While we accept the settled position of law that
the rule applicable in matters of determination of
pension is that which exists at the time of
retirement, we are unable to find any legal basis in
the action of the respondent University of
selectively allowing the benefit of Rule 25 (a). The
law, as recognized by this Court in Deoki Nandan
Prasad and Syed Yousuddin Ahmed (supra) unequivocally
states that the pension payable to an employee on
retirement shall be determined on the rules existing
at the time of retirement. However, the law does not
allow the employer to apply the rules differently in
relation to persons who are similarly situated. {Para 32}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6994/2021
DR. G. SADASIVAN NAIR Vs COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
Author: NAGARATHNA J.
Dated: 1st December, 2021.
This appeal is directed against the judgment and
order dated 29th August 2019, passed by the Division
Bench of the High Court of Kerala at Ernakulam in
Writ Appeal No. 988/2012, wherein the aforesaid writ
appeal was dismissed.
2. Succinctly stated, the facts in the instant
appeal are that the appellant herein was appointed as
a Lecturer in the School of Legal Studies of the
respondent No. 1 University, namely, Cochin
University of Science and Technology, Kochi, with
effect from 7th September 1984. Prior to such
appointment, the appellant was a lawyer practising in
the District Court and Subordinate Courts at North
Parur, Ernakulam, Kerala for the period between 11th
March 1972 and 2nd February 1980. During the period
between March 1980 and February 1984, the appellant
was pursuing his PhD programme on availing a
University Grants Commission Fellowship. The
appellant resumed practice as an advocate in the
Kerala High Court and Subordinate Courts after
obtaining his PhD, upto the date of his appointment
as a lecturer in the respondent University.
3. On 10th November 2004, the appellant made a
representation before the Registrar of the respondent
University, requesting to reckon his practice of
eight years at the Bar for the purpose of determining
his pensionary benefits payable to him on his
superannuation. In making such a representation
seeking consideration of his practice at the Bar, the
appellant relied on Rule 25 (a), Part III, Kerala
Service Rules (hereinafter referred to as “KSR” for
brevity) which provides that experience at the Bar
could be reckoned as qualifying service for the
purpose of determining superannuation pension,
subject to a condition that only a person who was
recruited into service after attaining the age of 25
years could avail such benefit. In such a situation,
the Rule allows addition of as many years by which a
person exceeds the age of 25 years. The benefit of
additional service shall also be limited to the
actual number of years of practice at the Bar,
subject to a maximum of ten years.
4. The appellant received a letter on 7th January
2006, from the Registrar of the respondent University
declining appellant’s request to reckon his tenure of
practice at the Bar for the purpose of determining
appellant’s superannuation pension. In rejecting the
representation made by the appellant, the Registrar
relied on the proviso to Rule 25 (a), Part III, KSR
which provides that the benefit under Rule 25 (a)
would be available only to such employees who are
recruited when practising at the Bar, to those posts
requiring a qualification in law and experience at
the Bar. Having regard to the aforestated proviso,
the Registrar in his letter dated 7th January 2006,
stated that experience at the Bar was not essential
for appointment to teaching posts at the University
and therefore, the question of reckoning previous
experience at the Bar would not arise in relation to
the appellant.
5. The appellant preferred an appeal petition
against the decision of the Registrar of the
respondent University dated 7th January 2006, before
respondent No. 3 herein, namely, the Chancellor of
Cochin University of Science and Technology,
contending that the Registrar had rejected his
request for reckoning his tenure of practice at the
Bar for the purpose of determining his superannuation
pension, without following the relevant rules in
their proper perspective. The appellant stated in his
appeal petition before the Chancellor – respondent
no.3 that the proviso to Rule 25 (a), Part III, KSR
was inserted in said Rule with effect from 12th
February 1985. The appellant contended that the
proviso could not be made applicable to him as the
same was not in force as on the date on which he
joined service at the respondent University, i.e., 7th
September 1984. The appellant also stated in his
representation that one Dr. Leela Krishnan, who was
similarly situated as the appellant, was granted the
benefits prescribed under Rule 25 (a), Part III, KSR.
6. As there was no response to his representation,
the appellant on the same grounds as those urged in
the appeal petition preferred before respondent No.
3, also preferred a writ petition before the High
Court of Kerala at Ernakulam being W.P. (C) No.
10057/2006. The High Court in its judgment dated 3rd
April 2006 directed respondent No. 3 to decide,
within a period of four months from the date of
receipt of the judgment of the High Court, the
question, as to, whether the the appellant was
entitled to get the benefit under Rule 25(a),
Part III, KSR.
7. In accordance with the High Court’s judgment
dated 3rd April 2006, respondent No. 3 afforded an
opportunity of hearing to the appellant on 12th July
2006 and subsequently dismissed the appeal petition
preferred by the appellant on 7th October, 2006 by
holding that the Government or any other statutory
body has the right to modify the service conditions,
even retrospectively. Respondent No. 3 further held
that since the proviso was introduced in Rule 25 (a)
while the appellant herein was still in service of
the respondent University, the proviso would apply to
him, thereby limiting the benefit of Rule 25 (a),
Part III, KSR.
8. Aggrieved by the dismissal of the appeal petition
by respondent No. 3, the appellant preferred a writ
petition before the High Court of Kerala at
Ernakulam, being W.P. (C) No. 28410/2006. The Single
Judge of the High Court by judgment dated 25th January
2012 dismissed the writ petition preferred on the
ground that it was open to the Government to
unilaterally alter the service conditions of
employees during their service and therefore, what
was applicable was the rule prevailing as on the date
of retirement and not that which existed as on the
date of entering service.
9. During the pendency of the writ petition, the
appellant was to superannuate from service of the
respondent University on 19th October 2006. But by
virtue of Rule 60 (C), Part I, KSR, the appellant was
entitled to continue in service till the last day of
the month in which the academic year ends i.e. until
30th April 2007. The appellant retired on 30th April
2007 from the post of Professor and Director, School
of Legal Studies, Cochin University of Science and
Technology.
10. Aggrieved by the judgment of the Single Judge of
the High Court of Kerala, dated 25th January 2012 in
W.P. (C) No. 28410/2006, the appellant herein
preferred an intra-court writ appeal being W.A. No.
988/2012. The Division Bench of the High Court, in
its judgment dated 29th August 2019, confirmed the
findings of the Single Judge and dismissed the writ
appeal preferred by the appellant. Being aggrieved, a
special leave petition was filed by the appellant
before this Court in which leave was granted on 22nd
November 2021.
11. Before proceeding further, it would be useful to
encapsulate the reasoning of the High Court of Kerala
in dismissing the writ appeal filed by the appellant
herein, as under:
(a) The High Court relied on the decision of this
Court in Deoki Nandan Prasad v. State of
Bihar - AIR 1971 SC 1409, wherein it was held
that the rule applicable in matters of
determination of pension is that which is
existing at the time of retirement.
Similarly, in Government of Andhra Pradesh &
Ors. v. Syed Yousuddin Ahmed - 1997 (7) SCC
241, it was held that the emoluments forming
a part of the pension payable to an employee
shall be determined on the basis of the rule
existing as on the date of retirement.
In light of the above citations of this
Court, the High Court stated that the right
to receive pension arises and crystallises
into a vested right only on the date of
superannuation. The High Court held that the
appellant was entitled to obtain pension in
accordance with the rules existing as on the
date of superannuation.
(b) The High Court found that the argument
advanced on behalf of the appellant herein,
that other Universities require candidates to
possess Bar experience for appointment as
teaching faculty, was irrelevant and
inconsequential.
(c) The High Court held that the Government was
authorised under Article 309 of the
Constitution of India, to make laws
determining service conditions of Government
employees and to amend such laws, even
retrospectively.
12. The writ appeal preferred by the appellant herein
was dismissed by the High Court on making the
aforestated observations.
13. We have heard Dr. K.P. Kylasanatha Pillay,
learned Senior Counsel along with Mr. Sajith P.
Warrier, learned counsel for the appellant, Ms.
Malini Poduval, learned counsel for respondent nos.1
and 2, and Mr. G. Prakash, learned counsel for
respondent-State and perused the material on record.
14. Dr. Pillay, learned Senior Counsel for the
appellant, submitted that the Rule 25 (a), Part III,
KSR as it stood at the time of appointment of the
appellant to the post of lecturer in the School of
Legal Studies of the respondent University, allowed
experience at the Bar to be reckoned as qualifying
service for the purpose of determining superannuation
pension. The said Rule prescribed a condition that
only a person who was recruited into service after
attaining the age of 25 years could claim such
benefit of additional service. The Rule allowed for
addition of as many years by which a person exceeds
the age of 25 years. The benefit of additional
service was limited to the actual number of years of
practice at the Bar, subject to a maximum of ten
years.
15. Learned Senior Counsel for the appellant
contended that the proviso to Rule 25 (a), Part III,
KSR, which limited the scope of the benefit conferred
under Rule 25(a) by stating that such benefit
would only be available to such employees as are
recruited to those posts requiring a qualification in
law and experience at the Bar, was introduced with
effect from 12th February 1985. That the said proviso
could not have been made applicable to the appellant
as it was not in force at the time of his
appointment, i.e., on 7th September 1984. That the
benefit of the Rule could not be denied by applying
the proviso retrospectively, in the absence of
express direction to that effect in the Amendment to
the Rule by which the proviso was inserted in Rule
25(a). It was submitted that the intention of
inserting the proviso in Rule 25 (a) was not to
exclude previously appointed law teachers from the
purview of the said Rule, but to streamline the
condition regarding pension for future appointees. It
was stated that the appellant had acquired a vested
right to his pension when he joined service which
could not have been taken away at the time of his
retirement.
16. Learned Senior Counsel for the appellant
highlighted that Dr. P. Leela Krishnan, former Head
of the Department of Law and Dean, Faculty of Law,
Cochin University of Science and Technology who
superannuated from service of the respondent
University with effect from 30th April 1996, was
granted the benefit of additional service as provided
for under Rule 25 (a), Part III, KSR; that Dr. P.
Leela Krishnan had practiced as an advocate at the
Kerala Bar during the period between 29th March 1962
and 24th June 1969, i.e. for a period of 7 years, 2
months and 26 days. Dr. P. Leela Krishnan served in
the Law Faculty of the respondent University from 24th
June 1969 to 30th April 1996. His retirement benefits
were granted, having regard to the period of service
rendered at the University as well as the period of
practice at the Bar. The respondent University found
his length of qualifying service for the purpose of
grant of pension to be 33 years, 7 months and 4 days,
which included 26 years, 9 months and 2 days of
service at the respondent University and 7 years, 2
months and 26 days of practice at the Bar.
17. In that context, learned counsel for the
appellant contended that the appellant is similarly
situated as Dr. P. Leela Krishnan as they both were
appointed from the Bar before the proviso to Rule 25
(a) came into effect, i.e. before 12th February 1985;
and that they both superannuated after the proviso
was brought into force. However, while the proviso to
Rule 25(a) was applied in relation to the appellant,
thereby denying him the benefit of Rule 25(a), but
the said proviso was not applied in the case of Dr.
P. Leela Krishnan. That the respondent University has
singled out the appellant without any legal basis and
has arbitrarily denied to him the benefit of Rule
25(a), Part III, KSR, which is discriminatory and in
violation of Article 14 of the Constitution of India.
18. As opposed to the aforesaid arguments, Ms.
Poduval, learned counsel for respondent no.1 and 2,
relied on the proviso to Rule 25(a), Part III, KSR
and contended that the benefit under the said Rule
was rightly withheld by the respondent University in
light of the proviso. That the proviso would be
applicable in relation to the appellant as it is
trite law that the rule applicable in the matter of
determination of pension is that which exists at the
time of retirement. In the case of the appellant, the
date of superannuation was 30th April 2007, on which
date the proviso to Rule 25(a) was in force and
therefore it would apply, limiting the benefit of the
Rule.
19. In relation to the appellant’s contention that
other employees of the respondent University who were
similarly situated as the appellant, had been granted
the benefit under Rule 25(a), it was submitted that
the appellant cannot claim such relief relying on an
earlier illegal order. That such a claim based on
negative equality in favour of the appellant was
untenable.
20. It was further submitted on behalf of the
respondents that the appellant made a representation
before the Registrar of the respondent University
after an inordinate delay and had not adhered to the
time limit prescribed under Rule 22C, Part I, KSR,
for making such claim. Rule 22C, Part I, KSR
stipulates that an officer who wishes to get his
prior service counted shall apply for the same within
a period of five years from the date of his entry
into service. Rule 22C also provides that an order
reckoning previous service shall not be issued by the
Competent Authority within a period of less than five
years before the date of retirement on
superannuation.
21. The respondents relied on the aforestated rule
and submitted that the appellant made a
representation before the Registrar of the respondent
University requesting him to reckon appellant’s
practice of eight years at the Bar, only on 10th
November 2004, i.e. over 20 years after his
appointment as a lecturer at the respondent
University. That the claim of the appellant was
rightly not entertained by the authorities of the
respondent University after such an inordinate delay.
22. Learned counsel for respondents urged that the
case of the appellant has been rightly appreciated in
its true perspective, having due regard to the
relevant law, by the High Court in its judgment while
dismissing the appeal preferred by the appellant
herein, which judgment would not call for any
interference in this appeal.
Points for consideration:
23. Having regard to the submissions of the learned
Senior Counsel and learned counsel for the respective
sides, the following points would arise for our
consideration:
(i) Whether the appellant herein is entitled to
the benefit of Rule 25(a), Part III, Kerala
Service Rules?
(ii) Whether the High Court was justified in
dismissing the appeal preferred by the
appellant herein?
(iii) What Order?
24. The fact that the appellant was appointed to the
post of lecturer in the School of Legal Studies of
the respondent University with effect from 7th
September 1984, is not in dispute. The appellant
practised as an Advocate at the District Court and
Subordinate Courts at North Parur, Ernakulam, Kerala
for the period between 11th March 1972 and 2nd February
1980. The appellant sought for reckoning of his
experience at the Bar as qualifying service for the
purpose of determination of superannuation pension,
as provided under Rule 25 (a), Part III, KSR. The
same was denied by the authorities of the respondent
University. During the pendency of litigation in this
regard before the High Court, the appellant retired
from service of the respondent University on
attaining the age of superannuation with effect from
30th April 2007.
25. Learned counsel for the respondents have relied
upon the proviso to Rule 25 (a) of Part III, KSR in
urging that the respondent University rightly denied
the claim of the appellant for reckoning the period
of practice at the Bar. Rule 25 (a) together with the
proviso inserted by way of an Amendment, with effect
from 12th February 1985, is reproduced hereunder:
“25 (a) Persons recruited from the Bar after the
age of 25 years to appointments in Government
service may add to their service qualifying for
superannuation pension (but not for any other
kind of pension) the actual period (not exceeding
ten years) by which their age at the time of
recruitment exceeded 25 years provided that no
employee can claim the benefit of this rule
unless his actual qualifying service at the time
he becomes eligible for superannuation pension is
not less than eight years. This concession is
also subject to the condition that the period
that may be so added shall not at any time exceed
the actual period of the employee's practice at
the Bar. No application will be entertained for
pension on the ground that the appointee did not
get an opportunity for service for the qualifying
period.
Provided that the benefit under this sub-rule
shall be available only to employees who are
recruited when practicing at the Bar to posts
requiring law qualification and experience at the
Bar.”
26. The proviso limits the benefit of the Rule by
restricting its application only to such employees as
are recruited when practicing at the Bar, to those
posts requiring a qualification in law and experience
at the Bar. The respondent University has contended
that since the post of a lecturer to which the
appellant was appointed in 1984, did not require
prior experience at the Bar, the proviso would be
attracted thereby disentitling the appellant of the
benefit under Rule 25(a). Although the proviso was
inserted by way of an amendment, with effect from 12th
February 1985 and was not in force at the time of
appointment of the appellant in 1984, the respondent
University has contended that the rule applicable in
the matter of determination of pension is that which
exists at the time of retirement. That the appellant
superannuated on 30th April 2007, on which date the
proviso to Rule 25(a) was in force and therefore it
would apply, limiting the benefit of the Rule.
27. The appellant brought to our attention that in
the case of one Dr. P. Leela Krishnan, a Professor of
Law who was similarly situated as the appellant
herein, the respondent University duly considered the
period of practice at the Bar as a part of Dr. P.
Leela Krishnan’s qualifying service for the purpose
of determining pension payable on his superannuation.
28. Perusal of extracts from the pension book of Dr.
P. Leela Krishnan, reveals that his experience of
practice at the Bar, of 7 years, 2 months and 26 days
was added to the period of his service at the
University, being 26 years, 9 months and 2 days. The
respondent University in determining his
superannuation pension, considered 33 years, 7 months
and 4 days as the qualifying period of service.
29. No argument has been advanced on behalf of the
respondents as to the manner in which the case of the
appellant is different from that of Dr. P. Leela
Krishnan and on what basis the benefit of Rule 25 (a)
was granted to Dr. P. Leela Krishnan but was withheld
in relation to the appellant.
30. We find that the appellant and Dr. P. Leela
Krishnan were in fact similarly situated. Both these
individuals were appointed as teaching faculty at the
respondent University after practicing as advocates
in various Courts of Kerala. They were both appointed
before the proviso to Rule 25 (a) came into effect,
i.e. before 12th February 1985 and retired after the
said proviso came into force.
31. In the circumstances, we find no valid ground to
sustain the application of the proviso in relation to
the appellant, thereby denying the benefit of Rule
25(a), when the same was not applied in the case of
Dr. P. Leela Krishnan, thereby allowing the benefit
of Rule 25(a).
32. While we accept the settled position of law that
the rule applicable in matters of determination of
pension is that which exists at the time of
retirement, we are unable to find any legal basis in
the action of the respondent University of
selectively allowing the benefit of Rule 25 (a). The
law, as recognized by this Court in Deoki Nandan
Prasad and Syed Yousuddin Ahmed (supra) unequivocally
states that the pension payable to an employee on
retirement shall be determined on the rules existing
at the time of retirement. However, the law does not
allow the employer to apply the rules differently in
relation to persons who are similarly situated.
33. Therefore, we are of the view that if the
respondent University sought to deny the benefit of
Rule 25 (a), in light of the proviso which was
subsequently inserted thereby limiting the benefit of
the Rule, it ought to have done so uniformly. The
proviso could have been made applicable in relation
to all employees who retired from service of the
respondent University following the introduction of
the proviso, i.e. after 12th February 1985. However,
the action of the respondent University of
selectively applying the proviso to Rule 25(a) in
relation to the appellant, while not applying the
said proviso in relation to similarly situated
persons, is arbitrary and therefore illegal. Such
discrimination, which is not based on any reasonable
classification, is violative of all canons of
equality which are enshrined in the Constitution of
India.
34. Hence, in the instant case, the denial of the
benefit under Rule 25 (a), KSR, to the appellant is
arbitrary and not in accordance with law.
Consequently, the appellant is entitled to receive
pension having regard to his total qualifying
service, inclusive of the period of his service at
the respondent University and the period of his
practice as an Advocate in various Courts of Kerala.
35. In view of the aforesaid discussion, we set
aside the judgment of the Division Bench as well as
that of the learned Single Judge of the High Court
dated 29th August 2019 and 3rd April, 2006
respectively and allow the instant appeal.
36. The respondent University is directed to
calculate the amount of pension short paid to the
appellant from the date of his superannuation i.e.
30th April 2007, till date and disburse such amount
together with interest at the rate 5% p.a. till date
of payment in favour of the appellant within a period
of two months from the date of receipt of a copy of
this judgment. It is needless to observe that such
calculation shall be carried out after considering
the period of practice of the appellant as an
advocate at the Bar and the service rendered at the
respondent University.
37. Parties to bear their respective costs.
………………………………………J.
(M.R. SHAH)
…………………………….…..J.
(B.V. NAGARATHNA)
NEW DELHI;
1st December, 2021.
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