Prof. Arvind Kumar Agrawal Vs Union of India and Anr.

Independent of any matter sub-judice in any Court of law, respondent No.1 took a decision to extend old GPF-cum-Pension & Gratuity Scheme and pensionary benefits as per the CCS (Pension) Rules, 1972 to the 10 employees of respondent No.2-University. These 10 employees were in government service prior to their joining respondent No.2-University and were governed by the CCS (Pension) Rules, 1972/Old GPF-cum-Pension & Gratuity Scheme in their parent departments. They had joined respondent No.2-University after tendering technical

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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resignations from their respective departments. Petitioner is one of these 10 employees. Respondent No.2-University, however, has declined to extend the benefit of respondent No.1’s afore-decision to the petitioner, hence, the dispute.

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2. From the pleadings and submissions of the parties, following facts emerge:-

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2(i). Petitioner was working as Professor in the Department of Sociology in the University of Rajasthan, Jaipur, when respondent No.2-Central University of Himachal Pradesh, Dharamshala advertised several posts of Professors on its establishment including a post of Professor in Social Work. While serving the University of Rajasthan, the petitioner was being governed by General Provident Fund-cum-Gratuity and Old Pension Scheme as per the CCS (Pension) Rules, 1972.

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2(ii). After introduction of the New Pension Scheme, clarifications were issued by the Government of India to the effect that persons, who were earlier working in the establishments governed by the Old Pension Scheme, on their appointment to the establishments governed by the New Pension Scheme, would still be entitled to the Old Pension Scheme and on account of portability of pension,

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they would be entitled to pensionary benefits in accordance with the Central Civil Services (Pension) Rules, 1972.

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2(iii). Petitioner participated in the selection process

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for the post of Professor (Social Work) in respondent No.2University pursuant to the advertisement issued by it. He was declared successful and was offered appointment to the post of Professor in Social Work on 13.03.2012.

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2(iv). Petitioner tendered his technical resignation to the University of Rajasthan on account of his selection as Professor in Social Work in respondent No.2-Univeristy. University of Rajasthan accepted petitioner’s technical resignation on 03.04.2012. Petitioner joined respondent No.2-Univeristy on 04.04.2012.

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2(v). There were provisions in respondent No.2University’s ordinances, enabling those, who had joined after rendering technical resignations, portability of pension and for their continuance under the Old Pension Scheme, more particularly for those, who had previously been working in pensionable establishments prior to joining respondent No.2-University. Petitioner statedly was entitled for portability of pension and continuation under the Old Pension Scheme, however, this benefit was not extended by

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respondent No.2 to him and some other similarly situated persons, in all 10 in number.

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2(vi). Petitioner and other similarly situated persons, 10 in number, filed a Civil Writ Petition, being CWP No.9311 of 2013, for issuing directions to respondent No.2 to grant portability of pension to them by counting their past service rendered in previous institutions, where they were governed under the CCS (Pension) Rules, 1972. The writ petition was dismissed on 07.01.2016.

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2(vii). Petitioner alongwith other nine persons, assailed the above-referred judgment by instituting LPA No.13 of 2016. Petitioner was nearing his superannuation. He was set to retire on 30.04.2019. On account of pendency of the litigation, the respondents were not settling his retiral dues, which were even otherwise admissible to him. Faced with this, petitioner moved CMP No.2099 of 2019 in LPA No.13 of 2016, seeking to withdraw from the appeal. His application was allowed as not opposed on 20.03.2019. Petitioner’s name was ordered to be deleted from the array of parties.

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2(viii). Almost eight months after petitioner’s superannuation, respondent No.1 took a decision on 02.12.2019, permitting 10 employees of respondent No.2-

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University, who had joined the University after tendering technical resignations from the previous offices held by them, to continue in GPF-cum-Gratuity and Old Pension Scheme in accordance with the CCS (Pension) Rules, 1972. The permission was restricted specifically to the 10 employees of respondent No.2-University. It was not to be quoted as precedent. Relevant contents of office

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communication dated 02.12.2019 read as under:-

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“F.No.54-32012-CU.III Government of India Ministry of Human Resources Development Department of Higher Education

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New Delhi, 2^nd December, 2019.

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To

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The Registrar, Central University of Himachal Pradesh, Camp Office, Near HPCA Cricket Stadium, Dharamshala, District Kangra-176215, Himachal Pradesh.

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Subject:Permission to allow 10 (ten) employees of Central University of Himachal Pradesh (CUHP), who joined the CUHP after tendering technical resignation from previous office, to continue in GPF-cum-Gratuity and Old Pension scheme has been under active consideration of this Ministry.

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Sir,

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I am directed to say that the matter of permitting 10 (ten) employees of Central University of Himachal Pradesh (CUHP), who joined the CUHP after tendering technical resignation from previous office to continue in GPF-cumGratuity and Old Pension Scheme, has been under active consideration of this Ministry.

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The matter has been examined in constitution with Ministry of Finance, Department of Expenditure and Department of Pension & Pensioners Welfare Government of India and it has been decided that the said 10 employees who were already in Government service prior to 01.01.2004 and subsequently were appointed and joined Central University of Himachal Pradesh after tendering technical

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resignation from their respective parent department(s) will continue to be governed by the Old GPF-cum-Pension and Gratuity Scheme of their respective parent department(s) for the continuance pensionary benefits in accordance with CCS (Pension) Rules, 1972.

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The above permission is granted specific to the 10 (ten) employees of CUHP and should not be quoted as a precedent.

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This issues with the approval of competent authority and with the concurrence of IFD, Department of Higher Education, MHRD vide their No.3132 dated 28.11.2019.

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2(ix). Based on the aforesaid decision dated

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02.12.2019, LPA No.13 of 2016 was disposed of on 06.01.2020 as the relief prayed for by the appellants had

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been granted to them in terms of the decision taken by respondent No.1 in office communication dated 02.12.2019. Order dated 06.01.2020 reads as under:-

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“Learned Senior Panel Counsel has placed on record the written instructions i.e. letter No.1-8/ CUHP/GA/2011(CWP9311/2013/7465 dated 5^th December, 2019 which reveal that the relief sought by the appellants-writ petitioners has been granted to them. Let the decision so taken be implemented in its letter and spirit within one month. The impugned judgment is modified accordingly. The appeal stands disposed of, so also the pending application(s), if any.”

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The Court directed the respondents to

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implement their decision in letter & spirit.

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2(x). Respondent No.2 did not extend benefit of respondent No.1’s decision to the petitioner. Petitioner

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represented to respondent No.2 on 11.02.2020, seeking benefits flowing from the office communication dated 02.12.2019. Hearing no response from the University, the petitioner moved CMP No.15592 of 2021 in the disposed of LPA No.13 of 2016 with the pleadings that decision of respondent No.1 dated 02.12.2019 had been applied to 09 Professors/employees of respondent No.2-University. They were granted benefits of CCS (Pension) Rules, 1972, but the petitioner had been discriminated. Petitioner is similarly situated and entitled to the same benefits. He, therefore, prayed that order dated 20.03.2019, whereby he was allowed to withdraw from LPA No.13 of 2016, be recalled. The application was disposed of on 27.12.2021 with the observation that the order passed by respondent No.1 on 02.12.2019, constitutes a fresh cause of action to the petitioner and therefore, instead of reviving the appeal, he was at liberty to file a fresh petition. The order dated 27.12.2021 reads as under:-

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“This application has been filed by applicant/petitioner, Professor Arvind Kumar Aggarwal, with the prayer that the respondent-University be directed to extend the benefit of order based upon the decision of Central Government dated 5th December, 2019, and further be directed to grant same benefit, which has been granted to other nine similarly situated Professors/Employees of the respondent-University under old Pension Scheme and further that the order dated 20th March, 2019, whereby the applicant

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withdrew from the appeal in LPA No.13 of 2016, should be recalled.

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The premises on which the application was filed is that subsequent to the withdrawal of the applicant from the LPA, the respondent-University itself on the basis of the order dated 2nd December, 2019, passed by the Central Government, has granted the desired relief to the other similarly situated persons. The applicant had to withdraw from the appeal only because he had superannuated and the respondentUniversity was not settling his retiral dues.

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Considering that the grievance of the applicant, is based on the subsequent order passed by the Central University on 5th December, 2019, on the basis of the order of the Central Government dated 2nd December, 2019, which has been passed subsequent to the withdrawal of the appellant from the appeal on 20th March, 2019, we are of the considered view that the order subsequently passed by the Central University on the basis of which, the relief was granted to the similarly situated persons, constitutes a fresh cause of action to the applicant and, therefore, instead of reviving the appeal, the applicant is set at liberty to file fresh writ petition, if so advised.

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The application is disposed of accordingly.”

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2(xi). Pursuant thereto, petitioner instituted CWP

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No.8342 of 2021, seeking direction to the respondents to grant him pensionary benefits under the CCS (Pension) Rules, 1972. The writ petition was disposed of on 30.12.2021 with direction to respondent No.2 to decide petitioner’s representation in accordance with law.

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2(xii). The Executive Council of respondent No.2University considered the case of the petitioner on 21.03.2022 and declined to grant him the benefits of Old Pension Scheme/CCS (Pension) Rules/benefit of decision of

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respondent No.1, as contained in its office communication

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dated 02.12.20219, for the following reasons:-

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“From the above factual position drawn from the record, it is clear that Dr. Arvind Kumar Agrawal under his own request withdrew his name from LPA No.13/2016 filed in the CWP No.9311/2013 by 10 Employees of university and the Hon’ble Court has also permitted deletion of his name from the court case filed for portability of pension as per order of the Hon’ble High Court of Himachal Pradesh dated 20.03.2019 (‘Annexure-16’). It is also evident from the records that Dr. Arvind Kumar Agrawal with his wide opened eyes and being in full consciousness had requested to cover him under the provisions of the NPS (National Pension System) vide his application dated 26.03.2019 for which the university had paid the applicable Employer’s contribution in lakhs. It is also pertinent to mention here that Dr. Arvind Kumar Agrawal is on active pensionary establishment of the University of Rajasthan, Jaipur vide PPO No.2672 dated 05.04.2019 issued by the University of Rajasthan. At this stage, when Dr. Arvind Kumar Agrawal in his full consciousness and wide open eyes had withdrew his name from court case regarding portability of pension vide his request dated 20.03.2019 and authorized himself to be covered under NPS and also drawn 60% of the NPS corpus as well as presently drawing pension under NPS (from balance 40%) alongwith drawing of old pension from University of Rajasthan w.e.f. 04.04.2012, the representation of Dr. Arvind Kumar Agrawal is not legally tenable under the rules.

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……………………………….. The Executive Council approved the recommendations of the Committee and decided that Dr. Arvind Kumar Agrawal cannot be covered under Old GPF-cum-Pension and Gratuity Scheme……………….”

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Feeling aggrieved against respondents’ denying

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him GPF-cum-Gratuity and Pension under the Old Pension Scheme in accordance with the CCS (Pension) Rules, 1972,

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petitioner has instituted this writ petition seeking following

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substantive reliefs:-

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“i. That appropriate writ, order or direction may very kindly be issued and the impugned decision (Annexure P-10) as taken in 53^rd meeting of the Executive Council held on 21st March, 2022 vide item No.53.15 may very kindly be quashed and set aside.

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ii. That appropriate writ, order or direction may very kindly be issued directing the respondents to govern the petitioner under Old GPF-cum-Pension and Gratuity Scheme vide which he was governed in his parent department for the continuous pensionary benefits in accordance with CCS (Pension) Rules, 1972 by further directing the respondents to release all pensionary benefits to the petitioner by governing his case under Old Pension Scheme strictly as was done in the case of Dr. Inder Vir Malhan.

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iii. That appropriate writ, order or direction may very kindly be issued directing the respondent No.2 to release all pensionary/retiral benefits by governing his case under Old GPE-cum-Pension and Gratuity Scheme by making adjustments of the amount drawn by him under NPS, in the interest of law and justice.”

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3. Submissions:-

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3(i). Learned Senior Counsel for the petitioner

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submits that the decision taken by respondent No.1 on 02.12.2019 was to be applied to all those 10 employees of respondent No.2-University, who had joined it after tendering technical resignations from previous offices/ posts/institutions held by them. The said decision was to be applied to the petitioner as well. It was not open for the respondents to discriminate the petitioner by leaving him out from the purview of the aforesaid decision. The action of the respondents in not giving the petitioner Old GPF-cum-

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Gratuity and Old Pension in accordance with the CCS (Pension) Rules, 1972, is not only discriminatory, but is also violative of Article 14 of the Constitution of India.

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3(ii). Learned Deputy Solicitor General of India contended that the petitioner is not entitled for the benefit of decision taken by the respondents in office communication dated 02.12.2019. Petitioner had already withdrawn his name from LPA No.13 of 2016. He had already authorized the respondents to cover his case under the New Pension Scheme, had withdrawn 60% of the NPS corpus and had been drawing pension under the New Pension Scheme (from balance 40%) alongwith drawing of old pension from the University of Rajasthan. Therefore, the petitioner is not entitled to the relief prayed for by him.

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4. I have heard learned counsel on both sides and considered the case record.

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4(i). It is not in dispute that there were 10 employees in respondent No.2-University, who had joined the University after tendering technical resignations from their respective parent departments where they were governed by the Old GPF-cum-Gratuity and Old Pension Scheme under the CCS (Pension) Rules, 1972. It is not in dispute that the petitioner was one out of such 10 employees. It is also an

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admitted position that all these 10 employees including the petitioner had instituted CWP No.9311 of 2013, seeking benefits of CCS (Pension) Rules, 1972. The decision having gone against them, these 10 persons including the petitioner preferred LPA No.13 of 2016. It is a matter of record that CMP No.2099 of 2019 moved by the petitioner seeking permission to withdraw from the appeal was allowed on 20.03.2019.

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4(ii). It remains a fact that office communication dated 02.12.2019 conveyed a decision taken by respondent No.1 for conferring the benefits of Old GPF-cum-Gratuity and Pension Scheme in accordance with the CCS (Pension) Rules, 1972 to 10 employees of respondent No.2, who had joined respondent No.2-University after tendering technical resignations in their parent departments, where they were entitled to the benefit of CCS (Pension) Rules, 1972. The said decision was an independent decision taken by respondent No.1. It was not pursuant to any directions issued in the court case preferred by 10 employees. The decision was to be applied to all 10 employees of respondent No.2-University, without restricting its applicability in any manner. Petitioner, though had withdrawn from LPA No.13 of 2016 on 20.03.2019,

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however, his withdrawing from LPA No.13 of 2016 will not have any negative effect vis-à-vis applicability of the benefit that flowed to him under office communication dated 02.12.2019. Rather, the office communication dated 02.12.2019 gave a fresh cause of action to the petitioner to claim benefit of Old GPF-cum-Gratuity and Pension Scheme as per the CCS (Pension) Rules, 1972. The petitioner, who had retired on 30.04.2019, is certainly entitled to seek applicability of the subsequent decision taken by respondent No.1 as conveyed in office communication dated 02.12.2019. On merits, the respondents have not disputed that the said decision applied to the petitioner, he being one of 10 employees referred to in the decision dated 02.12.2019.

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4(iii). Furthermore, LPA No.13 of 2016 was disposed of on 06.01.2020 taking note of the decision taken by respondent No.1 in office communication dated 02.12.2019. In view of the aforesaid office communication, the letters patent appeal was disposed of with direction to the respondents to implement its decision in letter and spirit within one month. The appeal was not decided on merits, but was disposed of in view of the decision taken by respondent No.1 on its own. Fresh cause of action

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becoming available to the petitioner under office communication dated 02.12.2019 is also evident from the observations of the Hon’ble Division Bench made while deciding CMP No.15592 of 2021. The aforesaid application was moved by the petitioner seeking to recall the order dated 20.03.2019, whereunder he had been permitted to withdraw from the appeal. Hon’ble Division Bench had held that under office communication dated 02.12.2019, relief was granted by the respondents to similarly situated persons. That this would constitute a fresh cause of action for the petitioner, therefore, instead of reviving the appeal, petitioner was at liberty to file fresh petition. In light of given facts, respondents’ plea that fresh petition instituted by the petitioner seeking the benefit of decision dated 02.12.2019 is not maintainable he having withdrawn from the letters patent appeal, is untenable. In fact, as a welfare employer, it was for respondent No.2-Univesity to have extended the benefit of the decision contained in office communication dated 02.12.2019 to its all 10 employees, for whose benefit, the decision was taken, without any discrimination. It was not for respondent No.2-University to restrict the decision taken by respondent No.1 only to those 09 employees, who were parties in LPA No.13 of 2016 at the

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time of its disposal on 06.01.2020. There was no such condition imposed in the office communication dated 02.12.2019. The said decision was admittedly taken for the benefit of all 10 employees including the petitioner. It has not been disputed by the learned Deputy Solicitor General of India that benefit of office communication dated 02.12.2019 has been given to other 09 petitioners/ appellants in LPA No.13 of 2016.

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4(iv). At this stage, it would be pertinent to take note of the supplementary affidavit dated 18.04.2025, wherein, to balance the equation for returning the amount drawn by

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the petitioner, he has, inter alia , sworn as under:-

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“7. I undertake that I shall refund the amount of employer contribution of NPS along-with interest applicable under the rules or as per the order of the Hon'ble High Court which the Central University of Himachal Pradesh deposited in my NPS account as result of governing me under New Pension Scheme.

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8. I, further, undertake that I shall refund the amount of pension paid to me by University of Rajasthan w.e.f. 01.05.2019 onwards and university of Rajasthan shall remit pro-rata pensionary/retirement benefits to CUHP under CCS (Pension) Rules, 1972 on account of service rendered by me at University of Rajasthan.

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9. It is also solemnly affirm that the University of Rajasthan has deposited the amount of my pension till 30.04.2019 to the Central University of Himachal Pradesh against which I shall be entitled for payment of salary of equivalent amount in the event of portability of pension is extended to me. As such there shall be no liability to be paid by me to the University of Rajasthan and CUHP shall refund the amount of my pension deposited by University of Rajasthan.

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10. The Central University of Himachal Pradesh shall also bound to release all my pensionary benefits with effect

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from 01.06.2019 along-with interest applicable under the rule or as per the rate of interest ordered by the Hon’ble High Court, Shimla.

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11. It is further affirmed that in the event of portability of pension is authorized to me, I shall discharge all my liabilities payable to the University of Rajasthan, Jaipur and Central University of Himachal Pradesh, Dharamshala and vice versa as per the order of Hon’ble High Court, Shimla.”

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5. In view of above discussion, it has to be held that the petitioner is entitled to the benefits that flowed to him under the decision taken by respondent No.1 as conveyed in office communication dated 02.12.2019 (Annexure P-5). Accordingly, this writ petition is allowed. Impugned decision (Annexure P-10) as taken in 53^rd meeting of Executive Council on 21.03.2022 qua item No.53.15 is quashed. Respondent No.2-University is directed to give the petitioner benefit of office communication dated 02.12.2019. The arrears on account of such benefit shall be paid to the petitioner alongwith interest @ 5% per annum from the due date. This shall, however, be subject to petitioner’s refunding the amount as per his undertaking (extracted above) alongwith 5% interest from the due date. Petitioner to first discharge his liability within a period of eight weeks, whereafter, respondent No.2-University to clear its liability in terms of this decision within further four weeks.

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The writ petition stands disposed of in the above

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terms, so also the pending miscellaneous application(s), if

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any.

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May 09, 2025 Mukesh