Karnataka High Court
Dr. K. Krishnamurthy And Ors. vs State Of Karnataka, By Its Secretary, ... on 10 January, 2003
Equivalent citations: ILR2003KAR2177, 2003 LAB. I. C. 1683, 2003 AIR - KANT. H. C. R. 956 (2003) 7 SERVLR 118, (2003) 7 SERVLR 118
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER Gopala Gowda, J.
1. The petitioners who are retired employees of second respondent University are before this Court seeking for issuance of a writ of mandamus directing the 1st respondent to revise their pension on the basis of the scale of pay drawn by them at the age of 58 years by giving effect to Government Order dated 17.9.1984 bearing No. DPAR 18 SDE 84 vide Annexure -D, urging various legal contentions.
2. The petitioners 1 to 5 joined the first respondent-Department on 22.9.1954, 16.3.1955, 16.3.1955, 1.4.1954 and 1.4.1954 respectively in the Government Department of Agriculture, Horticulture, Animal Husbandry and Veterinary Services and retired from their respective services, on attaining the age of superannuation on 22.2.1992, 31.10.1988, 31.8.1988, 30.4.1988 and on 29.2.1988 respectively.
3. The University of Agricultural Sciences, Bangalore (in short 'the UAS') was formed on 1.10.1965 under the University of Agricultural Sciences Act, 1963 (in short 'the UAS Act'). One Veterinary College and some Agricultural Research Stations were established in the State, Under Section 7(2) of the Act, persons who were working in the said research stations and colleges were transferred from the State Government to UAS vide Government Order dated 29.9.1965. As the said employees were transferred from the State Departments such as Dept. of Agriculture, Animal Husbandry and Veterinary Services their service conditions were protected in the recognised Karnataka State under Karnataka Civil Service Rules and under Section 115 of the States Reorganization Act, 1956. Consequently, the same conditions of service continued even after their transfer to UAS.
4. It is the case of the petitioners that, their pensionary rights are protected under Section 7 of the UAS Act as per Section 32(2) of the UAS Act. Therefore, the petitioner's counsel contended that the petitioners who belong to the category of transferred employees are entitled to pension under KCS Rules as they were applicable at the time of transfer and such pension expenditure is charged to the Consolidated Fund of the State. Based on the recommendation of the special committee which was appointed to work out the pension claims of the transferred employees, the Government Order No. AF 209 AU 71 dated 29/30 January 1976 (Annexure -B) was issued treating the service rendered in the University as qualifying service for pension and the pension will be calculated with reference to the pay drawn under the University and the Pension Rules in the KCSR as they stood on the date of retirement.
5. It is the case of the petitioners that, when the transferred employees of the first respondent-Department attained the age of superannuation of 55 years as applicable to State Government employees, the UAS issued order No. AO/Est-1(4)/Retirement/1085/ 82 dated 28.1.1983 and 29.12.1983 stating the service of these petitioners would continue in the University upto 60 years. Accordingly, the petitioners continued in service as before and without any break in service or change in duties and responsibilities of the positions in which they were working in the UAS. The copy of the said Order is enclosed to the petition at Annexure-C.
6. It is the further case of the petitioners that, while they continued in the University service as before, the State Government enhanced the age of superannuation of Government Employees from 55 years to 58 years vide GO dated 24.8.1984. The revised pensionary benefits were extended in GO dated 20.9.1984 to those employees who had retired before 2nd August 1984 on attaining the age of 55 years, but continued in service without there being any break in service. This benefit was further extended vide order dated 30.4.1985 to the employees of local bodies and aided institutions who had got extension of service immediately after their retirement without there being any break in the service. Therefore, it is contended by the petitioners that they are entitled to the pension to be worked out with reference to the enhanced age of superannuation i.e. 58 years and not 55 years by placing strong reliance on the said GOs for claiming the relief in these petitions.
7. The petitioners have been repeatedly making representation to the Government from 16.7.1986 to 29.8.2000 vide Annexures E1 to E16 for which the University is also favourably endorsing their request vide Annexures F1 to F7. But, their request has not been considered by the State Government though they continued in service till the age of 60 years. It is their further grievance that, the benefit of GO dated 20.9.1984 has not been extended to them though they have fulfilled the three conditions mentioned therein which will be referred to in the preceding paragraph of this order. They have contended that the said benefit has been extended to the employees of local bodies and aided institutions. The petitioners who were working in the Government Department, on their transfer to 2nd respondent, their service conditions were protected. The petitioners state that the inaction on the part of respondents is contrary to Article 14 and 21 of the Constitution of India and the Judgment of Supreme Court . He further submits that since the age of superanuation was raised from 55 years to 58 years vide GO dated 14.8.1984 and 30.4.1985, the pension for the petitioners on the pay scale drawn by them at the age of 58 years has to be granted.
8. The respondent-State has filed the counter inter-alia contending that petitions are not maintainable. Further it is stated that, first respondent vide its letter at Annexure-R1 dated 24.4.1986 has informed that the retirement benefit at 58 years of age cannot be extended to the officials/officers who are covered under Para 3A and B of the Government order dated 29/30.1.1976 (Annexure-B). Hence, the petitioners are not entitled for the relief sought in these petitions vide letter dated 18.9.1986 Annexure-R2, it has been informed that the extension of benefits of retirement at 58 years to the Government Officials transferred to UAS, Bangalore does not arise. Strong reliance is placed by the respondents on Clause 4A of the Government Order dated 29/30.1.1976 wherein it is stated that period from the date of absorption in the University Service till attaining the age of 55 years or till the date of cessation of service in University for any reason other than resignation or dismissal, which ever of these two happens earlier, shall be treated as qualifying service for pension. Further they contended that the Government Order dated 20.9.1984 has no application to the petitioners as the GO dated 29/30.1,1976 refers to Section 32(2) of the UAS Act. As per Section 32(2) of the University Act, persons in Government Service transferred to the University under Section 7 shall be entitled to pension under the KCSRs or such other rules as were applicable to them immediately before the transfer and such pension shall be payable by the State Government and shall be an expenditure charged on the Consolidated Fund of the State.
9. It is stated that a special Committee was constituted in the matter and it has submitted its recommendation for the consideration of the Government. On the basis of such recommendation, Government order at Annexure-B was issued. As per Clause 3(a) of Annexure-B, every Government servant transferred and regularly appointed to a post of identical or higher scale in the University shall be deemed to have voluntarily abandoned Government Service from the date on which he accepted the regular appointment. Therefore, the learned Government Pleader submits that petitioners are not entitled for the benefit of Government Order dated 20.9.1984. It is further contended that, after the petitioners were transferred to the establishment of second respondent University, the UAS has framed its statute extending the date of superannuation to 60 years. Therefore, the petitioners are governed by the service under the statute. Hence, the benefit of GO dated 20.9.1984 will not enure to the benefit of the petitioners for pensionary benefits as claimed by them.
10. The point for consideration is whether the petitioners are entitled for the relief prayed in these petitions. To answer the same, this Court has perused the pleadings, the documents produced by the parties and also the relevant provisions of the UAS Act and proceeds to answer the point as hereunder:
11. Sub-section (2) of Section 7 of the UAS Act reads as follows:
"7. TRANSFER OF CERTAIN COLLEGES AND INSTITUTIONS TO THE UNIVERSITY:-
(1) XXX XXX XXX (2) The control and management of the colleges specified in Sub-section (1) shall, as from the appointed day, stand transferred to the University and all the properties and assets, and liabilities and obligations, of the State Government in relation thereto shall stand transferred to, vest in, or devolve upon the University."
12. Section 32 of the UAS Act provides for pension and provident funds payable to the transferred employees and officers and it reads as follows:
"32. PENSION AND PROVIDENT FUNDS:-
(1) xxx xxx xxx (2) Persons in Government services transferred to the University under Section 7 shall be entitled to pension under the Karnataka State Civil Services Rules or such other rules as were applicable to them immediately before the transfer and such pension shall be payable by the State Government and shall be an expenditure charged on the Consolidated Fund of the State."
13. A careful reading of the said provisions of the UAS Act, it is clear that pension shall be payable to the persons employed in the first respondent-Department or in the institutions run by the State Government. It is not in dispute that age of superannuation of the petitioners at the time of their appointment was 55 years. Before they attained the age of 55 years, the petitioners were transferred to the second respondent University after its establishment. It is also not in dispute that the petitioners attained the age of superannuation of 55 years on 30.6.1984, 31.8.1983, 30.1.1983, 30.4.1983, 28.2.1993 respectively. As per Clause 4-A of the Government Order dated 297 30.1.1976 the service of the petitioners in the University will be treated as "qualifying service" for pension and the pension will be calculated with reference to the pay drawn.
14. The reliance placed upon Clause 3(a) of the Government Order dated 29/30.1.1976 by the learned Government Pleader on behalf of the first respondent to contend that the petitioners are not entitled for pensionary benefits, the contention is examined keeping in view Sub-section (2) of Section 32 of UAS Act and another GO dated 24.8.1984 by which the State Government has enhanced the age of superannuation of Government servants from 55 years to 58 years. Clause -3 of that G.O. states that the G.O. will be applicable to the employees of local bodies and aided institutions. The second respondent being a statutory University under the provisions of the Act of 1963, the benefit of the said G.O. are applicable to the persons who were in the service of the first respondent and transferred to the UAS, having regard to the constitutional obligations of the State Government for providing pensionary benefits as envisaged under Articles 38 and 41 of the Constitution of India, as payment of pension to the retired employees is a social security measure. Section 4 of the said Act stipulates the objects of the University which reads thus:
"4. OBJECTS OF THE UNIVERSITY:- The University shall be deemed to be established and incorporated for the following purposes, namely:-
(a) making provision for imparting education in different branches of study particularly agriculture, horticulture, veterinary and animal science, fisheries, agricultural engineering home economics and other allied sciences;
(b) further the advancement of learning and research, particularly in agricultural and other allied sciences;
(c) undertaking the extension of such sciences to the rural people of the State; and
(d) such other purposes as the State Government may, by notification in the official Gazette, specify."
15. The object and intentment of the Act and the establishment of University by the State Government is to achieve the green revolution in the Agriculture, Horticulture and allied sciences in the State by decentralizing its power and functions to the University by establishing the same under the UAS Act. Having regard to this laudable object, the University of Sciences cannot be treated far below the aided Educational institutions, to which all financial aid is extended to run their institutions including payment of pensionary benefits to the pensioners.
16. When the State Government has extended the pensionary benefits under the G.O. dated 24.8.84 and 17.8.84 to the employees of local bodies and aided educational institutions, it is un-understandable as to why the Government is taking untenable contentions in respect of these petitioners placing reliance upon Clause 3(a) of the GO dated 29/30.1.1976 regarding age of superannuation of the transferred employees to the UAA, including the petitioners, at 55 years contending that they were transferred and they have been deemed to have been voluntarily abandoned the Government service as they have accepted regular appointment in the University.
17. The further contention of the learned Government Pleader is that, under the statute framed by the University under Section 40 of the UAS Act, 60 years is the superannuation age fixed in the condition of service of the petitioners, and therefore it is not binding on the State Government. The contention cannot be accepted as Sub-section (2) of Section 32 clearly casts statutory obligation upon it to extend the pensionary benefits to the transferred persons of Government to the University after it was established.
18. In view of the abovesaid provision, since the Petitioners were transferred to UAS from the departments of the State Government to the second respondent after it was established, the State Government has got the statutory obligation to extend pensionary benefits to them as they have been continued in service. In respect of Govt. employees who attained the age of 55 years and who are retired on or before 1.8.1984 but continued in service, who are entitled to the benefits of GO dated 17.9.1984, the State Government has been extending the pensionary benefits to such employees, whereas in the case of the the Petitioners and similarly placed persons the State Government has taken an untenable stand contending that the G.O. dated 17.9.1984 is not applicable to them, as they are governed by the G.O. dated 29/30.1.1976.
19. The Supreme Court in the Judgment reported in the case of STATE OF KARNATAKA v. K. VASUDEVA MAYYA AND ANR., has discussed the similar question and laid down the law at paragraph 8 of its order which reads thus:
"It is the order dated 17.9.1984 of the State Government, which made the respondents retire from Government service after they attained the superannuation age of 58 years, by putting an end to their earlier retirements, done at their superannuation age of 55 years, and gave them the benefit of continuity in their service upto the age of 58 years, instead of their service on reemployment. If that be so, it is understandable, how their pay and other service benefits to be given to them, could be fixed on the basis that they had retired at the age of 55 years and re-employed thereafter, resorting to the provisions in Rule 313(b) above. The rule, of course, would have governed the conditions of service of the respondents, had their reemployment service not been made the continued service of their earlier service by the Government orders, to which we have already adverted to. In other words, if the respondents' re-employment on contract basis, had been allowed to continued before they attained the superannuation age of 58 years, the said rule could have governed their service condition benefit of subsequent service put in by them between 55 years of age and 58 years of age, for the purpose of obtaining pensionary benefits. It is obviously this situation which has made the KAT to rely, in its order under appeal on Rules 283 and 284 of the KCS Rules, for its conclusion that the service put in earlier to their superannuation age of 55 years count for the purpose of superannuation pension, the service put in by the respondents before they had attained the earlier superannuation age of 55 years and re-employed on contract basis and the period put in by them thereafter till they attained the superannuation age of 55 years subject to the other rules adverted by it."
20. In the instant case, as the petitioners were transferred to the second respondent University under Sub-section (2) of Section 7 of the UAS Act, their conditions of service were protected under Section 32(2) of the Act. Sub-section (2) of Section 32 of the UAS Act casts a statutory duty upon the first respondent to pay the pensionary benefits to the persons who were in the Government Service and transferred to second respondent University in exercise of its power under Sub-section (2) of Section 7 of the UAS Act.
21. No doubt, the age of superannuation of the employees in the University is 60 years by virtue of the statute framed by the UAS, which has been approved by the Chancellor under Section 40 of the Act. Merely because the petitioners were in Government service when they were transferred to the second respondent University after its establishment and their conditions of service of age of superannuation of 60 years was made under the statute is no bar for them to claim pensionary benefits on par with the age of superannuation of the Government servants, as per the G.O. dated 17.9.84 and 20.9.84. Such a claim of the petitioners cannot be termed as unreasonable and unjustifiable particularly when the pensionary benefits under the above G.Os. has been extended to the employees working in the local bodies and aided institutions.
22. A Constitutional Bench of the Apex Court in the case of D.S. NAKARA v. UNION OF INDIA, AIR 1983 SC 130 has posed question as to what is pension; its goals; the public interest purpose or purpose it seeks to serve etc., and laid down the law elaborately in this regard at paragraphs 19, 20, 21, 24, 30, 31, 32 and 34. In paragraph 20, 21 and 24 it is held that pension is treated not only as a reward for past service but with a view to help the employee to avoid destitution in old age. At paragraph 26 the goals of pension scheme is discussed holding that it seeks to subserve and pension scheme must provide the pensioner to live. The aforesaid paragraphs of the judgment are extracted hereunder:
"19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answers to these and incidental questions so as to render just justice between parties to this petition."
"20. The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar, wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh, "
"21. There are various kinds of pension and there are equally various methods of funding pension programmes. The present enquiry is limited to non-contributory superannuation or retirement pension paid by Government to its erstwhile employee and the purpose and object underlying it. Initially this class of pension appears to have been introduced as a reward for loyal service. Probably the alien rulers who recruited employees in lower echelons of service from the colony and exported higher level employees from the seat of Empire, wanted to ensure in the case of former continued loyalty till death to the alien rulers and in the cases of latter, an assured decent living standard in old age ensuring economic security at the cost of the colony."
24. A political society which has a goal of setting up of a welfare State, would introduce and has in fact introduced as a welfare measure wherein the retrial benefit is grounded on consideration of State obligation to its citizen who having rendered service during the useful span of life must not be left to penury in their old age, but the evolving concept of social security is a later day development. And this journey was over a rough terrain. To note only one stage in 1856 a Royal Commission was set up to consider whether any changes were necessary in the system established by the 1834 Act. The Report of the Commission is known as "Northoote-Trevelyan Report". The Report was pungent in its criticism when it says that: " in civil services comparable to lightness of work and the certainty of provision in case of retirement owing to bodily incapacity, furnish strong inducements to the parents and friends of sickly youth to endeavour to obtain for them employment in the service of the Government, and the extent to which the public are consequently burdened, first with the salaries of officers who are obliged to absent themselves from their duties on account of ill health, and afterwards with their pensions when they retire on the same plea, could hardly be credited by those who have not had opportunities of observing the operation of the system", (see Gerald Rhedes, Public Sector Pensions, pp 18-19)."
"30. The discernible, purpose thus underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the Courts may not so interpret such statute as to render them inane (see American Jurisprudence 2d. 881)."
"31. From the discussion three things emerge" (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution, (ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to ten months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure."
"32. Having succinctly focussed our attention on the conspectus of elements and incidents of pension the main question may now be tackled. But, the approach of Court while considering such measure is of paramount importance. Since the advent of the Constitution, the state action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38(1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice social, economic and political shall inform all institutions of the national life. In particular the State shall strive to minimise the inequalities in status, facilities and opportunities. Article 39(d) enjoins a duty to see that there is equal pay for equal work for both men and women and this directive should be understood and interpreted in the light of the judgment of this Court in Randhir Singh v. Union of India, . Revealing the scope and content of this facet of equality, Chinnappa Reddy, J. speaking for the Court observed as under (para 1);
"Now, thanks to the rising social and political consciousness and the expectations roused as a consequence and the forward looking posture of this Court, the underprivileged also are clamoring for their rights and are seeking the intervention of the Court with touching faith and confidence in the Court. The Judges of the Court have a duty to redeem their constitutional oath and do justice no less to the pavement dweller than to the guest of the Five Star hotel."
Proceeding further, this Court observed that where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay merely because they belong to different departments. If that can't be done when they are in service, can that be done during their retirement? Expanding this principle one can confidently say that if pensioners form a class, their computation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. Article 39(e) requires the State to secure that the health and strength of workers, men and women and children of tender age are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their are of strength. Article 41 obligates the State within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to provide assistance in cases of unemployment, old age, sickness and disablement and in other cases of underserved want. Article 43(3) requires the State to endeavour to secure amongst other things full enjoyment of leisure and social and cultural opportunities."
"34. To some extent this approach will find support in the judgment in Minerva Mills Ltd v. Union of India, speaking for the majority, Chandrachud, CJ observed as under:
"This is not mere semantic. The edifice of our Constitution is built upon the concepts crystallized in the preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political. We, therefore, put part IV into our constitution containing directive principles of State Policy which specify the socialistic goal to be achieved."
At a later stage it was observed that the fundamental rights are not an end in themselves but are the means to an end, the end is specified in Part IV. Bhagwati, J. In his minority judgment after extracting a portion of the speech of the then Prime Minister Jawahar Lal Nehur, while participating in a discussion on the Constitution (First Amendment) Bill, observed that the Directive principles are intended to bring about a socio-economic revolution and to create a new social-economic order where there will be social and economic justice for all and every one, not only a fortunate few but the teeming millions of India, would be able to participate in the fruits of freedom and development and exercise the fundamental rights. It, therefore, appears to be well established that while interpreting or examining the constitutional validity of legislative/administrative action, the touchstone of Directive Principles of State Policy in the light of the Preamble will provide a reliable yardstick to hold one way or the other."
23. In view of the above said legal position, the stand taken by the first respondent - State Government cannot be accepted. The petitioners who were in the Government services transferred to the UAS for better functioning of the University to see that University shall effectively function and produce committed agricultural science graduates and research assistants to serve the people of rural India and further to assist the agriculturists in the State to increase their per-capita income by rendering assistance to them to produce the agricultural and Horticultural produces to strengthen the agricultural economy in the Country. To achieve this goal the petitioners and other person have rendered services in that direction by working in the University. To such persons not extending the benefit of GO dated 17.9.1984 is unreasonable and unjustifiable and the same would be contrary to the constitutional obligation under Articles 38 and 41 of the Constitution of India and also amounts to contravention of the statutory rights of the petitioners under Section 32(2) of the Act. These important aspects of the matter have not at all been taken into consideration by the State Government while rejecting their application for extension of pensionary benefits as per the Government Orders dated 17.9.1984 and 24.8.1984.
24. For the aforesaid reasons, the stand taken by the State Government is not only opposed to the constitutional provisions but also not in accordance with the law laid down by the Supreme Court in NAKARA's case . Therefore, the submissions made on behalf of respondent-State are liable to be rejected and accordingly rejected.
25. This Court has referred to various provisions of the Constitution and the UAS Act of 1963 in view of the legal stand taken by the State Government and recorded its findings accepting the claim of the petitioners. The State Government shall consider these aspects at the time of re-examination of the petitioner's claim.
26. For the reasons stated supra, the Writ Petitions are allowed. Annexures- R1 and R2 produced by the first respondent are hereby quashed. Rule made absolute. The first respondent is hereby directed to consider the representation of petitioners at Annexures E1 to E16 and also the recommendation made by the second respondent vide Annexures F1 to F17 keeping in view the observations made in this order and Section 32(2) of the Act and also the law laid down by the Apex Court in D.S.NAKARA's case referred supra and pass suitable order within eight weeks from the date of receipt of this order.