Manipur High Court
Open University (Ignou) vs The Indira Gandhi National Open ... on 6 June, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
SHAMURAILATP Page |1
AM SUSHIL
SHARMA IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Digitally signed by
SHAMURAILATPAM
WP(C) No. 95 of 2021
SUSHIL SHARMA
Date: 2022.06.08 12:01:00 Dr. S.J. Neethi Rajan, aged about 62 years, S/o V.
+05'30'
Shanmugakani, a resident of Nagaram Block B behind
Eagel High School, P.O. Lamlong & P.S. Heingang,
Imphal East District, Manipur-795010, presently
working as Regional Director, Indira Gandhi National
Open University (IGNOU), Regional Centre Imphal,
Asha-Jina Complex, North AOC, Imphal West District,
Manipur-795001.
....Petitioner
-V E R S U S-
1. The Indira Gandhi National Open University
(IGNOU), Maidan Garhi, New Delhi-110068.
2. The Vice Chancellor, Indira Gandhi National
Open University (IGNOU), Maidan Garhi, New
Delhi-110068.
3. The Registrar (Administration), Indira Gandhi
National Open University (IGNOU), Maidan
Garhi, New Delhi-110068.
WP(C) No. 95 of 2021
Page |2
4. The Director ACD, Indira Gandhi National Open
University (IGNOU), Maidan Garhi, New Delhi-
110068.
5. The Director RSD, Indira Gandhi National Open
University (IGNOU), Maidan Garhi, New Delhi-
110068.
6. The Union of India, represented through the
Secretary, Ministry of Education, Government of
India, 127-C Shastri Bhawan, New Delhi-110001.
.... Respondents
BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner :: Dr. RK Deepak, Advocate For the Respondents :: Mr. S. Suresh, Advocate Date of Hearing and reserving Judgment & Order :: 06.05.2022 Date of Judgment & Order :: 06.06.2022 JUDGMENT AND ORDER (CAV) This writ petition has been filed by the petitioner to quash the impugned orders dated 8.1.2021 and 11.1.2021, which direct the petitioner to recover/pay the excess salary paid WP(C) No. 95 of 2021 Page |3 to the petitioner to the tune of Rs.15,96,778/- on account of 308 days of Extraordinary Leave granted to him on medical ground and to be paid in 10 installments starting from the salary for the month of January, 2021. The petitioner also sought direction on the respondents to consider his past services, transfer/adjustment of his EL, HPL, gratuity etc. and to convert his CPF to GPF.
2. Briefly stated, the case of the petitioner is as follows:
The petitioner joined the services of North Eastern Regional Institute of Science and Technology (NERIST) as Lecturer on 14.9.1994 and subsequently, he was promoted to Lecturer (Senior Grade) on 10.7.2002. While serving at the NERIST, the petitioner applied for the post of Regional Director, Indira Gandhi National Open University (IGNOU) through proper channel and joined the IGNOU Regional Centre, Itanagar on 21.6.2007 with a lien from NERIST for two years. He gave his technical resignation on 18.6.2009 and joined the Regional Centre, Imphal as Regional Director on 2.7.2018. On 16.10.2018, the petitioner was granted Extra Ordinary Leave (EOL) without pay by IGNOU from 28.2.2017 to 1.7.2018 when he was on medical leave. Thereafter, the petitioner requested WP(C) No. 95 of 2021 Page |4 IGNOU to consider his past service, leave, gratuity etc. and also for converting his CPF to GPF vide several representations.
2.1. The Board of Management of IGNOU has considered the switchover from CPF to GPF by some of the employees of IGNOU and a notification dated 2.12.2019 was issued by IGNOU complying with the Board of Management resolution. Since the petitioner's case was not considered, on 29.1.2020, he made a representation requesting IGNOU to consider his past service, leave, gratuity etc. and also for switchover of his CPF to GPF. Instead of considering the representations of the petitioner, the Director, ACD issued an order dated 25.2.2020 demanding an action taken report from RC-Imphal and RC-Bhagalpur for recovery of excess salary paid to him on account of the salary enjoyed by the petitioner during his medical leave of 308 days.
2.2. Aggrieved by the same, the petitioner has made several representations, which includes the representation dated 13.11.2018 to the IGNOU authorities to consider his past services and to convert his CPF to GPF. Instead considering the representations of the petitioner, the Director, ACD issued the impugned orders directing to recover the excess salary paid to petitioner on account of 308 days of EOL granted to him on WP(C) No. 95 of 2021 Page |5 medical ground. According to the petitioner, the recovery of the amount of Rs.15,96,778/- is to be made in 10 instalments starting from the salary for the month of January, 2021. 2.3. According to the petitioner, the Director, ACD also sent e-mail dated 18.1.2021 attaching the response dated 15.1.2021 which disposes of the representations dated 16.11.2020 and 14.8.2020 and others regarding correction in pay/increment. The Director, ACD also sent another e-mail dated 18.1.2021 disposing of the representations dated 19.11.2020, 27.8.2020 and 6.12.2019 thereby refusing to consider the request of the petitioner for consideration of his past services, transfer/adjustment of his EL, HPL, gratuity etc. and conversion of his CPF to GPF. Challenging the impugned orders dated 8.1.2021 and 11.1.2021, the petitioner has filed the present writ petition.
3. The respondents 1 to 5 filed affidavit-in-opposition stating that the petitioner proceeded on leave from 14.6.2013 to 23.6.2013 (commuted leave on medical ground); from 24.6.2013 to 24.7.2013 (extended commuted leave/EL for another 31 days); from 25.7.2013 to 23.8.2013 (extended his leave HPL/EL) for another 30 days); from 24.8.2013 to 6.9.2013 (extended his leave for another 14 days); from 7.9.2013 to 9.9.2013 (extended WP(C) No. 95 of 2021 Page |6 his leave for another 2 days). Thus, the petitioner, all along requested for extension of leave on almost at the last day or fag end of expiry of leave. Finally, after availing commuted leave of about 157 days, he joined as Regional Director, Bhgalpur on 9.9.2013.
3.1. It is stated that while serving as Regional Director, Bhagalpur, there had been issues with regard to his functioning as a Regional Director and an Advisory was issued to the petitioner on 23.3.2014 and he was advised to adopt a balance approach to office administration maintaining the dignity of the position. Thereafter, the petitioner was transferred from RC- Bhagalpur to Regional Centre at Delhi-II as Deputy Director and after issuance of the transfer order, he was again proceeding on leave and had also filed petition before the Patna High Court in W.P.(C) No.5145 of 2017 for staying his transfer. The petitioner did not join duties and in continuation of his earlier EL kept on extending his leave from 4.4.2017 to 1.7.2018 respectively and finally, with the decision of the Patna High court, he was transferred to Regional Centre, Imphal as its Regional Director on 18.6.2018.
3.2. It is stated that even though the petitioner had not joined his duties, he continued to draw his salary despite non- WP(C) No. 95 of 2021
Page |7 availability of any kind of leave to his credit. Accordingly, the Regional Director, Bhagalpur was directed to stop his salary with immediate effect or till further orders vide order dated 3.7.2018. However, before his salary could be stopped, the petitioner joined his duties at his new place of posting at Regional Centre, Imphal with effect from 2.7.2018.
3.3. The case of the respondents is that the petitioner remained absent from duties for almost 468 days with effect from 20.3.2017 till he joined at RC-Imphal. However, the University vide order dated 16.10.2018 favourably considered his leave and his period of absence from 20.3.2017 to 1.7.2018 was neutralized by adjusting the leave available to his leave account including HPL/Medical/EL and by granting EOL without pay with effect from 28.8.2017 to 1.7.2018 on medical grounds for the remaining period of 308 days since no leave were available to his credit and RC-Bhagalpur was requested to recover his salary as per rules.
3.4. According to the respondents, instead of depositing the salary drawn by the petitioner, he continued to divert the issue by requesting to transfer his leave from NERIST, his previous employer or adjust in future etc. As per the terms of the Office Memorandum dated 27.8.2018 and in terms of CCS Leave WP(C) No. 95 of 2021 Page |8 Rules, 1972, transfer leave from NERIST to IGNOU is not permissible and at best the petitioner could be granted cash equivalent of leave salary by his earlier employer provided such leaves are available at his credit and the rules of NERIST and Government of India permit such encashment after lapse of more than 13 years of his leaving from that Institution. 3.5. It is stated that on 25.2.2020 the RC-Imphal headed by the petitioner was directed to recover the amount of salary drawn against the Rules from the salary of the petitioner. However, the petitioner using his administrative control of the office of the Regional Centre, Imphal did not given effect to the recovery of the amount and instead again kept on diverting the recovery by submitting irrelevant representations. The University after examining the request of the petitioner, vide order dated 21.1.2021 informed the petitioner about his leave status and that he had been on long leave out of which 308 days were on account of no leave available to his leave account and the same was regularized by granting EOL without pay with effect from 28.8.2017 to 1.7.2018 on medical grounds since no leave were available to his credit, subject to production of medical certificate and fitness certificate. Since the petitioner has only 14 months to retire from the services of the University, he was directed to WP(C) No. 95 of 2021 Page |9 deposit the amount drawn by him against the Rules as salary for the period of 308 days in not more than 10 instalments starting from January, 2021 by the impugned orders.
3.6. It is stated that the petitioner is a member of New Pension Scheme and no amount of CPF is available with the University since he was in the CPF Scheme in the NERIST and would have cleared his accounts there. He has very limited leave to his credit that he had earned after his joining the RC-Imphal in 2018, which he might consume during the next one year prior to his retirement. Even otherwise the number of leave is very less which is insufficient to compensate even one fourth of the amount to be recovered from his salary. Therefore, it has become absolutely necessary to recover the amount from his salary. In fact, the petitioner is mischievously trying to divert the issue of recovery of Government money amounting to Rs.15,96,778/- by mixing and raising the issues of transfer of his leave from NERIST after a lapse of more than nine years of leaving NERIST and joining IGNOU as well as by requesting after almost 12 years of joining IGNOU to convert from NPS to GPF by counting his past service at NERIST where he was in CPF knowing fully well that there is no provision to convert from NPS to GPF or carry WP(C) No. 95 of 2021 P a g e | 10 forward the scheme of CPF for those who have joined new post after 1.1.2004.
4. Assailing the impugned orders and taking through the Office Memorandum dated 27.8.2018 and the relevant Rules of Central Civil Services (Leave) Rules, 1972 and also the Office Memorandum dated 11.6.2020 of the Ministry of Personnel, Public Grievances and Pension, Government of India, the learned counsel for the petitioner has made the following submissions:
● No joining time leave is granted, as is required under the CCS (Joining Time) Rules, 1979.
● Though the leave record shows that the petitioner has taken 16 days of leave from 6.4.2009 to 21.4.2009, he joined duty on 19.4.2009 and availed only 14 days leave.
● Though the leave record shows that the petitioner was taken 12 days of leave from 1.10.2012 to 12.10.2012, he joined the duty on 9.10.2012 and availed only 8 days of leave.
WP(C) No. 95 of 2021
P a g e | 11 ● Five days of leave from 6.4.2015 to 10.4.2015 was erroneously sanctioned as EL, whereas it should have been adjusted as CL.
● Five days of leave from 6.7.2015 go 10.7.2015 shown in the Leave Record is erroneous, as the petitioner never applied for leave during this period.
● The Leave Records does not take into account the leave that should be made available to the petitioner for the month of April, 2022.
● 122 days of leave earned at NERIST should be transferred to the petitioner's Leave Account at IGNOU.
● The petitioner never had the opportunity to challenge the 308 days of EOL granted to him since the Leave Account was never given to him till 31.3.2022 on the direction of this Court.
5. Insofar as the prayer of the petitioner to convert the CPF to GPF is concerned, the learned counsel for the petitioner taking through the IGNOU Act, 1985 and the 137 th Board of WP(C) No. 95 of 2021 P a g e | 12 Meeting held on 16.10.2019 submitted that the in the 137th Board of Meeting, it was resolved to allow around 43 to 46 employees to switch over from CPF to GPF Scheme and the benefit given in the said resolution is to be extended to the case of the petitioner also.
6. The learned counsel further submitted that the petitioner is not a new entrant to IGNOU and he was appointed as a Regional Director having qualified for the post looking into his past service and experience at NERIST. Though the petitioner requested through several representations for conversion from CPF to GPF, the same has not been considered so far.
7. The learned counsel for the petitioner argued that the proposed recovery of Rs.15,96,778/- in 10 monthly installments from the petitioner violates the right of the petitioner to a decent living. Out of the petitioner's salary of about Rs.2.20 lakh a month, he has to pay about Rs.50,000/- per month as income tax and about Rs.18,000/-per month as NPF contribution. Therefore, directing the petitioner to pay such an exorbitant amount so late at the fag end of his career, unmindful of the livelihood of the petitioner and his family is irrational, unreasonable and unjustified. The action of the IGNOU WP(C) No. 95 of 2021 P a g e | 13 authorities is therefore bias and unjust and also violates the petitioner's right to life enshrined under Article 21 of the Constitution of India.
8. Per contra, by placing reliance upon the Office Memorandum dated 11.6.2020, particularly, 2(c), the learned counsel for the respondents submitted that the employees under CPF will not be allowed to entry into the Old Pension Scheme on appointments from 1.1.2004 and, accordingly, the request of the petitioner for conversion from NPS to GPF was not considered. He would submit that the University had never questioned the status of the nature of service of the petitioner. However, in terms of applicable Rules qua Pension Scheme and status of the petitioner, who was under the CPF, cannot be permissible to change to GPF.
9. The learned counsel for the respondents further submitted that the University has time and again requested the petitioner to deposit the amount of pay drawn in violation of law while he was absent from duty. In this regard, several letters have been issued to the concerned office, including the Regional Centre, Bhagalpur and Imphal to recover/regulate his salary as per Rules. In fact, by the letter dated 25.2.2020, the Regional Centre, Imphal, headed by the petitioner was requested to WP(C) No. 95 of 2021 P a g e | 14 recover the amount from his salary in 20 installments. However, on the pretext, the petitioner was avoiding the payment. As a result, the University has no option but to recover the said amount in 10 instalments since he is retiring in April, 2022.
10. The contention of the learned counsel for the petitioner that the petitioner has to pay income tax for the amount etc., the learned counsel for the respondents submitted that the University has no role to play and cannot interfere in tax deductions by the Government for the amount drawn by the petitioner. He submits that it is obligatory on the part of the petitioner to deposit the amount of salary drawn against law.
11. This Court considered the rival submissions and also perused the materials available on record.
12. The petitioner filed the present writ petition praying inter alia for quashing and setting aside the impugned letters dated 8.1.2021 and 11.1.2021. By way of interim measure, on 3.2.2021, this Court passed an order suspending the operation of the impugned letters and the said order still continued.
13. The grievance of the petitioner is that he being a Government servant and was working as Lecturer and then Lecturer (Senior) in NERIST since 14.9.1994 and remains a WP(C) No. 95 of 2021 P a g e | 15 Government servant. When he is still working as a Regional Director at Regional Centre, Imphal, IGNOU since joining IGNOU on 21.6.2007 and the new pension scheme came into force with effect from 1.1.2004 and is applicable only to all new entrants to the Central Government except the Armed Forces joining service after 1.1.2004, the new pension scheme cannot be applied in the case of the petitioner, who is not a new entrant to the Central Government service. The petitioner cannot be regarded as a new Government servant on his joining the IGNOU with effect from 21.6.2007.
14. The case of the petitioner is that Rule 9(2) of the 1972 Leave Rules provides that when a Government servant resign his post on getting a new post under the Government of India where his application is forwarded through proper channel, such resignation shall not result in the lapse of the leave to his credit. Further, Rule 39-D provides for granting of leave cash equivalent of leave salary in respect of earned leave at the credit of an employee on the date of absorption subject to a maximum of 240 days.
15. The petitioner urged that the Office Memorandum dated 27.8.2018 provide for carrying forward of leave benefits subject to an overall limit of 300 days. For proper appreciation, WP(C) No. 95 of 2021 P a g e | 16 the relevant portion of the said Office Memorandum dated 27.8.2018 is extracted hereunder:
"Carry Forward of Leave Benefits
3. In terms of Rule 9(2) of the CCS (Leave) Rules, 1972, technical resignation shall not result in the lapse of leave to the credit of the Government servant. The balance of unutilized CCL as well as all other leaves of the kind due & admissible will be carried forward.
As per rule 39-D of the CCS (Leave) Rules, 19772, in case of permanent absorption in PSUs/Autonomous Bodies/State Government etc., the Government servant shall be granted cash equivalent of leave salary in respect of EL & HPL at his credit subject to overall limit of 300 days."
16. Rule 9(2) of the Central Civil Service (Leave) Rules, 1972 provides:
"9. Effect of dismissal, or resignation on leave at credit. -
(1) ...
(2) Where a Government servant applies for another post under the Government of India but outside his parent office or department and if such application is forwarded through proper channel and the applicant is required to resign his post before taking up the new one,, such WP(C) No. 95 of 2021 P a g e | 17 resignation shall not result in the lapse of the leave to his credit."
17. Rule 39-D of the Central Civil Service (Leave) Rules, 1972 provides that:
"39-D. Cash equivalent of leave salary in case of permanent absorption in public sector undertaking/autonomous body wholly or substantially owned or controlled by the Central/State Government.- A Government servant who has been permitted to be absorbed in a service or post in or under a corporation or company wholly or substantially owned or controlled by the Central Government of State Government or in or under a body controlled or financed by one or more than one such Government shall be granted suo motu by the authority competent to grant leave cash equivalent of leave salary in respect of earned leave at his credit on the date of absorption subject to a maximum of 240 days. This will be calculated in the same manner as indicated in clause (b) of sub-rule (2) of Rule 39.
Note.- The expression "permanent absorption" used in Rule 39-D shall meant the appointment of a Government servant in a Public Sector Undertaking or an Autonomous Body, for which he had applied through proper channel and resigns from the Government service to take up that appointment." WP(C) No. 95 of 2021
P a g e | 18
18. According to the petitioner, though the Office Memorandum dated 27.8.2018 is provisional, a conjoint reading of the Central Civil Service (Leave) Rules, 1972 and the Office Memorandum makes it clear that it is legally possible for the petitioner to carry forward his leave credits from NERIST to IGNOU. However, while considering the claim of the petitioner, the IGNOU authorities have failed to follow and perform its legal duties and responsibilities as an employer. In fact, the impugned order dated 8.1.2021 states as under:
"Reference Office Order No.479 dated 16th October, 2018 and Office Order No.70 dated 25.2.2020 Dr. S.J.Neethirajan, RD, Imphal was asked to deposit the amount of excess salary paid for 308 days w.e.f. 28.2.2017 to 1.7.2018. A copy of the Order was also marked to S.O. - RC-Imphal for further necessary action. The amount was to be recovered in 20 installments. However, till date no information has been received regarding recovery of amount.
Dr. Neethirajan is due to retire in April, 2022. Therefore, S.O. RC-Imphal is directed to recover the excess salary paid to Dr. S.J. Neethirajan from his salary in 10 equal installments w.e.f. salary of this month i.e. January, 2021 onward immediately under intimation to this office."WP(C) No. 95 of 2021
P a g e | 19
19. Another impugned order dated 11.1.2021, reads thus:
"In continuation with this Division's communication No IG/TA/1/615/07/7430 dated 8th January, 2021, it is further informed that as per the pay drawn by Dr. S.J.Neethirajan in June, 2018, the amount to be recovered from Dr. S.J.Neethirajan, RD for 308 days is amounting to Rs.15,96,778/-.
The amount may be recovered from
Dr.S.J.Neethirajan, in not more than 10
installments.
Therefore, the Regional Centre RC Imphal is directed to do the needful immediately and send the compliance to this office before 5th of each month."
20. After considering the representations of the petitioner dated 16.11.2020, 14.8.2020, the Director, ACD has passed the following order on 15.1.2021:
"With reference to your letter dated 16.11.2020, 14.08.2020 and other reference/mails on the subject cited above, this is to inform you had been on long leave out of which 308 days were on account of non leave available to your leave account. Therefore, this period of 308 days (from 28.08.2017 to 01.07.2018), was regularized as Extraordinary leave WP(C) No. 95 of 2021 P a g e | 20 on medical grounds, subject to submission of Medical Certificate and the Fitness Certificate in Original. However, this office is yet to receive any of these supporting documents till date.
As per rules, for earning an annual increment, an employee is required to be in office for minimum qualifying period of atleast 6 months as on 1st July of that year. Qualifying service of less than six months between 1st July of previous year and 30th June of the year on account of EOL (without (MC) will have the effect of postponing the increment except under conditions laid down in OM, dated 18.1.1986 - FR 26, GoI. Since you, Dr. S.J. Neethirajan, were on leave for more than six months, hence increment for 2017-18 has not been credited.
You are also informed, that despite there being no leave to you credit, you continued to draw salary for a period of 308 days from the Office. As a result you have an outstanding amount of about Rs.15,96,778/- which is to be paid by you to the University. However, despite regular Orders/communications and reminders from the University, the amount unduly drawn by you has not been paid/deposited in the University accounts. Rather, you have been evading the recovery on one or other pretext like transfer of leave from your previous employer NERIST, adjusting the amount paid by you to NERIST towards leave salary contribution for retaining the lien in NERIST, WP(C) No. 95 of 2021 P a g e | 21 adjusting the amount towards the future leave etc. knowing very well that there is no provision of transfer of leave from one institute to another on direct recruitment basis. Thus, you requests for correction/accrual of annual increment for the period 2017-18, transfer of leave from NERIST or adjusting in future leave credit has not been acceded to.
Also, you have only 14 months to retire from the services of the University, therefore, you are directed to deposit the amount drawn by you as salary for the period of 308 days, as already communicated to you, in Not more than 10 Installments starting from January 2021.
All your representations on the matter stands disposed off accordingly."
21. As regards the medical leave taken by the petitioner, it is the submission of the learned counsel for the petitioner that one cannot predict the time of falling ill and hence, there is no question of seeking prior medical leave. But the fact is that the authorities of IGNOU had granted 308 days EOL and the respondents now cannot take up the issue of taking a lot of leaves on medical ground.
22. On the other hand, the learned counsel for the respondent IGNOU argued that in addition to availing of several WP(C) No. 95 of 2021 P a g e | 22 leave, including those not sanctioned in advance, the petitioner remained absent from duties for almost 468 days with effect from 20.03.2017 to 1.7.2018 and the University, however, favourably considered his leave and his period of absence with effect from 20.03.2017 to 1.7.2018 was neutralized by adjusting the leave available to his leave account, including HPL/Medical/EL and by granting EOL without pay with effect from 28.8.2017 to 1.7.2018 on medical ground for the remaining period of 308 days since no leave were available to his credit.
23. In reply, the learned counsel for the petitioner argued that there were lot of miscalculations in the leave granted to the petitioner and the respondent IGNOU may be directed to recalculate the leave afresh.
24. This Court finds from the records that some days of leave has also been accumulated since the granting of 308 days of EOL till the respondent files additional affidavit before this Court pending writ petition. This Court also finds from the records that as per the leave account issued by the Assistant Registrar, Regional Centre, Imphal, the petitioner has 120 days of EOL and 80 days of HPL at his credit by 30.6.2022. There are also 122 days of EL earned by the petitioner while at the NERIST. In fact, the possibility of adjustment of the said days to WP(C) No. 95 of 2021 P a g e | 23 the leave account of the petitioner has not been considered by the respondent IGNOU. It is also evident from the representations annexed to the writ petition that the petitioner has already requested the authorities of IGNOU to provide the leave account as recorded in his service book, but the same has not been provided to him. Since the petitioner superannuated in the month of April, 2022, the subsequent development warrants the respondent IGNOU to reconsider the leave account of the petitioner in the light of the leave available on his credit. For the said purpose, the matter needs to be remanded back to the respondent IGNOU for consideration of matter afresh.
25. The learned counsel for the petitioner submitted that the petitioner requested through several representations for conversion of CPF to GPF scheme and the same has not been considered so far. The learned counsel for the petitioner also by citing the decision of the Hon'ble Supreme Court in that case of V.Sukumaran v. State of Kerala, (2020) 8 SCC 106 has contended that the benefit of pensionary provisions must be given a liberal construction as a social welfare measure.
26. In V.Skumaran (supra), the Hon'ble Supreme Court held:
WP(C) No. 95 of 2021
P a g e | 24 "22. We begin by, once again, emphasizing that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind i.e. to facilitate a retired government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities."
27. The petitioner contended that the Board of Management of IGNOU in its 137th and 139th Meetings held on 16.10.2019 and 17.3.2020 respectively inter alia considered switchover from CPF to GPF scheme of some of the employees of IGNOU and the petitioner is also entitled to switchover from CPF to GPF scheme.
28. On a perusal of the records, it is seen that the following is the resolution passed in 137th Board of Management of IGNOU against Agenda No.15:
"Item No.15 : To consider the MHRD Letter No.5- 19/2016-DL dated 20.09.2019 regarding switchover from CPF to GPF by some of the employees of IGNOU.
BM 137.15.1 : The Chairman referred the MHRD's letter No.5-19/2016-DL dated 20.9.2019 regarding WP(C) No. 95 of 2021 P a g e | 25 switchover from CPF to GPF by some of the employees of IGNOU, which was placed before the BOM for information (Appendix-6). The Board noted that the MHRD has mentioned the letter No.25(4).E- V/2018(Pt.) dated 22.08.2019 of the Deptt. of Expenditure, Ministry of Finance advising that the issue of conversion of CPF to GPF-cum-Pension in case of some of the employees (number of employees 43 to 46) to be verified) of IGNOU is to be dealt with strictly as per the IGNOU Act, 1985 and the Statute made there under without any deviation/relaxation whatsoever. It was also clarified that no additional financial allocation will be made by the central government and IGNOU has to bear the implications and decide as per the powers available to them.
BM 137.15.2 : The Board directed the University to take necessary action in the matter strictly as per the advise of the MHRD letter dated 20.09.2019, as referred to above."
29. In view of the aforesaid resolution of the BOM, the petitioner requested the concerned authorities of the IGNOU to consider for switchover his CPF to GPF scheme by way of several representations. However, the Director, ACD, without considering the aforesaid BOM has belatedly passed the order dated 15.1.2021 holding that neither the petitioner nor his WP(C) No. 95 of 2021 P a g e | 26 previous employer has ever confirmed that the petitioner was a member of GPF-cum-Pension Scheme.
30. As stated supra, the request of the petitioner to switchover his CPF to GPF scheme is of the year from 2019 and without considering the case of the petitioner qua switchover immediately upon representations, the Director, ACD has hurriedly passed the order dated 15.1.2021 rejecting the request of the petitioner to switchover that too after passing order for recovery of excess salary, which this Court would deal as the next aspect of the matter infra. This Court is of the view that while passing such order dated 15.1.2021, the Director, ACD has not given personal hearing to the petitioner. It is the duly of the said authority to hear the petitioner before passing such order.
31. The specific case of the petitioner is that he was regularly contributing to the CPF at NERIST and when he joined the assignment at IGNOU, the IGNOU authorities should have automatically put him under Old Pension Scheme. According to the petitioner, by putting him under the NPS scheme, the IGNOU authorities have violated the petitioner's right to enjoy the GPF scheme.
WP(C) No. 95 of 2021
P a g e | 27
32. At this juncture, the learned counsel for the respondents - IGNOU has made a reference to the Office Memorandum of the Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners Welfare, Government of India, dated 26.5.2005, more particularly, paragraph 2(ii), which reads thus:
"2. The matter has been considered in consultation with the Ministry of Finance and it is clarified as follows:
(i) ...
(ii) The employee who entered into service on or before 31.12.2003 and who were governed by CPF scheme or any pension scheme of Central or State Government, other than the pension scheme under Central Civil Services (Pension) Rules, 1972 on submission of technical resignation to take up new appointment on or after 1.1.2004, cannot be allowed to join the old pension scheme under Central Civil Services (Pension) Rules, 1972 because entry to the said scheme ceased w.e.f. 31.12.2003 and no new entry can be allowed in the pension scheme under above Rules.
However, such employees can seek pensionary/terminal benefits from the WP(C) No. 95 of 2021 P a g e | 28 previous organization/Department, if admissible under the rules of that organization/Department, for the period of service rendered under that organization/Department.
33. According to the petitioner, the aforesaid Office Memorandum dated 26.7.2005 does not put any restriction on an employee who is subscribing to the CPF scheme to continue in that scheme after 31.12.2003 and it only restricts new recruits entry into the Old Pension Scheme.
34. From the above, it is clear that seeking terminal benefits from the previous employer is only a choice and those subscribing to the CPF scheme have been continuing the same scheme both in the IGNOU and in the NERIST. As stated supra, even the IGNOU Act allows transfer of CPF accumulation to the employee's CPF account in the University and the CPF subscribers numbering 43 to 46 were allowed to switchover to the GPF scheme by the University in its 137th and 139th BOM. It is seen from the records produced by both parties, the petitioner has been discriminated by not allowing him to switchover to GPF scheme is not convincing. At this juncture, it is to be pointed out that various representations of the petitioner qua switching over his CPF to GPF scheme has not been dealt with the by the WP(C) No. 95 of 2021 P a g e | 29 respondent IGNOU in proper manner and without affording personal hearing, the authority of the IGNOU has passed orders rejecting the claim of the petitioner regarding switchover of his CPF to GPF scheme. Since these aspects have not been clearly dealt with by the respondent authorities, the matter needs to be remitted back to the respondent IGNOU for consideration of the said issue afresh.
35. Insofar as the impugned order dated 11.1.2021 for recovery is concerned, the Director, ACD on 16.10.2018 issued an order granting 308 days of EOL to the petitioner without pay with effect from 28.08.2017 to 1.7.2018 on medical ground and he joined back his duty on 2.7.2018. Accordingly, the Regional Centre, Bhagalpur was requested to recover/regular his salary as per rules. Challenging the order dated 16.10.2018, the petitioner submitted several representations and one of the representations is dated 13.11.2018 where the petitioner requested the IGNOU authorities to consider his past service rendered by him in NERIST on 25.1.2017 and get transfer the existing EL and HPL from his former institute to IGNOU. He had also requested to adjust the EOL from his leave credit in NERIST since he has sufficient leave in his credit for the serve period he had rendered there. He had also having EL and HPL WP(C) No. 95 of 2021 P a g e | 30 in his credit at IGNOU. Hence, he requested to adjust the EOL sanctioned for his medical leave period vide order dated 16.10.2018 with his leave credit available in his account, the shortage of the leave may be adjusted with leave not due which (EL and HPL) credited in his account in future, according to his future service period in IGNOU and to waive off the order of recovery. Considering the representation of the petitioner, the Director, ACD stated to have passed the impugned order dated 8.1.2021 directing to recover the excess salary paid to the petitioner. Regarding the adjustment of the EOL sanctioned for medical leave, this Court referred the matter to the respondent IGNOU for consideration of the said issue afresh.
36. Admittedly, the impugned order dated 8.1.2021 is not the consideration of the representations of the petitioner and there is no reference of any representation made by the petitioner in it. In the impugned order dated 11.1.2021, the Director, ACD, quantified the amount as Rs.15,96,778/- and ordered to be recovered in not more than 10 installments and accordingly, the Regional Director, Imphal was directed to do the needful.
37. It appears that suddenly on 15.1.2021, the Director, ACD passed the impugned order rejecting the representations dated 16.11.2020 and 14.8.2020 of the petitioner, thereby WP(C) No. 95 of 2021 P a g e | 31 directing the petitioner to deposit the amount drawn by him as salary for the period of 308 days as already communicated to him. Admittedly, while considering the aforesaid representations of the petitioner dated 16.11.2020 and 14.8.2020 and passing the impugned order dated 11.1.2021 or the order 15.1.2021, the petitioner has not been heard.
38. As stated supra, both the aforesaid impugned orders were suspended by this Court by the order dated 3.2.2021 and the said order still continuing. Thus, the impugned orders have not been given effect. The fact remains that the petitioner attained superannuation in the month of April, 2022.
39. Pursuant to the direction of this Court dated 24.3.2022, the respondents 1 to 5 have filed additional affidavit and the additional affidavit reads thus:
"I, Dr. Oinam Jayalakshmi Devi, aged about 46 years, now serving as Assistant Regional Director, RC Imphal, IGNOU, am conversant with the facts and circumstances of the case and having been authorized, I am competent to swear this Additional Affidavit for and on behalves of Respondent Nos.1, 2, 3, 4 and 5. Accordingly, I swear this affidavit on solemn oath and affirm as hereunder.WP(C) No. 95 of 2021
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2. That, in terms of order passed by this Hon'ble High Court on 24.03.2022, the authority of the IGNOU has prepared a chart marked ANNEXURE- G/26 indicating therein leave account of the petitioner from the date of commencement of service in IGNOU w.e.f. 21.06.2007 upto 25.03.2022 based on the leave account maintained in FORM-2 (Referable to Rule 15 of the Central Civil Services (Leave) Rules, 1972) marked ANNEXURE-G/27 to the present Affidavit for appreciation of the Hon'ble Court. It may also be mentioned that as on 31.03.2022 petitioner has 98 days of Earned Leave (EL) and 65 days of Half Pay Leave (HPL) to his credit.
3. That, it may also be pertinent to mention here that entitlement of pension of the petitioner is governed and regulated by the New Restructured Defined Contribution Pension System, a New Pension Scheme which has been implemented for all employees of the IGNOU who have joined w.e.f. 01.01.2004 as can be seen from the Circular dated 19.07.2004 marked ANNEXURE-G/15 to the Affidavit-in-Opposition dated 17.03.2021 respondent Nos.1 to 5.
Further, petitioner is a subscribed to a scheme of a pension fund under the provisions of Pension Fund Regulatory and Development Authority Act, 2013. Individual pension` account No. of the petitioner WP(C) No. 95 of 2021 P a g e | 33 under NPS is 2010100000000345 and PRAN No.is 111003972465."
40. Though as per the additional affidavit of the respondents 1 to 5, the petitioner has 98 days EL and 65 days HPL to his credit as on 31.3.2022, the petitioner was never had an opportunity to challenge the 308 days of EOL granted to him since the leave account was never given to him till 31.03.2022. As stated supra, the 122 days allegedly earned at NERIST has not been considered by the Director, ACD while issuing the impugned order dated 11.1.2021.
41. It appears that under various representations, the petitioner has been requesting the authorities of IGNOU to consider his past service at NERIST as he had applied for the present post through proper channel and joined IGNOU after completing a lien of two years and tendered his technical resignation. He had also requested for transfer of about 270 days of leave in his credit in NERIST and to adjust those leaves to 308 days of EOL without pay sanctioned by IGNOU on medical ground. While passing the impugned orders, admittedly, the Director has not dealt with the said aspect in proper perspective. Before passing the order, if the Director has given personal hearing to the petitioner, he would have appeared and produced WP(C) No. 95 of 2021 P a g e | 34 materials in support of his claim. However, in the instant case, as stated supra, no record has been produced by the respondents to show that the impugned orders were passed after affording reasonable opportunity to the petitioner. In the absence of any materials, it can safely be concluded that the respondent Director, ACD while passing the impugned orders dated 08.01.2021 and 11.1.2021 has failed to follow the principles of natural justice.
42. It is to be noted that the excess salary for 308 days paid to the petitioner was not because of any misrepresentation or fraud on his part. The 308 days period relates from 28.8.2017 to 1.7.2018 and the impugned order came to be passed on 08.1.2021 and 11.1.2021 respectively almost 2 ½ years later.
43. The Hon'ble Supreme Court in the case of State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 held as under:
"18. 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. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarize the following few WP(C) No. 95 of 2021 P a g e | 35 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 wrongfully 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 an 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.
44. Nothing has been produced by the respondents to show that while issuing the impugned order for recovery of excess salary they have considered the decision of the Hon'ble Supreme Court in the case of Rafiq Masih (supra). WP(C) No. 95 of 2021
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45. The fact also remains that through various representations right from 2019 till 2020, the petitioner requested for waiver of the amount allegedly paid in excess. Admittedly, such representations have not been considered by the respondent authorities of the IGNOU immediately after the receipt of the same. However, with a considerable delay that too after issuing the impugned orders herein, the respondents have sent response to the petitioner. Such a delayed response, in fact, infringes the right of the petitioner to get a fair and just determination of the issue on hand.
46. A person who submitted a representation to the authorities has a right to receive a response from them to his representation on time. Such right is fundamental and in order to satisfy the test of Article 14 of the Constitution of India.
47. Article 14 of the Constitution of India guarantees all citizens equally before law and equal protection of law. It hinders any form of discrimination and forbids both discriminatory laws and administrative action. Article 14 of Constitution of India, establishes to be safeguard against any arbitrary or discriminatory State action. The sphere of equality as embodied in Article 14 has been expanding as a result of the judicial decisions.
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48. Article 14 of the Constitution of India manifests in the form of following propositions:
(i) A law granting freehand and unhindered power on an authority is dreadful for being arbitrary and discriminatory.
(ii) Art. 14 illegalize prejudice in the definite exercise of any discretionary power. (iii) Art. 14, smacks at arbitrariness in administrative action and guarantees fairness and equality of treatment.
49. The Audi Alteram Partem rule, in essence, enforce the equality clause in Article 14 of the Constitution of India, is applicable not only to quasi-judicial bodies, but also to an administrative order adversely affecting the party unless the rule has been excluded by the relevant Act and Rules.
50. Time and again the Hon'ble Supreme Court had opined that Article 14 of the Constitution of India is an authority for the proposition that the principles of natural justice are an integral part of the guarantee of equality assured by Article 14 an order depriving a person of his civil right passed without affording him an opportunity of being heard suffers from the vice of violation of natural justice.
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51. The rule of Audi Alteram Partem is an ingredient of Article 14 of the Constitution of India. For the reason that Article 14 states "no order shall be passed at the back of a person, prejudicial in nature to him, when it entails civil consequences"
an in such a manner Article 14 of the Constitution holds the element of Natural justice into it".
52. In the instant case, the respondents being statutory authorities ought to have responded to the representations of the petitioner on time. On the other hand, having received the representations of the petitioner of the year 2017, 2018, 2019 and 2020, responded only in the year 2021 i.e. on 15.01.2021. The issuance of such order that the petitioner should pay the amount of Rs.15,96,778/- in 10 installments from the salary of the month of January, 2021 regardless to the representations of the petitioner is arbitrary and unjust. It is also to be noted that asking the petitioner to pay such an amount at the fag end of his career is irrational and violates the petitioner's right to life enshrined under Article 21 of the Constitution of India.
53. It is settled law that the expression "procedure established by law‟ can be read as principles of natural justice. The Hon'ble Supreme Court of India ruled that the word "law‟ under Article 21 could not be read as rules of natural justice. WP(C) No. 95 of 2021
P a g e | 39 Since, the rules of natural justice are vague and imprecise and thus the Constitution could not be read as laying down an indistinguishable standard. The principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence. Therefore, the procedure laid in Article 21 "must be right, just and fair" and shall not be arbitrary, oppressive, otherwise, it would be no procedure at all and the requirements under Article 21 of the Constitution of India would not be fulfilled.
54. In the result, the writ petition is allowed and the impugned orders dated 8.1.2021 and 11.1.2021 directing the petitioner to pay the excess salary paid to him to the tune of Rs.15,96,778/- on account of 308 days of EOL granted to him on medical ground to be paid in 10 installments stand set aside and the matter is remanded back to the respondent authorities of the IGNOU, particularly, the Director, ACD, IGNOU to consider the case of the petitioner in accordance with law and in the light of various representations submitted by him and the subsequent development that the petitioner retired from service. The Director, ACD, IGNOU is directed to afford reasonable opportunity to the petitioner before passing order and thereafter pass a reasoned order. The said exercise is directed to be completed within a WP(C) No. 95 of 2021 P a g e | 40 period of 8 (eight) weeks from the date of receipt of a copy of this order. No costs.
JUDGE FR/NFR Sushil WP(C) No. 95 of 2021