IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
TH
WEDNESDAY, THE 6 DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
WP(C) NO. 21239 OF 2021
PETITIONER:
LT.COL.PANKAJAKSHAN K.(RETD)
AGED 60 YEARS
S/O. LATE K.C.PADMANABHAN NAIR,
PERMANENTLY RESIDING AT 'LAKSHMI NIVAS',
PANNIYANNUR POST, THALASSERY, KANNUR DISTRICT-670 671.
BY ADV V.RAMKUMAR NAMBIAR
RESPONDENTS:
1 THE NATIONAL INSTITUTE OF TECHNOLOGY
CALICUT, CALICUT P.O.
REPRESENTED BY ITS DIRECTOR, PIN-673 001.
2 THE CHAIRPERSON
BOARD OF GOVERNORS,
NATIONAL INSTITUTE OF TECHNOLOGY,
CALICUT, PIN-673 001.
3 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
MINISTRY OF EDUCATION (HIGHER EDUCATION),
UNION OF INDIA, NEW DELHI-110 001.
BY ADV.
SRI SHYAM PADMAN SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 21239 OF 2021
2
JUDGMENT
The prayer of the the petitioner in the present writ petition is for disposal of representation Ext.P13 dated 23.09.2021 for reimbursement of Defence pension deducted from the Salary, rent and allied charges and also for release of gratuity. In support of the said representation, it is averred that the petitioner at present is working as Registrar in National Institute of Technology, Calicut. Prior to the aforementioned appointment, had served as Lieutenant Colonel in the Indian Army and on attaining superannuation at the age of 54, retired on 31.05.2015. On the basis of the appointment made based on the selection process conducted by the respondents, was directed to enter into a contract of service with the 1 st respondent vide agreement dated 17.10.2016. The 1st respondent issued order dated 17.10.2016 acknowledging that the petitioner assumed charge as Registrar. The learned counsel appearing on behalf of the petitioner submitted that on superannuation, the petitioner was re-employed in Indian Army as Quarter Master, Head Quarters, Recruiting Zone, WP(C) NO. 21239 OF 2021 3 Chennai with the same rank and pay scale by Ministry of Defence. It is while working as Quarter Master, was appointed as Registrar and therefore, had relinquished his appointment as Quarter Master with effect from 15.10.2016, which was for a period of four years. Thus it amounted to a premature retirement from the said post. The said fact was also mentioned to the 1st respondent at the time of execution of the agreement/contract, Ext.P3. Appointment, according to the counsel for the petitioner to the post of Registrar is not a re-employment but is a totally separate employment. Approval of the candidature of the petitioner as Registrar by the Chairman was ratified by the Board of Governors and discussed the fixation of his pay who had taken a voluntary retirement from re-employment in the Indian Army on 15.10.2016. The pay scale to the post of Registrar, which is a selection post is Rs.37,400-67,000 with Grade pay of Rs.10,000/-.
2. The Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training issued an Office Memorandum dated WP(C) NO. 21239 OF 2021 4 13.04.1988 Ext.P7 whereby the question for extension of service and re-employment of Government Officers beyond the age of superannuation was considered and it was decided that where the service of a Government servant beyond the age of his superannuation are required in the same cadre which he or she was holding at the time of superannuation then such retention shall be treated as an "Extension Of Service"; any proposal for retaining the services of a Government servant in the parent cadre beyond the normal age of superannuation in a post different from the one which he was holding at the time of superannuation, should strongly be discouraged; where the services of a Government servant on deputation to an ex-cadre post or holding an ex-cadre post are required by the competent authority beyond the date of superannuation in his parent service, such retention in the post he was holding at the time of superannuation or in any other post shall for all purposes be treated as 'Re-Employment'. The High Court of Delhi had an occasion to consider a similar aspect and held that appointment of the petitioner in the matter referred to WP(C) NO. 21239 OF 2021 5 therein as CMD of an independent Corporation was not re- employment in Civil services or on a post in connection with the affairs of the Indian Government and consequently all the amounts including the pension deducted by the respondents from salary of the petitioner was liable to be refunded. In this aspect of the matter, the petitioner submitted representation which is pending consideration. The counsel for the petitioner submitted that the petitioner would be satisfied if writ petition is disposed of by issuing direction to the 1st respondent to dispose of her representation within a time limit after affording an opportunity of hearing.
3. Mr.Shyam Padman, Counsel for the respondents submits that though the advance copy of the writ petition has not been supplied, but the Department would not be averse in deciding the representation in accordance with law, considering all the factors in the representation or any additional documents which petitioner may intend to submit.
Without expressing anything on the merits of the matter, I dispose of the writ petition by issuing a direction to WP(C) NO. 21239 OF 2021 6 respondent No.1 to decide the representation Ext.P13 as expeditiously as possible within a period of three months from the date of receipt of a certified copy of this judgment in accordance with law, after affording an opportunity of hearing to the petitioner through physical or virtual mode. The petitioner is at liberty to supply additional documents and judgments in support of the claim in the representation. Respondent No.1 in case deems it appropriate to consider the request in favour of the petitioner and if it entails into financial implication, can also, at their own level, communicate with the Ministry of Human Resources and Development.
Sd/-
AMIT RAWAL JUDGE scs WP(C) NO. 21239 OF 2021 7 APPENDIX OF WP(C) 21239/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RECRUITMENT NOTIFICATION PUBLISHED BY THE NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT FOR THE POST OF REGISTRAR ALONG WITH THE ELIGIBILITY CONDITION.
Exhibit P2 TRUE COPY OF THE COMMUNICATION DATED 26.9.2016 ISSUED BY THE FIRST RESPONDENT. Exhibit P3 TRUE COPY OF THE CONTRACT OF SERVICE ENTERED INTO BY THE PETITIONER AND THE FIRST RESPONDENT DATED 17.10.2016.
Exhibit P4 TRUE COPY OF THE OFFICE ORDER OF THE FIRST RESPONDENT DATED 17.10.2016.
Exhibit P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE ADMINISTRATIVE OFFICER FOR DDG RTD (STATES), HEAD QUARTERS RECRUITING ZONE, CHENNAI DATED 15.10.2016.
Exhibit P6 TRUE COPY OF THE NOTE ISSUED BY THE FIRST RESPONDENT DATED 22.11.2016 ALONG WITH THE EXTRACT OF THE MINUTES OF THE 33RD MEETING OF THE BOARD OF GOVERNORS OF NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT HELD ON 21.11.2016.
Exhibit P7 TRUE COPY OF THE OFFICE MEMORANDUM DATED 13.4.1988 ISSUED BY THE JOINT SECRETARY, GOVERNMENT OF INDIA.
Exhibit P8 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF DELHI IN E.SREEDHARAN VS. UNION OF INDIA AND OTHERS IN WPC NO.2356/2002 DATED 5.12.2008.
Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 12.9.2017 SUBMITTED BY THE PETITIONER WP(C) NO. 21239 OF 2021 8 BEFORE THE FIRST RESPONDENT.
Exhibit P10 TRUE COPY OF THE "NOTE" TO THE DEPUTY REGISTRAR ISSUED BY THE REGISTRAR DATED 20.11.2017 ALONG WITH THE EXTRACT OF THE MINUTES OF THE 39TH MEETING OF THE BOARD OF GOVERNOR.
Exhibit P11 TRUE COPY OF THE COMMUNICATION ISSUED BY THE ASSISTANT REGISTRAR, NIT, CALICUT DATED 5.2.2018 ALONG WITH THE REPRESENTATION OF THE PETITIONER DATED 5.2.2018 TO THE DEPARTMENT OF HIGHER EDUCATION.
Exhibit P12 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE CHAIRPERSON, BOARD OF GOVERNORS, NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT DATED 10.9.2021. Exhibit P13 TRUE COY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 23.9.2021 BEFORE THE FIRST RESPONDENT.