AI Structured Summary
Not yet generated for this judgment
Judgment
Biren Vaishnav, J
This petition under Article 226 of the Constitution of India has been filed by the petitioner praying that the respondents be directed to grant all pension and retiral benefits to the petitioner with interest at the rate of 9%. It is the case of the petitioner that though he has retired from service of the Saurashtra University on 17.12.2014, no pensionary benefits have been paid to the petitioner.
Facts in brief are as under:
2.1 The petitioner states that he was appointed as a Junior Clerk (Assistant) on a daily wage basis with the Saurashtra University on 02.04.1981. His services were terminated on 22.07.1984. On the challenge to the termination before the Labour Court, Rajkot, the reference was allowed on 01.10.1990 directing the petitioner to be reinstated with continuity of service and back wages. Saurashtra University's challenge to the award failed as this Court dismissed Special Civil Application No.2966 of 1993 on 26.04.1993. The petitioner was reinstated in service on 18.02.1984. The Saurashtra University invited applications for the post of Assistant (Junior Clerk). The petitioner was interviewed after having passed the written examination and the petitioner was appointed by the Saurashtra University as a Junior Assistant. Having worked for a number of years as an Assistant, the petitioner represented to the Saurashtra University to regularize his services for the post in question. He filed an application being Application No.2 of 1996 before the Gujarat Universities Services Tribunal for regularizing his services. It appears that the University by a communication dated 15.11.1997 placed before the Tribunal regularized the services of the petitioner on the post of Junior Clerk in the pay scale of Rs.950-1500. The order further stipulated that his services as Daily Wager from 02.04.1981 to 17.11.1997 will be counted for all purposes including pension. The petitioner was subsequently by an office order dated 08.12.2005 made permanent on the post of Junior Clerk with effect from from 01.05.2000. On 25.11.2000, an order was passed by the Saurashtra University by which, the petitioner was promoted to the post of Senior Assistant on a temporary basis. It appears that the petitioner continued to draw the higher grade scale and was granted the benefits of such pay scale during the course of service and orders are on record.
2.2 The Saurashtra University on 28.08.2012 requested for the petitioner's pay fixation and a communication was sent to the Local Audit Fund for certifying the same. The University also in October, 2012, requested the Commissioner of Higher Education to approve the initial appointment of the petitioner. On 11.12.2012, the Commissioner of Higher Education requested the Secretary of the State Education Department recommending that the petitioner's appointment be regularized. Till the petitioner served and retired in 2014 nothing was done.
2.3 However, by the order dated 02.03.2016, the State through the respondent no.1 passed a detailed order saying that during the entire service tenure of the petitioner i.e. from the date of his appointment as daily wager till the date he retired, the University had not sought approval from the State. The order of reinstatement as a daily wager which was passed by the Labour Court and was challenged by the Saurashtra University in which it failed and the order of the University Tribunal before which consensus was arrived at and the services of the petitioner was regularized were never put for approval before the State Authorities.
2.4 Based on these facts, the State opined that the burden of pensionary benefits if need to be paid, should be borne by the University and not by the State. Having retired in the year 2014 and not having received the terminal benefits till the year 2017, the present petition is filed.
Mr.Anand Gogia learned advocate for the petitioner would submit as under:
3.1 That the denial of pension to a retired employee who has continuously served and in favour of whom regular orders have been passed cannot be deprived of pension merely because of the fact that now the State has come to a conclusion that the appointments were made without the approval of the authority concerned.
3.2 Mr. Gogia would further submit that the decisions of the Division Bench of this Court in Letters Patent Appeal No.1298 of 2015 in Special Civil Application No.9626 of 2014 dated 20.07.2016 would cover the case as in the aforesaid judgment the liability of the State was fastened and the State has accepted the said judgment.
3.3 Mr. Gogia would further submit that once the proposal was sent by the Commissioner of Higher Education as far as in the year 2012, four years thereafter and two years after the petitioner retired the State Government could not have passed an order submitting that no pension would be payable to the petitioner from the State funds but the University can be fastened with the liability. In short the submission of Mr.Gogia is, irrespective of who has to bear the liability of pensionary benefits, the petitioner having served the University for the several years, cannot be deprived of pension on the ground that his service was not approved by the Saurashtra University from the State Government.
Mr. A.R.Thacker learned advocate appearing for the Saurashtra University would submit as under:
4.1 Mr.A.R.Thacker has drawn the attention of this Court to the affidavit in reply filed by the University. Perusal of the affidavit affirmed by one Dr.Dhiren B. Pandya working as In-charge Registrar of the University would indicate that the stand of the University is that there is no pension scheme of the respondent University. That the pension scheme was made by the Government in the year 1989 for the employees of the University and therefore it is the liability of the State and not of the University to pay pension. Assuming that the appointment was not regular, the University should not be fastened with the liability to pay pension because it receives 100% grant from the State and therefore the pensionary benefits must come from the State Government.
4.2 Mr.Thacker also pointed out that in a similar case in Special Civil Application No.19276 of 2015, this Court by a decision rendered on 26.07.2017 held that the petitioner therein was entitled to pension and held that the State Government is responsible for paying such benefits.
4.3 Reading the affidavit, Mr.Thacker would further submit that a question arose before the Division Bench of the High Court regarding persons appointed under the UGC scheme and as to whose liability it is, to pay pension. In Letters Patent Appeal No.177 of 2006, the Division Bench has held that the retirement benefits are to be paid by the State. In short the submission of the University is that it is the State who has to be fastened with the liability to pay the pension.
Mr. Kanva Antani, learned AGP vehemently opposed the stand of the Saurashtra University. Reading the order dated 02.03.2016, he would submit that the order extensively reproduces the fact that the University has at every stage right from the date when the petitioner was appointed, not approached the State for approvals in the matter of appointment. The University subsists on the grant of the State Government and therefore it is expected from the University that as and when the appointments are made on its establishment in accordance with legal proceedings, the State ought to have been taken into confidence. Having not done so, it does not now lie in the hands of the University to fasten the liability on the State.
Having considered the submissions made by the learned advocates for the respective parties, what is evident is as under:
6.1 Perusal of the service details of the petitioner would indicate that the petitioner was initially appointed as a daily wager in the year 1981. He faced termination from service in the year 1984. On a challenge made before the Labour Court, the order of the Labour Court directed that the petitioner be reinstated with continuity of service and back-wages. The order was challenged before the High Court at the hands of the Saurashtra University where the University failed. The award of the Labour Court was confirmed. It is under these circumstances, that the petitioner approached the University Services Tribunal seeking regularization of services.
6.2 By an order dated 18.11.1997, the University resolved that the petitioner's services be regularized and he be granted the pay scale of 950-1500. The pay scale was granted to the petitioner. Concurrently and consecutively the petitioner was awarded higher grade scale and the promotions were made. In the year 2012, communications were addressed to the Local Fund Office for pay fixation and approval. Nothing came forward in the year 2012 as far as the objections were concerned.
6.3 Mr.Gogia has placed on record several letters of the University of 09.06.2014, 18.11.2014 and 04.02.2014 which suggest that the University repeatedly made requests to the State that the appointment of the petitioner be regularized. These letters have to be seen in the background and in the context of the letter of the Commissioner of Higher Education written as far as in the year 2012 by which a specific request was made by the Commissioner to the State Education Department that the services of the petitioner be regularized.
6.4 Having served the university for the several years the petitioner retired in the year 2013 and has been left high and dry without pensionary benefits. It is in this context, that one needs to refer to the decision rendered by this Court in Special Civil Application No. 9626 of 2014 (Coram:J.B.Pardiwala, J). A retired employee of the Saurashtra University had approached the Court for setting aside the order of the Gujarat University Services Tribunal and also requested that his pay be fixed and the recovery of Rs.12 lakhs be set aside. Perusal of the facts before the Court indicate that from time to time the petitioner was appointed as a Laboratory Technician continued to work and was sanctioned the pay scale of the Laboratory Assistant. It was when he retired that the issue came up as to whether the petitioner was entitled for a particular pay scale or not. On the basis of an affidavit filed by the University the stand of the University was that the petitioner was not entitled to the benefit of the pay scale and that without the sanction of the Government, it could not be done.
6.5 This Court, after having considered the decision as far as recovery is concerned i.e. of State of Punjab and Ors. v. Rafiq Masih reported in 2015 (4) SCC 334, held that the recovery cannot be made. That decision was subject matter of a challenge in Letters Patent Appeal No.1298 of 2016 at the hands of the Saurashtra University. This was particularly in view of the fact that the learned Single Judge in para 19 has observed that if the State Government was of the opinion that the grant of the State Government was misused, the Government could take appropriate steps against the University and recover the amount if it deems fit. In this context, in the LPA so filed being Letters Patent Appeal No.1298 of 2015, the Division Bench of this Court on 20.07.2016 observed as under:
"9. We are of the opinion that once the Local Audit Fund has sanctioned the pay-scale, thereafter the said office has wrongly raised an objection with regard to grant of pay-scale and recovery of amount from the petitioner. We are also of the opinion that once the appellant University was receiving grant from the State Government, the University cannot be directed to pay the retiral benefits to the petitioner from its own fund and when the amount of salary has been actually paid to the petitioner, the State Government cannot be permitted to recover the said amount from the appellant University. To that extent, we are of the opinion that the direction given by the learned Single Judge against the appellant - University is required to be set aside."
6.6 Relying on this decision, Mr.Gogia would submit that even if the petitioner would not challenge the order of 02.03.2016, it was evident that the Saurashtra University could not be fastened with the liability of pension.
6.7 Reliance is also placed on a decision of this Court rendered in Special Civil Application No.19276 of 2015 dated 26.07.2017. Inaction of the respondents in not paying superannuation benefits was under challenge before the Court in the aforesaid petition. The facts were that the University on its own discretion appointed the petitioner without the consent of the State Government. In that context, relying on the decision in the case of Letters Patent Appeal No.1298 of 2015, the learned Single Judge of this Court in Special Civil Application No.19276 of 2015, held as under:
"8. This Court has considered the submissions of both the sides and gone through the file. The fact that the petitioner was appointed as Assistant by the University on 22.6.1988 is not in dispute. It is also not in dispute that after appointment he has been contributing towards GPF in view of the letter written by the University. He was working on permanent post and continued on the post without any interruption. Once again, there is no dispute of the fact that the case of the petitioner along with other similarly situated employees has been recommended to the State Government by the University, however, no further correspondence has been received from the State. The fact that the Rules of appointment has been modified in the year 1981, and thereafter, the University was required to take approval of the State Government before making any appointment is also not in dispute. It could be seen that petitioner has been working with the respondent University since 1988 and his case has been recommended to the State Government on various occasions, however, the State Government has remained silent on this issue till the retirement of the petitioner. It could also be seen that the appointment of the petitioner can be said to be irregular and not illegal. In the case of Secretary, State of Karnataka and others vs. Umadevi (3) and others (supra), the distinction has been drawn between irregular and illegal appointment. This distinction has been further carried forward by the Apex Court in its subsequent decision and one of such decision has been rendered in the case of State of Jammu & Kashmir & Ors. vs. District Bar Association, Bandipora, reported in AIR 2017 SC 11, which has been relied upon by the petitioner. While dealing with this issue, in para-15 of this judgment, it has been reported as under:
"15. The judgment in Renu does not preclude, as a principle of law, the framing of an appropriate scheme of regularization in appropriate situations meeting the norms spell out in Umadevi and the decisions which have followed. Dealing with a scheme framed for regularisation, this Court in Amarendra Kumar Mohapatra v. State of Orissa5 held as follows :
"38. Equally important is the fact that even after declaring the true legal position on the subject and even after deprecating the practice of appointing people by means other than legitimate, this Court felt that those who had served for ten years or so may be put to extreme hardship if they were to be discharged from service and, therefore, directed the formulation of a scheme for their regularisation. This was no doubt a one-time measure, but so long as the appointment sought to be regularised was not illegal, the scheme envisaged by para 53 of the decision (supra) extracted above permitted the State to regularise such employees. Dr Dhavan argued that the appellant Stipendiary Engineers had, by the time the decision in Umadevi (3) case was pronounced, qualified for the benefit of a scheme of regularisation having put in ten years as ad hoc Assistant Engineers and fifteen years if their tenure was to be counted from the date of their employment as Stipendiary Engineers. He contended that even in the absence of a Validation Act, Stipendiary Engineers appointed on ad hoc basis as Assistant Engineers, who had worked for nearly ten years to the full satisfaction of the State Government would have been entitled to regularisation of their services in terms of any such scheme.
As to what would constitute an irregular appointment is no longer res integra. The decision of this Court in State of Karnataka v. M.L. Kesari , has examined that question and explained the principle regarding regularisation as enunciated in Umadevi (3) case. The decision in that case summed up the following three essentials for regularisation: (1) the employees have worked for ten years or more, (2) that they have so worked in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal, and (3) they should have possessed the minimum qualification stipulated for the appointment. Subject to these three requirements being satisfied, even if the appointment process did not involve open competitive selection, the appointment would be treated irregular and not illegal and thereby qualify for regularisation. Para 7 in this regard is apposite and may be extracted at this stage :
"7. It is evident from the above that there is an exception to the general principles against 'regularisation' enunciated in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in a duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular."
The upshot of the above discussion is that not only because in Umadevi (3) case this Court did not disturb the appointments already made or regularisation granted, but also because the decision itself permitted regularisation in case of irregular appointments, the legislative enactment granting such regularisation does not call for interference at this late stage when those appointed or regularised have already started retiring having served their respective departments, in some cases for as long as 22 years."
There is hardly any dispute to the fact that the petitioner was appointed as Assistant in the year 1988. The judgment in the case of Umadevi (supra) has been pronounced on 10.4.2006. In para-53 of this judgment, the Union of India, State Government and their instrumentalities has been directed to take steps to regularise as a one time measure, the services of such irregularly appointed employees, who had worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. The aforementioned guidelines by the Apex Court were clear that even if the appointment made by the Institutions were irregular, they were required to be regularised. The case of the petitioner seems to be fully covered by this judgment as he was in service 10 years to the date of the pronouncement of this judgment and is continuing without any aid or assistance by the orders of the court.
This case could be seen from other angle. Admittedly, during the tenure when the petitioner was in service, his salary was being paid by the University, however, grant was released by the State Government. This Court is of the considered opinion that the State Government cannot be allowed to drag out its feet from payment of pension and pensionary benefits after retirement of the petitioner, especially when it has been paying salary to him during the tenure of his service. The Division Bench of this Court in LPA No. 1298/2015 in the case of Saurashtra University & Ors vs. Harshkant Shashikant Joshi (supra) has held as under:
"9. We are of the opinion that once the Local Audit Fund has sanctioned the payscale, thereafter the said office has wrongly raised an objection with regard to grant of pay-scale and recovery of amount from the petitioner. We are also of the opinion that once the appellant University was receiving grant from the State Government, the University cannot be directed to pay the retiral benefits to the petitioner from its own fund and when the amount of salary has been actually paid to the petitioner, the State Government cannot be permitted to recover the said amount from the appellant University. To that extent, we are of the opinion that the direction given by the learned Single Judge against the appellant - University is required to be set aside."
Learned AGP has relied upon the decision of the Apex Court in the case of Univeristy of Rajastha v. Prem Lata Agarwal (supra). The proposition of law contained in this judgment is not in dispute, however, it is altogether on different facts. Even going by the ratio of this judgment, the case of Umadevi(supra), and more particularly para-53, which is still applicable as far as the case of the present petitioner is concerned. As per aforementioned judgment, para53 of the case of Umadevi(supra) could not be extended to the person for three reasons; i.e. (i) that the continuance of appointment after the fixed duration was null and void by operation of law; (ii) that the respondent continued in the post by intervention of the court; and (iii) that this Court had declined to regularise their services on some prior occasion.
None of the aforementioned obstacles could be found in the present case, as the petitioner has continued on the post without intervention of the court and earlier his case was never rejected by the Apex Court.
Learned counsel representing the University as well as learned AGP has also argued on the point that on previous occasion relief claimed by the petitioner and some other employees has been declined by the Tribunal. This Court has gone through the judgment passed by the Tribunal. No doubt, relief has been declined by the Tribunal, however, it has been declined on the point of jurisdiction and not on merits. The relevant para-20 of the decision passed by the Tribunal in Application No. 16/2001 & 28/2003, reads as under:
"20. Till today nothing is done. In that case of the circumstances, as observed in order dated 29.12.05(supra), "regularisation" being not the "condition of service", it appears to me that dispute appearing in both these petitions to direct opponent University to regularise the service extending them permanent status and all benefits available to permanent employees of opponent University, is not maintainable before this Tribunal, in view of section 8 of Gujarat Universities Services Tribunal Act, 1983 and therefore, both petitions require to be dismissed on this ground also."
So, the rejection of claim of the petition by the Tribunal cannot be termed as rejection on merits.
In view of the foregoing discussion, this petition is allowed. The petitioner is held entitled to pension and all other benefits which are payable to the regularly selected employees. The respondents-State is directed that all such payment be made within a period of one month from the date of receipt of copy of this order. However, there will be no order as to interest or costs. Rule made absolute to the aforesaid extent."
6.8 The aforesaid paragraphs would indicate that the learned Single Judge in the aforementioned decision observed that if the petitioner was continued without any obstacles and he was continued in service and then regularized and the University of the State having not objected to it, it does not now lie in the mouth of the University to deny him the pensionary benefits. It is this decision that Mr. A.R.Thacker, learned advocate for the University has placed reliance on. Reading para 14 of the decision would indicate that the Court directed the respondent-State to pay the pensionary benefits.
Having considered the aforesaid decisions, it is undisputed that the petitioner having served the University, even if it is the stand of the State that the appointments during the entire tenure of service were done without the State having been taken into confidence, after the petitioner having retired, in view of the decision quoted herein above, there is no reason why the State cannot be fastened with the liability of the pension that the petitioner is entitled to receive.
The petition is therefore allowed. Notwithstanding the order passed by the State dated 02.03.2016, the respondent-State is directed to compute the pensionary benefits that the petitioner is entitled to in accordance with the decision of the Division Bench in Letters Patent Appeal No.1298 of 2015 in Special Civil Application No.9626 of 2015 and pay such terminal benefits within a period of eight weeks from the date of receipt of copy of this order. No order as to costs.