Pantnagar Vishvavidyalay Sewa Nivrit Shikshak Kalyan Samiti, Rudrapur vs State Of Uttarakhand & Ors.

i.

Issue a writ, order or direction in the nature of certiorari quashing the last part of the impugned G.O. bearing No.906/XII-2/2022-03(02)/2022/14021 dated 27.09.2022 (Annexure No.08) wherein it's provided that the "Regarding others, their representations may please be disposed of according to the instructions/rules prevailing at the time of their retirement" and also the Letter No.V.N./Pension/1493 Dated 31-10-2022 (Annexure No.10) passed by respondent no.2 in pursuance of G.O. dated 27-09-2022.

ii.

Issue a writ, order or direction in the nature of mandamus directing respondents to make the payment of gratuity along with 15% interest individually to each member of the petitioner samiti as per details given in Annexure No.06 & 6A and individual members of the petitioner samiti who opted for retirement at the age of 60 years as teachers before 18-06-2005/family pensioners of such deceased retired teachers who retired before 18-06-2005/legal heir of such deceased retired teachers who retired before 18-06-2005 and his/her deceased family pensioners as per their entitlement in accordance with Law under the provisions of the Payment of Gratuity Act, 1972.

iii.

Issue any other writ or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

iv.

Award the cost of the petition to the petitioner.

“……….. Regarding others, their representations may please be disposed of according to the instructions/rules prevailing at the time of their retirement"

“These 85 personnel had opted for the benefits of pension, family pension and General Provident Fund only, and retired at the superannuation age of 60 years. As per provisions of G.O. No. 1009/12.8.400-(19)/84 dated 10.12.84 and G.O. No.4026/12.8.400(19)/84 dated 19.12.84, personnel who have opted for the superannuation age of 60 years are entitled for the benefits of pension, family pension and General Provident Fund only, not gratuity.

The following provisions are given in Clause 6 of Act & Statues of the University:-

*6. AGE OF RETIREMENT

The age of superannuation for the employee of the University shall be as follow:

(i)

..............................................................................

(ii)

For those employees who are appointed before 1.1.84 and who in accordance with G.O. No. 1009/12.8.400-(19)/84 dated 10.12.84 and G.O. No.4026/12.8.400(19)/84 dated 19.12.84 opt for the benefits of pension death-cum-retirement gratuity family pension and general provident fund, the age of superannuation shall be 58 years.

(iii)

For those employees who are appointed before 1.1.84 and who in accordance with G.O. No. 1009/12.8.400 (19)/84 dated 10.12.84, and G.O. No. 4026/12-8-400 (19)/84 dt. 19-12-84 opt for the benefits of pension, family pension and General Provident Fund, the age of superannuation shall be 60 years.

All the petitioners were sanctioned pensionary benefits, by the Additional Director, Directorate of Accounts & Entitlement, Camp Office, Haldwani, Nainital, on the basis of option exercised by the petitioners as per the provision of G.O. No.4026/12.8.400(19)/84 dated 19.12.84.& G.O. No. 1009/12.8.400-(19)/84 dated 10.12.84.

Since, the gratuity & pensionary benefits are paid from the Treasury of the State Government. Therefore, the University sought the directions from the State Government in this matter vide letter no. Vi.Ni./611 dated 21.01.2022 & reminder no. Vi.Ni./679 dated 22.03.2022. In response to above letters, the following directions vide Uttarakhand Government's letter/ Order No. 264/XIII-2/2022-03(02)/2022 dated 14.06.2022, which is annexed herewith as Annexure-1, on the subject 'Regarding providing guidelines for payment of gratuity to the personnel retired from the University in compliance of the orders of the Hon'ble Supreme Court. ' was issued to the University: -

“......................................ensure that action is taken as per the instructions given by the Hon'ble Court, in respect of the rest of the personnel, the universities may want to decide at their own level according to the rules/statutes of the University"

Again, the University sought the directions from the state government in this matter vide letter no. Vi.Ni./118 dated 02.08.2022, which is annexed herewith as Annexure-2. In response to above letter, the University has received the following directions vide Uttarakhand Government's Order No. 906/XIII-2/2022-03(02)/2022 dated 27.09.2022 on subject 'In relation to providing guidelines for the payment of gratuity to the retired personnel of the university': -

“............................ kindly do the needful in the matter, only in compliance of the orders of Hon'ble Supreme Court. On matters of other employees, kindly dispose-off their representation as per Government Orders/ Rules effective at that time."

The University has abided by the orders of Hon'ble High court only in respect of 28 petitioners. The Hon'ble High Court have ordered for payment of gratuity to only 28 employees (Annexure-04 of writ petition), which does not include name of the petitioners. In the similar matters, the university is disposing-off the representation of all personnel as per the instructions received from the State Government vide order dated 27.09.2022. The University has not denied the payment of gratuity to any personnel in the similar matters, instead intimated the provisions of G.O. no. 906/XIII-2/2022-03(02)/2022 dated 27.09.2022. The university is simply complying the provisions of G.O. dated 27.09.2022 and is bound to abide the provisions of all the government orders issued from time to time. Thus, nothing has been done deliberately to withheld the payment of gratuity to these petitioners.”

(i)

Before the formation of Uttarakhand State, the personnel of the university were covered by "THE UTTAR PRADESH RETIREMENT BENEFITS RULES, 1961" issued by the erstwhile state of Uttar Pradesh and after the formation of the Uttarakhand State, University employees are covered by the Retirement Benefit Rules issued from time to time by the State of Uttarakhand {currently "UTTARAKHAND RETIREMENT BENEFITS ACT, 2018" Hence the employees of the University are not covered by the Payment of Gratuity Act, 1972 at all.

(ii)

Under THE UTTAR PRADESH RETIREMENT BENEFITS RULES 1961, pension & commutation amount is paid beside gratuity. The petitioner opted for retirement at the age of 60 years without the benefit of gratuity. The petitioner is getting paid retirement benefits (i.e. pension & commutation) under THE UTTAR PRADESH RETIREMENT BENEFITS RULES, 1961. Therefore, Payment of Gratuity Act, 1972 is not applicable on University personnel at all. In case the petitioner samiti wants State Government to make its members payment of Gratuity under Payment of Gratuity Act, 1972, they will have to surrender the right to receive the pension & commutation benefit under THE UTTAR PRADESH RETIREMENT BENEFITS RULES 1961.

(iii)

'The Uttarakhand Qualifying Service for Pension and Validation Act, 2022' (Act No. 15 of 2023) is published vide notification по. 176/XXXVI(3)/2023/78(1)/2022 dated 08.05.2023 by the Government of Uttarakhand. As per the notification, the Act shall be deemed to have come into force on April 1, 1961. The said Notification/Act too evidences the applicability of "THE UTTAR PRADESH RETIREMENT BENEFITS RULES, 1961" on the Uttarakhand Government employees as well as University personnel before the formation of the Uttarakhand State. Hence, the personnel of the University are not covered by the Payment of Gratuity Act, 1972 at all.

(iv)

The payments of Retirement Benefits to the personnel retiring from the University till 17.06.2005 were governed by Government Order No. 1009/12.8.400-(19)/84 dated 10.12.84. It is clearly mentioned on paragraph 07 of the Government order dated 10.12.1984 that "the qualifying service admissible for pension of teachers opting for retirement at the age of 60 years, will be calculated only on the basis of service rendered till the age of 58 years. But the retirement gratuity (death cum retirement gratuity) to such teachers will not be admissible."

(v)

The members of the petitioner samiti were sanctioned pensionary benefits, by the Additional Director, Directorate of Accounts & Entitlement, Camp Office, Haldwani, Nainital, on the basis of option/ revised option exercised by the member of the petitioner samiti as per the provision of G.O. No.4026/12.8.400(19)/84 dated 19.12.84 & G.O. No. 1009/12.8.400-(19)/84 dated 10.12.84. The members of petitioner samiti were retired from the University before 18.06.2005, and were aware of all the rules & regulations of the University. The members of the petitioners samiti cannot claim the retirement benefit in terms of G.O. dated 18.06.2005 as they were covered under the above mentioned G.O.s for payment of retirement benefits.

(vi)

The claims could not be entertained in view of the settled legal position & it is also submitted that by virtue of applicable laws now, such payments cannot be made. In this regard, judgment dated 17.10.2014 of the Hon'ble Supreme Court in Civil Appeal No. 9849 of 2014 (ARISING OUT OF SLP (C) NO. 18639 OF 2012) is worth mentioning for kind perusal of this Hon’ble Court.

(vii)

The Hon’ble Court have ordered for payment of gratuity to only 28 employees (Annexure-04 of writ petition), which does not include the name of petitioner. The university has disposed-off the representation of the petitioner samiti as per instructions received from state government vide order dated 27.09.2022.

(viii)

The University has been provided only administrative autonomy by the government, only the government is authorized to take decisions on each and every issue of financial matters.

Therefore, the prayer of the petitioner for quashing order dated 27.09.2022 passed by the respondent no. 1 and direct the respondents to pay the gratuity of the petitioner with 15% interest is not tenable and any challenge by the writ petitioner to the said Orders is not legally maintainable, accordingly, the petition merits dismissal with cost.

“Having heard learned counsel for the petitioner and having perused the material placed on record, we are at one with the view taken by the High Court that mere exercise of option by an employee, to avail the benefit of extension of age of retirement to 60 years, could not have operated against his entitlement to gratuity; and exercising of such an option will not deprive the private respondents to gratuity unless and until the establishment i.e., the petitioner-University, was exempted in strict compliance of Section 5 of the Payment of Gratuity Act, 1972, after prior approval of the State Government. There being no such exemption availed by the petitioner-University, the High Court has rightly not interfered with the principal part of the orders passed by the Controlling Authority and the Appellate Authority.

On the other hand, the High Court has been rather considerate to the petitioner in reducing the rate of interest awarded to the private respondents from 10% to 6% p.a.

In view of the above, no case for interference is made out.

Hence, these special leave petitions stand dismissed.

All the pending applications stand disposed of.”

“23.

Further in its para 14 and 19 it has been provided that no exemption of the Payment of Gratuity Act could be granted until and unless it has been exempted by the appropriate government, as the gratuity has been held to be a statutory right, which cannot be taken away except in accordance with the provisions of the Act, whereunder statute itself contemplates the grant of exemption if made as per the procedure provided in it.

24.

There is nothing on record that the exemption has been availed by the petitioner and that too is in strict compliance of Section 5 of the Act. The Hon'ble Apex Court has also considered the impact of Section 14, which provides that provision of the Act will continue to be enforced and effect irrespective of anything contained in consistent in any other statute, meaning thereby since Section 14 contains a non-obstinate clause, the Act would continue to be enforced irrespective of the interpretation which has been argued by the learned counsel for the petitioner in the light of the provisions contained under Chapter 19 of the statute and in the light of the provisions contained under the Government Order dated 19.12.1984.

25......... Although, the issue has been dealt to the said effect in the earlier paragraphs of the judgment, but still it is repeated that since in pursuance to the exercise of benefit of extension of 60 years of age of retirement, the Payment of Gratuity under the Act of 1972, was not intended to deprive gratuity to optees. Hence, exercising of an option will not deprive the private respondent of gratuity until and unless it has been made exempted after a prior approval of the State Government. In that view of the matter, I do not find any error committed by both the courts below.”

“13.

In State of Karnataka v. C. Lalitha [State of Karnataka v. C. Lalitha, (2006) 2 SCC 747 : 2006 SCC (L&S) 447] , which is the next case relied upon by the learned counsel for the respondents, our attention was drawn to the following passage from the said judgment : (SCC p. 756, para 29)

“29.

Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to.”

22.3.

However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India [K.C. Sharma v. Union of India, (1997) 6 SCC 721 : 1998 SCC (L&S) 226] ). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.

i.

The petitioners have bypassed the statutory remedy under the Payment of Gratuity Act and directly filed the writ petition; therefore, it is not maintainable.

ii.

Proper court fees have not been tendered by the petitioners or all the members of the association.

iii.

A writ petition filed on behalf of an association would not be maintainable in view of the judgment of the Hon'ble Supreme Court in the case of B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees’ Association and others, reported in (2006) 11 SCC 731 (II).

“14.

The order passed by the High Court for retention of Shyam Behari Lal in service, does not possess any ingredient of a judgment in rem. The abovecited exception, therefore, does not come to the respondent's rescue. It is also pertinent to mention that neither has it been pleaded nor is it apparent from the material on record that the respondent was unable to approach the court of law in time on account of any social or financial disability. Had such been the case, he ought to have availed free legal aid and should have ventilated his grievances in a timely manner. Instead, he seems to be under the assumption that the termination order is illegal, that he consequently has a right to be reinstated, and that he can agitate the same at his own sweet will. Neither of these three assumptions are true, as elaborated by us earlier.”

“7...(iv) The Principle of Estoppel: The Appellants had already received their retirement benefits, including pension and gratuity, under the CCS (Pension) Rules, 1972, without protest at the time of retirement. An employee cannot claim benefits under two different statutes for the same purpose. Having accepted the benefits under the specific rules applicable to government servants, i.e., CCS Rules, they are estopped from turning around and claiming higher benefits under a general law, i.e., the PG Act, which expressly excludes them.

12.

It is relevant to notice that the amended definition deals with the first limb of Section 2(e),3 and the second exclusionary limb is the same in the pre- and post-amendment provisions. Construing Section 2(e), the second limb begins with the words “but does not include” any such person (i) who holds a post under the Central Government, (ii) a State Government, (iii) is governed by any other Act or (iv) by any Rules providing payment of gratuity. The exclusionary clause, if read by applying the golden rule without a further test, excludes employees of the Central and State Governments from the meaning of “employee” under the PG Act. Secondly, it also excludes a person who is governed by any other act. Thirdly, even if it is used as “or” but not as “and”, it excludes any such person who is governed by any other Act or by any rules providing for payment of gratuity. The provision contains the words both “means” and “does not include”. Under interpretation of statutes, this Court has repeatedly held that coupling the word “means” with “includes” denotes an exhaustive definition.4 Conversely, the word “means” and “does not include” should be read as exclusionary language that strictly excludes the scope of the provision from certain classes. Consequently, a person who is governed by any other Act, or governed by any Rules providing for payment of gratuity, does not come within the ambit of the definition of “employee” under the PG Act.”