IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 29TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL NO.615 OF 2016 (S-R) BETWEEN:
DR. SIDDARAMAIAH PUJAR SON OF REVANA SIDDAPPA PUJAR AGED 59 YEARS RESIDENT OF DOOR NO.564, 2ND ‘B’ MAIN, II STAGE, 11TH BLOCK NAGARABHAVI, BENGALURU-560 072.
(BY SRI. NARAYANA BHAT M, ADVOCATE) AND:
….APPELLANT 1. THE UNIVERSITY GRANTS COMMISSION REPRESENTED BY ITS SECRETARY BAHADDUR SHAH JAFAR MARG, NEW DELHI-110 002.
2. NATIONAL ASSESSMENT AND ACCREDITION COUNCIL REPRESENTED BY ITS DIRECTOR NAGARABHAVI ROAD, BENGALURU-560 072.
3. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF HUMAN RESOURCES AND DEVELOPMENT "SHASTRY BHAVAN", NEW DELHI-110 001.
4. THE UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF FINANCE DEPARTMENT OF EXPENDITURE NORTH BLOCK NEW DELHI-110 001.
….RESPONDENTS (BY SRI. SHOWRI H R, ADVOCATE FOR R-1 SRI. SANJAY H SETHIYA, ADVOCATE FOR R-2 SMT. M.C. NAGASHREE, ADVOCATE FOR R-3 AND R-4) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 2239 OF 2015 DATED: 4.9.2015.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 19.11.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J, DELIVERED THE FOLLOWING:
JUDGMENT The appellant is the petitioner in the writ petition. The parties are referred to as per their rank before the learned Single Judge.
2. Brief facts of the case are as follows:
The petitioner served in Indian Air Force for 15 years. On completion of the term of engagement of 15 years in the Indian Air Force, he joined Indira Gandhi National Open University (‘IGNOU’ for short), New Delhi as a Senior Assistant with effect from 16.06.1989, and was subsequently promoted as Section Officer. He served in IGNOU for about 8 years. He left IGNOU on 11.03.1997, to take up another employment in National Assessment and Accredition Council (‘NAAC’ for short). While working in IGNOU, he applied for the post of Administrative Officer in NAAC through proper channel. After successful completion of interview procedure, he got selected and joined the services of NAAC with effect from 12.3.1997. After the office order dated 28.05.1999, came to be passed for transfer of terminal benefits of the petitioner from Open University to NAAC, the said fact was communicated to the petitioner. The Executive Committee of NAAC in its meeting held on 19.01.2001, resolved that petitioner’s service in IGNOU shall be considered as transfer of service and shall be considered as continuous service and further resolved to extend him the service benefits. It was a case of transfer of person working with one Central Autonomous Body to the service of another Central Autonomous Body. Entries to this effect were made in the service register of the petitioner. By the above it is deemed that petitioner’s entire service from 16.06.1989, is treated as continuous service in NAAC for all purposes.
When the petitioner was working in NAAC, there was a recruitment notification issued by the Sardar Vallabhai Patel Institute of Textiles Management (presently known as Sardar Vallabhai Patel International School of Textiles & Management), Coimbatore (‘SVPITM’ for short), in the employment news dated 10.11.2007. Petitioner made a request on 26.11.2007 to the NAAC to forward his application to SVPITM. Thereafter the competent authority who is the Director of NAAC approved the same and forwarded the said application by making endorsement on it on 27.11.2007. The petitioner was interviewed for the position of Director, by a selection committee at the Office of the Secretary, Ministry of Textiles, Government of India, New Delhi and consequently selected him to the said post.
The petitioner submitted a ‘technical resignation’ and demitted the position of Administrative Officer of NAAC on 01.04.2008 with a view to take up the position of Director with effect from 02.04.2008. When the petitioner was working in NAAC, he filed a writ petition along with 17 others before this court in Writ Petition No.13503 of 2006 challenging the communication dated 07.07.2005 issued by the Government of India, Ministry of Finance and a consequential order dated 22.07.2005 issued by the University Grants Commission (‘UGC’ for short). The petitioner along with others, made a representation to the Government of India, UGC and NAAC with a view to bring them under the GPF and Pension Scheme of 1972. The Government of India declined the said request and had informed that it is not possible to include the petitioner and his companions under the Pension Scheme. The consequential order was communicated to UGC by the Government and the UGC in turn informed the same to NAAC. During the said period the Government of India passed another order and brought the NAAC employees to the General PF cum Pension Scheme. What was required was the employee must have joined the services of NAAC prior to 01.01.2004. The petitioner was on the rolls of NAAC as on 01.01.2004, as he had reported to NAAC with effect from 11.03.1997. This court disposed off Writ Petition No.13503 of 2006 by order dated 27.07.2011. This court observed that the petitioner may make a representation to the competent authority and the same was ordered to be considered in accordance with law.
The petitioner made representations to the authority, but the authority has not considered the representations submitted by the petitioner. Hence, the petitioner was compelled to file another Writ Petition No.23292 of 2011 and the said writ petition came to be disposed off by order dated 12.01.2012. After the disposal of the said writ petition, petitioner made a representation dated 24.01.2012. Since the same was not considered, he was compelled to file contempt petition in C.C.No.612/2012. The said contempt proceedings were dropped by order dated 30.10.2012. In the said order, it was observed that the Director of NAAC has processed the application submitted by the petitioner and forwarded the same to UGC. Finally the petitioner received a communication from the NAAC dated 06.06.2014 enclosing a communication received from UGC dated 28.05.2014, which reads as under:
“I am directed to your letter No.F.5- 7/NAAC/DS/Ex-5 Dr.SRP Vol-IV/2013/5019 dated 16.7.2013 on the subject cited above and to say that Dr. S. Pujar, Ex.Administrative Officer is not eligible for pension from NAAC as he was neither eligible for voluntary retirement nor his appointment as Director, SVPISTM, Coimbatore was permanent. Hence, he is not eligible for pensionary benefits. Dr. S. Pujar may be informed accordingly.”
Being aggrieved by the said order, the petitioner filed Writ Petition No.2239 of 2015 before this court. This court vide order dated 04.09.2015, dismissed the said writ petition. The petitioner being aggrieved by the said order, has filed the present writ appeal.
3. Heard the arguments of learned counsels.
4. The petitioner was appointed as an Administrative Officer as per appointment order dated 03.02.1997, as per Annexure-B. The petitioner has forwarded an application to the Director of NAAC for the post of Director of SVPITM, Coimbatore vide letter dated 26.11.2007 and the said application was forwarded by the Director of NAAC to the Chairman, Search Committee, SVPITM. The petitioner was offered the position of Director of SVPITM vide appointment order dated 28.02.2008, as per Annexure-F, subject to the terms and conditions annexed to the appointment order as per Annexure-F1. The petitioner submitted his technical resignation on 31.03.2008 to the Director, NAAC, Bengaluru. The NAAC submitted a representation to the UGC for implementation of General PF cum Pension Scheme to all IGNOU employees who have joined on or before 01.01.2004. The petitioner made a representation to the Chairman, UGC and President, NAAC requesting to grant a lien or deputation for a period of five years. The petitioner vide letter dated 06.11.2009 requested to include GPF, Gratuity cum Pension Contribution Scheme, as per Annexures K2, K3, K4. The authorities did not consider the representations of the petitioner. The petitioner filed for a writ of mandamus directing the respondent No.1, Director of NAAC to forward the name and service particulars of the petitioner to the UGC for enlisting him for the benefit of GPF cum Pension Scheme on par with its other employees and also sought for extension of terminal benefits and other retirement benefits in Writ Petition No.23292 of 2011 before this court. This court vide order dated 12.01.2012, disposed off the writ petition directing the NAAC to consider the representations dated 06.11.2009 and 31.08.2010 and lawyer notice dated 21.02.2011, in accordance with law. The petitioner submitted a copy of the judgment along with a letter dated 24.01.2012, requesting to comply the decision of this court. Inspite of bringing it to the notice of the respondents in regard to the order passed in the aforesaid writ petition, the respondents have not complied the directions issued by this court. Hence, the petitioner was forced to file a contempt in C.C.No.612 of 2012. The respondents appeared in the said contempt and submitted that the application of the petitioners was forwarded to UGC and it is the UGC who had to take decision and grant the relief. Considering the submission of the respondents, the contempt proceedings were dropped.
5. The UGC vide letter dated 28.05.2014 stated that the petitioner is not eligible for pension from NAAC as he was neither eligible for voluntary retirement nor his appointment as a Director in SVPITM, Coimbatore was permanent and hence he is not eligible for pensionary benefits. The NAAC vide its letter dated 06.06.2014, communicated the same to the petitioner along with the copy of letter issued by UGC.
6. As far as implementation of GPF cum pension scheme is concerned, it is applicable to the employees who have joined prior to 01.01.2004 and who had opted for the same. In the present case, the petitioner joined the service of NAAC on 12.03.1997. As per Annexure-S5, the petitioner is entitled for GPF cum Pension Scheme. The learned Single Judge, without considering Annexure-S5, has held that the pension rules were made applicable to NAAC in 2005, but the petitioner had already resigned from the service of NAAC on 31.03.2008. Hence the relationship of employer and employee was severed on 31.03.2008, by his letter of resignation and it would tantamount to giving a retrospective effect to the Rules of 1972.
7. As observed above, as per Annexure-S5, the said Scheme is applicable to the persons who had joined prior to 01.01.2004 and had opted for the same. The learned Single Judge without considering the applicability of the Rules and Pension Scheme, has held that the said pension rules are applicable prospectively i.e., from 2009, which is incorrect and the same is contrary to Annexure-S5.
8. We are of the considered view that learned Single Judge has not considered the Pension Scheme properly and has wrongly dismissed the writ petition. We are inclined to interfere with the impugned order. For the reasons stated above, we proceed to pass the following:
Order Writ appeal is allowed.
The order of learned Single Judge dated 04.09.2015, passed in Writ Petition No.2239 of 2015, is set aside. The writ petition is allowed by quashing the order bearing No.F1/3/2005(IUC/Vol.III) dated 28.05.2014, vide Annexure-R. The respondents are directed to compute the petitioner’s pension for 18 years of service i.e., from 16.06.1989 to 01.04.2008, and further the respondents are directed to pay the arrears of pension with interest at the rate of 15% per annum, from the date on which it is due, within a period of 10 weeks from the date of receipt of a copy of this order.
Sd/- JUDGE Sd/- JUDGE RD