Prof. Devi Singh vs Indian Institute Of Management ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR                           
 
Judgement Reserved on 11.2.2021
 
Judgment Delivered on 04.03.2021
 
Court No. - 8
 

 
Case :- SERVICE SINGLE No. - 18754 of 2019
 

 
Petitioner :- Prof. Devi Singh
 
Respondent :- Indian Institute Of Management Lucknow Thru Director & Ors.
 
Counsel for Petitioner :- Shireesh Kumar
 
Counsel for Respondent :- A.S.G.,Anant Tewari,C.S.C.
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Shireesh Kumar, learned counsel for the petitioner, Sri J.N. Mathur, learned Senior Advocate assisted by Sri Anant Tewari, learned counsel for the Indian Institute of Management, Lucknow (hereinafter referred to as IIM, Lucknow) and Sri Sudhanshu Chauhan, learned counsel for the Union of India.

2. Under challenge is order dated 25.6.2019 passed by the Board of Governors of IIM, Lucknow as contained in Annexure no. 19 to this writ petition whereby the payment of pension of the petitioner has been stopped holding him disqualified for the pension and its arrears.

3. The brief facts of the case are that IIM, Lucknow invited applications for appointment to the post of Director, IIM, Lucknow and after the search by the competent authorities and with detailed selection procedure the petitioner was found suitable for the appointment to the post of Director, IIM, Lucknow and accordingly a High Level Committee recommended his name for such appointment with approval from the cabinet committee of the appointments. Accordingly, the appointment letter was issued on 28.7.2003 appointing the petitioner as Director, IIM, Lucknow for the period of five years. The petitioner submitted his joining on 25.8.2003.

4. Learned counsel for the petitioner has submitted that IIM, Lucknow is an autonomous body which is a registered society under Societies Registration Act, 1960 and such society has its own Memorandum of Association and Bye Laws.

5. On 03.09.2003, the petitioner submitted an application (Annexure no. 5 to the writ petition) before the Board of Governors to consider his candidature for simultaneous appointment as Professor in the Indian Institute of Management, in line with the practice prevailing in other institutes of management. Vide order dated 22.10.2003 (Annexure no. 6 to the writ petition) Board of Governors of Indian Institute of Management, Lucknow approved simultaneous appointment of the petitioner as Professor IIM, Lucknow.

6. On 24.8.2008, the petitioner completed the tenure of five years as Director, IIM, Lucknow and on 31.8.2008 submitted an application (Annexure no. 7 to the writ petition) to the Board of Governors seeking it's concurrence for his posting as Professor in IIM, Lucknow, Noida Campus, as already approved by the Board of Governors. The petitioner also exercised his option for Government of India pension prevailing in IIM at the time of his joining the institute on 25.8.2003. On 14.10.2003 (Annexure no. 8 to the writ petition), petitioner was conveyed the approval of the Board of Governors acknowledging the fact that after relinquishing the charge of Director, IIM, Lucknow, the petitioner has assumed the charge of the Professor.

7. On 22.9.2008, petitioner resumed the charge as Professor in the pay scale of Rs. 18400-500-22400/- at IIM, Lucknow Noida Campus, Noida. Notably, the order dated 14.10.2008 also stated that prior to resuming the charge, the matter was referred to the Chairman, Board of Governors and approval was accorded by him to the petitioner to resume charge as Professor at IIM, Lucknow, Noida Campus, Noida. The order dated 14.10.2008, also stated that the basic pay of the petitioner as Professor may be fixed as Rs. 22400/- per month with effect from 25.8.2008 and the period from the day he relinquished the charge as Director and until he resumed charge as Professor at IIM, Lucknow, Noida Campus i.e. 25.8.2008 to 21.9.2008 may be treated as grant of earned leave as per the requisition made by the petitioner vide his letter dated 22.9.2008 as at the time of relinquishing the charge as Director, 150 days earned leave was due at his credit. No dues certificate obtained from different departments on relinquishing charge as Director IIM, Lucknow was also enclosed.

8. Sri Shireesh Kumar has, therefore, submitted that in view of the aforesaid developments the petitioner continued in the service of IIM, Lucknow as Professor in continuation to his initial appointment as Director w.e.f. 25.8.2003.

9. Further, while the petitioner was continuing as Professor at IIM, Lucknow, vide order dated 5.3.2009 (Annexure no. 9 to the writ petition) he was again appointed as Director, IIM, Lucknow for a further tenure of five years, as per the approval granted by the Government of India and in compliance of the order dated 5.3.2009, the petitioner resumed the charge of the post of Director on 9.3.2009.

10. As per Sri Shireesh Kumar before completion of second term as Director, IIM, Lucknow on 18.2.2014, the petitioner submitted an application (Annexure no. CA-2 of the counter affidavit) to the Chairman, Board of Governors, IIM, Lucknow stating that he had already attained the age of 61.5 years and as per the government rules on superannuation he was eligible to seek retirement from the service with pensionary benefits on expiry of his present tenure. The petitioner, therefore, requested for seeking retirement on superannuation effective from the date on the relinquishing the charge of the office of Director.

11. On the application dated 18.2.2014, approval was granted by the Board of Director and on relinquishing the charge of the post of Director, IIM, Lucknow on 15.9.2014, petitioner was allowed to retire as Professor, IIM, Lucknow as well, accordingly the petitioner had completed 11 years and 15 days of service in the IIM, Lucknow commutatively, as Director as well as Professor.

12. Sri Shireesh Kumar has further submitted with vehemence that minimum qualifying service for pension was 10 years and since the petitioner had completed 11 years and 15 days as such he was regularly being paid the monthly pension since his completion of the term / superannuation with effect from 16.9.2014.

13. Further, on 3.10.2017 (Annexure no. 10 to the writ petition), the opposite party no. 1 passed an order whereby the pension of the petitioner was provisionally stayed for the reason that an ongoing AG Audit had made some adverse observations on the "process of grant of pension" to the petitioner. The order dated 3.10.2017 had been passed without opportunity of hearing to the petitioner as well as without approval by the Board of Governors, moreover, on 3.10.2017, there was no report of the audit team, as the only report of audit team relied upon by the opposite party no. 1 against the petitioner is dated 18.12.2017 (Annexure no. 13 to the writ petition).

14. Sri Shireesh Kumar has submitted that opposite party no. 1 and 2 in para-4 of the counter affidavit have admitted that IIM, Lucknow has not framed any Rules of its own and adopted the Government of India Rules. The Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as CCS Rules, 1972) do not contain any provision for provisionally stoppage of pension.

15. Further, against the order dated 3.10.2017, the petitioner submitted a representation on 11.10.2017 (Annexure no. 12 to the writ petition). When no decision on the representation was communicated to the petitioner then he instituted a Writ Petition No. 27361(SS) of 2017, in this Court which was disposed of by this Court vide order dated 9.1.2019 (Annexure no. 15 to the writ petition) with a direction to the opposite party no. 2 to take a decision on the representation in the meeting of the Board of Governors scheduled on 16.01.2019 and communicate the decision to the petitioner forthwith.

16. On 28.3.2019 (Annexure no. 17 to the writ petition), the opposite party no. 1 passed an order whereby the representation submitted by the petitioner was rejected. Against the orders dated 03.10.2017 and 28.3.2019, the petitioner instituted another writ petition no. 12595(SS) of 2019 and vide order dated 2.5.2019 (Annexure no. 17 to the writ petition), the writ petition no. 12595(SS) of 2019 was disposed off and the orders dated 3.10.2017 and 28.3.2019 were set aside.

17. Through the order dated 2.5.2019, this Hon'ble Court had directed the respondents to pass orders with regard to grant of pensionary benefits and arrears thereof in the light of the CCS Rules, 1972. The petitioner immediately communicated the order dated 2.5.2019 upon the opposite parties no. 1 and 2 but instead of taking a decision as per the CCS Rules, 1972, on 25.6.2019 (Annexure no. 19 to the writ petition), an order was passed reiterating the earlier decision dated 3.10.2017 and 28.3.2019 and pension along with its arrears was denied to the petitioner.

18. Sri Shireesh Kumar has strenuously submitted that the order dated 25.6.2019 was based upon a letter dated 22.5.2019 issued by the Government of India addressed to the opposite party no. 1. The order dated 25.6.2019 was passed without application of mind by the Board of Governors of IIM, Lucknow and pension along with its arrears was denied to the petitioner, holding that there was a break of 28 days in the two spell of tenures of the petitioner as Director. Whereas in absence of specific indication to the contrary in the service book of the petitioner, any interruption cannot be allowed in the service of the petitioner.

19. Sri Shireesh Kumar has submitted that the impugned order dated 25.6.2019 has been passed in violation of principles of natural justice inasmuch as no opportunity of hearing of any kind whatsoever has been afforded to the petitioner before passing the order dated 25.6.2019. Besides, the impugned order has been passed in violation of Rule 27 and 28 of the CCS Rules, 1972. He has also submitted that the impugned order has been passed violating the directions being issued by this Court on 2.5.2019. The impugned order is absolutely non-speaking and unreasoned order. By means of impugned order the extraneous material has been taken into account without application of mind by the competent authority of IIM, Lucknow. Further, the impugned order is nothing but communication of earlier order dated 3.10.2017 and 28.3.2019 which had already been set aside by this Court vide order dated 2.5.2019. At last, the impugned order has been passed despite the fact that CCS Rules, 1972 do not provide provisional stoppage of pension.

20. In support of his contention that the impugned order dated 25.6.2019 has been passed ignoring Rule 27 and 28 of CCS Rules, 1972 Sri Shireesh Kumar has submitted with vehemence that Rule 27 of the CCS Rules, 1972 provides for effect of interruption in service and Rule 27(a) provides that an interruption in the service of a government servant entails forfeiture of his past services, except in case of authorized leave of absence. Further, since vide order dated 14.10.2003 the period of service of the petitioner from 25.8.2008 to 21.9.2008 was regularized, treating this period to have been spent on leave and this period was adjusted from 150 days of earned leave available in the account of the petitioner as such there was no interruption in the continued service of the petitioner.

21. Rule 28 of the Rules of 1972 provides for continuation of interruption in service and Rule 28(a) provides that in absence of a specific indication to the contrary in the service book an interruption between two spells of civil service rendered by a government servant under Government shall be treated as automatically condoned and the pre-interruption service be treated as qualifying service. Rule 28(b) provides nothing in clause (a) shall apply to interruption caused by the resignation, dismissal or removal from service or for participation in strike ( not applicable in the case of the petitioner). Rule 28(c) provides that the period of interruption referred to in clause (a) shall not count as qualifying service meaning thereby that the period of 28 days from 25.08.2008 to 21.9.2008 would not have been counted as qualifying service for the petitioner but on a reading of Rule 28(c) with Rule 27(1)(a) shows that on sanction of leave for this period even this period of 28 days was to be counted as qualifying service for the petitioner.

22. As per Sri Shireesh Kumar even if it is presumed that there is an interruption of 28 days between two spells of the services of the petitioner still the petitioner has a service of 10 years 11 months and 18 days which is more than 10 years, therefore, he is qualified for pension. This statutory provision is not considered in the order dated 25.6.2019.

23. The period from 25.8.2008 to 21.9.2008 is being treated interruption in service by the opposite parties despite the fact that there is no specific indication to the contrary in the service book of the petitioner as such as per the law laid down by the Hon'ble Supreme Court in the case of Madhukar vs. State of Maharashtra, 2014(15) SCC 565 and DTC vs. Balvan Singh, AIR 2017, SC 396, this period should be treated as automatically condoned and the pre-interruption service to be treated as qualifying service. Para 11 to 15 of the aforesaid judgment is as under :

11. Rule 46 of the Rules, 1982 relates to forfeiture of service on resignation. Under Rule 46(1) "resignation from a service or a post entails forfeiture of past services". Sub rule (4) of Rule 46 deals with the cases where the resignation shall not entail forfeiture of past services. But the said Rule 46 is not applicable to the appellant as he neither claimed the benefit of pension under the said Rules nor he was paid pension in terms of the said Rules.

12. As per paragraph 3 of Resolution dated 11.03.1992 the benefit of previous service by condoning break in service can be granted only if there is compliance of conditions contained in Rule 48(1) of the Rules, 1982, which reads as follows:-

"48. Condonation of interruption in service.-(1)The appointing authority may, by order, condone interruptions in the service of a Government servant:

Provided that-

a) -

b) the interruptions have been caused by reasons beyond the control of the Government servant;

c) the total service pensionary benefit in respect of which will be lost, is not less than five years duration, excluding one or two interruptions, if any; and

d) the interruption including two or more interruptions, if any, does not exceed one year.

(2) The period of interruption condoned under sub-rule (1) shall not count as qualifying service.

(3) In the absence of a specific indication to the contrary in the service record, an interruption between two spells of civil service rendered by a Government servant under Government, shall be treated as automatically condoned and the pre-interruption service treated as qualifying service.

(4) Nothing in sub-rule (3) shall apply to interruption caused by resignation, dismissal or removal from service or for participation in a strike.

(5) The period of interruption referred to in sub-rule (3) shall not count as qualifying service."

As per Rule 48 (3) in the absence of a specific indication to the contrary in the service record, an interruption between two spells of civil service rendered by a Government servant under Government, shall be treated as automatically condoned and the pre-interruption services to be treated as qualifying service.

13. In the case of the appellant, there is notional break in service. He resigned from the Government service on 18.07.1960 and joined the post of Lecturer in Hislop College, Nagpur on the same day i.e. 18.07.1960. Further, higher authorities have recommended to add the earlier period of service for determination of pensionary benefit. Being so, in absence of a specific direction to the contrary in the service record, the interruption between two spells of service rendered by the appellant under the Government shall be treated as automatically condoned; the earlier service rendered by appellant is to be counted towards qualifying service.

14. In view of the provisions of Rule 48 read with Government Resolution dated 11.3.1992, we hold that the appellant is entitled for counting the service earlier rendered between 21.06.1950 to 17.07.1960 for determination of pension. The High Court failed to notice the relevant provisions and wrongly held that the appellant is not entitled to get the benefits of his past services in view of Rule 46(1) of the Rules, 1982, which is not applicable in the case of the appellant. The High Court also erred in rejecting the claim on the ground of delay and failed to notice that the cause of action for grant of pension arises every month. In the present case what we find is that the appellant made representation at an appropriate stage and such request was accepted by respondent No.4, the Administrative Officer, Higher Education, Nagpur who recommended respondent No.5, the Senior Accounts Officer, Accountant General-II, Maharashtra to count the period and to take into consideration the fact that the appellant has rendered more than 33 years of service. Even the Joint Director by his letter dated 30.12.2005 recommended to respondent No.2, Director, Higher and Technical Education, Pune to count the period from 21.06.1950 to 18.07.1960. Thereby, the appellant also explained the delay in moving the High Court.

15. For the reasons aforesaid, we set aside the impugned judgment and order dated 23.04.2012 passed by the Division Bench of High Court of Judicature at Bombay, Nagpur Bench, Nagpur and direct the respondents to count the period of service rendered by the appellant from 21.06.1950 to 18.07.1960 for the purpose of computation of pension and pay the consequential benefits including arrears of pension within three months from the date of this judgment. On failure, the respondents shall be liable to pay interest @ of 8% from the date of filing of the writ petition till the amount is paid."

[Emphasis Supplied]

24. As per Sri Shireesh Kumar similar provisions have been dealt with by the Hon'ble Apex Court in re: Madhukar (supra), therefore, the controversy in question may be decided in terms of the aforesaid dictum of Hon'ble Apex Court.

25. In support of his further contention to the effect that the impugned order has been passed in violation of principles of natural justice as no opportunity of defense has been provided to the petitioner, Sri Shireesh Kumar has cited the dictum of Hon'ble Supreme Court in re: DTC vs. Balvan Singh, AIR 2017, SC 396 referring para 5 thereof as under :

"5. Prima facie, we are of the view that no adverse effect can be permitted upon the right of the employee to receive pension unless he was given notice by appropriate entry in the service book or through other notice that his absence will be treated as unauthorised absence and will not be counted towards qualifying service for pension. In absence of such notice, after the respondent-employee has taken voluntary retirement under VRS and that too on the ground that he has completed ten years of service, it may be unjust and very harsh to inflict him with such adverse consequences. No doubt in sub-rule (2) of Rule 28 of the Pension Rules which relates to condonation of interruption of service, an opportunity of representation is required to be given to the employee before making entry in service book regarding forfeiture of past service only, but there appears to be some substance in the submission that Rules of Natural Justice may be attracted even in other similar situation where the entry is regarding unauthorised absence, if it is to have the effect of break in service adversely affecting the length of qualifying service for pension."

[Emphasis Supplied]

26. Sri Shireesh Kumar has further submitted that this Court on 2.5.2019 disposed off the Writ Petition no. 12595 (SS) of 2019 setting aside the order dated 3.10.2007 and 28.3.2019 and directed the Board of Governors of IIM, Lucknow to reconsider the matter of the petitioner and to pass order with regard to grant of pensionary benefits and arrears thereof in the light of the CCS Rules, 1972 but the order dated 25.6.2019 has not been passed for grant of pension and its arrears to the petitioner as the CCS Rules have been totally ignored accordingly the order dated 25.6.2019 is not legally sustainable.

27. Sri Shireesh Kumar has submitted with vehemence that since the CCS (Pension) Rules, 1972 are beneficial legislation, therefore, those have to be interpreted liberally in view of the dictum of Hon'ble Apex Court in re : Union of India and others vs. Vijay Kumar No. 3989606 P.Ex. Naik reported in (2015) 10 Supreme Court Cases 460. Para 14 of the judgment is referred herein below:

"14. The Entitlement Rules for Casualty Pensionary Awards, 1982 are beneficial in nature and ought to be liberally construed. In terms of Rule 12, the disability sustained during the course of an accident which occurs when the personnel of the armed forces is not strictly on duty may also be attributable to service on fulfilling of certain conditions enumerated therein. But there has to be a reasonable casual connection between the injuries resulting in disability and the military service."

[Emphasis Supplied]

28. Per contra, Sri J.N. Mathur, learned Senior Advocate appearing for IIM, Lucknow orally raised preliminary objection against the maintainability of the writ petition by submitting that the order dated 22.5.2019 issued by the Government of India as contained in Annexure no. 2 to the writ petition has not been challenged whereas the order dated 25.6.2019 which has been passed pursuant to the aforesaid order of Government of India dated 22.5.2019.

29. However, Sri Shireesh Kumar has disputed this oral preliminary objection and submitted that the letter dated 22.5.2019 is not an order but an internal correspondence between the Government of India and the Directors, IIM, Lucknow and the copy thereof has not been endorsed to the petitioner. Even such letter dated 22.5.2019 itself indicates that it is a 'letter'. He has further submitted that every material or document which was part of the decision making process of the order dated 25.6.2019 got merged in the ultimate order dated 25.6.2019, therefore, the correspondence letter dated 22.5.2019 which is not even an order, need not to be challenged, hence, the preliminary objection deserves to be summarily rejected.

30. Sri Mathur has submitted that petitioner had two separate tenures as Director. First tenure was from 25.8.2003 to 24.08.2008 (five years). During the first tenure as Director the petitioner made an application on 3.9.2003 for simultaneous appointment as Professor. Petitioner's appointment as Professor while remaining Director was co-terminus. Upon completion of his first tenure as Director the petitioner submitted an application to join at IIM Noida Campus on 31.8.2008. There was a gap of 28 days upon completion of first tenure as Director and taking up the assignment to teach as Professor in IIM Noida with effect from 22.9.2008. The petitioner taught at IIM, Noida Campus for five months 16 days. Second tenure as Director was from 9.3.2009-8.3.2014 (five years). Six months' extension was granted by the Central Government from 9.3.2014-8.9.2014 (six months). There was a gap of six months and 15 days between the two tenures. A month before expiry of his second tenure the petitioner on 18.2.2014 (Annexure no. 2 to counter affidavit) applied for voluntary retirement which was allowed on 15.3.2014 by the Board.

31. The present case is not of withholding or withdrawal of pension, but is one where issue involved is the admissibility of pension. Pension was inadmissible to the petitioner as he was not eligible or entitled to receive the same. Thus, Rule 9 of the CCS (Pension) Rules, 1972 has no application in the instant case.

32. Rule 49(2) of the CCS Rules, 1972 provides for ten years of qualifying service for grant of pension in an establishment. There was a 28 day break in service in the case of the petitioner upon completion of first tenure as Director and taking up the assignment of teaching in IIM, Noida with effect from 22.9.2008. There was gap of 6 months and 15 days between the petitioner's two tenures as Director. Rule 27 of the CCS Rules, 1972 provides that an interruption in the service of a Government servant entails forfeiture of his past service. In the instant case the break in service was not caused due to any penalty or disciplinary proceedings but was due to a tenure appointment coming to an end. The petitioner thus did not have 10 years of minimum qualifying service for retirement pension.

33. The 28 days break in service between 24.8.2008 to 22.9.2008 (28 days) was sought to be made good by seeking post facto sanction of Earned Leave which was irregularly allowed since the petitioner ceased to be in service after 24.8.2008 and was hence not entitled for availing earned leave in any manner other than encashment. A perusal of the CCS Rules, 1972 reveals that the procedure adopted in the case of petitioner for granting him earned leave post facto even when he was not in employment is alien and no such provision exists in the CCS Rules. Earned leave accumulated at the end of service can only be encashed. The earned leave standing to the petitioner's credit at the end of his first tenure as Director could only have been encashed. It is reiterated that earned leave cannot be granted to a person who is not on the rolls of IIM. Person has to be in service to be eligible for leave.

34. Sri Mathur has further submitted that Rule 28 of the CCS Rules, 1972 provide for condonation of interruption in service. It has been argued on behalf of the petitioner that the 28 day break in service stood automatically condoned in terms of Rule 28(a). This argument is fallacious and misconceived. The interruption in the petitioner's case was caused due to two distinct and separate and fresh orders of tenure appointment. The petitioner was permitted to take up his assignment to teach in IIM, Noida with effect from 22.9.2008. This is not a situation where a Professor of the Institute was appointed as Director and he had two spells of service, one as Director and the other as Professor and he rejoined his post as Professor upon competition of the tenure. In the instant case upon completion of the tenure the service of the petitioner as Director came to an end. The petitioner sought to join in IIM, Noida to teach as Professor and was permitted to do so with effect from 22.9.2008 and not from 25.8.2008. The fresh tenure of the petitioner was after a fresh selection for the post was made by the Central Government. The petitioner was appointed afresh as Director on 5.3.2009 and his second fresh term as Director was not in continuation with his earlier term. The gap cannot be automatically condoned as the gap was not as a result of some artificial break like suspension, or punishment which was later set aside. Importantly Rule 28(c) of the CCS Rules, 1972 clearly provides that the period of interruption referred to in clause (a) shall not count as qualifying service.

35. The petitioner could not have been given voluntary retirement. The qualifying service for voluntary retirement is 20 years as pewr Rule 48A of the CCS Rules, 1972. The petitioner did not have twenty years of service to enable him to retire voluntarily. Importantly, the petitioner was given a tenure appointment and even the Memorandum of Association & Rules of the IIM society do not visualize superannuation for the Director. The petitioner has been given pension for the post of Director which in his case was patently erroneous. The service conditions of the petitioner did not visualize the prospect of superannuation. The principle of superannuation does not apply to a tenure post. This has been held by the Apex Court in the case of P. Venugopal V. Union of India (2008) 5 SCC 1. The relevant portion is being quoted herein under :

"32. From the above quotation, as made in para 16 of the said decision of this Court, it is evident that this has laid down that the term of 5 years for a Director of AIIMS is a permanent term. Service conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post and as such the question of superannuating or prematurely retiring the incumbent of the said post does not arise at all. Even an outsider (not an existing employee of AIIMS) can be selected and appointed to the post of Director. The appointment is for a tenure to which principle of superannuation does not apply. "Tenure" means a term during which the office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said post begins when he joins and it comes to an end on the completion of tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure."

[Emphasis Supplied]

36. As per Sri Mathur, petitioner's appointment on the post of Professor was coterminous and it ended with the end of tenure as Director. Petitioner's appointment on the post of Professor was not on a substantive post. The procedure prescribed for appointment of Regular Faculty was never followed. There was no advertisement, no selection, no interview. Post of Regular faculty cannot be filled without advertisement, interview and selection by a selection committee.

37. In the instant case the Board while reconsidering the petitioner's case with regard to pensionary benefits had his representation dated 11.10.2017 before them. Thus, full opportunity of hearing has been given by considering his representation. As such it cannot be argued that no opportunity of hearing was granted to the petitioner. The Board was deciding admissibility of pensionary benefits to the petitioner. The order dated 3.10.2017 having been set aside the Board reconsidered the entire matter and considered each and every aspect raised by the petitioner in his representation.

38. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that the present writ petition is maintainable inasmuch as the contents of letter dated 22.5.2019 issued by the Government of India which is part of decision making process of the impugned order dated 25.6.2019 got merged in the said order. Besides, the letter dated 22.5.2019 is a correspondence letter between the Government of India and IIM, Lucknow, even the copy thereof has not been endorsed to the petitioner, therefore, not challenging letter dated 22.5.2019 would not be fatal for the petitioner for maintaining this writ petition challenging the order dated 25.6.2019.

39. Further, no proper opportunity to submit the defense has been provided to the petitioner before passing the impugned order dated 25.6.2019. Hon'ble Apex Court in re: D.T.C. vs. Balwan Singh (supra) while interpreting Rule 27 and 28 of CCS Rules, 1972 has categorically held that an opportunity of representation would be required to be given to the employee before making entry in service book regarding forfeiture of past services and if it is not provided, the said inaction would be violative of principles of natural justice. In the present case vide impugned order dated 25.6.2019 all 29 paras of aforesaid impugned order are narration of facts relating to the petitioner and his grievances and no explanation or show cause notice has been issued against the petitioner before passing the impugned order which has civil consequences. This letter only says that the matter of the petitioner was placed in the Board of Governors, IIM, Lucknow meeting held on 14.6.2019 and Board has extensively deliberated the matter and found that pension and arrears thereof are not admissible to the petitioner as per CCS Rules, 1972, therefore, this order has been passed in utter violation of principles of natural justice.

40. The impugned order dated 25.6.2019 has been passed in continuation of earlier order dated 3.10.2017 and 28.3.2019 whereas those orders have been set aside by this Court vide order dated 2.5.2019 in Writ Service Single No. 12595 of 2019. The IIM has not assailed the order dated 2.5.2019 and said order has attained finality. Therefore, the concerning opposite party should have not taken recourse of the order dated 3.10.2017 and 28.3.2019 and even if those orders were to be relied on, an opportunity of hearing must have been provided to the petitioner apprising that those orders are being relied on and specific explanation to that effect should be called from the petitioner but no opportunity of hearing was provided to the petitioner. The manner under which the impugned order dated 25.6.2019 has been passed may not be appreciated and since the impugned order involves the civil consequences as it is causing serious prejudice to the petitioner, therefore, the principles of fairness should be followed strictly. The law is settled from the very beginning as at the House of Lords in re: Frome United Breweries Company Ltd. and another vs. Keepers of the Peace and Justice for Country Borough to Bath reported in 1926 AC 586 as observed as under :

"...This rule has been asserted, not only in the case of Courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called Courts, have to act as judges of the rights of others..."

Further, the Hon'ble Apex Court in re: State of Orissa vs. Dr. (Miss) Binapani Dei and others reported in AIR 1967 SC 1269 has held as under :

"... It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State."

41. I have also noted that vide first order dated 3.10.2017 (Annexure no. 10 to the writ petition) passed by the Director, IIM the pension of the petitioner was provisionally stayed without affording an opportunity of hearing. However, there was no statutory prescription to that effect under CCS Pension Rules, 1972. Such stay of pension of the petitioner provisionally was based on ongoing A.G. Audit whereas such audit report is dated 18.12.2017 (Annexure no. 17 to the writ petition), therefore, it is beyond any comprehension as to how the subsequent report has been taken into account staying the pension of the petitioner provisionally.

42. It has also been noted that the request of the petitioner regarding his simultaneous appointment as Professor provisionally in the IIM, Lucknow besides Director has been approved by the Board of Governors / Directors,as the case may be. Further, his request seeking concurrence for his posting as Professor, IIM at Noida Campus was also approved by the Board of Governors / Directors. Further, the Board of Governors / Directors has approved that the period from the date the petitioner would relinquish the charge as Director and until he would resume charge as Professor at IIM, Lucknow Noida Campus from 25.8.2008 to 21.9.2008 shall be treated as grant of earned leave. All requisite formalities, e.g. No Dues Certificate etc. obtained from different departments were also adheared to. The further appointment of the petitioner as Director, IIM, Lucknow for five years was approved by the Board of Governors / Directors and also by the Government of India. Not only the above the application of the petitioner dated 18.2.2014 whereby he sought retirement from service with pensionary benefits was duly approved by the Board of Governors / Directors and on relinquishing charge of the post of Director, IIM, Lucknow on 15.9.2014 the petitioner was allowed to retire as Professor of IIM, Lucknow as well. Admittedly, the petitioner was getting monthly pension w.e.f. 16.9.2004.

43. The aforesaid developments convince the Court that since the appropriate orders, as above referred, have been passed by the competent authority time to time and such orders have been executed after getting due approval from the Board of Governors / Directors, as the case may be, of the IIM and Government of India, therefore, taking U-turn in the present issue staying the pension of the petitioner provisionally on 3.10.2017, i.e. after more than three years since the petitioner was getting regular pension, without having any colour of authority to that effect and even without affording an opportunity of hearing to the petitioner is patently illegal, arbitrary and uncalled for.

44. Therefore, the submissions of Sri J.N. Mathur regarding not following the procedure by the competent authority granting the benefits to the petitioner would not sustain as no protest of any kind whatsoever has been ever lodged against the orders passed by the Board of Governors / Director, as the case may be, in favour of the petitioner from the very beginning, say from 22.10.2003 (Annexure no. 6) onwards till 15.9.2014 when, after due approval, the petitioner was allowed to retire. This is not a petition filed by the IIM, Lucknow challenging the aforesaid approvals. Whereas, the petitioner was getting pension regularly since his retirement after getting due approval from the competent authority i.e. Board of Governors / Directors, as the case may be.

45. Further, despite this Court vide order dated 2.5.2019 having set aside the order dated 3.10.2017 whereby the pension of the petitioner was stayed provisionally and the order dated 28.3.2019 which was passed by the opposite party no. 1 in compliance of the order of this Court dated 9.1.2019, passing impugned order dated 25.6.2019 on the basis of orders dated 3.10.2017 and 28.3.2019 is an illegal inaction on the part of opposite party no. 1 inasmuch as nonest orders i.e. order dated 3.10.2017 and 28.3.2019 could not have been taken into account while passing impugned order dated 25.6.2019, more so in violation of principles of natural justice.

46. Rule 27 of CCS Rules, 1972 provides effect of interruption in service. Clause (a) of the Rule 27(1) provides that an interruption in service of government servants entails forfeiture of his past service except authorised leave of absence. Rule 28 thereof provides the mechanism for condonation of interruption in service. It clearly mandates that in the absence of specific indication to the contrary in the service book an interruption between the two spells of civil service rendered by a government servant under the government shall be treated as automatically condoned and the pre-interruption service treated as qualifying service. The protection so given under Rule 28(a) has an exception under sub-rule (b) by saying that nothing in clause (a) shall apply to interruption caused by resignation, dismissal or removal from service for participation in a strike. Undoubtedly, no condition of clause (b) is applicable in the present case. Sub-clause (c) of Rule 28 appears to have interruption contrary to Rule 28(a) inasmuch as Rule 28(a) says an interruption between the two spells of civil service rendered by the government servant shall be treated as automatically condoned and pre-interruption service treated as qualifying service whereas sub-clause (c) of Rule 28 provides that the period of interruption referred to in clause (a) shall not be counted as qualifying service. However, if Rule 28(c) is read with Rule 27(1)(a) the inference may be drawn to the effect that the period of 28 days of interruption of service of the petitioner w.e.f. 25.8.2008 to 21.9.2008 would be counted as qualifying service. The Hon'ble Apex Court in re: Madhukar (supra) has held, while interpreting similar provisions of law to the effect that in the absence of indication to the contrary in the service record, interruption between the two spells of service shall be treated as automatically condoned and pre-interrupted services to be treated as qualifying service, therefore, in view of the dictum of the Hon'ble Apex Court in re: Madhukar (supra) there may not be any confusion on the interpretation of Rule 28 of CCS Rules, 1972 and, therefore, the two spells of service of the petitioner shall be counted for the pension.

47. There is no dispute that the petitioner was getting pension after retirement from IIM, Lucknow and vide very first order dated 3.10.2017 (Annexure no. 10 to the writ petition) the pension of the petitioner was abruptly stayed on the basis of one audit objection and finally vide impugned order dated 25.6.2019 not only the payment of pension of the petitioner has been denied but the arrears thereof has been denied holding that since there was break in service of 28 days in the two spells of service of petitioner as Director, therefore, he shall not be paid pension in view of the Rule 27 and 28 of the CCS Rules, 1972. Since the pension Rules are the beneficial legislation, therefore, the interpretation of such rules should be made liberally, if two interpretations of said rules are possible in view of dictum of Hon'ble Apex Court in re: Union of India vs. Vijay Kumar (supra).

48. Therefore, in view of what has been considered and observed above, I hereby allow the present writ petition.

49. A writ in the nature of certiorari is issued quashing the order dated 25.6.2019 passed by the Board of Governors, IIM, Lucknow as contained in Annexure no. 19 to the writ petition.

50. A writ in the nature of mandamus is issued commanding the opposite parties to forthwith restore the pension of the petitioner. Petitioner shall be paid the arrears of pension with promptness preferably within a period of two months with interest @ 6% per annum from the date it accrued up to the date of its actual payment. The petitioner shall be paid regular pension as and when the same falls due.

51. It is further directed that if this order is not complied with within stipulated time, the petitioner shall be entitled for the interest @ 12% on the aforesaid dues.

52. No order as to costs.

Order Date :- 04.3.2021.

Om

[Rajesh Singh Chauhan, J.]