Dr. T. V. Gopalan v. National Institute of Technology, Calicut and Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 WP(C).No. 30098 of 2006(G) -------------------------- PETITIONER: ------------ DR. T.V.GOPALAN, FORMERLY PROFESSOR AND HEAD,DEPARTMENT OF TRAINING PLACEMENT & LINKAGE, NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT, RESIDING AT 33/5487 A, TRICHAMBARAM HOUSE, SUBSTATION ROAD, CHEVAYUR, CALICUT-673 017. BY ADV. SRI.T.P.KELU NAMBIAR (SR.) SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENTS: ------------- 1. NATIONAL INSTITUTE OF TECHNOLOGY, REPRESENTED BY THE DIRECTOR AND SECRETARY TO THE GOVERNING BODY OF THE NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT-673 601. 2. UNION OF INDIA, REPRSENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HUMAN RESOURCE DEPARTMENT, DEPARTMENT OF SECONDARY AND HIGHER EDUCATION, SHASTRY BHAVAN, NEW DELHI-110 001. BY ADV. SRI.K.P.DANDAPANI (SR.) SRI.MOHAMMED SHAH, ADDL.CGSC SRI. PARAMESWARAN NAIR, ASST. SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 30098 of 2006 ## **APPENDIX** ## PETITIONER'S EXHIBITS EXT.P1TRUE COPY OF REPRESENTATION, DATED 10.6.02, SUBMITTED BY THE PETITIONER BEFORE THE CONVENOR, COMMITTEE ON REPRESENTATIONS/GRIEVANCES, R E C EXT.P2TRUE COPY OF REPRESENTATION DATED 15.3.2005, SUBMITTED BY THE PETITIONER BEFORE THE GOVERNING BODY OF N I T C EXT.P3TRUE COPY OF DECISION/ORDER NO.BG 7.15 DATED 24.2.06 TAKEN BY THE 1ST RESPONDENT EXT.P4TRUE COPY OF LETTER, DATED 16.5.06 ADDRESSED BY THE PETITIONER TO THE 1ST RESPONDENT EXT.P5TRUE COPY OF LETTER, DATED 4.7.06 ADDRESSED BY THE PETITIONER TO THE 1ST RESPONDENT EXT.P6TRUE COPY OF LETTER NO.PG/1848/2005 DATED 13.7.06 OF THE 1ST RESPONDENT TO THE PETITOINER EXT.P7TRUE COPY OF LETTER, DATED 8.9.06 ADDRESSED BY THE PETITIONER TO THE 2ND RESPONDENT EXT.P8TRUE COPY OF REPRESENTATION DATED 19.9.2006 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT (TRUE COPY) P.A TO JUDGE ## **V.GIRI, J** ------------------- ## W.P.(C).30098/2006 -------------------Dated this the 10[th] day of January, 2008 ## **JUDGMENT** The petitioner was directly recruited to the National Institute of Technology (N.I.T.C.), Calicut as Professor, Industry-Institute Linkage Cell, with effect from 22.5.1990. He retired on superannuation on 30[th] of June, 2005 on attaining the age of 62. The service rendered by him in the N.I.T.C (which was earlier known as Regional Engineering College), for the purpose of pension, was reckoned as 15 years, one month and nine days. Claim by the petitioner essentially is centered around Rule 30 of the CCS Pension rules, which reads as follows:- “Addition to qualifying service in special circumstances (1). A Government servant who retires from a service or post after the 31[st] March 1960, shall be eligible to add to his service qualifying for superannuation pension (but not for any other class of pension) the actual period not exceeding one-fourth of the length of his service or the actual W.P.(C).30098/2006 2 period by which his age at the time of recruitment exceeded twenty-five years or a period of five years, whichever is less, if the service or post to which the Government servant is appointed is (a). for which post graduate research, or specialist qualification or experience in scientific, technological or professional fields, is essential. According to the petitioner, the post to which he was appointed is one which obviously requires post graduation or special qualifications and experience in scientific and Technological fields. Therefore, he submits, if he were a Government servant, the actual period not exceeding ¼ of the length of the service or the actual period by which his age at the time of retirement exceeds 25 years or a period of five years, whichever is less should be added to the period of 15 years one month and nine days for the purpose of determining his qualifying service. Though the petitioner is not a Government servant, it is his case that the Board of Governors of the third W.P.(C).30098/2006 3 respondent adopted Ext.P3 resolution on 24.2.2006 to the following effect:- Incorporation of Rule 30 of CCS Pension Rules on “addition to qualifying services under special circumstances” The Board considered the above proposal and it was decided that the above provisions under Rule 30 of CCS Pension Rules would be applicable to faculty positions only. It is further clarified that such faculty members who had an M.Tech degree at the time of initial recruitment in the faculty cadre would only be eligible for this benefit on superannuation. This would be applicable in respect of retirements/superannuation from 1.4.2006. Petitioner contends that notwithstanding the fact that the Board decided to incorporate Rule 30 of the CCS Pension Rules as part of the pension rules applicable to the first respondent, date of enforcement of the same has been arbitrarily fixed as 1.4.2006. Petitioner contends that the enforcement of Ext.P3 W.P.(C).30098/2006 4 resolution with effect from 1.4.2006 has no rational basis and is otherwise unjustified. He contends that it was he who set the ball in motion for the incorporation of Rule 30 of the CCS Pension Rules. Apart from being arbitrary, the decision taken by the Board to enforce the incorporation of Rule 30 of CCS Pension Rules, with effect from a date subsequent to the retirement of the petitioner lacks logic and it is unjustified, it is contended. Counter affidavit has been filed by the respondents inter alia contending that the petitioner is not entitled to challenge the date of effect given to the incorporation of Rule 30 of the CCS pension rules as per Ext.P3 resolution. Obviously the authority which is entitled to adopt any provision of the CCS pension Rules, though not obliged to do so, is also entitled to fix the date for its commencement. Since the resolution was adopted on 24.2.2006, the Board decided to give effect the same from 1.4.2006 which is the commencement of the next financial year. There is no arbitrary irrational classification of the pensioners brought about by the date W.P.(C).30098/2006 5 of effect by Ext.P3 resolution. It is also submitted that the petitioner, prior to joining the service of the first respondent, had been employed in other Central Government undertakings or autonomous institutions. Details of the same are given in the counter affidavit as follows:- |From 13.4.1964 to<br>28.9.1965|Scientific Assistant, NAL,<br>Bangalore| |---|---| |From<br>29.9.1965<br>to<br>11.12.1967|Senior Electrical Foreman,<br>NAL, Bangalore| |From <br>12.12.1967 <br>to<br>14.7.1975|Assistant Director, CPRL,<br>Bangalore| |From 15.7.1975 <br>to<br>26.2.1980|Dy.Director,<br>CPRL,<br>Bangalore| |From 27.2.1980 <br>to<br>25.2.1985|Senior Director, CPRL,<br>Bangalore| It is contended that the petitioner altogether had more than 26 years qualifying service in the Central Power Research Institute and taken along with 15 years one month and nine days service with the first respondent, Institute, a total qualifying service of the petitioner would be 41 years. Contention is that another five years which alone is the benefit available, that W.P.(C).30098/2006 6 could be aspired for by the petitioner by reason of incorporation of Rule 30 of CCS Pension Rules, will not really make any difference in so far as his pension is concerned. Petitioner has filed a reply affidavit, in which he has also contended that his earlier service in the Central Power Research Institute came to an end when he was relieved there from and the said service cannot be tacked on to the service rendered by the petitioner in the first respondent. In fact the petitioner only drew a lumpusm amount in lieu of pension, relatable to the service in the Central Power Research Institute. Earlier service has no impact on the determination of the total service rendered in the first respondent. I heard the learned senior counsel for the petitioner Mr.Kelu Nambiar and Mr.Dandapani, learned senior counsel for the first respondent. Question as to whether the petitioner would really gain and if so what would be the quantum of benefit W.P.(C).30098/2006 7 that he would draw if Rule 30 of the CCS Pension Rules is made applicable to him, need not be considered at this stage. That would arise for consideration only if it is found that the petitioner’s service for the purpose of pension would stand enhanced by another five years by reason of the application of Rule 30 of the CCS Pension Rules. This in turn would depend upon whether Ext.P3 resolution should be directed to be given effect to from the date prior to the date on which it was actually adopted by the Board of Directors. Therefore I am confining my consideration in this case to the issue as to whether there is anything arbitrary in Ext.P3, when the Board decided to give effect to the incorporation of Rule 30 of the Rules only with effect from 1.4.2006. Learned senior counsel for the petitioner Mr.Kelu Nambiar submits that once Rule 30 of the Rules is adopted as part of the pension rules applicable to the first respondent by incorporation, it must be treated as part of the pension rules applicable to the first respondent. According to him if that be so, since the attaining of qualifying service contemplated by Rule 30 W.P.(C).30098/2006 8 of the CCS Pension Rules is applicable to “any Government servant who retires from the service or post after 31[st] March 1960” and since the petitioner has in any way retired from service subsequent to 31.3.1960, the benefit under Rule 30 should be made applicable to the petitioner also. I am not able to accept this submission for more than one reason. Firstly, CCS pension rules are not ipso facto applicable to the employees of the first respondent and therefore the date of '31.3.1960' which is mentioned therein cannot obviously and straight away be applied to employees of the first respondent. Secondly, adoption of Rule 30 of the CCS Pension rules as part of the Rules of the first respondent is given effect to only from 1.4.2006. The power exercised by the Board of Governors of the first respondent though not statutory is nevertheless a power which is exercised by them in terms of the bye-laws on rules or regulations under which resolutions are passed by the Board of Governors of the first respondent. Where therefore, the authority has the power to incorporate the benefit of Rule 30 of the CCS pension rules as part of its own regulatory mechanism, it W.P.(C).30098/2006 9 should also have the power to prescribe the date from which the incorporation of Rule 30 must be given effect to. Where therefore, rule 30 become part of the pension rules of the first respondent only with effect from 1.4.2006, it obviously would be wholly incongruous to consider it as giving benefit to all those who had retired from service of the first respondent subsequent to 1960. Second contention raised by Mr.Nambiar centers around what he calls as absence of any legitimate reason given by the first respondent to give effect to Ext.P3 from 1.4.2006 alone, thereby depriving the petitioner and similarly situated persons from the benefit of Ext.P3. Mr.Dandapani refers to the decisions of the Supreme Court in **D.S.Nakara and Others v. Union of India (1983 (1) SCC 305)** , **State of Punjab and Others v. Amarnath Goyal and Others (2005 (6) SCC 754), Krishena Kumar v. Union of India and Others (1990 (4) SCC 207)** and **R.L.Marwaha v. Union of India and Others (1987 (4) SCC 31).** Though in Nakara's case prescription of a cut off date in the matter of revision of the pensionary W.P.(C).30098/2006 10 benefit was found to be bad in law and unconstitutional for the reason that it brought about an irrational classification, the Supreme Court has held in the subsequent decisions that prescription of cut off date per se cannot be considered as illegal, contends Mr.Dandapani. No doubt, the Board of Governors of the first respondent would be entitled to prescribe a date on which adoption of a benevolent provision like Rule 30 of the CCS pension rules should be given effect to in so far as the first respondent is concerned. Further the adoption of a date which is subsequent to the date of passing of the resolution, could possibly be justified on reasons including financial stringency. But in the present case, on reading of the counter affidavit filed by the first respondent, I am not able to discern any rational explanation given by the first respondent for deciding to give effect to the adoption of rule 30 of the Rules with reference to a prospective date. The word prospective is used in the sense that after all, the proposal for adopting Rule 30 of the Rules was mooted W.P.(C).30098/2006 11 by the petitioner (he claims he had originally mooted it) well prior to his retirement. Adoption of resolution of the competent authority is normally with effect from the date of its proposal. I hasten to make it clear that it is open to the competent authority, which has jurisdiction to adopt a resolution in the nature of Ext.P3, to decide upon the date of it's enforcement. But being an instrumentality otherwise amenable to Article 226 of the Constitution, any action taken by the first respondent must be informed by reason and logic. I am not able to find any rational basis, in the instant case for adopting a prospective date for the adoption of Ext.P3 resolution. For all these reasons, writ petition is allowed in part. Ext.P6 is set aside. First respondent shall reconsider the question as to the date from which the incorporation of Rule 30 of CCS pension rules applicable to the faculty members of the first respondent must be given effect to. First respondent shall also bear in mind the fact that the petitioner had made a request for the benefit of Rule 30 of the CCS Pension Rules as early as on 10.6.2002, almost four years prior to his W.P.(C).30098/2006 12 retirement, while taking a decision in the manner aforementioned. Needful shall be done within a period of three months from the date of receipt of a copy of this judgment. If the first respondent decides to adopt Ext.P3 resolution with reference to a date prior to the date of retirement of the petitioner, petitioner shall be entitled to revised pensionery benefits in accordance with law. **V.GIRI, Judge** mrcs