Delhi High Court
Rajeev Kumar Bhardwaj vs Guru Gobind Singh Indraprastha ... on 16 September, 2019
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16.09.2019
+ W.P.(C) 4543/2016 and CM APPL. 35206/2019
RAJEEV KUMAR BHARDWAJ ..... Petitioner
Through: Mr. Saurabh Tiwari, Adv.
versus
GURU GOBIND SINGH INDRAPRASTHA
UNIVERSITY AND ORS ..... Respondents
Through: Mr. Harsh Kaushik, Mr. Varun
Tandon, Advs. for R-1
Mrs. Avnish Ahlawat, Standing
Counsel (Services) with Mr. Nitesh
Kumar Singh, Ms. Laveena Arora,
Advs. for R-2
Ms. Meenal Duggal, Adv. for
Mr. Viraj R Datar, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
1. Vide the present petition, Petitioner prays for the following reliefs:
"b) A writ in the nature of certiorari quashing the order
dated 03.02.2012 passed by the Ld. District & Sessions
Judge, Delhi/ Respondent No.2, being illegal, arbitrary;
without jurisdiction and unjust and in violation of the
consolidated instructions contained in O.M. dated
26.12.2013;
c) A writ in the nature of certiorari, quashing the letters
dated 23.08.2013 and 21.03.2016, issued by the
Respondent No. l/University, being illegal; arbitrary,
unjust and in violation of the Government Rules and
Regulations;
d) A writ of mandamus commanding the Respondent
No.l/University to forthwith make an entry in terms of Rule
26(2) of the CCS (Pension) Rules, 1972 in the service book
of the Petitioner, in respect of the service rendered by him
in the said University with effect from 25.03.2008 (AN) to
17.11.2008 (FN);"
2. Learned counsel appearing on behalf of the Petitioner submits that as
far as the prayer (b) is concerned, on instructions, he does not wish to press
the same in the present petition.
3. The case of the Petitioner is that the Petitioner applied for the post of
Lower Division Clerk in the office of the District & Sessions Judge, Delhi
and on being selected, the Petitioner joined the service of the District Court
as Lower Division Clerk on 05.07.2003. Thereafter, on 16.09.2003, the
Petitioner was appointed as adhoc Stenographer in the District Court and on
14.10.2003, he was appointed as a regular Stenographer. On 17.2.2007, the
Petitioner was confirmed in the post of Stenographer. Thereafter, on
08.10.2007, the Petitioner applied for the post of General Assistant in
Respondent No.1/University (hereinafter shall be referred as „the
University‟) through proper channel. While working in the District Court,
the Petitioner had also applied for the post of Senior Personal Assistant in
this Court through proper channel. On 18.02.2008, the Petitioner received an
offer of appointment for the post of General Assistant from the University.
Accordingly, on 25.02.2008, the Petitioner submitted Technical Resignation
from the service of the District Court, which was accepted with effect from
25.03.2008 (AN) vide Order dated 20.03.2008 issued by the Respondent
No.2/District Court, Delhi.
4. Learned counsel appearing on behalf of Petitioner submits that vide
Order dated 29.05.2008, the Respondent No.2 clarified that the Petitioner
will be entitled to the benefit of past service under Rule 26(2) CCS
(Pension) Rules, 1972 and lien was retained for two years as per Rules and
therefore, the University was fully aware of this fact even at the time when
the Petitioner joined the service of University. On 25.03.2008 (AN) itself,
the Petitioner joined the service of the University as General Assistant and
the Respondent University called for the Service Book etc. of the Petitioner
from the Respondent No. 2/ District &Sessions Judge, Tis Hazari, vide their
letter dated 22.4.2008. Vide letter dated 15.05.2008, the Petitioner intimated
the University regarding the posts applied for by him in various
organisations prior to joining the University, including the post of Sr.PA in
this Court. In response thereto, vide letter dated 18.07.2008, the University
informed the Petitioner that in case of selection to any of the post(s) applied
for, prior to joining the University, the Petitioner shall have to resign from
the post in the University, with proper notice.
5. Vide letter dated 28.07.2008, the University issued NOC to the
Petitioner for attending interview for the post of Sr.PA in this Court, subject
to the condition that in case of selection, the Petitioner shall have to resign
from the post in the University by giving proper notice and no lien shall be
allowed in any case. Vide letter dated 03.10.2008, the Petitioner received
offer of appointment to the post of Sr.PA from the Registry of this Court.
Accordingly, vide letter dated 16.10.2008, the Petitioner submitted his
resignation from the post of General Assistant in the University in order to
enable him to join this Court. Vide order dated 4.11.2008, the resignation of
the Petitioner was accepted by the University and vide order dated
17.11.2008, he was relieved from his duties in the forenoon of 17.11.2008,
to join duty in this Court. Petitioner joined service of this Court as Sr.PA in
the forenoon of the same date i.e. on 17.11.2008, without any break in
service. On 25.02.2008, the Petitioner submitted Technical Resignation
from the service of the District Court where he was working prior to joining
service of University as the lien on the post of Stenographer retained at
District Court for two years was going to expire on 25.03.2010 but the
District Court was pleased to extend the lien of the Petitioner for a further
period of one year i.e. upto 25.03.2011. The Petitioner was comfortably
employed in this Court and he had even successfully completed the
probationary period in this Court.
6. Vide letter dated 12.07.2010, the Registry of this Court informed the
Petitioner that he had successfully completed the probation on the post of
Sr.PA on 17.11.2009 and will be confirmed as Sr.PA on his turn, as and
when confirmed vacancy becomes available for him.
7. Learned counsel further submits, when the case of the Petitioner was
examined by the Registry of this Court for grant of past service benefits to
the Petitioner, they sought certain information from the University vide their
letter dated 29.8.2012 since his service book did not contain an entry made
by the University under Rule 26(2) of CCS (Pension) Rules. Vide their
letter dated 17.12.2012, the University furnished the requisite information to
the Registry of this Court, pointing out inter alia that no payment has been
received in the University from District Court on account of past service
pensionary benefits and therefore, no entry of his past services has been
made in the service book.
8. Vide letter dated 14.03.2013, the Registry of this Court forwarded the
said letter dated 17.12.2012 of the University to the District Court, for
necessary action at their end. Vide letter dated 20.06.2013, the District
Court informed the High Court that the University never asked for any past
service pensionary benefits in respect of the Petitioner. It was also requested
that the service book of the Petitioner be sent for taking further necessary
action in the matter.
9. Learned counsel further submits that to the utter shock and surprise of
the Petitioner, the University side tracked the issue and informed the District
Court vide their letter dated 23.08.2013 that no account for provident fund
was maintained and no deduction was made at the University since the
Petitioner was on probation and did not complete one year of regular service
and since the service of the Petitioner was not confirmed at the University,
no communication for transfer of past service benefits was sent to the
District Court. In fact, the District Court had merely requested the GGSIP
University to initiate the matter for payment on account of past service
pensionary benefits, as per rules.
10. Vide letter dated 26.9.2013, the Petitioner inter-alia requested the
University to initiate the matter for payment on account of past service
pensionary benefits as per rules in respect of the Petitioner with the office of
the District Court at the earliest. Vide letter dated 15.01.2014, the
University reiterated their stand as intimated by them earlier to the District
Court vide their letter dated 23.8.2013 and advised the Petitioner to take up
the matter of counting of past service with his previous department i.e.
where he was a permanent employee and had retained lien for two years.
Moreover, the application of the Petitioner for employment at this Court was
forwarded through proper channel from District Court. The Registry of this
Court, vide letter dated 09.09.2014, requested District Court to make
payment, if any, on account of past service pensionary benefits in respect of
service rendered by the Petitioner in District Court to the University. A copy
of this letter was also forwarded to the University and they were informed
that since the Petitioner joined District Court prior to 01.01.2004 and there is
no break in his service, he is covered under the old pension scheme and as
such entitled to past service benefits under Rule 26(2) of the CCS (Pension)
Rules, 1972. The Registry of this Court categorically mentioned in the said
letter that an entry in the Service Book of the Petitioner be made about the
service rendered in the University to the effect that the benefits under Rule
26(2) of the CCS (Pension) Rule, 1972 are admissible to him, and if any
contribution towards the past service benefits is required from District
Court, or any contribution towards GPF etc. for the service rendered in the
University, the same may be intimated to them, at an early date.
Accordingly, vide letter dated 19.12.2014, Respondent No. 2 complied with
the directions of the Registry of this Court and forwarded three cheques
towards terminal benefits for the service rendered by the Petitioner in the
District Court with effect from 5.7.2003 to 25.3.2008, to the University,
drawn in favour of In-Charge (Pers.), the University.
11. Learned counsel for the Petitioner further submits that the Registry of
this Court forwarded the Service Book of the Petitioner to the University
vide letter dated 27.01.2015, requesting them to make entries under Rule
26(2) CCS (Pension) Rules, as the payment on account of past service
pensionary benefits has already been sent to the University by the District
Court vide their letter dated 19.12.2014.
12. It is understood that the Respondent No.1/University returned the
cheques earlier sent by the District Court to them, requesting them to make
the said Cheques in favour of "Registrar, GGSIP University" instead of "In-
charge (Pers.), Guru Gobind Singh Indraprastha University, New Delhi".
Therefore, vide their letter dated 16.2.2015 the District Court requested the
Pay & Accounts Office No.VI, Tis Hazari, Delhi, to make all the three
cheques in favour of Registrar, GGSIP University, as requested by the
University vide their letter dated 09.02.2015. Thereafter, vide letter dated
09.03.2015, the District Court again forwarded three revised cheques to the
University towards terminal benefits released for the service rendered by the
Petitioner in the District Court with effect from 5.7.2003 to 25.3.2008,
drawn in favour of Registrar, GGSIP University, New Delhi.
13. After a silence of more than one year, the University/ the Respondent
No. 1, in an illegal and arbitrary manner, informed the Registry of this Court
vide impugned letter dated 21.3.2016, inter alia that the University is
governed by GGSIP University Act, Statutes and Ordinances etc. contained
therein and has not yet finalized any rules so far regarding past service
benefits and that the employees of the University are covered under
Contributory Provident Fund scheme. The service book of the Petitioner was
also returned without making any entry for reasons best known to the
Respondent No. 1/University.
14. Learned counsel for the Petitioner submits that as per clause 32 of
Statute 32 of the Guru Gobind Singh Indraprastha University Act, Statutes
and Ordinances provides that where no explicit rules have been made or for
any interpretation or clarification, corresponding rules followed in the
Government may be adopted subject to the approval of the Board of
Management. On 06.04.2016, the office of the District & Sessions Judge
enquired from the University to clarify whether they should re-issue the
fresh cheques in favour of Registrar, GGSIP University or should they make
the payment to the Petitioner through their good office.
15. However, the impugned action of the University in not making entries
in the service book of the Petitioner under Rule 26(2) of CCS (Pension)
Rules, is illegal, arbitrary, unjust and against the Government Rules,
inasmuch as the Respondent No.2 was agreeable to make payment towards
terminal benefits for the service rendered by the Petitioner in the office of
the District & Sessions Judge, from 05.07.2003 to 25.03.2008 and the
Respondent No.2 had in fact, sent three cheques for the said payment, to the
University vide their letter dated 19.12.2014.
16. On the other hand, learned counsel for Respondent Nos. 2 and 3 have
no objection if the present petition is allowed.
17. As far as the Respondent No. 1/ University is concerned, learned
counsel appearing on behalf of the said Respondent submits that the
provisions of Clause 29 of Statute 32, as promulgated by the Respondent
No. 1 to govern the service conditions pertaining to its non - teaching
employees, clearly stipulates that such non-teaching employees of the
Respondent No. 1 would be covered under the Contributory-cum-Gratuity
scheme (hereinafter referred to as the "CGS") and that the employees shall
not be entitled to pension but they will be entitled to such other benefits as
laid down in the scheme. Ordinance 4 of the University lays down the
Contributory Provident Fund- Cum-Gratuity Scheme. The provisions of
Clause 29 of Statute 32 clearly stipulate that employees shall not be entitled
to pension but they will be entitled to such other benefits as are laid down in
the aforesaid CPF scheme as laid down under Ordinance 4 of the University.
The offer of appointment issued to the Petitioner i.e. Memorandum dated
18th February 2008 explicitly stated in para 2 that "the terms and conditions
of appointment including retirement benefits shall be governed by the
provisions of the notified statutes and ordinances in respect of service
conditions of non-teaching employees of the University, as amended from
time to time", thus the Petitioner while joining the University opted to be
governed by the schemes for retirement benefits as applicable in the
University for the non-teaching employees.
18. Learned counsel for Respondent No. 1 further submits that under the
provisions of Clause 1.1 (i) of Ordinance No. 4 governing the CPF-cum-
Gratuity Scheme, the University only makes CPF deductions after the
completion of a period of one (1) year of continuous service with it, which
admittedly, the Petitioner failed to do so. As such, no deduction on account
of CPF was made by the University in respect of the Petitioner, during
period of his employment with the University.
19. It is also submitted that the accompanying Petition does not involve a
question of mere continuity of service as claimed by the Petitioner, it
involves the question of continuity of service for the purposes of pensionary
benefits under the CCS (Pension) Rules 1972. During the period of
employment of the Petitioner with the University, there was no rule for
continuity of past service for pensionary benefits for the employees
governed under Statute 32 of the University. Clause 29 of Statute 32
explicitly bars pension and thus pensionary benefits and the benefits of Rule
26(2) of CCS (Pension) Rules 1972 for the pensionary benefits cannot be
extended to the Petitioner.
20. Learned counsel further submits that the Board of Management of the
University, vide its decision dated 23.02.2015 (60th meeting), has approved
an amendment to aforementioned Clause 29 of the Statute 32, which
stipulates that "the employees of the University will be covered under the
scheme of Contributory-cum-Gratuity scheme notified in the ordinance.
However, the employees, who were appointed on regular basis prior to
01.01.2004, may opt Pension-cum-General Provident Fund Scheme of the
University as laid down in the Ordinance." Learned counsel submits that
the aforesaid amendment is presently under consideration of the
Government. Board of Management, vide the decision taken in Item No.
50.03 dated 27.09.2012, has approved Ordinance 36 of the Respondent No.
1, which deals with Pension-cum-General Provident Fund Scheme. Clause 3
of the said Ordinance 36 deals with the counting of the past service and
Clause 26 of the Ordinance 36 provides, inter alia, for applicability of CCS
(Pension) Rules to the University. However, the benefits of the said
Ordinance 36, if any, cannot be provided to the Petitioner on account of the
fact that the proposed Ordinance 36 has not been published in the official
gazette by the Government of the National Capital Territory of Delhi and the
proposed amendment to Statute 32 is still under consideration.
21. Heard learned counsel for the parties in length.
22. Fact remains, the issue in the present petition is that the Petitioner
seeks entry in his service book for the period he worked with the University-
Respondent No. 1. Undisputedly, the present petition is not for any benefit/
pension/ gratuity etc. However, the Petitioner seeks only the entry to be
made in his service book by the University. Though, as per the appointment
letter of the Petitioner, the post in which he remained with the University is
non-pensionary and he is not an employee of the University anymore but is
an employee of this Court. Therefore, I fail to understand as to why the
University has objection for making the entry in the service book.
23. Accordingly, I hereby while allowing the petition direct the
Respondent No. 1/University to make entry in the service book of the
Petitioner.
24. It is explicitly made clear that the Petitioner shall not claim any
pension/ contributory allowance or gratuity from the University at any
subsequent time.
25. I hereby further clarify that this order will not effect, in any manner,
the status of the University as a non-pensionary establishment.
26. Accordingly, the Registry of this Court is directed to send the service
book of the Petitioner to the University within one week for the necessary
entry, which shall further be made within one week. Thereafter, the service
book of the Petitioner shall be returned to Registry of this Court after
necessary compliance.
27. The writ petition is allowed and disposed of accordingly with no order
as to costs. Pending application also stands disposed of.
(SURESH KUMAR KAIT)
JUDGE
SEPTEMBER 16, 2019
PB
