Allowed

Dr Prakash K L v. Bangalore University

Karnataka HC1 Sept 2021WP/45718/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition challenging an endorsement denying Old Pension Scheme (OPS) benefits. The court held that since the petitioners' contract services rendered before the new scheme were counted for pension purposes upon regularization, they were entitled to OPS, not the Contributory Pension Scheme (CPS).

What did the court decide?

The writ petition is allowed; impugned endorsement quashed; mandamus issued to reconsider the case and bring petitioners under the Old Pension Scheme within 12 weeks.

Dr Prakash K L Vs Bangalore University — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 01^ST DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.45718/2017 (S-RES)

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BETWEEN

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DR.PRAKASH K.L., S/O LAKSHMAIAH, AGED ABOUT 29 YEARS, R/O NO.109/14, 1^ST CROSS, 1^ST MAIN, JNANABHARATI ROAD, MARIYAPPANA PALYA, BENGALURU – 560 056.

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SRI S.Y.SURENDRA KUMAR S/O SRI YELLAGAIAH, AGED ABOUT 29 YEARS, R/O NO.158, I CROSS, KANVANAGAR, DHANOJIPALYA, NELAMANGALA, BENGALURU RURAL DISTRICT BENGALURU – 562 123.

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SMT.HEMAVATHI R., W/O DR.M.KRISHNA MURTHY, AGED ABOUT 29 YEARS, R/O NO.D 236, NEW HOUSING COLONY, INDIAN INSTITUTE OF SCIENCE, BENGALURU – 560 012.

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DR. IQBALUNNISSA W/O SRI M.NOORUDDIN, AGED ABOUT 29 YEARS,

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R/O NO.L.13, SECTOR 14, NEAR BWSSB WATER TANK, JEEVAN BHEEMA NAGAR, BENGALURU – 560 075.

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DR. NAGARAJ N., S/O SRI NARAYANAPPA, AGED ABOUT 29 YEARS, NO.75, KARNATAKA LAYOUT, 1^ST MAIN, 3^RD CROSS, KURUBARAHALLI, BENGALURU – 560 086.

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DR. JYOTHI VENKATESH W/O VENKATESH S.R., AGED ABOUT 29 YEARS, R/O NO.121,13^TH CROSS, III MAIN, MARGOSA ROAD, MALLESWARAM, BENGALURU – 560 003.

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DR.B.C.NAGARAJ AGED ABOUT 29 YEARS, R/O NO.3, 3^RD MAIN ROAD, 10^TH CROSS, BRUNDAVANA NAGAR, MATHIKERE, BENGALURU – 560 054.

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DR. ARUN KRISHNA VAIDYA SRI KRISHNA RAO VAIDYA, AGED 56 YEARS, HUMAN RESOURCE DEVELOPMENT CENTRE, BANGALORE UNIVERSITY – 560 056. ... PETITIONERS

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(BY SMT VAISHALI HEGDE, ADVOCATE (VIDEO CONFERENCING))

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AND

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BANGALORE UNIVERSITY REPRESENTED BY ITS REGISTRAR, JNANABHARATHI, BENGALURU - 560 056.

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... RESPONDENT

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(BY SRI B.RAMESH, ADVOCATE (PHYSICAL HEARING))

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DTD.5.10.2016 ISSUED BY THE RESPONDENT VIDE ANNEX-J; DIRECT THE RESPONDENT TO RECONSIDER THE REPRESENTATION DTD.18.3.2016, 18.5.2016 AND 19.7.2016 VIDE ANNEX-H, H1 AND H2 SUBMITTED BY THE PETITIONERS AND ACCORDINGLY EXTEND THE BENEFIT OF OLD PENSION SCHEME TO THE PETITIONERS.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 02.07.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING :-

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ORDER

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The petitioners in this writ petition call in question endorsement dated 5-10-2016 issued by the respondent/ Bangalore University (hereinafter referred to as ‘the University’ for short) by which the claim of the petitioners to remain in the Old Pension Scheme is turned down.

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Heard Smt.Vaishali Hegde, learned counsel

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appearing for petitioners and Sri.B.Ramesh, learned counsel appearing for respondent.

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Brief facts leading to the filing of present

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petition, as borne out from the pleadings, are as follows:-

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The respondent/University issued a Notification on 7.11.2003 calling for applications from eligible candidates for appointment to the post of Lecturer in the University, on contract basis. The appointment of the petitioners come about by a selection process followed by the Board of appointments in terms of the statutes that were framed for conduct of interview under Section 53(6), (7) and (8) of the Karnataka State Universities Act, 2000. The petitioners were appointed in terms of their eligibility as determined under the statutes and the conduct of interview. Therefore, even though the petitioners were appointed on contract

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basis, the appointment had every flair of direct recruitment. Petitioners were all appointed between 1504-2004 and 16-03-2006 in the cadre of Lecturer in Environmental Science. The appointment of the petitioners was for the purpose of a project funded by the University Grants Commission (‘the Commission’ for short) for its X plan period to be in operation between 2002 and 2007.

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The petitioners continued to work without any break from the date of their appointments. Like petitioners getting appointed under the X plan, every other University also appointed certain teachers on contract basis for the purpose of execution of X plan of the Commission. Mysore University was one such. As an illustration reference is made to the Mysore University in the case at hand.

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When the petitioners continued without any break, they approached this Court in Writ Petition

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Nos.21830-21837/2011 seeking a direction at the hands of this Court to regularize the services of the petitioners with effect from 23-03-2010, the date 23-032010 was sought to be made from which the petitioners were entitled for regularization in the light of assent of the Chancellor to the draft statutes proposing to regularize the services of incumbent-appointees under the Commission’s X plan. After receipt of assent from the hands of the Chancellor, draft statutes relating to creation of teaching posts in favour of post-graduate departments of the University were also brought about and draft statutes were placed before the Syndicate and the Academic Council for approval in terms of the assent given by the Chancellor.

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When the representations of the petitioners were not considered, the petitioners knocked the doors of this Court to consider their cases for regularization with effect from 23-03-2010. This Court by an order

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dated 23-01-2012 directed consideration of

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representations of the petitioners as expeditiously as possible. Pursuant to the order of this Court dated 23-01-2012, the services of the petitioners came to be regularized with effect from 13-04-2013. The conditions stipulated in the order of regularization read as follows:-

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“The matter was placed before Syndicate. The Syndicate at its meeting held on 25-02-2013, has resolved to approve the regularization of the teachers appointed against the posts sanctioned by the UGC during X plan period as per Statutes assented by the Chancellor

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Hence, this order:

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U.O.NO.EST-II:E3:APT:X-PLAN; 2009-10 DATE 13.04.2013

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In pursuant to the resolution of the Syndicate passéd at its meeting held on 2502-2013 on having considered the decision of the Hon’ble High Court “teachers appointed in various departments under X plan are regularized with effect from 25-02-2013 against the sanctioned posts (by UGC during x-plan) in the departments in the pay scale as shown below and as per rules subject to the following conditions:

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1. For the purpose of seniority they will rank below the Lecturers/

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Readers/Professors already working in the University, as on the date of regularization.

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2. Such of the teachers who are regularized as Lecturer/Reader/ Professor not possession Ph.D/NET or any equivalent qualification shall acquire Ph.D/NET within a period of three years, failing which they shall not earn their further increments till they acquire above qualification.

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3. The inter se seniority of Lecturer/Reader/Professor shall be determined on the basis of their seniority as contract teachers.

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4. They will be given the benefit of fixation as per the normal rules of the University and their services as contract teacher will be counted for pensionary benefit.

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5. Their service as contract teacher will not be counted for the purpose of granting of Senior Scale and Selection Scale of pay.

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Sl. No	Name of the candidate	Department	Post	Pay Scale (Pre-revised) Rs.
1.	Dr. Meena Kumari	Political Science	Professor	16400-450- 20900-500- 22400
2	Dr.Arun Srikrishna Rao	UGC Academic	Reader	12000-420- 18300

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	Vaidya	Staff College
3	Dr. N.Nagaraja	UGC Academic Staff College	Lecturer	8000-275- 13500
4.	B.C.Nagaraja	Environmental Science	Lecturer	8000-275- 13500
5.	Dr. K.L.Prakash	Environmental Science	Lecturer	8000-275- 13500
6.	Dr. Iqbalunnisa	Urdu	Lecturer	8000-275- 13500
7.	Smt.R.Hemavathi	Electrical Engg.	Lecturer	8000-275- 13500
8.	S.Y.Surendra Kumar	Political Science	Lecturer	8000-275- 13500
9.	Dr.Jyothi Venkatesh	Foreign Language	Lecturer	8000-275- 13500

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They shall be governed by the service conditions prescribed by the University from time to time.”

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(Emphasis added)

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In the light of the afore-extracted conditions, the question now arises is, whether the petitioners were entitled to be brought under the new Contributory Pension Scheme or the Old Pension Scheme (hereinafter referred to as ‘CPS’ and ‘OPS’ respectively).

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Condition No.4 in the order of regularization

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directs that the petitioners would be given benefit of

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fixation as per normal rules of the University and their services as contract teachers will be counted for pensionary benefit. What is taken away is the service of the petitioners as contract teachers for the purpose of grant of Senior Scale or Selection Scale of pay and the order also directs that the petitioners would be governed by service conditions prescribed by the University. What becomes unmistakably clear is that the period of work of the petitioners on contract basis is to be counted for pensionary benefit.

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All the petitioners were appointed at the time when the OPS was in existence. The CPS comes into effect from 01-04-2006, by then all the petitioners were already in service. If the services of petitioners in the University were taken into consideration in the light of condition No.4 ( supra ) in the order of regularization, the petitioners cannot be disentitled to continue under OPS for the reason that, if condition No.4 directs

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that contract service of the petitioners would be taken into consideration for the purpose of pensionary benefit, it is a clear declaration on the part of the University that whatever was existing as on the date of entry of the petitioners into service of the University shall be taken into consideration as CPS was never in existence on that date.

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The petitioners are not employees under work charged establishment or ad hoc employees. The petitioners are Lecturers who were appointed on contract basis after following every trait that is required to be followed for a regular recruitment. Regularisation of service of the petitioners also comes about strictly in consonance with law as the Statutes of the University came to be amended, the Chancellor gave his assent to the said Statutes and an order of regularization in accordance with law is passed. It is by this order that

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the petitioners get a right to continue in OPS and they cannot be transposed to CPS.

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The learned counsel appearing for the University has strenuously contended that the petitioners are not entitled to any benefit of continuing in OPS as regularization of the petitioners’ takes place with effect from 23-03-2010 by which date CPS was in place and not OPS. If the date of regularization of petitioners was prior to 1-04-2006, the petitioners could advance their contention with regard to their claim to opt for OPS and not otherwise. He would place reliance upon the judgment of the Apex Court in the case of

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PARMESHWAR NANDA AND OTHERS v. STATE OF JHARKHAND THROUGH CHIEF SECRETARY AND OTHERES reported in (2020) 12 SCC 131 and PUNJAB STATE ELECTRICITY BOARD AND OTHERS v. JAGJIWAN RAM AND OTHERS reported in (2009) 3 SCC 661 .

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In reply, the learned counsel appearing for the petitioners would contend that the judgments relied on by the learned counsel for the University are distinguishable on facts. The services rendered by the petitioners are taken into consideration for grant of other service conditions and would submit that the University of Mysore which had appointed certain lecturers in the same way like that of the petitioners herein has granted the same benefit of remaining in OPS.

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11.1. She would submit that the University is not justified in not considering the cases of the petitioners for retention of OPS and the endorsement issued is blatantly contrary to law.

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The submissions of the learned counsel appearing for the University is unacceptable as the order of regularization though is with effect from 23-03-2010, the date on which the Chancellor gave his

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assent for regularization of appointments made under the Commission’s X plan, itself, gives the benefit of taking the past service of the petitioners for the purpose of grant of pension. Therefore, it cannot be denied that the petitioners were entitled to treat their past service for the purpose of grant of pension as qualifying service.

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It is also germane to notice that the petitioners were not new entrants to the University for the University to contend that they would be placed under the CPS and not OPS. The petitioners were all employees of the University albeit on contract basis and served the University till the date of their regularization without any break. The order of regularization though accepted by the petitioners, it gives right to pension of the service that they rendered. This, in my considered view, is a right to OPS and not to CPS. It would have been altogether a different circumstance if the petitioners were appointed afresh into the service after

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the CPS comes into existence or the order of regularization not granting such benefit. Therefore, I decline to accept the contention of the University.

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It is also germane here to notice the proceedings of the University of Mysore. The University of Mysore had also appointed certain personnel under the Commission’s X plan and later regularized their services, by an order dated 2-12-2014. While regularizing the services of employees therein, those employees were granted extension of OPS notwithstanding the fact that they were also appointed on contract basis between the years 2004 to 2006 and their services were regularized after regularization of the services of the petitioners, which was on 2.12.2014. The Syndicate of the University of Mysore took a decision to confer on those employees who were regularized in service to remain under OPS which was in force prior to 1-04-2006 as they were all appointed long before CPS

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was brought into force. Therefore, the University of Mysore under the very same provisions of the Universities Act and under the very same assent of the Chancellor has regularized those employees and granted them the benefit.

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Though the respondent/University would be at liberty to regulate service conditions of its employees independent of what other Universities would do, the fact remains that the employees who were granted benefit by the University of Mysore were appointed during the same period, regularized during the same period and were employees on contract basis under the very same X plan of the Commission. Therefore, it is an added circumstance in favour of the petitioners.

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Insofar as the judgments relied on by the learned counsel appearing for the University are concerned, they are distinguishable without much ado , as they are inapplicable to the facts of the case at hand.

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In the case of PARMESHWAR NANDA (supra) the employees therein were all appointed on ad hoc basis under the Adult Education and Non-Formal Education Project who were later absorbed by the State on closure of the project. The order of absorption therein did not grant any benefit like that is granted in the case at hand, with regard to counting of previous service for the purpose of pension. Therefore, the said judgment would not be applicable to the case at hand.

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The other judgment in the case of PUNJAB STATE ELECTRICITY BOARD (supra ), the Apex Court was considering cases of work-charged employees claiming protection under the Industrial Disputes Act with regard to their pay and allowances and were seeking services rendered prior to regularization on work charge basis to be counted for the purpose of pay and allowances. Here again, the fact circumstance is different, as the petitioners were all appointed pursuant

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to a selection process albeit on contract basis and were granted benefit of the service rendered prior to such regularization to be counted for the purpose of pension. Therefore, both the judgments relied on by the learned counsel for the respondent/University are inapplicable to the facts of the case on hand.

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The learned counsel for the petitioners has also placed reliance upon a Division Bench judgment of the Punjab and Haryana High Court in the case of HARBANS LAL v. STATE OF PUNJAB AND OTHERS¹

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which dealt with an identical circumstance. The Division Bench clearly held that the petitioners therein were entitled to remain in OPS as they were in service prior to CPS had come into existence. A Special Leave Petition against the judgment of the Division Bench is also dismissed on 30-07-2012. A perusal of the judgment of the Division Bench of the Punjab and Haryana High Court depicts that the fact situation in

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1 CWP No.2371/2010 dd. 31.08.2010

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the case at hand and the issue before the Division Bench were identical and the Division Bench has held as follows:-

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“The Chief Engineer, Punjab, Water Supply and Sanitation Department, Patiala vide Annexure P-4 dated 25.6.2008 (Annexure P-4), issued instructions that deduction of GP Fund of the workers be stopped who were in Govt. service prior to 1.1.2004 but their services were regularized after 1.1.2004. This direction was to be implemented w.e.f. the month of June, 2008. The petitioner was being forced to give an undertaking that he would opt for a new Restructured Defined Contribution Pension Scheme. The salary of the petitioner for the months of June and July, 2010 had been withheld for not giving an option for the said new scheme.

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This view has been followed by a Division Bench of this Court in case of Hans Raj v. State of Punjab and others , 2005(3) RSJ, 262. In this case the Division Bench

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examined the Punjab Municipal Employees Pension and General Provident Fund Rules, 1994. Vide instructions dated 8.1.1999, the State of Punjab had provided that since the Pension Rules has been made applicable in lieu of CPF, the period to be considered as qualifying for pension has to be restricted to the period for which the employee was contributing to his CPF. These instructions were held contrary to the Pension Rules by the Division Bench. The Division Bench held that the said instructions cannot substitute or supplant the substantive provisions of the Pension Rules. The petitioner was held entitled to count his entire service from 1962 to 1998 as qualifying service for the purpose of pension. The condition that qualifying service would commence from the date of contribution to the CPF, has been rejected by the Division Bench.

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From the above discussion, we have come to the conclusion that the entire daily wage service of the petitioner from 1988 till the date of his regularization is to be counted as qualifying service for

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the purpose of pension. He will be deemed to be in govt. service prior to 1.1.2004. The new Re-structured Defined Contribution Pension Scheme (Annexure P-1) has been introduced for the new entrants in the Punjab Government Service w.e.f. 01.01.2004, will not be applicable to the petitioner. The amendment made vide Annexure P-2 amending the Punjab Civil Services Rules, cannot be further amended by issuing clarification/instructions dated 30.5.2008 (Annexure P-3). The petitioner will continue to be governed by the GPF Scheme and is held entitled to receive pensionary benefits as applicable to the employees recruited in the Punjab Govt. Services prior to 1.1.2004.

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In view of the above, the writ petition is allowed. Accordingly respondents are directed to treat the whole period of work charge service as qualified service for pension because accordingly to clarification issued on 30.5.2008 (Annexure P-3), the new defined Contributory Pension Scheme

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would be applicable to all those employees who have been working prior to 1.1.2004 but have been regularized thereafter. Let his pension and arrears be calculated and paid to him expeditiously, preferably within a period of three months from the date of receipt of copy of this order .”

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(Emphasis supplied)

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It is also germane to notice the Division Bench judgment of this Court in the case of THE SENIOR SUPERINTENDENT OF POST OFFICES AND OTHERS v. ANHONY STEVEN² which was considering a case against the order passed by the Central Administrative Tribunal in the Postal Department. This Court dismissed the petition filed by the Department of Posts and confirmed the view taken by the Tribunal. The Division Bench holds as follows:-

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“8. Secondly, the issue whether such persons would be considered under the old pensionary scheme or the new one is no more

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2 W.P.No.11679/2011 dd. 7-04-2019

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res integra as the same issue had arisen before the learned Central Administrative Tribunal, Jaipur Bench, the learned Central Administrative Tribunal, Mumbai and even in the case of Union of India v. Ajay Kumar and others before the Hon’ble Delhi High Court [in W.P.(C) No.14247/2006, W.P.(C) No.8491/2006, W.P.(C) 17528-30/2006 and W.P. © No.4806/2006 decided on 4-07-2008]. The Scheme in these cases were similar to the present scheme. After taking a holistic view of the decisions of the learned Central Administrative Tribunal, Jaipur Bench, the learned Central Administrative Tribunal, Mumbai Bench and decision of the Hon’ble Rajasthan High Court, their lordships of Delhi High Court were of the opinion that those employees who have been granted temporary status prior to coming into force the New Pensionary Rules, those employees were given the benefit of General Provident Fund under the Old Pensionary Rules, those employees who had been given the benefit of having their period of temporary service counted for pensionary benefit, they were

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certainly entitled to be covered by the CCS (Pension) Rules, 1972. They would not be covered by the new Pension Scheme of 2004. According to the learned counsel, these decisions of the learned Central Administrative Tribunal, Jaipur Bench and learned Central Administrative Tribunal, Mumbai are even followed by the learned Tribunal while passing the impugned order. Therefore, the learned counsel has supported the impugned order.

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9. Heard the learned counsel for the parties, perused the impugned order, and examined the records submitted by the parties.

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11. The issue whether such employees are covered under the CCS (Pension) Rules, 1972 or under the new pension Scheme is well settled issue as the same issue has been raised not only before different Benches of Central Administrative Tribunal, but has been decided by their Lordships of Hon’ble Delhi High Court in the case of Ajay Kumar (Supra).

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In the said case, their Lordships have noticed the facts as under:

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“A perusal of the Scheme extracted above, particularly para 5(vi) thereof, will go to show that it only entitles the temporary status employees with certain monetary benefits but it also elevates status of temporary employees. Reading of para 5(vi) would go to show that after an employee is conferred with temporary status, and continuously renders 3 years of service after conferment of temporary status his status further elevates at par with temporary Group-D employees for the purpose of contribution of GPF Scheme as part of earlier pension scheme. Thus, an employee who has rendered particularly 3 years of service, he attains the status of temporary Government employee, meaning thereby that he holds a civil post under the Government of India, though as a temporary employee and from this very Scheme itself, it is also clear that if the

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service of such temporary status employees are to be dispensed with then one month’s notice is required to be served on the casual employees with temporary status which is pari-passu with the provisions existing in the CCS (Temporary Service) Rules, applicable to the temporary Government servants. Further para 5(vi) of the Scheme also shows that 50% of the service rendered as temporary status is also to be counted for the purpose of retiral benefits. In a way, after a person is conferred with temporary status, he becomes entitled to certain benefits with regard to the counting of service for the purpose of retiral benefits, obviously under he said old Scheme. However, if he has rendered further 3 years of service with temporary status, he is further elevated as a temporary employee and he gains in status. So, such employees like applicants would be covered under the old Scheme of the Government of India and not under the

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new Scheme of Pension introduced by letter dated 7-01-2004. Letter dated 2604-2004 shows that only casual employees are not to be asked to pay contribution towards GPF but it does not apply to those employees who have attained the status of temporary employees though by virtue of Scheme of 1-09-1993. Thus, the interpretation of the Scheme of 7-01-2004 and as amplified by letter dated 26-04-2004 does not govern the employees who have been conferred with temporary status and by virtue of clause (vi), they have further attained merit in the O.A. and the respondents cannot invoke the instructions dated 26-04-2004 against these applicants. Though the title of the letter dated 26.04.2004 shows that there is modification of the scheme of grant of temporary status but by this letter, the Government cannot modify Scheme to the detriment of the employees who have already earned the vested right under the old rules and

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those vested right cannot be taken away by retrospective operation of the Scheme by issuance of administra-tive instructions by the DOPT. It is well settled that the administrative instructions which have the effect of modifying the original scheme cannot be allowed to stand. Hence, we are of the considered view that these instructions as contained in the letter dated 26-042004 are not applicable in the case of the applicants. The applicants are entitled to contribute towards GPF Scheme, part of the Old Pension Scheme, as envisaged under the Original Scheme of 1-09-1993.”

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Therefore, owing to the facts obtaining in the case at hand, as narrated hereinabove, and the proceedings of the University of Mysore, the judgment of the Division Bench of this Court in W.P.No.11679/2011 and the judgment of the Division Bench of Punjab and Haryana High Court, all would result in an inescapable

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conclusion that the petitioners are entitled to OPS and cannot be brought into CPS.

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19. For the aforesaid reasons, I pass the following:

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O R D E R

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(a) Writ Petition is allowed and the impugned endorsement dated 5-10-2016 stands quashed.

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(b) Mandamus shall issue to the respondent/University to reconsider the case of the petitioners and bring them under Old Pension Scheme and not Contributory Pension Scheme, as the endorsement reads, on consideration of the representation given by the petitioners.

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(c) The aforesaid exercise shall be concluded by the University within 12 weeks from the date of receipt of a copy of this order.

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Sd/JUDGE

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bkp

Dr Prakash K L v. Bangalore University

Case brief

What is this about?

What did the court decide?

Dr Prakash K L v. Bangalore University

Case brief

What is this about?

What did the court decide?

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