioner considering him holding the permanent post of an officer in Tripura University.
[31] Mr. B. N. Majumder, learned senior counsel assisted by Mr. R. Datta and Mr. R. Tewari, learned counsel for the respondents has submitted that the petitioner was holding purely a tenure post, not the permanent post and hence he was not borne in the pensionable establishment. He has made serious allegation against the senior officials of the university-respondent for misdemeanour and extending support to the petitioner "for his sheer abuse of office". For this purpose in Para 5 of the reply filed by the respondent No.3, in response to the interim prayer, it has been asserted that while holding the tenure post, the petitioner got his service converted in the regular posting by Page 26 of 69 misusing his official position. But they have admitted quite categorically that before the petitioner‟s appointment as the Registrar in Tripura University, he was serving as the Controller of Examinations in the University of Calcutta and during that time his pension and retirement benefits were supposed to be governed by West Bengal State Universities (Death-cum-Retirement) Scheme, 2010, whereas Tripura University is a Central University and that scheme is not germane for the said university.
[32] It has been asserted by the Mr. Majumder, learned senior counsel that the very memorandum dated 20.03.2013, based on which the petitioner was appointed on tenure basis lays down that the said post is for a term of five years or till attaining of the age of superannuation at 62 years and whichever is earlier. According to him, there is no provision for absorption. There is no dispute about the date of joining i.e. 12.02.2014. An employee holding a tenure post cannot aspire to carry forward the past benefits in the post. Even the memorandum dated 01.06.2017 was issued "at the instance of the petitioner purporting that his past service in the parent department has been taken as qualifying service in the respondent University as per Rule 13 and 14 read with Rule 26(2) of the CCS (Pension) Rules, 1972. No sooner than the irregularities came to the notice of the respondent University, the appropriate steps were initiated for „corrective‟ action. On the basis of the report dated 19.11.2018 as submitted by the committee constituted by the Executive Council, the resolutions dated 13.12.2018 and 30.08.2019 (Annexures-23 and 24 to the writ petition) Page 27 of 69 were taken and the petitioner was communicated of the said resolutions. According to the University- respondent, the petitioner had effective and alternative remedy. The petitioner ought to have approached the Executive Council for redress of his grievances. But the University respondent has admitted petitioner had filed the representation were by expressing his grievances on 26.04.2020. But before the representation were disposed of, the petitioner had approached this court by filing this writ petition. [33] According to the university-respondent, the petitioner had manoeuvred the „whopping" and "illegal benefit" of Rs.1,17,756/- as pension which is double the amount the petitioner is entitled to. The allegation of mala fide has been denied by the University respondent. In Para 22 of the said short affidavit filed on 06.08.2020, the University respondent has made an attempt to explain their action for recovering the purported excess payment. It has been averred as follows:
"The Government of India Office Memorandum No F.18/26/2011. Estt. (Pay-I) Ministry of Personnel. PG and Pension Department of Personnel and Training dated, 6th February, 2014 while citing the Orders of Hon‟ble Supreme Court in the Chandi Prasad Uniyal & Ors. Versus State of Uttarakhand & Ors. 2012 AIR S.C.W 4742 (2012) & S.C.C. 417 had candidly laid down guidelines that wherever excess payments are brought to notice, on account of wrong pay fixation, grant of scales without approval etc., immediate corrective must be taken for recovery from the recipient on recovery of excess payments to employees.
The aforesaid O.M. further advised that for recoveries of such excess payments, the Department/Ministry may issue a Show cause notice to give the employee an opportunity to represent and a speaking order to be passed with reason for the decision.
It has also been stipulated in the same OM that in cases of excess payments reaching hands of an employee was due to fraud, misrepresentation, collusion, favoritism, negligence, carelessness etc. roles of persons responsible Page 28 of 69 for the excess payment and the employee benefiting from such excess payments are to be identified for appropriate departmental/criminal actions.
That though steps were taken by the Respondent university for investigation into misuse and other irregularities for passing on wrongful benefits to the petitioner, it could not make fast progress due to interruptions coming from lockdowns in wake of the wide- spread COVID-19 pandemic."
[part of Para 22 of the short affidavit] [34] The petitioner, according to the university respondent is supposed to get the pension from his parent department, not from the Tripura University. The respondents No. 1, 2, 4 and 5 had filed a detailed affidavit contending that unless the members of the Executive Council are made parties, the said resolution adopted by Executive Council cannot be interfered with. The university-respondent in their detailed affidavit filed on 29.08.2020 have referred to Proviso to 2 Section 13(3) of the Tripura University Act, 2006. As the writ petitioner had filed the representation, unless the said representation was disposed of, no legal action would lie against the University respondent. Thus, the statement made by the petitioner that there had been no alternative remedy cannot be sustained. It has not been disputed by the university-respondent that the petitioner served the University of Calcutta from 27.07.1988 to 11.02.2014 as Assist Controller of Examinations and the Controller of Examinations in University of Calcutta substantively.
[35] The university respondents have categorically admitted that the advertisement No.TU/01/2013 dated 20.03.2013 has laid down that the post of Registrar is a tenure post for five years or till 62 years, whichever is earlier. The petitioner had knowing full well of those Page 29 of 69 conditions participated in the selection process and got appointed. Hence, no further interpretation of that clause can be resorted to the petitioner. It has been also asserted by the university-respondent that the petitioner‟s tenure is for a period of five years or till attainment of 62 years and whichever is earlier. It has been also asserted that the petitioner‟s service will be governed by the Tripura University Act, 2006. It has been also asserted that considering the date of birth of the petitioner on 06.06.1955, he was due to superannuate on 30.06.2015 from the said tenure post.
[36] By filing the said detailed reply, the respondents No1, 2, 4 and 5 have reiterated that since the Executive Council had not taken any decision on the representation of the petitioner, the writ petition be considered premature and the same be dismissed as not maintainable for existence of the said alternative remedy. In Para 7 of the said reply, the service particular as provided by the respondents have not been disputed by the petitioner as those are based on the records. True it is that before the petitioner was recruited as the Registrar, Tripura University (a Central University) he was occupying the post of Controller of Examination in the University of Calcutta on regular basis and his pension and other retirement benefits were supposed to be regulated under West Bengal Aided Universities (Death-cum-Retirement Benefit) Scheme, 2010. So far the pension and the retirement benefit of an officer in Tripura University are concerned, those are to be governed by the rules of the Central government as adopted by the Tripura University mutatis mutandis. They have stated that "pre-dated noting Page 30 of 69 was done with hypothetical successful completion of probation supposed to be terminated on 12.03.2015". According to the university- respondents, there was no review of the periodical performance. In the same breath, those respondents have stated that there was no requirement of probation as per the recruitment rules to the post of Registrar. In Para 9 of the said reply, those respondents have asserted as follows:
"9. That the answering respondents humbly say that in the said advertisement the post of Registrar is mentioned as tenure post for a period of 5 years or till attainment of 62 years whichever is earlier. In the advertisement, it is no where indicated/suggested/mentioned that above mentioned post will be converted into a permanent post after the completion of probation period and it was no where stated that the petitioner would be absorbed permanently after completion of probation period and moreover there was no single whispering about the said probation period in the said advertisement. The answering respondents at the time of issuing the said advertisement being conscious and knowing fully well did not insert or mention the clause of probation period or confirmation or service only on the ground that the said post is a tenure post and tenure post cannot be converted as a permanent post and tenure post cannot be absorbed as a permanent post and as per Recruitment Rules approved by Executive Council and Tripura university in consonant with Tripura University Act, 2006, the post of Registrar, Tripura University is a tenure post. In these circumstances, if tenure post is absorbed as a permanent post then other eligible candidates will be deprived from participation in the selection of the permanent post of Registrar, Tripura University. For ready reference as per Fundamental Rules, the definition of permanent. Post tenure post and temporary post are as follows:-
"Permanent Post means a post carrying a definite rate of pay sanctioned without limit of time."
"Tenure Pot means a permanent post which an individual government servant may not hold for more than a limited period."
"Temporary Post means a post carrying a definite period of pay sanctioned for a limited period."
So, it is crystal clear from the aforesaid definitions that the post of Registrar (Tenure post for 5 years), Tripura University is a tenure post or temporary post and Page 31 of 69 not a permanent post. The petitioner is a highly educated person and after being fully aware about the definitions of tenure post, temporary post and permanent post, he participated in the said selection process and he was selected and subsequently he served in Tripura University for about more than 3 years though the said post was for a period of 5 years and in the meantime he crossed his upper age limit i.e. 62 years."
This is the crux of the main objection projected by the said respondents against the reliefs as urged by the writ petitioner. [37] The respondent have however, relied on the advertisement dated 20.03.2013 to buttress their claim. According to them, since the tenure of the post and the superannuation clause were adverted, the petitioner had the knowledge that he could not continue beyond the age of 62 years as whichever would come early. Even in the offer of appointment the said condition was clearly laid. To pursue the decision of 32nd meeting of the Executive Council of Tripura University held on 25.01.2014, it is really strange to know that the memorandum dated 12.02.2015 has been stated by the respondents to be collusive in nature, whereas the very memorandum has noted that the decision that was being communicated under the said memorandum was taken by the Vice-Chancellor of Tripura University. According to the respondents, the Vice-Chancellor, Tripura University had no authority to absorb the petitioner on permanent basis without approval of the Executive Council of Tripura University as well as the Ministry or Human Resource Development. By the said memorandum dated 12.02.2015, the probation was terminated as the petitioner had performed satisfactorily during that period even though there is no prescription of probation in the recruitment rules. According to the respondents, the purported Page 32 of 69 absorption is non-est . According to the respondents the post like Vice- Chancellor, the Finance Officer and Controller of Examinations are all tenure based post which cannot be made permanent, otherwise it will violate Tripura University Rules. Thereafter, the university-respondents have asserted having referred to the committee that was constituted by the Notification dated 27.05.2017 for reviewing the matter relating to the pensionary benefits of the petitioner as under:
"The said committee by a resolution dated 19.11.2018 came to a conclusion that the petitioner is not entitled to pensionary benefits as per Central University norms and as a result the matter was referred to Executive Council, Tripura University. Accordingly the matter was placed before the 32nd meeting of Executive Council held on
13.12.2018. In the said meeting, it was unanimously decided that the existing pension at the rate of Central University Rules be stopped to the petitioner instead the petitioner be allowed pension as per the norms and rules of the University of Calcutta and on the basis of 32 nd and 33rd Executive Council meeting the Registrar (I/C) issued a memo dated 27.05.2020 and sanctioned the pension of the petitioner was per West Bengal State Aided Universities (Death cum retirement) Scheme, 2010." [38] Thus, they have denied that the petitioner is entitled to the amount of gratuity, leave salary and GPF withdrawal, as claimed by him, inasmuch as the purported absorption of the petitioner was a wrongful act which had been reviewed and reversed by 32nd and 33rd Executive Council meetings. It has been decided by the Executive Council meeting that the petitioner cannot get the pension under the Central University Rules and hence his pension may immediately be stopped. It has been stated further that the opinion of the Accountant General (Audit) cannot supersede the resolution adopted in the Executive Council meetings. Based on the recommendation the committed constituted for reviewing the matter relating to pensionary Page 33 of 69 benefits of the petitioner the Executive Council took the decision which has been challenged in this writ petition. On the aspect of affording reasonable opportunity to the petitioner, it has been stated that that the petitioner was fully aware that those resolutions were taken by the Executive Council. Thus, the respondent did not have any say why the pre-decisional hearing was not afforded to the petitioner. Thereafter, it has been stated any decision taken by the executive council is binding on the Vice-Chancellor (the respondent No.2 herein). Filing of the representation to the various authorities according to the university respondent amounts to give in to the jurisdiction for alternative remedy. Those respondents have further stated that "once a person is appointed to a tenure post, his appointment to the said post begins when he joins and it comes to an end on the completion of tenure such a person does not superannuate, he only goes out of the office on completion of his tenure." While making the reply, no reference has been made to the recruitment rules for the post of the Registrar or the advertisement that was made for selection in the post of Registrar, Tripura University. The said observation stands entirely in contrast to the recruitment rules. The university respondents have defended the decision taken in 32nd and 33rd Executive Council meetings.
[39] It has been also asserted that absorption of the petitioner in the post of the Registrar, Tripura University was ex facie illegal. According to those respondents, the Accountant General (Audit) cannot decide whether the petitioner is entitled to receive pension under Central Pension Rules or under the rules prevalent in the University of Page 34 of 69 Calcutta. Hence, the communication received from the Accountant General (Audit) Tripura does not carry any value for the present purpose. Notwithstanding the said observation made by the Accountant General (Audit) Tripura the petitioner cannot get the benefits as claimed in this writ petition. The benefits those have been received by the petitioner, before the matter was reviewed by the Executive council of Tripura University, were not the petitioner‟s entitlement. Hence, the respondent have very right to ask for refund of those benefits. Such order is in tune with Chandi Prasad Uniyal (supra). The Executive Council of Tripura University could not take early decision for disruption created by the pandemic. The petitioner is in no way prejudiced as his pension and other retirement benefits have been released in terms of the prevalent rules in the University of Calcutta. [40] The petitioner has filed a rejoinder in response to the reply filed by the respondents. In the rejoinder, the petitioner has reasserted the facts based on which the reliefs in the writ petition are claimed. The petitioner has clearly stated that he is not aggrieved by any action or inaction on the part of the Accountant General (Audit), Tripura, the University Grant Commission (UGC) and the erstwhile Ministry of Human Resource Development (HRD) and this is the reason why they have not been impleaded them as the party-respondents. The petitioner has stated that in terms of Statute 7(f), the Registrar represents the University which includes the Executive Council. Hence, no impleadment of the members of the Executive Council is required. Being aggrieved by the decision of the Executive Council held on 13.12.2018 as Page 35 of 69 communicated by the email dated 08.04.2020, the petitioner has categorically stated that his representation had fallen on deaf ears of the various authorities, to whom he had represented for recalling the decision taken by the Executive Council on 13.12.2018. The petitioner has expressed his serious resentment for refixing his pension in terms of the West Bengal State Aided Universities (Death-cum-Retirement Benefits) Scheme, 2010. As the authorities in the Tripura University did not respond to his representation, the petitioner having no alternative, has filed the instant writ petition. He was with sufficient emphasis reiterated that he had worked in the post of Registrar and his services were to be governed the Tripura University Act, Statutes and Rules as mentioned in the appointment letter. Thus, for purpose of fixing the pension and other retirement benefits, no recourse can be taken to West Bengal State Aided Universities (Death-cum-Retirement Benefits) Scheme, 2010 for settlement of the petitioner‟s pension and other benefits. Hence, the impugned action is grossly illegal and illogical. The petitioner has stated in his rejoinder as under:
"It is stated that the Respondent University appointed me to the post of Registrar for a period of five years or till attaining the age of sixty-two years, whichever is earlier. Now the University having perpetual succession cannot disown its commitment and make such an absurd and irresponsible statement that it expected I „automatically relinquish‟ the post of Registrar and go back to my parent organization before my lien ended to superannuate at the age of sixty years from that organization,. This is simply ridiculous and unjust. The expectation of the Respondent University would have carried some meaning had it been clarified in the Advertisement and clearly written in the appointment letter that appointment to the post was subject to a probation period and that service in that post did not carry any retiral benefits.Page 36 of 69
Notwithstanding that the Recruitment Rules of the University mandates no probation for the post of Registrar. I was put on probation for one year. This was on obvious act of the Respondent only.
As I was kept on probation for a period of one year, the Respondent University could have sent me back to my parent organization at the material point of time. But it could not do so in the absence any adverse report from any quarter against me. Therefore, when my probation was over, the Respondent University on its own assessment and wisdom decided to retain me in the post of Registrar and issued the Memo and started deducting money from my monthly salary as employee‟s contribution to GPF bearing A/c No.TU/PF/0210 maintained by it. This is again an act of the Respondent and I cannot be framed. The said Memo in effect is an official letter issued on completion of my probation to me to complete my term of appointment of five years or attaining the age of sixty-two years, whichever is earlier. No more or no less."
[41] The petitioner has categorically stated in the said rejoinder that the post of the Registrar was not converted as the permanent post by the then Vice-Chancellor and the Joint Registrar under his influence. The Memorandum that has been referred by the University-respondent is confined only to confirmation after successful probation. The condition of probation was incorporated in the letter of appointment and as the petitioner was placed under probation that required assessment of performance and confirmation in the service. Thus, the petitioner has denied the said allegation. The petitioner has restated that Accountant General (Audit) Tripura had on due scrutiny not found infirmity in the method by means of which the petitioner‟s pension and other retirement benefits were settled. The petitioner has, thereafter, referred to the Statute 6 of the Tripura University which deals with the terms and condition of the service perks and responsibilities of the Registrar. The part of the statute, as reproduced by the petitioner, is extracted hereunder:
Page 37 of 69
"6(1) The Registrar shall be appointed by the Executive Council on the recommendation of a Selection Committee for the purpose and shall be a whole-time salaried officer of the University.
6(2) He shall be appointed for a term of five years and shall be eligible for re-appointment.
6(3) The emoluments and other terms and conditions of service of the Registrar shall be such as may be prescribed by the Executive Council from time to time. Provided that the Registrar shall retire on attaining the age of sixty-two years. Provided further that a Registrar shall, notwithstanding his attaining the age of sixty-tow years, continue in office until his successor is appointed and enters upon his office or until the expiry of a period of one year, whichever is earlier."
[42] The petitioner has categorically asserted that such tenure post is always a permanent post. Whenever an appointment is made to the post of Registrar, it is for the period of five years at one go. If that tenure does not collide with the age of superannuation. The petitioner has also admitted that there is no definition or terminological explanation of the tenure post in the Tripura University Cadre Recruitment Rules. The posts of Registrar, Finance Officer and Controller of Examination are clubbed together under the category of "Statutory post". Statute 20 deals with the issue of appointment in a fixed tenure and what that Statute provides is reproduced below:
"The Executive Council may appoint a person selected in accordance with the procedure laid down in Statute 18 for a fixed tenure on such terms and conditions as it deems fit."
[43] Notwithstanding that the University respondent has taken recourse to the Fundamental Rules and wrongly interpreted the definition of tenure post as appearing in the Fundamental Rules. They have overlooked the basic tenets in considering the consequence of superannuation as condition. By definition The tenure post means a Page 38 of 69 permanent post, but the University respondent has equated "tenure post" with "temporary post". True it is that in the advertisement, it had been clearly provided that the post of Registrar is "tenure post of five years". But, it cannot be understood as that post is not a permanent post or a temporary post. The petitioner has disagreed with the proposition that a person holding tenure post cannot get pension and other retirement benefits. In this regard, the petitioner has quite categorically asserted as follows:
"The Respondent University also never objected to receiving payment on account of pro-rata pension and other benefits one by one in respect of me from his parent organization University of Calcutta.
Moreover, in January, 2020, that is, about two and a half years of my retirement the Respondent University has granted pension and all other retirement benefits to its former Finance Officer, Sir Uttam Kumar Das on his superannuation from the similar post of Finance Officer of the University. Sri Uttam Kumar Das entered in service in Tripura University on 16.02.1996 and later joined to the Statutory post of Finance Officer on 23.01.2017 and retired from the same post on superannuation on 22.01.2020. This clearly indicates that the stand taken by the Respondent University is selective and discriminatory."
[44] According to the petitioner the university respondents have failed to place any cogent reason for denial of benefits against the service rendered by the petitioner in the University. The University respondents have failed to refer to any university rule or the government of India rule that permits the university respondents to deny the benefits as claimed by the petitioner or as was extended to him earlier. The petitioner has reiterated that his pension and other retirement benefits were fixed as per the central university rule and even during the All India performance Audit, the earlier decision was Page 39 of 69 referred, as would be evident from the communication dated 03.07.2018 (Annexure 25 to the writ petition) to the Accountant General (Audit). In the said All India Performance Audit in response to the query No. 5, the university respondents had responded as follows:
As his retirement would be within the stipulated period as termed in the appointment letter i.e. 62 years of age and his „Lien‟ in the parent post could not be extended beyond 60 years which is the age of retirement in his parent State University of Calcutta and the Executive Council did not give any instruction to revert him back to his parent post before attaining the age of 60 years, thus they approved the continuation of service up to the age of 62 years as per Act/Statute of Tripura University. Since, Sri Adhikairi was appointed with the approval of E.C for a tenure of 5 years or till the age of superannuation of 62 years of age, whichever is earlier, he was allowed to continue in that service in Tripura University up to the age of 62 years (up to date of retirement) which is nothing but absorption to the post of the Registrar permanently till the retirement age of 62 years of which is within 5 years of tenure.
It has been further asserted thus:
"As per the Govt. of India rules/DOPT order No.28(10)84-
P & PW.Vol.II dated 07.02.1986 and order No.28/30/2004-P PW(B) dated, the 28th October, 2009 (Copy enclosed in Annexure-5 and 6) on the subject of Counting of service for the purpose of pension of employees of Central Government and Central Autonomous Bodies seeking absorption in autonomous Bodies under the state Government and vice-versa and Mobility of personnel amongst Central/State & Autonomous Bodies working under a pensionable establishment is permissible. Sri Adhikari had been serving in Calcutta University which is a pensionable establishment under State Government. Here permanent absorption is the absorption till the attainment of 62 years which was applicable to Sri Adhikari."Page 40 of 69
[Emphasis added] [45] Another query being the query No.6 was that whether there is any provision in the Tripura university Act, 2006 for providing pension to the incumbent retired from the tenure post who joined in the university in the tenure post from the other government state university, the university-respondents had categorically stated as follows:
For service mattes, the university is following the Govt. of India rules/orders as applicable to Central Govt. Civilian employees. In this regard, the latest UGC letter No.22- 9/2017/(CU) dated 01 May 2018 on the subject of adoption of Government of India/UGC rules for various administrative, financial, establishment and service matters till framing of relevant Statutes, Ordinances and Regulations of the University is enclosed in annexure-7.
"Further nowhere in the pension rules of Government of India including the Central Civil Services (Pension) Rules, 1972 which is followed by the Tripura University, it is mentioned that period of Tenure service will not be eligible for pension or counting for pension nor order/instruction has been issued form the UGC/MHRD regarding nonpayment of pension to the incumbent retired from tenure service or post.
Moreover, „Pension‟ is neither a bounty nor a matter of grace depending upon the sweet of the employer, no an ex-gratia payment. It is the payment for the past service rendered by the employee in a pensionable service."
[Emphasis added] [46] Based on the said observation, the petitioner has emphatically stated in his rejoinder that how the university respondent can take a contrary stand from the stand they had taken during the All India performance Audit on the functioning of University Grants Commission for the period from 2012-13 to 2017-18. As the university respondent have taken a stand that the tenure post including the post of Vice-Chancellor will not be entitled to pension or other retiral benefits Page 41 of 69 like the regular officer of the university, in this regard, the petitioner has drawn attention of this court to statute 2(5)(ii) which reads as follows:
"The Vice-Chancellor shall be entitled to such terminal benefits and allowances as may be fixed by the Central Government from time to time: Provided that where an employee of the University, or a college or an institution maintained by, or admitted to the privileges of, the University, or any other University or any college or institution maintained by or admitted to the privileges, of, such other University is appointed as the Vice-Chancellor, he may be allowed to continue to contribute to any provident fund of which he is a member and The University shall contribute to the account of such person in that provident fund at the same rate at which the person had been contributing immediately before his appointment as the Vice-Chancellor:
Provided further that where such employee had been a member of any pension scheme, the University shall make the necessary contribution to such scheme."
Thus, payment of pension is an obligation.
[47] Thus, according to the petitioner, the assertion of the university-respondents is both statutorily and factually incorrect. Even, the petitioner has seriously questioned the attempt of the university- respondents after three years of his retirement for bringing some unfounded allegations of illegal and wrongful act without citing any record. Such comments are unfair and disparaging in nature. The petitioner, thereafter has stated that the university-respondents have admitted pension and the other retiral benefits accrued against the substantive post. The post of registrar is „statutory‟ and „permanent‟ post as per the Tripura University /UGC/MHRD rules but their action has been commenced on extraneous consideration. Even the petitioner has seriously criticized the stand taken by the university respondent in respect of the memorandum dated 11.10.2018, whereby the university Page 42 of 69 has declared arrears of pension benefit under 7th CPC, payable to the petitioner. It is not a mistake on the contrary the impugned action taken by the university-respondent is contrary to the norms. The petitioner has quite categorically stated that the committee constituted by the Executive Council has traveled far beyond the terms of reference and set its own agenda to look into his pension benefits. The said committee has recommended that all employee joining the university shall be governed by the Central University Rules, but when the matter relating to the petitioner is mentioned against the item no. 2, the said committee took an opposite view. Reference has been made to the memorandum dated 02.11.2007 (Annexure 27 to the rejoinder) and 19.06.2018 (Annexure 28 to the rejoinder) in order to show how the scheme for revision of pay has been spelled out for the post of the Registrar who would superannuate at the age of 62 years. For the last three years, the petitioner has not been paid his due which had been calculated by the university-appropriately. But and in the name of correcting the mistakes, they have altered the assessment as a whole. The petitioner in the rejoinder has referred to the correspondence between the Accountant General (Audit) Tripura and the Tripura University.
[48] The petitioner has also asserted in the rejoinder that his letters dated 06.04.2019, 20.06.2019 and 26.07.2019 addressed to the Registrar, Tripura University for release of arrear retirement benefits were not responded to. On 26.04.2020, the petitioner had asked the Registrar, Tripura University to supply him the copies of the documents, Page 43 of 69 papers, reports and rules that formed the basis of the decision taken by the Executive Council. The petitioner did not get any reply pursuant to the said letters. In Para 15 of the rejoinder, the petitioner has asserted having referred to the memorandum dated 02.11.2017 (Annexure 27 to the writ rejoinder) and the memorandum dated 19.06.2018 (Annexure - 28 to the rejoinder) as follows:
"....it may be stated that, the Respondent University could not produce any specific rule/order of the Government of India that mandates the Registrar to „exit‟ from the post and to treat the period of service rendered by him in the University as a non-qualifying service for fixation of pension and other retiral benefits. Attention of the Hon‟ble Court is drawn to a Memo of the MHRD bearing No.1-7/2015-U.1(2) dated 02.11.2017 on scheme of revision of pay for the posts of Registrars etc. wherein the age of superannuation of the statutory posts of Registrar/Finance officer/Controller of examinations has been clearly spelled out to be 62 years of age and another of the UGC bearing F.No.11-4/2017 (CU) dated 19.06.2018 on revision of pension of retired faculty and other staff of Central Universities as per 7th CPC."
[Emphasis added] [49] It would be appropriate at this juncture to reproduce the relevant part of the correspondence dated 02.11.2017 which the petitioner has referred as the memorandum (Annexure-27 to the writ rejoinder)
1. Registrar//finance officer/Controller of Examination
(i) Registrar/Finance Officer/Controller of Examination, presently in the Pay Band of Rs.37,400-67,000/- with Grade Pay of Rs.10,000/- shall be placed at Level 14 with Rationalised Entry Pay of Rs.1,44,200/- as per 7th CPC Pay Matrix given at Annexure-1 and pay of these officers shall be fixed at the appropriate cell in the Pay Matrix in accordance with the guidelines issued by the Ministry of Finance, based on the recommendation of 7the Central Pay Commission.
Page 44 of 69It has been further observed in the said correspondence dated 02.11.2017 as follows
6. Date of implementation of revised pay and allowance and payment of arrears:
(i) The revised Pay and revise rates of Dearness Allowance under this Scheme shall be effective from 01.01.2016.
(ii) Payment of arrears may be released by Central Universities and Centrally funded Deemed Universities after the funds for the purpose is provided by the Ministry of Finance and released to the Universities through the UGC.
(iii) An undertaking shall be taken from every beneficiary under this Scheme to the effect that any excess payment made on account of incorrect fixation of pay in the revised Pay Bands or grant of inappropriate Pay Band/Academic Grade Pay or any other excess payment made shall be adjusted against the future payments due or otherwise to the beneficiary.
(iv) The revised pay in the relevant Level and Cell with the applicable allowances including arrears of salary as mentioned above shall be paid to all eligible beneficiaries under this Scheme pending issue of Regulations by the UGC."
[50] The petitioner has further stated that after he had received the letter dated 08.04.2020 issued by the Registrar, Tripura University which was sent via email, he had made several representations to the University-respondent, UGC and MHRD but those authorities did not make any communication to the petitioner. The petitioner has categorically stated that no excess payment has been made to him and as such there is no question of recovery. In this regard, the petitioner has referred to the Office Memorandum dated 02.03.2016 (Annexure- 29 to the rejoinder) which deals with recovery of wrongful/excess payment made to the Government servant. It may be pointed out that the said memorandum was issued for implementing the judgment of the Page 45 of 69 apex court in State of Punjab vs. Rafiq Masih (White Washer) delivered in CA No.11527 of 2014. Para 4 of the said judgment as this court thinks it relevant, is extracted below:
4. The Hon‟ble Supreme Court while observing that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement has summarized the following few situations, wherein recoveries by the employers would be impermissible in law:-
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group „C‟ and Group „D‟ service)
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfuly been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against on inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer‟s right to recover.
[51] Thereafter the petitioner has made the following submission having referred to the advertisement of the University of Karnataka (Annexure-31A to the rejoinder) and the office memorandum dated 11.06.2020 Annexure 31B to the rejoinder) issued by the Ministry of Public Grievances and Pension where it has been provided inter alia as under:
"3. Subsequently, vide this Department‟s O.M of even number dated 28.11.2009, the benefit of counting of past service under the CCS(Pension) Rules, 1972 was extended to those employees who were initially appointed before 1.1.2004 in (i) Central Government Departments covered under Railway Pension Rules or other similar non-Page 46 of 69
contributing pensionable establishments of Central Government covered by old Pension Scheme/rules other than CCS(Pension) Rules, 1972 OR, (ii) State Government covered under old pension scheme similar to CCS(Pension) Rules, OR (iii) Central State Autonomous Body covered by the old pension scheme and who resigned to join a Central Government Department Office or a Central Autonomous Body having pensionable establishment."
[Extracted from the office memorandum dated
11.06.2020]
In the rejoinder, the petitioner has placed the submission in that context, thus;
"(a) Had I not been put on probation after selection to the post I would have certainly enquired about my pension entitlement of pensionary benefits and had I been apprised that no pension and other retirement benefit shall accrue on retirement from the post of Registrar, I would have declined the offer.
(b) Even, before either retaining me in the post of Registrar or receiving payment pro-rata pension and other benefits from the University of Calcutta had the University given me the slightest hint or whispered of non-
entitlement to pension and other retiral benefits in the post of Registrar, I would have certainly reverted back to my parent organization.
(c) That, I cannot resist myself from drawing the attention of the Hon‟ble Court to advertisement for recruitment to the post of Registrar and Controller of Examination issued by the Central University of Karnataka in 2018 as an example to show how specific should it be so that per son selected do not suffer harassment and humiliation after retirement like me and to the Office Memo issued by the DoPPW, Government of India bearing No.28/30/2004- P&PW(B) dated 11th June, 2020 which further clarifies the already existing mobility of personnel amongst Central/State & Autonomous Bodies while working under Pensionable establishments in view of National Pension System (NPS)."
[52] The petitioner has asserted that as per the CCS (Pension) Rules 1972, the petitioner is entitled to the monthly pension of Rs. 92,800/-, but the University- respondents have reduced the pension to Rs.35,520/-. The petitioner has made a significant statement that the West Bengal State Aided Universities (Death-cum-Retirement) scheme Page 47 of 69 2010 has been revised in accordance with the revised pension scheme the petitioner is entitled to get Rs.98,945/- retrospectively under the West Bengal State Universities (Death-cum-Retirement) Scheme 2010. Thus, the petitioner has suffered serious detriment. The respondents have filed a short additional affidavit in terms of the orders dated 13.01.2021 and 03.02.2021 whereby the university- were directed to place the decision taken by the Executive Council of the representations of the petitioner dated 26.04.2020. According to the university- respondent, the Executive Council in their 35th meeting, held on 29.01.2021, has restated their decision taken in 32nd and 33rd meetings of the Executive Council. The details of the decision have been shown in appendix (i). For purpose of reference, the text of Appendix (i) is reproduced hereunder:
In view of order dated 13.01.2021 of Hon‟ble High Court of Judicature at Tripura, in Civil Writ Petition No.W.P.(C) 404 of 2020, wherein, the Hon‟ble Court directed the Executive Council of this University to take final decision on Shri Om Sadhan Adhikari„s representation dated 26.04.2020 in terms of Section 13(1) of the Tripura University Act, 2006. Accordingly, the Executive Council convened its 35th meeting on 29th January 2021 at University Campus and carefully examined the issue in detail. It is observed by the Executive council that-
Shri Onkar Sadhan Adhikari served at the Calcutta University as Assistant Controller of Examinations from 27.07.1988 to 31.08.2001 and then as Controller of Examination still 11.02.2014. The Calcutta University is a state university in terms of U.G.C act, where Shri Adhikari was holding substantive post and his retirement benefits were governed under West Bengal State aided Universities (Death cum Retirement) Scheme 2010. The Tripura University is a Central University, the terms of service, including pay & allowances and retirement benefits of it employees/officers are governed mutatis mutandis the Central Civil Services and the Fundamental Rules. Under the extant rules of Tripura University as made under the Tripura University Act 2006, certain top-mot posts including of the Registrar are tenure post s which Page 48 of 69 are filled by deputation on tenure contract. All recruitment rules are approved by the Executive Council of the University, having a Selection Committee to recommend appointments per laid down procedures for filing any post, in conformity with the said Tripura University Act and rules/regulations made thereunder.
The Tripura University vide its advertisement dated 20.03.2013 invited applications from eligible candidates for the post of Registrar for fixed tenure of vive years or till attaining the age of 62 years, whichever was earlier. Other benchmark and desirable terms and conditions were laid down for being considered for the said post through an interview. Shri Adhikari was selected for this tenure ost of the Registrar through the selection process of this University and the joining letter was issued ot him. Since it was a tenure post, he availed of one year lien in his parent department and after being relieved on 11.02.2014 from there, he took charge of post Registrar at this University on 12.02.2014 (forenoon).
At his stage, it is important to highlight certain dates and events, as extracted from records of the University, which took place in the few succeeding years after his joining this University. As per details about this date of birth, his selection under this University‟s terms and his parent department‟s rules, he was due to superannuate on 30.06.2015 (at attaining 60 years) in his parent department, though he could continue till 30.06.2017 (at attainment of 62 years) in Tripura University by virtue of the tenure post, but taking retirement on 30.06.2015 at the Calcutta University was must. However, it was found that he neither took steps to get his one year line extended beyond 12.02.2015 nor any steps for his retirement on 30.06.2015 (at Calcutta University) and instead on the same i.e. 12.02.2015, he got the office memo issued from this University‟s Joint Registrar conveying his successful completion of one year probation and the Vice Chancellor‟s approval on his permanent absorption in this University‟s services with his past services of his parent department as qualifying for his pensionary benefits form this University. He also got issued letters from this University for transfer of pro rata pensionary benefits from his parent department and on basis of such requests from this University his parent department acceded to accordingly.
In this way, he continued in the post of Registrar of this University and took retirement from here on 30.06.2017 and his pension and took retirement from here on 30.06.2017 and his pension and other benefits were fixed effective 01.07.2017 on Tripura University‟s rule which were at par with central government‟s Seventh pay scales. These irregularities came to light and thereafter a five members committee formed by the University vide Notification dated 27.11.2017 to look into them. This Committee after detail examining resolved on 19.11.2018 that Shri Adhikari was not entitled to pensionary benefits under central University rules and referred the matter Page 49 of 69 further to the Executive Council of the University, which is the apex policy and decision making multi-member body of the University.
Thereupon, the Executive Council of the University in it s 32nd and 33rd meetings (on13.12.2018 and 30.08.2019) after examining the entire matter in detail, rightly came conclusion that, being not eligible for absorption in this University through a fixed tenure post, his pensionary benefits at Central University rates be stopped and allowed at such ratea as admissible I Calcutta University. After being satisfied, the then Vice-Chancellor (Acting) accepted the report an in pursuance of it, notification dated 08.04.2020 was issued to him, through the then Acting Registrar to the effect that his pensions at the central rates be stopped and instead he be allowed to draw his pension as per rules of the Calcutta University, where he held the substantive post. This notification was followed by Memo dated 27.05.2020 whereunder, his provisional pension was fixed effective 01.07.2017, as per the West Bengal State aided Universities (Death cum retirement) Scheme 2010. Accordingly, his pension for the month of May 2020 was released on this rate while all excesses already paid remained to be recovered. This 35th Executive Council of the University after considering the entire records, documents and representations dated 26.04.2020 and 27.05.2020 of the Shri Adhikari hereby resolved that the 32nd and 33rd Executive Council of the University has rightly resolved that Shri Adhikari being not eligible for absorption in this University rates be stopped and allowed at such rates as admissible in Calcutta University and all excesses already paid to be recovered."
[53] On reading of the text of the said Appendix (i), it appears that the university-respondents did not consider the petitioner to be eligible for „absorption‟ in a fixed tenure post and hence he will not be entitled to the pensionary benefit as per the Central University Rules.
For benefit of this court, the petitioner has prepared a calculation sheet on his entitlement under the extent rules of Tripura University and the University of Calcutta. For reference, the said calculation is extracted below:
CALCULATION OF PENSIONARY BENEFITS IN RESPECT OF SRI ONKAR SADHAN ADHIKARI, EX REGISTRAR, TRIPURA UNIVERSITY Page 50 of 69 GRATUITY Retirement Presumed Gratuity entitled (in Rs) as Gratuity Age Retirement per rules of drawn (In date Rs.) TU CU 60 30.06.2015 10,00,000 60,00,000 10,00,000 62 30.06.2017 20,00,000 12,00,000 LEAVE SALARY Retirem Presumed Actual Admissibl Admissible leave Salary (in Rs) as per ent age Retirement Basic e D.A. rules date Pay On revised Pay On Revised Pay TU CU TU CU 60 30.06.2015 73180 82693 155873 x x 0 62 30.06.2017 77000 104720 1817200 X 2075840 x PENSION (Tentative as per CU Rules) Retiremen Presumed Basic Pension With D.R. Amount M.A. Total in t Age Retirement effect from Amount in Rs @ in Rs date in Rs Rs.
60 30.06.2015 01.07.2017 36590 31101 @ 85% 300 67981 01.01.2018 36590 @ 73480 100% 01.01.2019 45737 @ 82627 125% Revised 94036 x 500 94536 01.01.2020 (x 2.57) 62 30.06.2017 01.07.2017 38500 32725 @85% 300 71525 01.01.2018 38500 77300 @100% 01.01.2019 48125 86925 @125% Revised 98945 x 500 99445 01.01.2020 (x 2.57) (Actual as per TU Rules) 62 30.06.2017 Revised 99800 4990 @ 5% 500 105290 01.07.2017 (x 2.57) 01.01.2018 6986 @7% 107286 01.07.2018 8982 @9% 109282 01.01.2019 11976 @12% 112276 01.07.2019 16966 @17% 117266 01.03.2020 99800 16966@17% 1000 117766 There is no objection as regards the calculation made by the petitioner for the reason that University- respondent have clearly taken a stance that petitioner‟s retirement benefits would be reckoned in Page 51 of 69 terms of the University of Calcutta rules as revised time to time. The petitioner has parallely shown his entitlement in terms of the rules of Tripura University.
[54] Mr. T. Debbarma, learned counsel appearing for the petitioner has added that from the employment notification dated 20.03.2013 (Annexure 1 to the writ petition), the offer of appointment dated 30.01.2014 (Annexure 3 to the writ petition) and the memorandum of absorption dated 12.02.2015 (Annexure-6 to the writ petition). It is apparent that the post of Registrar even though categorized as the tenure post for five years, but the recruitment rules the post of the Registrar (Annexure R1 filed by the respondents ) it has been shown as the permanent post, categorized Group A officer in the Pay Band 3700 -400 670000 with Grade Pay of Rs.10,000/- But in the method of recruitment, it has been stated that the post of the registrar can be filled up by deputation or on contract for tenure upto five years or till attaining the age of 62 years, whichever is earlier. The post of the Controller of Examinations carries the similar conditions of service and it is also a permanent post in the university. Mr. Debbarma, learned counsel has referred to the definition of the tenure post as made in FR 30 A. Both the provisions of FR 30 A with note is reproduced for reference.
(30-A) Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period.
Note: In case of doubt, the Central Government may decide whether a particular post is or is not a tenure post. Page 52 of 69 [55] Mr. Debbarma, learned counsel has referred to Rule 13 of the CCS(Pension)Rules, 1972 in respect of the qualifying service. The said rule 13 of CCS(Pension) Rules, 1972 provides that subject to provision of those rules, qualifying service of a government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in officiating or temporary capacity; provided that officiating or temporary service is followed without interruption by substantive appointment in the same or another service or post. In this regard, he has also referred to Rule 14 of the CCS (Pension) Rules, 1972. For purpose of reference, the said rule reads as follows:
14. Conditions subject to which service qualifies (1) The service of a Government servant shall not qualify unless his duties any pay are regulated by the Government, or under conditions determined by the Government.
(2) For the purposes of sub-rule(1), the expression „Service‟ means service under the Government and paid by that Government from the consolidated Fund of India or a Local Fund administered by that Government but does not include service in a non-
pensionable establishment unless such service is treated as qualifying service by that Government. (3) In the case of a Government servant belonging to a State Government, who is permanently transferred to a service or post to which these rules apply, the continuous service rendered under the State Government in an officiating or temporary capacity, if any, followed without interruption by substantive appointment, or the continuous service rendered under that Government in an officiating or temporary capacity, as the case may be, shall qualify:
Provided that nothing contained in this sub-rule shall apply to any such Government servant who is appointed otherwise than by deputation to a service or post to which these rules apply.Page 53 of 69
[56] Even though the university-respondents have not raised any objection as regards the forfeiture of the past service as rendered by the petitioner in the University of Calcutta, Mr. Debbarma, learned counsel appearing for the petitioner has referred to Rule 26(2) of the CCS(Pension) Rules, 1972. The reference in particular has been made to Rule 26(2) of the CCS (Pension) Rules 1972. The said rule provides succinctly as follows:
"26.
(1)... *** *** *** (2) A Resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper, permissible, another appointment, whether temporary or permanent, under the Government where service qualifies."
[57] Mr. Debbarma, learned counsel has further submitted that in view of FR 30A the tenure post is a permanent post and as the petitioner was appointed substantively in the said permanent post, he is entitled to the retirement benefits under the Central University Rules. He was also placed under probation even though it was not required by the recruitment rules. Thereafter, by the memorandum dated 12.02.2015 (Annexure-6 to the writ petition) the petitioner was confirmed in the service on terminating the probation. The analogy as adopted by the respondents have jeopardized the petitioner. The promise they had extended to the petitioner in the offer of appointment has been violated on burying the statutory requirement. [58] From the circular of the Ministry of Human Resource Development (MHRD) dated 02.11.2017 (Annexure 27 to the rejoinder), it has been clearly understood that the Registrars shall be Page 54 of 69 placed at Level 14 with raitionalised entry pay of Rs.1,44,200 as per 7th CPC Pay matrix given at Annexure 1 of that correspondence dated 02.11.2017 and the pay shall be fixed at the appropriate cell in the pay matrix in accordance with the guidelines issued by the Ministry of Finance based on the recommendation of 7th Central Pay Commission. In that correspondence dated 02.11.2017 (Annexure 27 to the rejoinder) it has been clearly stipulated that the age of superannuation as at present shall continue to be 62(sixty two) years for Registrars/the Finance Officer/Controller of Examination. It may be noted at this juncture that the petitioner has retired on attaining the said age of superannuation. Thus, he will be entitled to get the revised pay and the revised pension in terms of the said correspondence dated 02.11.2017. [59] Mr. B. N. Majumder, learned senior counsel assisted by Mr. R. Tewari and Mr. Raju Data, learned counsel for the university respondents has asserted that no pension can be claimed against a tenure post. Thus, what the Executive Council of Tripura university has decided in their 32nd and 33erd meetings are legally sound. No interference of this court is required.
[60] To buttress his contention, Mr. Majumder, leaned counsel has referred a decision of the apex court in Dr. L.P Agarwal vs Union of India and Others reported in (1992) 3 SCC 526 where the apex court had occasion to observe in the context of that case as follows:
"16. We have given our thoughtful consideration to the reasoning and the conclusions reached the High Court. We are not inclined to agree with the same. Under the Recruitment Rules the post of Director of the AIIMS is a tenure post. The said rules further provide the method of direct recruitment for filling the post. These service-Page 55 of 69
conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise. The age of 62 years provided under Proviso to Regulation 30(2) of the Regulations only shows that no employee of the AIIMS can be given extension beyond that age. This has obviously been done for maintaining efficiency in the Institute-Services. We do not agree that simply because the appointment order of the appellant mentions that "he is appointed for a period of five years or till he attains the age of 62 years", the appointment ceases to be to a tenure-post. Even an outsider (not an existing employee of the AIIMS) can be selected and appointed to the post of Director. Can such person be retired prematurely curtailing his tenure of five years? Obviously not. The appointment of the appellant was on a Five Years Tenure but it could be curtailed in the event of his attaining the age of 62 years before completing the said tenure. The High Court failed to appreciate the simple alphabet of the service jurisprudence. The High Court's reasoning is against the clear and unambiguous language of the Recruitment Rules. The said rules provide "Tenure for five years inclusive of one year probation" and the post is to be filled "by direct recruitment". Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. The question of prematurely retiring him does not arise. The appointment order gave a clear tenure to the appellant. The High Court fell into error in reading "the concept of superannuation" in the said order. Concept of superannuation which is well understood in the service jurisprudence is alien to tenure appointments which have a fixed life span. The appellant could not therefore have been prematurely retired and that too without being put on any notice whatsoever. Under what circumstances can an appointment for a tenure be cut short is not a matter which requires our immediate consideration in this case because the order impugned before the High Court concerned itself only with premature retirement and the High Court also dealt with that aspect of the matter only. This Court's judgment in Dr. Bool, Chand, v. The Chancellor, Kurukshetra University, AIR 1968 SC 292 relied upon by the High Court is not on the joint involved in this case. In that case the tenure of Dr. Bool Chand was curtailed as he was found unfit to continue as Vice-Chancellor having regard to his antecedents which were not disclosed by him at the time of his appointment as Vice-Chancellor. Similarly the judgment in Dr. D.C.Saxena v. State of Haryana, (1987) 3 SCC 251 has no relevance to the facts of this case."
[Emphasis added] Page 56 of 69 [61] Mr. Majumder, learned senior counsel has further referred another decision of the apex court in P. Venugopal vs Union of India reported in (2008) 5 SCC 1 where the apex court has observed as follows:
"32. From the above quotation, as made in para 16 of the said decision of this Court, it is evident that this Court has laid down that the term of 5 years for a Director of AIIMS is a permanent term. Service Conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise at all. Even an outsider (not an existing employee of the AIIMS) can be selected and appointed to the post of Director. The appointment is for a tenure to which principle of superannuation does not apply. "Tenure" means a term during which the office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said post begins when he joins and it comes to an end on the completion of tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure."
[Emphasis added] Even though the reference has been made in K. Anbazhagan and Another vs. Registrar General, High Court of Madras and Another reported in AIR 2018 SC 3803 but the said decision does not carry any relevance in the spectrum of the present controversy as raised in the writ petition.
[62] For appreciation of the submission of the counsel for the parties, this court at the outset shall revisit to the Statute 6 of the Tripura University placed in the schedule to the Tripura University Act, 2006. Statute 6 provides, inter alia that the Registrar shall be appointed by the Executive Council on the recommendation of a Selection Committee constituted for the purpose and shall be a whole-time salaried officer of the University. He shall be appointed for a term of five years and shall be eligible for re-appointment. The emoluments and Page 57 of 69 other terms and conditions of service of the Registrar shall be such as may be prescribed by the Executive Council from time to time, provided that the Registrar shall retire on attaining the age of sixty-two years and provided further that a Registrar shall, notwithstanding his attaining the age of sixty two years, continue in office until his successor is appointed and enters upon his office or until the expiry of a period of one year, whichever is earlier.
It is thus apparent that according to the Statute the Registrar is "a whole time salaried officer of the University" even though a person who is selected on the recommendation of a selection committee be appointed as the Registrar for a term of five years provided that Registrar shall retire on attaining the age of 62 years. [64] The university-respondents have in support of the decision taken by the Executive Council in its 32nd meeting and confirmed in its 33rd meeting contended that a person appointed in a tenure post does not superannuate. He only goes out of the office on completion of his tenure. In the report of the committee, it has been also observed that according to the fundamental Rules permanent post means a post carrying pay sanctioned without limit of time whereas the tenure post means a „permanent post‟ which an individual government servant may hold a limited period. This observation is mutually destructive inasmuch as, true it is that, permanent post means a post carrying definite rate of payment, but in the same breath they have stated that tenure post means a permanent post which an individual government servant may not hold for more than a limited period. The committee in Page 58 of 69 their report and the Executive Council, as it appears, has ignored the meaning of tenure post as provided under FR 30A by unambiguously providing that the tenure post means a permanent post, which an individual government servant may not hold for more than a limited period. Therefore, the observation that the tenure post cannot be a permanent post as a person is appointed in those posts for a limited period.
[65] On reading of FR 30A there cannot be any confusion as to the nature of the tenure post. That apart the terms and conditions of the service can be regulated and provided by the appointing authority. Further, Mr. B. N. Majumder, learned senior counsel appearing for the university respondents has relied on the decision of the apex court in Dr. L.P Agarwal vs Union of India and Others (supra) as in that report a question has been considered by the apex court in respect of the post of the Director of AIIMS. From the service conditions, the apex court has found that the post of a Director is a tenure post and as such question of superannuation or prematurely retiring would not arise. The apex occur has also observed that even though there is a proviso to the regulation 30(2) of the Regulations which provides that no employee of AIIMS can be given extension beyond the age of 62 years. The apex court has also observed since the appointment order of the person who was appointed in the post of the Director AIIMS it was provided he was appointed for a period of 5 years or till he attains the age of 62 years, the appointment cannot cease to be a tenure post.
Page 59 of 69[66] It has been also observed by the apex court in the said report that the concept of the superannuation which is well understood in the service jurisprudence is alien to the tenure appointment which has a fix life span. The reliance has also been placed on P Venugopal (supra) where apex court had occasion to observe that the appointment when is for a fixed tenure the principal of superannuation does not apply. Such a person who is appointed in a tenure post does not superannuate he only goes out of the office on completion of his tenure. This decision according to this court cannot be deemed as precedent for all occasion inasmuch as the said observation has been made by the apex court having due regard to the Statute and condition of service of the post of the Director AIIMS where no such provision was embodied in respect of superannuation. A general provision was brought for that purpose. But in the present case, provision of superannuation is the essential part of the service contract.
[67] Having studied the recruitment rules as extracted before and the Statutes 6 [as reproduced] there cannot be any confusion that the Registrar of Tripura University is a whole time salaried officer of the University and he "shall retire on attaining the age of 62 years. Proviso 1 below Statute 6(3) is a clause for superannuation having association with the term of the tenure post. Similar provision was definitely not available for the post of the Director, AIIMS as could be gathered from the decision as rendered in Dr. LP Agarwal vs Union of India and Ors (supra). That apart, certain admitted factual aspects are to be Page 60 of 69 specifically associated as those could indicate how the said appointment was to be perceived by the university-respondents. From the memorandum dated 01.06.2017 as reproduced before it would be apparent that the petitioner was absorbed „permanently‟ in the post of the Registrar, Tripura University w.e.f. 12.02.2014 and the University of Calcutta had suspended his lien on the post of Controller of Examinations from the same date.
[68] It is further evident from the said memorandum dated 01.06.2017 that "the University of Calcutta has already remitted pro- rata pension and retirement benefits in respect of the petitioner and all those amount has been deposited in the account of Tripura university." Further, it has been observed that the service rendered by the petitioner in the university of Calcutta w.e.f 27.08.1998 to 11.02.2014 has been counted as qualifying service for pension and other retirement benefits under rules 13 and 14 read with rule 26(2) of the CCS (Pension) Rules, 1972.
[69] This court does not find any infirmity in absorbing the petitioner permanently in the post of Registrar from the date of his appointment inasmuch as the tenure is a „permanent post‟ but that act does not dilute the length of tenure. As such, the objection of the university-respondents in this regard does not get support from their own Statute and FR 30A. Again it was only natural when someone is permanently appointed in the post outside the cadre, the lien that was kept on the former post shall be suspended from the date when the person is treated to be appointed permanently. The university- Page 61 of 69 respondents have not disputed the remittance of pro-rata pension and other retirement benefits in respect of the petitioner and their acceptance of that amount by depositing in their own account. This aspect is a vital indicator when the University-respondents have admitted that they would be responsible for pension that the petitioner would be entitled to for the period the petitioner had served in the University of Calcutta and only that period will be treated as the qualifying service. Therefore, they had accepted the pro-rata pension and other retirement benefits as remitted by the University of Calcutta. [70] This court has noted that the Tripura University had sanctioned the provisional pension by the memorandum dated 27.05.2020 which is prefaced by the reference to the decision of the Executive Council of Tripura University as adopted in their 32nd and 33rd meeting. It has been categorically observed that the petitioner has retired from service on 30.06.2017 and hence the petitioner be sanctioned the provisional pension as per West Bengal State Aided universities (Death-cum-retirement) Scheme 2010. Thus, it is not the question or the substance of objection raised by the university- respondents whether the petitioner will be entitled to pension after his retirement on superannuation or not but it is the question according to the university-respondents whether the petitioner shall get such pension and retirement benefits as per the Central University Rules or his pension will be determined under the West Bengal State Aided University (Death-cum-Retirement) Scheme, 2010. It is to be noted further that the said memorandum dated 27.05.2020 had been issued Page 62 of 69 in modification of the earlier memorandum dated 14.06.2017 whereby the petitioner‟s pension and other retirement benefits were reckoned and determined under the Central University Rules. There is no dispute that for the impugned decision, the petitioner‟s basic pension has come down from Rs.99,800 to Rs.35,520/- as is evident from the memorandum dated 27.05.2020.
[71] Consequentially, the petitioner was apprised that the excess amount that he had received would be recovered from him. From the memorandum dated 11.02.2017, it has surfaced that the service of the petitioner would be governed by the Tripura University Act, 2006, Statute, Ordinances and rules of the University. The past service as rendered by the petitioner in the University of Calcutta had been added as qualifying service for purpose of pension and other retiral benefits under Rules 13 and 14 read with rule 26(2) of the CCS(Pension)Rules, 1972. The pension and other retirement benefits were revised in the terms of the 7th CPC and the petitioner‟s entitlement has been computed. As per the recommendation of the 7th CPC the petitioner has received his due arrear pension from July 2017 to July 2018 @ Rs.1,02,405/-. It had been brought to the notice of this court that the Accountant general (Audit), Tripura had also ratified the said computation. It may be clarified that the Accountant General (Audit), Tripura is supposed to verify the computation on the basis of the extant rules which govern the entitlement of the concerned officer. It has been brought to the notice of this court further that the pension that has been determined by the university-respondents have been determined Page 63 of 69 on the last pay the petitioner received from the University of Calcutta. Thus, a conundrum has been created by non-explaining the obvious propositions viz; (i) whether the petitioner‟s service as rendered in the University of Calcutta is liable to added to his service in the Tripura University (ii) if Tripura University does not have any liability to pay pension for the service of the petitioner has rendered as the Registrar, why the University-respondents have taken the responsibility of recommending the pension?
[72] This court does not have any dilemma to hold that the service rendered by the petitioner in the University of Calcutta is liable to be added with the service that the petitioner has rendered as the Registrar in Tripura University. If it were the view of the Tripura University that the petitioner is not entitled to any pension or other retirement benefits for holding the post of the Registrar, the University- respondents ought not have accepted the deposit in the form of pro rata pension and other retirement benefits from the University of Calcutta and they could not recommend the pension and other retiral benefits as the appointing authority of the petitioner. It is made absolutely clear that the decision of the Tripura university to grant pension under the West Bengal State Aided Universities (Death-cum-Retirement) Scheme, 2010 is grossly illegal as the university-respondents do not have any jurisdiction whatsoever under the West Bengal State Aided Universities (Death-cum-Retirement) Scheme, 2010. In no way they can exercise any authority under the said Scheme. They can apply their jurisdiction under the Central University Rules. Thus, the University-respondents Page 64 of 69 have acceded their jurisdiction by directing the pension and other retirement benefits under the West Bengal State Aided Universities (Death-cum-Retirement) Scheme 2010.
[73] The allegation that has been made that the petitioner maneuvered for „hoping an illegal benefit" is not substantiated. On the contrary when the court has verified the process and the records it has surfaced that the competent authority has given the due prior sanction and thus, the allegation as brought against the petitioner is not sustainable and accordingly it is quashed. There is no dispute so far the pension and other retirement benefits of an officer in Tripura University is concerned, determination and payment of those are to be governed by the rules of Central Government as adopted by the Tripura University mutatis mutandis. That apart, the petitioner has been substantively appointed in the Tripura University with effect from 12.02.2014. The other objection as raised by the University- respondents is that the petitioner had the efficacious remedy. But such objection cannot be sustained inasmuch as, no provision of the statute has been placed before this court under which the petitioner had the right to appeal. Thus, whether an aggrieved person would represent before the same authority which has passed the order by which the person is affected, or not, it is absolutely within the preference of that person who is so affected. That mechanism, even if exercisable, cannot be treated as existence of efficacious alternative remedy. Thus, the objection does not have any substance and is accordingly discarded. Page 65 of 69 [74] Even the respondents have not raised any question as regards whether the petitioner was appointed by the Executive Council with the terms and conditions as embodied in the appointment letter NO.TU/REV/PF/29/ dated 30.01.2014. Thus, the subsequent observation in respect of placing the petitioner on probation is sort of a review after the right of the petitioner has taken a change by way of formal absorption on termination of the said probation. Now the respondents taking a stand contrary to their own memorandum No.F.TU/REV/PF/Officer/29/2014 dated 12.02.2015 whereby the probation was terminated with consequential absorption permanently to the post of Registrar "for a tenure of five years or till the attainment of 62 years of age from the date of joining the university from 12.02.2014 onwards", the said status cannot be reviewed without affording reasonable opportunity to the petitioner as a right as consolidated by efflux of time as vested right. Thus, the unilateral decision of the University-respondents is visited by absolute arbitrariness and hence on that account also their decision on the basis of the recommendation of the committee is unsustainable.
[75] We have read the recommendation of the said committee meticulously. But there is no observation as regards what would be the consequence of superannuation clause. Even their reading of FR 30A is selective in nature, inasmuch as they did not proceed further whether holding a permanent post even for a limited period can entitle a person for pension or not. Abruptly in Para 7 of their recommendation, they have stated that the appointment letter and the memorandum dated Page 66 of 69 12.02.2015 do not conform the provisions of the Fundamental Rules of and Tripura University Act, 2006 regarding the appointment to the post of the Registrar. The said recommendation has been accepted by the Executive Council without proper appreciation. Consequently, they took the decision in their 32nd and 33rd meeting held on 13.12.2018 and 30.08.2019. The memorandum dated 27.05.2020 as challenged in this writ petition is the outcome of the said decision. [76] Further, the committee as constituted, even though for a different purpose, had visited the issues relating to the pension and pensionary benefits of the petitioner and came to the conclusion that the petitioner is not entitled to pension and other retirement benefits as her was holding a tenure post (the post of Registrar, Tripura University). Thus, he was granted the pension and other retiral benefits in terms of the West Bengal Stated Aided Universities (Death cum Retirement) Scheme 2010. As this court has already observed that Tripura University does not have any authority to exercise any power under the said scheme. As this court has already held the service rendered by the petitioner under the University of Calcutta is eligible to be added with the service that the petitioner has rendered in Tripura University and the entire period of service is liable to be treated as qualifying service as the petitioner was holding a permanent post in the University of Calcutta and the petitioner had joined in the permanent post of the Registrar in Tripura University substantively and without interruption by substantive appointment in another service of post. Both the services comes within the meaning of service under the Page 67 of 69 Government and the incumbent was paid from the consolidated fund of India or a local fund administered by the government. It is provided that qualifying service cannot be computed on inclusion of the service in a non-pensionable establishment. There cannot be any doubt that the petitioner had been substantively appointed in the post of the Registrar of Tripura University. Hence, the service rendered by the petitioner under the University of Calcutta and Tripura University would be treated as the qualifying service.
[77] As this court has already distinguished that there can be broadly two situations viz; the tenure post without any superannuation clause and the tenure post with the superannuation clause. While framing the statute (Statute 6), the superannuation clause has been added conscientiously. That is the reason why that has been accommodated in the recruitment rules. Thus, the inference drawn in Dr. L.P Aggarwal vs Union of India (supra) cannot be allowed with the present context. In the said report, the apex court had considered a case where no superannuation clause was available. A reference was made only in the employment notification. In that context, the apex court has held that the concept of superannuation, which is well understood in the service jurisprudence, is alien to the tenure appointments which have a fixed life span. The appellant in that case could not therefore be permitted to retire prematurely and that too without being put on notice. But, even though the post of the Registrar is a tenure post for five years but the same is curbed by the superannuating clause at the age of 62 years. Thus, the ratio of Dr. L P Page 68 of 69 Agarrwal vs Union of India (supra) cannot be accepted as the universal principle. In the case of the petitioner, he had to superannuate in view of the said superannuation clause. As the petitioner has superannuated from the permanent post of the Registrar (see the statute 6 wherein it has been categorically provided that the Registrar is a whole time salaried officer of the University), even though the said post is a tenure post and hence, the petitioner is entitled to pension and other retirement benefits under the Central University Rules. It is made further clear that the petitioner will be entitled to all benefits in terms of Statute 2(5)(ii) as reproduced before.
[78] As consequence of the above observation, the decision as taken by the Executive Council in its 32nd and 33rd meetings held on 13.12.2018 and 30.08.2019 so far the pension and other retirement benefits of the petitioner are concerned, is liable to be interfered with and as consequence thereof the said decision stands set aside. The consequential memorandum dated 27.05.2020 is bound to be quashed. It is ordered accordingly.
As corollary to the above observations, the decision to recover the purported excess payment [by the memorandum dated 26.06.2020] is interfered with and set aside. The petitioner shall continue to get his pension as per the Central University Rules and he shall also be entitled to the revised pension and other retirement benefits under the 7th CPC including arrears. The University-respondents shall release the pension and other retirement benefits to the petitioner within a period of two months from today, else the said, as due amount, Page 69 of 69 shall carry interest at the rate of 7% per annum from the date when the amount fell due till the amount is paid.
In terms of the above, this writ petition stands allowed. There shall be no order as to costs.
JUDGE Dipak