Shashi Vikasit vs The State Of Madhya Pradesh & Ors.

The petitioner has invoked Article 226 of the Constitution of India, seeking a direction to the respondents to release his retiral dues, including pension, gratuity, GPF, GIS, leave encashment, etc., along with interest from the date of his retirement.

2 . The facts necessary for the decision of this case are that the petitioner was initially appointed as Lecturer in Civil Engineering in the Government Polytechnic College at Gwalior on 11/09/1984. He was given the benefit of senior selection grade by order dated 22/04/2003 (Annexure P-2).

3 . The State Govt. of Madhya Pradesh adopted a policy to provide autonomy to polytechnic and engineering institutions, leading to the creation of societies for managing these Colleges at the local level. In order to regulate recruitment and other conditions of service of the employees of autonomous Polytechnic Colleges, the Government, exercising powers under Section 43(1) of the M.P. Society Registrikaran Adhiniyam, 1973, framed rules namely "Madhya Pradesh Technical Education Polytechnic College (Teaching Cadre) Service Recruitment Rules, 2004" (in short 'Rules of 2004'). Various provisions of these rules are being discussed in the later part of this judgment. Suffice it to observe at this stage that the teachers in these Colleges are divided between a Government cadre (on deputation) and those employed by the Society.

The petitioner was initially appointed on the post of Lecturer (Civil) on 11/09/1984 in the Government Polytechnic College, Gwalior. He was given the benefit of senior selection grade vide order dated 22/04/2003. Thereafter, the Government Polytechnic College was made autonomous and was handed over to the Society registered under the Society Registrikaran Adhiniyam for purposes of running the college. He was thereafter appointed to the post of Principal of the respondent no.5 (hereinafter referred as 'College') vide order dated 21/08/2006. He attained the age of superannuation and stood retired from service with effect from 31/03/2024. When the retiral dues of the petitioner were not settled, he made representation to the Commissioner, Technical Education on 06/04/2024. Getting no response on his representation, he filed the present petition.

The learned counsel for the petitioner argued that the petitioner was a regular employee of the State Government, having been appointed as a Lecturer in the Government Polytechnic College, Gwalior. By virtue of Rule 13(4) and Rule 14 of the Rules of 2004, he was appointed as Principal in the College after it became an autonomous Polytechnic College. It is his submission that, by virtue of Rule 13(4), the petitioner is entitled to get his pensionary benefits from the post from which he retired. However, no order of retirement was passed by the State Government, and therefore, the retiral dues were not paid. Learned counsel referred to the definition of appointing authority, as prescribed under Rule 2(b) of the Rules of 2004, to say that the State Government is the appointing authority of the petitioner. The learned counsel also took this Court through various other provisions of the rules, including Schedule I & II thereof, and submitted that the petitioner remained a Government employee even after his appointment as Principal of College, therefore, the State Government is required to settle his retiral dues. Learned counsel, therefore, prayed for issuance of necessary directions to the respondents in this regard.

6 . On the other hand, the learned Government Advocate refuted the submissions made by the petitioner's counsel. As per his submission, the petitioner was given appointment on the post of Principal of College by the Society, and therefore, the State Government is not the appointing authority of the petitioner. He further submitted that the services rendered by petitioner on the post of Principal with effect from 21/08/2006, alone can be taken into account for purposes of his retiral dues, and it is the Society which is responsible to settle his dues. Learned counsel further submitted that the lien of the petitioner on the post of Lecturer could be retained on his original post only for a period of three years, as prescribed in Rule 14, and thereafter the petitioner became the employee of the Society. He thus denied the petitioner's claim that the State Government is liable to make payment of the retiral dues of the petitioner, and prayed for dismissal of the writ petition.

The respondent no.4 has filed its separate reply refuting its liability to pay retiral dues of the petitioner. It is its submission that the State Govt. is responsible to pay the retiral dues of the petitioner. It is also submitted in return that the petitioner's case for payment of GPF and GIS was sanctioned and forwarded by respondent no.4 to State Govt. and the same has been paid to the petitioner by the Govt. He submitted that, under the Rules of 2004, the petitioner continued to be a Govt. employee holding substantive post prescribed in Schedule II thereof. The respondent no.4 thus denied its responsibility to pay retiral dues to petitioner and shifts this burden on State Govt.

Considered the arguments and perused the record.

The facts which are not in dispute between the parties are that the petitioner was initially appointed on the post of Lecturer (Civil) on 11/09/1984 in the Government Polytechnic College, Gwalior. He was given the benefit of senior selection grade vide order dated 22/04/2003. Thereafter, the Government Polytechnic College was made autonomous and was handed over to the Society registered under the Society Registrikaran Adhiniyam for purposes of running the college. He was then selected and appointed as Principal of the college through PSC on 21/08/2006. He attained the age of superannuation and stood retired from service with effect from 31/03/2024.

The Rules of 2004 were framed by the State Government, thereby providing for recruitment and other conditions of service of staff of autonomous Colleges in the teaching cadre. The teachers in these Colleges can be divided into two categories- firstly the one who were already working in Govt. College before it became autonomous and secondly those directly appointed by the Society. The term 'appointing authority' is defined in Rule 2(b) as under:

1 1 . It is thus seen that, for the persons who, on the date of commencement of rules, were holding substantively the posts mentioned in columns 3 to 7 of Schedule II, the appointing authority is the State Government and for employees falling in columns 8 to 12, the appointing authority is the Society. Schedule II of these rules prescribes sanctioned posts already filled by the Government, as also vacant posts which are transferred to society. So far as post of Lecturer (Civil) for Gwalior is concerned, there were two posts already filled by Govt. and one vacant post was transferred to Society. The petitioner was holding the post of Lecturer in Civil Engineer of the Govt. Polytechnic College at Gwalior, which is to be included in two posts already filled by Govt. Therefore, since the petitioner was substantively holding a post falling in column 8 of Schedule II, it is the Board of Governors of the Society who is his appointing authority as per Rule 2(b) of Rules of 2004. Further, the vacant post of Principal also falls in column 8 of Schedule II which was transferred to Society and, therefore, on his appointment as Principal, the Board of Governors of Society is his appointing authority.

Rule 4 prescribes the constitution of the service, and by virtue of clause (a) thereof, the persons who, at the commencement of the rules, were substantively holding the posts specified in Schedule II (irrespective of columns) shall constitute a dying cadre. Meaning thereby, the petitioner, being substantively holding the post of Lecturer (Civil), became a member of service under the Rules of 2004, and the post held by him became a dying cadre post.

Further, Rule 13 prescribes the conditions of service. Sub-rule 2 thereof enables the Society to make regular appointments on probation for 2 years on various posts, including the post of Principal, as shown in Schedule II. Sub-rule 4 of Rule 13 then provides that the persons appointed under these rules shall not be entitled to pension and other benefits relating thereto. However, those who, at the time of commencement of these rules, are holding substantively the posts mentioned in Schedule II (irrespective of columns) and were selected for a higher post, shall be entitled to pensionary benefit from the post from which they retire. For ready reference, Rule 13(2) & (4) are reproduced hereunder:

A reading of sub-section 4 of Rule 13 makes it evident that the persons appointed under the rules are generally not entitled to pension and other benefits relating thereto. However, the one who was holding a substantive post mentioned in Schedule II (irrespective of column) on the date of commencement of Rules and is selected to a higher post, shall be entitled to pensionary benefits from the post he retires. The petitioner was holding substantive post of Lecturer on the date of commencement of Rules and was selected and appointed on higher post of Principal. He thus satisfies the requirement of Rule 13(4) of the Rules.

The learned counsel for petitioner has placed heavy reliance on Rule 14 to say that in absence of any order of absorption passed by Society, the petitioner continued to be a Govt. employee and is to be treated on deputation with Society. Rule 14 of the rules prescribes the retention of lien by the employees earlier working in the Government colleges. It provides as under:

On the date of commencement of Rules, the petitioner was holding substantive post of Lecturer (Civil) in Govt. Polytechnic College at Gwalior, which post finds mention in column 8 of Schedule I and thus does not come within the purview of Rule 14 of Rules of 2004 as it covers posts in column 3 to 7 only.

Thus, the provisions which deals with persons like petitioner are Rule 4(a) which makes them member of service under the Rules. As per this rule, the persons, like petitioner, shall constitute a dying cadre. The necessary implication of this rule would be that such persons shall continue to work in the same status, so far as their service conditions are concerned, and upon death, retirement etc. nobody would be appointed with these service conditions.

Then comes Rule 13(4) which makes the persons like petitioner entitled for pensionary benefits from the post from which they retire. Rule 13(10) of Rules also assumes importance at this stage which provides that other conditions of service shall be such as may be specified in order of appointment.

The order of appointment of the petitioner as Principal dated 21.08.2006 has been placed on record as Annexure P-5. Clause 1 & 3 of order are important and are thus reproduced hereunder:

These clauses are couched in terms of Rule 14 of Rules which is held not applicable in case of petitioner. However, since these terms are incorporated in appointment order, by virtue of Rule 13(10), they becomes his service conditions. Thus, the petitioner is treated to be on deputation. He is entitled to retain his lien on his earlier substantive post for three years and during this three years, the Society was required to take a decision for his absorption. By virtue of Rule 13(4) of Rules and Clause 3 of appointment order, on his appointment on a higher post of Principal, the petitioner would be entitled for pension and other related benefits of this post.

The aforesaid discussion of the facts and rule position makes it clear that the petitioner became a member of service under the Rules of 2004, as he was earlier substantively holding the post of Lecturer in the Government Polytechnic College, Gwalior. Further, on selection done by the Public Service Commission at the instance of College, the petitioner was selected and appointed as Principal on deputation in the College. He retired as such with effect from 31.03.2024. As per the terms of appointment order, the Society was required to take a decision with regard to petitioner's absorption in service. However, no such decision has been taken by the Society. Therefore, the petitioner continued to be on deputation with Society. Meaning thereby, he continued to be a Govt. servant till his retirement. By virtue of Rule 13(4), the petitioner is entitled to pensionary benefits of the post of Principal.

2 2 . The State Government, through its Technical Education and Training Department, issued an order dated 10.11.2009, whereby the Director of Technical Education was appointed as Nodal Officer for purposes of settlement of the retiral dues of employees covered under Schedule II of the Rules of 2004. It was thus the Director of Technical Education who had to take a call for the settlement of retiral dues of the petitioner.

2 3 . In view of the discussion made above, this Court is of the considered opinion that the petitioner is entitled to get his pensionary benefits of the post of Principal, like any other Government servant, on his retirement on 31.03.2024. Further, the financial burden in this regard is required to be taken by the Technical Education and Training Department of the State of Madhya Pradesh. The Director of Technical Education, Bhopal, is therefore directed to take immediate steps for settlement of retiral dues of the petitioner and to settle the same within 90 days from the date of submission of certified copy of this order.

2 4 . The petition is allowed and disposed of with the aforesaid direction.