Karnataka High Court
Dr (Mrs) Sharadamba Rao vs The Union Of India Rep By The Secy on 15 December, 2010
Bench: V.G.Sabhahit, B.V.Nagarathna
DR (MRS) V
W/O. DR. M.S.HSURI3AR,
AGED 73 YEARS" - 1-
IN THE HIGH COURT OF KARNATAKA AT BANGA£.~QVR-F; '~.,
DATED THIS THE 15 "(DAY OF DECEMBER i'_f2"O'I:0_';--~.i
PRESENT b
THE HONBLE MR. JUSTICE:£:4V.(;}.AS§%xB'HI5\HIT ' 7
AND
THE HONBLE MRS. JUSTICE I3 .V.NAO./ARATHVNA
WRIT PETITION..§?Q.t301?_§5;!:?..f}'03 (S-CAT).
BETWEEN:
NO.42I, 9'""1\/EAIN,' ~ %
BANASHANKARI II STAGE» _ '
BANGALORE M 569 070* V
... PETITIONER
'(By Srig T;'R.SRI'DHI§IR, ADV.)
AND
TIIE-UNION. INDIA
D REP BE'. THE SECRETARY
' NIIINIISTRY"OE HUMAN RESOURCES AND
_ VDEVELOPMENT (EDUCATION)
A NEW DLEHI
'TI-IE SECRETARY
;-NATIONAL COUNCIL OF' EDUCATIONAL
RESEARCH AND TRAINING
Ix)
SR1 AUROBINDO MARC}
NEW DELHI ~ 11.0 016 _
[By Sri: M K BOPAIAH, cosc FOR RI &
THIS we IS FILED UNDER.}1I2ii5.iCLE'2:i€j~ OF
CONSTITUTION OF INDIA .»PRAYING_ TO QUASH THE , =
ORDER PASSED BY HON'BLE:CIA.T., 'BA1\l(}AL'QRE ON
20-S2003 IN O.A.No.436/2O02'*VViDI{3 ANN. 13; i
THIS PETITION BEING A,RI:Sfi§i2v*EDIA«;ANI3 COMING ON
FOR PRONODNOIQMENT THIS DAY,
NAGARATHNA:'--.VJ.,f: I+fO_¥;.I.OWINO:-
0 'RD
The' Tribunal, who had filed
Original NO.;L36/ 2002, has filed this writ
the order dated 20/ 3 / 2003 by
application has been dismissed.
2: in the original application, the petitioner had
a direction to the respondents to grant the
VV"'I..__fi13enefit of special addition of qualifying service
umincorporated in the Recruitment Rules by Notification
/§,_,
,-
dated 5/9/1990 and thereby, add the
admissible service as special addition to
service and to redetermine the benefit by way. rev:is.ion__ " ll
of pay and to accord all CO1"1S(3:(.1!_41,1(3?.':1"t.1'zEi;14llZ)6I].6fitl$"liftxjitii'
interest at 18% pa. on t1'1ie'«--..arrear.slof penisjionm
pensionary benefits.
3. According to :s1';e_ was born on
20/9/1930 and_*--h_aving' "0btaii1ei:l___lher.:Bl}6c and M.Sc
Degrees, ____ from Ranchi
University in and a degree from Humboldt
University';*Berlin,_ thervyear 1967. She joined as a
"R.ang11i University on 9/12/1963 and
servedy / 1976 and thereafter, she joined 2"
res.bo*r1denlt--§rj'National Council of Educational Research
l:*~.._'_ VVand ll'raining [NCERT] on 2/9/1976 and retired on
A At that time. she was a Field Advisor in
NlC.E.R.T. At the time of settlement of her pension. the
service rendered in Ranchi University was reckoned for
»t
W' s
6
the respondents had not taken any positive acti,on.fftheV'
application was filed before the Tribunal on E4 '
4. T he respondents hereiri«V_a:p'pearedsbenfore'
Tribunal and filed their Coxntending the
pensionary benefits of *'thpe the"tpe-ltitioner
herein was settled by.' the
services rendereld:_'~frotr1 f3l/8/ 1976 in
Ranchi of qualifying Services
and pjerlsionarylflbenefits were settled;
that the benefit of combined
service for the rendered by the applicant in
thiiyersity onlthe basis of the undertaking given
she'-lwould not claim any other relief before
_ the "High" "Court. except the pensionary benefits for the
::ser$,r:§ces'"rendered by her in W.P.No.35924/92 and on
'that 'basis, the order dated 21/ 4/ 1998 was passed by
"the respondent and that there was certain guidelines for
extending the benefit under Rule 30 of the Pension
,%
/"i"
6. Being aggrieved by the said order
Tribunal, this writ petition has been
respondents have filed their Staten:-entof'lobjecwtioiiisl
traversing the contentions raiseclflin--._the WTil'~
and reiterating their stand befo_rei.the
7. We have hear'd..v_the;le'arned'"'eounsel'"appearing
for the petitioner jcounsei for
responclentsu perfpusedwthe material on
It on behalf of the petitioner
that the of Rule 30 of the Pension
Ruleslpresulting' of pensionary benefits is a fresh
and.._co_ntimi'o~s cause of action and therefore, the
right in holding that there was delay
'and hflaéhesxi in making a claim with regard to
".jreicolI:1puVting the pensionary benefits. He submitted
'~'th"at in service law, there cannot be any acquiescence
u"v.vs'iaiver or estoppel attributed to an employegg and that
.. X/4
Rule 30 and therefore, the respondents be directecftp
extend the said benefit and that the impugne_ciWo1'd_eri _
the Tribunal may be set aside allo\¥Jiiig.j.::this::: writiu
petition.
9. Per contra, it is on' of the
respondents that the extended the
pensionary benefits the
services University
and of the petitioner
rendered by :Ran't:h_i""University as well as NCERT
have been taken in.to¥{:ons'ideration and her pension has
p_been's.ett__l'edv, that t,he_ypetitioner retired in the year 1990
"has application before the Tribunal only in
the the said application is hit by delay
~.lao_hes; that the petitioner had filed
":Wi1§lii\io.35924/92 before this Court seeking a direction
tofirevise her retiral benefits by taking into account her
services rendered in Ranchi University and to disburse
a.,..
Z
the retiral benefits based on the combined serviceftliat
the said writ petition was disposed of on the "
memo filed by her and subsequently, "
7/11.4.1998, revised pensionary .9
extended to the petitioner taldng
her combined service :VfRanchi
University and in 12/ 1963 to
30 / 9 / 1990 and 'tl~1vEi1"€fQi'€';':.tl:1:B applying Rule
30 in the case notlarise; that when
the claijtn the writ petition filed
before this in' the withdrawal of the writ
petition. andu"thfe'si1bs'eqlii.ent order being made by the
2,.,"and..AA'the lfresnltant position being that the
llfperisioériéijrpvbenefit was extended to the petitioner as per
9 _ her the fresh claim made by her by filing
:ti:.e_origiwn:al application before the Tribunal, invoking
390 of the Pension Rules, is hit by the principles of
if -res judicata. Therefore, according to counsel for
9. respondents the Tribunal was justified in: assigning
Afi
Valid reasons for dismissing the application,_;wh.io'}71
order does not call for any interference
petition. y
10. Having heard the VC',O_t4iI1S€41'V';'-.fl£.):i'"'-thfi pe--'t1ti.o'r1ern it
on perusai of the material on thiatiiarises
for our consideration respondent is
entitied to the benefit of Rule 30
of the Pension Ruiies."
the petitioner was
appointed asfa Ranchi University on
9/ 12/ 1963 a1id'e..'_4served'.'2 said University till
31:_,;ti5{1975t§.ty iy1y 'sh_e j'o1ii§;1yyyiJcERT on 2/9/1976 and
retiree!' attaining superannuation. On
was issued. by NCERT
30 of the Pension Rules in the
':Ree_ruji'ii:nfient Rules and the same reads as fo11ows:~
95..
ff'
14
Qf the said service or post. contain. a specific
provision that the service or post is one which
carries the benefit of this rule.
[Provided also that this concession shall
admissible to those who are eligible for coiihting:j"*. ll"
their past service for superannu.ation_--~ «
unless they opt before the date:.oj:their.vretireinen-tr
which option once exercised shall for~~th€ "
weightage of service una'er'*--t_his sub-'rule
the counting of the past seriiicel _
(2) A Government servant..ii}'?1o at the age of
't:hirty~five years or more," _rriayl. :wi--thin-lf_a period of
threfgmontlis j'ro:ii1:ltl1e1"daVte of his appointment, elect
to forgo=._his right :o'p¢'ns_'i¢:i whereupon he shall be
eligible to" silbseribe a Coni'ribu.t'ory Provident
.....
'(.'3.) optiori referred to in sub~rule (2) once exercised, " On a perusal of the said rule, it is seen that * weighiage of services can be extended to a person on his "superannuation to an extent of actual period of service not exceeding 1/4"' of the length of his service or actual period Z/M3'
-Committee in its meeting held on the 7*"
19:39, "the following spectfic clause is added to the Recruitnlent Rules for the posts ofLecturers. Readers and U Professors in the Council:~ the post contain a specific provision that ih._€V'Sfl{IT}€ would carry the benefit of the rule.
14. Rule 30 of the Pension.~----»R{13es--l.::: "
incorporated in the Recruitment Ruleis and the same reads as f0}.1oW_s':..._V NdaLummEt_ H NATIONAL COUNCIL" --GFAEDIiICATIONAL RESEARCH AmxmmmflmVg;
SR1 AUROBINDO: NEW DELHI-1 1 oo 1 6.
____ A' 5"' September, 1990.
;~;m=l.ij'F;c A T 1 0 N to Recruitment Rules in respect of-Lecturers/Readers/ Professors. V. V. Ii5fp1l;<suance"'of the recommendations made by the Aprilr, and approval thereto accorded by the Execattoe"CLlommittee in its meeting held on 30'-ll August, An employee who retires from a post shall be eligible to add to his service quzfitfyirtg for a//' ~oit'lthte llension Rules. On the other hand, she before this Court seeking superannuation pension {but not for any othe.r=._ class of pension) the actual period, exceeding one--fourth of the length -1- service by which his age at the time of h recruitment exceeded 25 years or a.'perio'_d of 5years. whicheverisless. ' Provided that this concession "shall _r"iot"be admissible to an employee unless .his._ acetuale qualifying service at the"i'i;iAr'n,e he Vquiise .service is not less than gea:js._..
Provided further that 'infcase person had been appointed to another ;pC's.t' 'in' the Council or else_z.vhe--r_e ;prior" to 7 selection as Lectur_e?_f/Reader'/Projesslor age not exceeding '25?'.l_years_ 'and service in such post qualifies»-fo;r pe7is.io'n.'the"abcgve benefit will not vbehlavailableito hi.rn'.---
Sd/-
(G.R.D AS) Secretary ;The petitioner retired subsequently on 9/ eittliiiniilirglvlthe age of superannuation, but was re'ere'sentation made by her for applying to the respondents to revise the reéiral benefits by taking into account the services rendered by Ranchi University from 9/12/1953 to to disburse the retiral benefits 'tjasred 'Orr. it service. During the peridericy of was a correspondence " V NCERT. In responsg ,.4;g a re'pre:sein"t_:itieii"niade by the petitioner on 26/2/ that they would considerie beriefits for the Combined consideration the services" in Ranchi University as well as eertain terms and Conditions, ;Wehic1ia'4" in the letter dated 26/ Vitéuextracted as uncierze it 'ié'eUNcIL OF EDUCATION ' RESEARCH AND TRAINING " AV SR1' AUROBINDO MARC} NEW DELHI 1 10016 F. 6_"2/ 76_RIEFA / VOLV/51 O Dated: 26. 2. 1 998 in ' ~ L L VA {Mrs} Shardamba Rao, VQC/O Mr.Uday S Rao, E9 C-502, Anand Lok Group Housing Society, Mayur Vihar, Phase-I. Delhi-O1.
2. Dr. {Mrs} Shardamba Rao, 421, Divyayan, 901 Main Road, Banashankari 11 Stage, Barigalore--70.
Subject: Counting of prev'ious.'_Alseruice' under the Ranchi University [CcoUernm;:r'2t.ofBihar} for the pensionary beneflts';~.
Reference: Your .letter O3,.1'O.1l99Z?
Madam, I am to regarding counting
of your fromVl"9l.12.1963 to 31.8.1976 rendered under: University {Government of Bihar} -reconsfiier by the council in low of condonirrg the" in excising option by you for the "the Department of pension an pensionary Before the Council takes of decision in the niattererlto extend the benefit of combined service you requested to do the jollou)ing:-
Case filed by you in the High Court of "iKarnai'aka Bangalore is withdrawal by you. That you will not claim from the Council the following which you have mentioned in the Writ (j 20 ' petition under Article 226 filed by you in the High Court of Karnataka at Bangalore.
(a) Pay interest at the rate of 18% pa. on_...___the revised pensionary benefit.
lb) Award the cost of petition in the toll Karnataka, Bangalore.
(c) Any other relief the V except pensionary benefitfiijor rendered by youFin___V l.g'n.iver_sity ( Government of Biharl"; ' The pensionary service will become due onlylfrolnillbt%he_.~d'a.le.the Department ofpenlsionl welfare, New Delhi has condoned the exercising the option by you y 12.l6;-..l"Sn99 7.
You arelltlhverefore, requested to intimate the V * " views to the undersigned at the l. possible so that further action in the matter bev'-taken by the Council.
Yours faithfully, ( S. B. Goyal) Deputy Secretary «E. p-/la' Director. NCERT and another letter dated 3.3.98 glddressed to the undersigned on the above subject.
16. There after, one more c0mmur1icati_or1V_:
addressed by NCERT dated 18/ 19.3.1998 . to the same effect as the earlier letter K"
The same reads as follows: V t l V if if V NATIONAL COUNCILOF EI}UCA.Ti*,ON._""
RESEARCH AND..f1'RAJNING'r -- "
SRI A IJROBINDO "MA1'?.G "
NEWv~DEL_HI 1_ 1 09.15 ' - .. A 'rELEx:3 3 1.73924 rxrerérfirr-..r FAX: 91 -1 16868419 v GR.'--U'v1'S:. EIJUSEARCI-1v_PI;IOi\}'E: om? ................. ..
"}vo.:f«'.A64:§'O/76+RIEFA/VOL.V 706 _ 'Dated: 18.3.98 Dr. (Mrs. ) shara.«1¢:.nzb'tzi:Rac.' Former F ield Ado NCER'i'-'... 421 , DIVYAYAN,' 9:?» Mc:.in .r§o;idVe. Banoshar1kariHStC'tge"'.' _ " ' BangalOre~7O ' _ * ._ » 1"S_uIzieci:.:V.'Counting of previous service rendered ' ._iLr1de'r..._ Rariejhi University, Govt. of Bihar for '- A p'er1siorijo..ry?;. benefits. if '»Please refer to your letter dated 28.1.98 addressed Q. /''',,/'~ Ix) I\.) In this regard, I would like to apprise you that-._4t'he Director, NCERT has taken the responsibility your past service rendered under the K to on the basis or whatever certificate V the Council. The Bihar Govt.
inspite of repeated requests this regardp C' A ' In so far as all.oiw._i_ng "retirernent'"Vbenefits from the date of your concerned, the matter has 'beeri'~recons"iCleifed"in-_the'_ and it has been decided to you service benefits from the ddte C In the of would request you in your own interestnol matter and withdraw the Court and proof of the same to the Council ¢¢,"t...A:er5:..able..A us" 'to'""issue orders allowing you your combined service, together allcertifieatel"%:ofA',:=declaration that you will not claim the Council the following which you had mentioned A C "u\ritL petition:-
interest at the rate of 18% p.a. on the revised . . lpeiiéionary benefits
18. Subsequently, ietter dated 26/3/1998_.was addressed by the petitioner to the Deputy Se£:retar5F, NCERT, seeking immediate action to ~ combined service for pensionary benefits"fr6rn..'jfLhe' V' of her retirement. '1' he said 1e:t':er:'.'_Ad'ated'--
[Annexure 'A'} is extracted as--f:§i'1QwsA:'¥ ' From, Dr. (Mrs) Sharadqmba R.a..«.5_ F0:*rr1e:'FieldAa'u1§ser, 1iJCER_jE' -. " "
421, DIvYAYA1\f,[L9r*1's.n/jam;gaggle ~ M' Banashankafidtff Bcmgalore--7O --. ' To, snags, _ . ..... .. \\ Deputy» Se¢reta.y, _NC_ERT New B_el'hi¢_16 " _ ..
' I7'NcERT.sRI/ 2/ 1 998 9 Dated: 26.03.1998 V Dear S}fivGogal, :V',$q}Jject: Counting of previous service remziered V Lvuncier Ranchi University, Govt. ofBihar for pensionary benefits.
I' /Rf.
25 I have received your letter No.F.6g.20-,t"'76- RIEF/V Voi.V/ 706 dated I8/19.3.1998 and thaw:
the same.
As desired by you I am enctosirig ta copy~ in of the Memo of Withdrawal advocate' on'; behalf for withdrawing the wrttinetition filedv-tinttthei High Court of Karnataka. After the"'reeeiput"' the Orders of the High Court, a copy of the _u.saine?Vwil'l"Zjejorwarded to you in due course.
{a} Pay interest atyytfiie ratewytofti p.a. on the revised pensionary" benefits , "
(b) petition in the High Court of other th.e£High Court may deem fit except the pens'ionary'~5enefits for the service rendered by me , s C R'a.nchi University. ,3;
and taking the combined service period as 9/2/1963 to 30/9 / 1990, an order was passed which is extraci.ed,}as_ follows : --
No.F:6~2/76~RCF (Vol.W National Council of Educational Rbesé'arch.&; fl'.rft1z'.r_zir'zgV,* Sri Aurobindo Marg, New I)e1.~hi-'J._6'- :__ Lkn¢d:7/eihgjeeefih' oRDERh_ Approval of the coancil §.h.érebv"'accorded for the counting of past service ofDr;(Mrs}«._:Sharadamba Rao, Ex--Field Adviser.iLB-angfialorepwhofhad rendered service under the Ranchi from 912.63 to 31.8. 75,, which been certified as qualifying service by * the Univeréif';~RanchrL ._ :;SharadanLba Rao was absorbed in the _ C0Llri'C.il 76 and pensionary entitlernents for the 3"~.~<..__period 'ofH_9'1~€l1e council's service from 2.9. 76 to 30.9.90 '~:3_1:eVre3"wgsanctioned vide order of even number dated 2293-93. The approval ofthe Council is also accorded 33 ljmlo-"condone the period of one day's break 1163., 1.9.76 in abservice of Dr.Sharadamba Rao. The condonalion has 52» been done under Rule 28{a) of the ccs(Peneie:{'tii;f2attze) with a view to extend the benefit oj'combi.rted serz)t1:eV_"'toR*. Dr.S.Rao, Ex~F1'eld Adviser, Bangalore for"tihe'_vptirpose,_Qf". accuring the retirement benefit. The period of her co.rrtb.i_nedservice",{iIe.'f"serviceV under Ranchi University, R_dnc_h--i._v and "the council (912.53 to 30.9.90)' ieouzcit 2gei'e4o_;eiteez jor the revised pensionary entitlements hefrf 1 This the aptgrovdifl of the competent authority. 1' -3 ' {AVINASH ARORA} UNDER SECRETARY t¥ft_er accepting the aforesaid benefit letter ',t;i'Q98 was written by the petitioner to _ NCERT virnahing a claim under Rule 30 of the Pension adding five years of qualifying service, to a reply was given by letter dated R IO'/14.12.1998 stating that the petitioner was not «eligible to get the benefit under the Rule as she had ,4?' ..°«...
30
22. Reliance was also placed on the guidellhiiites issued by the NCERT subsequent to 10/4/ 1996 and the relevant portion of l reads as under: --
"The benefit of added ye-ars ofs_e'ruice, giguen to the academic staff merribersrrecruit'e(_i post of Lecturer/Reader/Profe's~s_or as""rne'ntion_ed above'; subject to the following conditiolnsri '
1) 3} This ;9;once4;;si:o_n' sha.ll"'no.twbe admissible to 1' toho for counting their past ' '~se:fvic'ef-1 'for,superanriiiation pension unless * ltlievyifoplt the date of retirement for A weig'htage service under this rule and forgo the aeoiinting "of past service.
of the employees who has not been any terminal benefit for the past ' v 'service rendered by him/ her in earlier organisation is to be obtained.
The employees who has received the terminal benefits / pensionary benefits by virtue his X. ...»/"2'-
previous organisation, will not be eligible~.jo--r added years of service.
4) The employees who were appoirti-ed l_the' Council on post in r-eepeer of .;other_ Vihlczn Lecturer, Reader, projessorl l 1 . their post is 'r:onperted./redesigriated as -. "
Lecturer, Readelrfiv' .uProlfes_lsor V} w.e.f.. 1 / I 1 / 1 be covuered under the above rllr;1'l:./1965 if they are benefit of past . ' 5] llll years of service has to be V'exc'urLir:ed keeping in view the above' in consultation with /CAO. ., " ' i of the aforesaid material and ofethe' the Tribunal held that the it yvasvlestopped from making a claim under Pension Rules and that the case was hit ntherpririciples of res judicate apart from there being in making the claim before the Tribunal. It is in ..»~*'?fa 32 the aforesaid factual matrix that the rival contentions would have to be considered.
24. At the outset, it is rtecessary to novtehtihat though Rule 30 was incorporated as Recruitment Rules applicabie tom the goniu "
5/ 9 / 1990, prior to her retirerneriti thleepetitioner seek the benefit under the said__Ru1e'... ';1'hereafteru,_Vtinthe L' year 1992, the petitioner retiral benefits by taking into""a'ecount§.,'th'e"--Vs'ervi.c_e rendered by her in iiii "LTf1i~ve'rsitiy;f"wfrom 9/ 12/ 1963 to 31/12/ierie b3rVVVi'i.'1i_n;;_g"«i2V:i§'.No.84924/92 and the said writ pe_titiori~vtfas_'pen_ding till the year 1998. In the 'V"--inte'rregnun1,. there""'vvas correspondence between the petitioner and the NCERT decided to extend service benefits from the date of 'retirenien't. Therefore, the petitioriefs service in Ranehi orU.n'iversity was taken into consideration along with the service rendered by her in NCERT and infarct, the break " in service of one day was also condoned and geeepiiag in I as 37 Article 14 and 16 and the decision of the Division Bench of this Court in W.P.No.262.15[97 disposed of on 2/8/1999, in the context of . no delay in a case of non fixation....o_f tl-ie"'p'e.n_.si'on".in "' accordance with the rules as it givefljinsel continuing wrong and the queTs"t.iVon of vliiniptation"wotild not arise, are not applicable facts of 'th.e...present case, since the ' 'lpe'titioi'1er's' * » ciaini under Rule 302:. 2 .':.Peivisi'on Rules is unjustifiedlan'df'vbas:ellless'; the fact that a day's break in'servicedutasl.'Acoiiibin'ed by the authorities at the time ;'of_ computilng" the pension admissible to also imply that the combined se.1fv'~i_eeA petitioner in both the institutions _were"~ takeninto consideration. So as to ensure continuity of service. There is no merit in this .j;1.Wijit; Petition. 9* 38
28. In the result, the writ petition faiis and is accordingiy, dismissed. Parties to bea.rVV_:'~..ii1,eir own costs.