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Judgment
M.N. Bhandari, J.—1. By these two writ petitions, a direction is sought for release of retiral benefits with interest.
Learned counsel for petitioners submits that despite of retirement of few petitioners out of many, retiral benefits have not been extended to them. It is despite their regularisation in the services vide order dated 5.8.2008. The date of absorption so as confirmation has been given therein. It is given from the initial date of appointment, which was on temporary basis.
The petitioners initially approached this court when they were denied benefit of Career Advance Scheme (for short ''the CAS'') by counting their entire length of service. The writ petition was decided favourable to the petitioners. An appeal before the Division Bench was preferred by the State Government but it was dismissed followed by dismissal of Special Leave Petition (SLP). The University of Rajasthan (for short ''the University'') preferred SLP directly before the Supreme Court but first set of SLP was withdrawn with liberty to approach Division Bench of the High Court. In the second set of SLPs before the Apex Court, it was dismissed as withdrawn and even on merit. In view of above, judgment of this court for grant of benefit of CAS by counting length of service from the initial date of appointment attained finality.
The University, thereupon, extended benefit of CAS by counting entire length of service. The petitioners are due for retirement and, in fact, many of them have already retired from service. They have not been extended retiral benefits on the pretext that their length of service would be counted from the date of regularisation, thereby, benefit of previous services is not being given for the purpose of pension etc. It is in the light of the condition mentioned in the order of their regularisation of services dated 5.8.2008.
The action of the University is in ignorance of the fact that entire length of service has already been counted for the purpose of CAS which has resulted in grant of higher pay scale to the petitioners. It is also a fact that when the date of absorption and appointment is taken from the initial date, denial cannot be made for grant of retiral benefits by counting length of service from the date they are absorbed in service.
The respondent University further failed to consider that it was/is deducting contribution towards pension from the salary of the petitioners. The University is under an obligation to extend all retiral benefits because a fund created for retiral benefits cannot be used for any other purpose.
The action of the non-petitioners is even discriminatory in nature because few similar placed employees have been extended benefit of pension and many others have even been given the amount of gratuity.
When the petitioners demanded similar benefits, reference of section 35-B of the University of Rajasthan Act, 1946, as amended vide University of Rajasthan (Amendment) Act, 2013, has been given. The provisions aforesaid makes the University dependent on the government for every payment, as given therein. According to the petitioners, benefit claimed by them are not falling under section 35-B of the Act thus, without taking approval of the Government, University should have released all due retiral benefits of the petitioners as have been given to other similarly placed employees. Reference of the judgment of the Apex Court in the case of "State of Rajasthan & Ors. versus Mahendra Nath Sharma", , (2015) 9 SCC 540 has been given, which covers the issue raised in the writ petitions herein. The prayer is accordingly made to direct the non-petitioners to release all retiral benefits with interest without causing discrimination between similarly placed employees.
Per contra, Mr. A.K. Sharma, learned Senior Counsel, appearing for the University submits that the petitioners are not entitled to the retiral benefits by counting their entire length of service. A reference of the order dated 5.8.2008 is given to show that while regularising services of the petitioners and others, it was made clear that they would not be entitled to any financial benefit prior thereto on account of their substantive appointment and any consequential promotion. The would not be entitled for arrears on account of substantive appointment or any consequential promotion upto 5.8.2008. The obvious consequence of the aforesaid is to exclude the period prior to 5.8.2008 for the purpose of retiral benefits. The University is thus justified to deny retiral benefits to those who have not completed qualifying service after 5.8.2008.
It is further stated that the University cannot release the benefits as claimed by the petitioners even if it is permissible. It is in the light of section 35-B of the University of Rajasthan Act, as amended. The University is under an obligation to abide by the terms of the conditions attached for sanction of funds and, inter alia, include prior permission of the State Government. The University sent letters to the State Government for financial assistance and release of funds but is declined by the State Government. In view of above also, action of the University is justified being in consonance to section 35-B of the Act, as amended. It is more so when as per the directions of this court, an additional affidavit has been filed to show financial status of the University. As per the present status, University is not having funds for payment of retiral benefits to the petitioners and others. Under financial crunches, they are dependent on the funds of the State Government but then it cannot be used without prior permission. Thus, even if the University intends to extend the benefits, as claimed by the petitioners, they are not in a position to share the burden due to their financial condition.
Learned Senior Counsel appearing for the University has further submitted that contribution towards pension was not deducted and even if it was taken, it must have been used for distribution of the benefits to the employees as per their entitlement thus merely for the reason that contribution towards pension was deducted, it does not improve case of the petitioners.
So far as benefit of CAS is concerned, it has been extended in pursuance to the judgment of this court. The court had given directions to count length of service of the petitioners for determining benefit of CAS. The University had no option but to comply directions of this court. It is more so when SLP preferred by the State Government was dismissed but after filing of the SLP by the University, they have maintained Special Appeal before the Division Bench as per the liberty given by the Apex Court. The Special Appeal preferred by the University is still pending before the Division Bench thus till the said appeal is decided, judgment of the learned Single Judge for grant of benefit of CAS may not be treated as final. Accordingly, even if the University has counted entire length of service to extend benefit of CAS, it would not apply for grant of retrial benefits. For all these reasons, prayer made by the petitioners may not be allowed. If, at all, a direction is given therefor, the State Government may also be directed to provide funds to the University so that they can extend the benefit of retiral benefits to the petitioners. In absence thereof, entire working of the University would be affected adversely. It is looking to their limited sources because fee charged from the students cannot be such which may cover entire liability as nominal fee is charged being the welfare State.
It is lastly contended that financial crunches of the University is due to affiliation of few colleges with other universities after their creation.
The reference of the judgment of the Apex Court in the case of Prem Lata Agarwal versus University of Rajasthan & Anr., , (2013) 3 SCC 705 has been given. Therein, it was held that period of ad hoc/temporary is to be treated to be null and void beyond the period for which appointment has been made. If the ratio propounded by the Apex Court in the said case is applied, period of ad hoc/temporary services rendered by the petitioners beyond the period of appointment should be treated as null and void. In this case also, petitioners would not be entitled to the benefit claimed herein, rather, their services can be counted since 5.8.2008 when it was regularised. It is more so when section 3(3) of the University of Rajasthan Act, temporary appointment could not have been beyond the period of one year though the said provision was subsequently deleted.
Mr. N.M. Lodha, learned Advocate General, appearing for the State, submits that no relief has been claimed by the petitioners from the State thus no direction may be issued on the State. It is more so when the University has not sent required details for release of payment or the approval for grant of retiral benefits to the petitioners.
It is also submitted that section 35-B of the University of Rajasthan Act should not have been applied by the University for release of retiral benefits, as claimed by the petitioners. For the aforesaid reasons, no direction may be issued against the State.
I have considered rival submissions of the parties and perused the record of the case.
It is a case where initial appointment of the petitioners was on temporary basis, however, their services were regularised vide order dated 5.8.2008. In the said order, date of absorption and substantive appointment apart from date of confirmation has been mentioned. In view of above order, petitioners'' substantive appointment becomes from the date mentioned in the order dated 5.8.2008. The date of confirmation of the services has also been given therein, which can be only when an employee is appointed on substantive and regular basis. Once absorption is made from the date given in the order dated 5.8.2008, previous services cannot be nullified for any purposes.
The non-petitioner-University has, however, put a condition in the order dated 5.8.2008 and as has been referred by learned counsel for the University, which is quoted hereunder for ready reference -
"They shall not be entitled for any financial benefit prior to 5-8-2008 on account of their substantive appointment and any consequential promotion etc. and they shall not be entitled for any arrears on account of substantive appointment or any consequential promotion etc up to 5-8-2008."
The perusal of the para quoted above reveals denial of any financial benefit prior to 5.8.2008 on account of substantive appointment. It includes consequential promotion etc apart from any arrears on account of substantive appointment.
According to learned counsel for the University, petitioners are not entitled to any financial benefit by counting their length of service prior to 5.8.2008.
It is not in dispute that the petitioners apart from similarly placed employees have already been granted benefit of CAS by counting their length of service from the date of absorption and substantive appointment mentioned in the order dated 5.8.2008 in compliance of the judgment of this court in the bunch of writ petitions led by SB Civil Writ Petition No. 14653/2010, Rajeev Saxena & Ors. versus State of Rajasthan & Ors., decided on 29.5.2012. The para quoted above in the order dated 5.8.2008, is only for denial of actual financial benefits of the period prior to 5.8.2008 if it is involved but it does not preclude the benefits notionally by counting previous length of service. Learned counsel for the University, however, taken the plea that the benefit of CAS was given in reference to the judgment of this court. If this court has allowed benefit of CAS by counting previous length of service, the ratio propounded therein applies to the present case also.
The judgment of this court in the case of Rajeev Saxena & Ors. (supra) was challenged before the Division Bench by the State Government. The Special Appeal therein was dismissed followed by dismissal of the SLP. The University did not file appeal before the Division Bench but preferred SLP before the Apex Court directly. The first set of SLP was withdrawn with liberty to approach the Division Bench of this court. The second set of SLP was, however, withdrawn but if the order therein is considered, the Supreme Court did not find any error in the judgment of this court. The subsequent order of the Apex Court dated 26.7.2013 in the case of University of Rajasthan versus Narendra Mohan Sharma & Anr. in Special Leave Appeal (Civil) (CC 11025/2013) is quoted hereunder for ready reference -
"After some arguments learned counsel for the petitioner sought permission to withdraw this special leave petition.
In view of the request made by the counsel, the special leave petition is dismissed as withdrawn. Even if this special leave petition had not been withdrawn, it was not a fit case to be entertained as the special leave petitions bearing Nos. 20363-20368 of 2013 and other connected petitions filed on behalf of the State of Rajasthan against the impugned judgment already stand dismissed vide this Court''s order dated 1.5.2013. The counsel has reiterated the same submissions on behalf of the petitioner/University by filing this special leave petition, although the University had not filed any appeal before the Division Bench against the judgment and order passed by the Single Bench of the High Court.
Thus there is no merit in the special leave petition. Accordingly, it is dismissed."
Learned counsel for the University however made reference of the pending appeal before the Division Bench of this court.
Since the appeal is pending, it would not be proper for this court to comment even in referencer to the order of the Apex Court quoted above. The SLP of the University was dismissed in reference to the order on the SLP preferred by the State. In the light of the aforesaid fact also, it cannot be that the University may refuse to count past services for retiral benefits while counting it for grant of CAS. The action of the non-petitioners cannot exist in contradiction and, if permitted, then it would be illegal. It is apart from the fact that substance of the para of the order dated 5.8.2008 referred by learned counsel for the University was to avoid financial burden on the University even for the past period with actual payment. If the para aforesaid would not have been inserted, liability could have been on the University for actual payment prior to 5.8.2008. The substance of para was only to avoid actual financial burden prior to 5.8.2008 but it cannot be used to deny benefit of length of service. It is more so when the date of confirmation apart from the date of absorption has been given in the order itself.
If the entitlement of the petitioners is concerned in the light of the University Pension Regulations, 1990, they are entitled for the benefits as claimed herein by counting their length of service from the date they have been absorbed and given substantive appointment thus the order dated 5.8.2008 does not save non-petitioners from payment of due benefits claimed by the petitioners. It is more so when according to the petitioners, University was deducting contribution towards pension. If the contribution towards pension was deducted for entire length of service, how the benefit out of it can be denied by the University. As per Regulation 47 of the Regulations of 1990, the University is under an obligation to keep the funds separately so as to utilise subsequently for retiral benefits. It seems that the contribution, if deducted towards pension, has been utilised for other purposes though not even permissible. It was expected of the University to use the funds for which deduction, if any, has been made.
In the light of the aforesaid fact also, plea raised by the University cannot be accepted to deny retiral benefits to the petitioners by counting their length of service from the date of their absorption/substantive appointment given in the order dated 5.8.2008.
Learned counsel for the University has made reference of section 35-B of the Act, as amended. For ready reference, section 35-B is also quoted hereunder -
"35-B. Control of the State Government.--Where the State Government funds are involved, the University shall abide by the terms and conditions attached to the sanction of such funds which may inter alia include prior permission of the State Government in respect of the following, namely:--
(a) creation of the new posts of teachers, officers or other employees;
(b) revision of the pay, allowances, post-retirement benefits and other benefits to its teachers, officers and other employees;
(c) grant of any additional or special pay, allowance or other extra remuneration of any description whatsoever, including ex-gratia payment or other benefits having financial implications, to any of its teachers, officers or other employees;
(d) diversion of any earmarked funds other than the purpose for which it was received;
(e) transfer by sale, lease, mortgage or otherwise of immovable property;
(f) incur expenditure on any development work from the funds received from the State Government for any purposes other than for which the funds are received; and
(g) take any decision resulting in increased financial liability, direct or indirect, for the State Government.
Explanation.--The above conditions shall also apply in respect of the posts created from any other fund, which may, in the long term, be likely to cause financial implications to the State Government."
The provision applies where funds of the State are involved. The prior permission of the State Government is to be taken by the University. It is not made clear as to how the government funds would be involved for retiral benefits to the petitioners, if the contribution was deducted towards pension. Prima facie, section 35-B of the Act, as amended, does not apply to the present case. And, even if it applies, it is between the University and the State Government. The petitioners cannot be denied benefit only for the reason that the State Government is not providing or giving prior permission.
Learned counsel for the University further made a reference of the judgment rendered by the Apex Court in the case of Prem Lata Agarwal (supra). Therein, ad hoc/temporary services have been treated as null and void thus a prayer is made to apply the ratio propounded by the Apex Court in the said case.
To appreciate the argument of learned counsel for the University, I have gone through the facts of the case of Prem Lata Agarwal (supra). It was a case where ad hoc/temporary services were never regularised by the University. In the light of the aforesaid, consideration of the case was made in reference to the Regulations which does not permit retiral benefits unless one is working on substantive basis. In the aforesaid context, Hon''ble Apex Court held that any period beyond tenure of temporary services has to be treated as null and void.
The fact situation of this case is altogether different. Here, vide order dated 5.8.2008, petitioners were absorbed in services by the University from the date given therein. The order aforesaid was passed in pursuance to the amendment made in the University of Rajasthan Act. Once the absorption was made from the initial date of appointment, it cannot be said that the period beyond temporary appointment would be null and void. If the argument of the learned counsel is accepted, it would nullify even the benefit of CAS though the judgment therein has already been upheld by the Apex Court. Therein, the case was of none else but the petitioners themselves.
It is also not that the judgment in the case of Prem Lata Agarwal (supra) was subsequent to the dismissal of the SLP but is prior to it thus available with the University and the State Government to refer it before the Apex Court. The SLP preferred by the State Government has been dismissed by a detailed order and even second set of SLP preferred on behalf of the University has been dismissed. If the services of an employee are not regularised, it can be rendered null and void beyond the period of temporary appointment. The fact situation of the case is entirely different, rather, the facts available in the case of Prem Lata Agarwal are quite distinguishable from the facts of this case. Thus, I am unable to accept the plea taken by learned counsel for non-petitioner University in reference to the judgment in the case of Prem Lata Agarwal (supra).
The question now remains about financial condition of the University. A detailed additional affidavit has been filed in pursuance to the directions of this court. The perusal of the additional affidavit reveals that the University is in financial crunches. It may be that they are not permitted to raise the fee so as to recover the deficit or to run it with financial assistance of the government. The University itself sent letter to the government to provide financial assistance and grant approval for extension of benefits claimed by the petitioners.
Learned counsel for the University has referred to the letters sent by the Principal Secretary, Department of Education, State of Rajasthan. There, proper view has not been taken. The University is to be provided financial assistance by the government. The letter of the University should have been dealt with after proper evaluation and it was expected that if the University is in financial crunches, then as per the arrangement between the University and the State Government, to provide finance.
Mr. N.M. Lodha, learned Advocate General, has stated that the University has not come out with the statement of their financial position. This court took notice of the aforesaid fact and asked the University to file an additional affidavit giving out their financial status. If the University is facing financial crunches, the State Government need to support it so that employees/Lecturers may get their due benefits.
In any case, I am unable to accept the argument raised by the University for denial of benefits as claimed by the petitioners. It is more so when similarly placed employees have been extended benefit of pension and even gratuity. When the University has extended due retiral benefits to similarly placed employees, how it can be denied to the petitioners. The act of the University is thus discriminatory in nature. The fact aforesaid was mentioned during the arguments on previous dates and now the University has shown inclination to even deny retiral benefits to the similarly placed employees though an order for it has not yet been passed.
In any case, this court is of the opinion that the petitioners are entitled for retiral benefits after counting their length of service from the date of their absorption mentioned in the order dated 5.8.2008.
Reference of the judgment of the Supreme Court in the case of Mahendra Nath Sharma (supra) is also relevant thus para 30 thereof is quoted hereunder for ready reference -
"30. It is urged before us that it will put a heavy financial burden on the State. The said submission has been seriously resisted by the learned counsel for the respondents by urging that hardly 200-250 retired Lecturers in the selection scale are alive in praesentia and the State cannot take a plea of financial burden to deny the legitimate dues of the respondents."
In the light of the judgment in the case of Mahendra Nath Sharma (supra), plea about financial crunches to deny benefit admissible to the petitioners cannot be accepted.
In view of the discussion made above, both the writ petitions are allowed. The petitioners are held entitled to retiral benefits by counting their length of service from the date of their absorption given in the order dated 5.8.2008. The due benefits to the petitioners already retired would be released by the respondents within four months from the date of receipt of copy of this order.
Looking to various issues raised on behalf of the University, I am not inclined to pay interest to the petitioners already retired, but if retiral benefits are not extended to them within the period given hereinabove, they would be entitled to get interest @ 9% per annum.
The issue of financial burden has been raised on behalf of the University thus taking the aforesaid into consideration, this court is of the opinion that the State Government would take a proper view in the matter so that while the University may survive without further financial crunches, petitioners get their due benefits.