Page No.# 1/13 vs The Union Of India And 3 Ors
2021 Latest Caselaw 3112 Gua

                                                                  Page No.# 1/13

GAHC010123332019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/3656/2019

         BHARATI GOGOI AND 18 ORS.
         NA- ALI BALIAGOHAIN PUKHURI, JORHAT, P.O. JORHAT, DIST. JORHAT,
         PIN-785001, ASSAM

         2: DEBASIS GOHAIN
          DOHABARA CHUK
          P.O. JORHAT
          DIST. JORHAT
          PIN-785001
         ASSAM

         3: PARESH CHANDRA DUTTA
          RAJAMAIDAM
          GAZPURIA PATH
          P.O. JORHAT
          DIST. JORHAT
          PIN-785001
         ASSAM

         4: TRAILOKYA NATH SAIKIA
          NA- ALI BONGAL PUKHURI
          PUBARUN PATH P.O. JORHAT
          DIST. JORHAT
          PIN-785001
         ASSAM

         5: DHARMA KANTA BURAGOHAIN
          KARANGA DHEKIAJULI POOL
          P.O. KARANGA CHINAMARA
          DIST. JORHAT
          PIN-785001
         ASSAM

         6: UMANANDA PHUKON
                                  Page No.# 2/13

SONALEE JAYANTI NAGAR
LANE 11
P.O. JORHAT
DIST. JORHAT
PIN-785001
ASSAM

7: MANIK CHANDRA DUTTA
 NA- ALI DHEKIAJULI KAHAR GAON
 P.O. NA- ALI DHEKIAJULI
 DIST. JORHAT
 PIN-785009
ASSAM

8: RAMAKANTA GOHAIN
 SONALEE JAYANTI NAGAR
 LANE 6
 P.O. JORHAT
 DIST. JORHAT
 PIN-785001
ASSAM

9: SOMESWAR BARUAH
 KUSHAL KNOWOR PATH
 NEAR JONAKI SANGHA VIDYALAYA
 P.O. JORHAT
 DIST. JORHAT
 PIN-785001
ASSAM

10: JITENDRA NATH DUTTA
 CLUB ROAD
 CHANDAN NAGAR
 P.O. JORHAT
 DIST. JORHAT
 PIN-785001
ASSAM

11: KESHOB DUTTA
 CLUB ROAD
 BONGAL PUKHURI
P.O. JORHAT
 DIST. JORHAT
 PIN-785001
ASSAM

12: NARENDRA NATH DEKA
TARAJAN SONARI GAON
                             Page No.# 3/13

ROAD NO. 1 P.O. JORHAT
DIST. JORHAT
PIN-785001
ASSAM

13: JUNUMA DUTTA BORDOLOI
TEOK ACHUYT MARG
 P.O TEOK . DIST. JORHAT
 PIN-785112
ASSAM

14: JOTIN BORDOLOI
TARAJAN SONARI GAON
 ROAD NO. 2
 P.O. JORHAT
 DIST. JORHAT
 PIN-785001
ASSAM

15: SRI RADHA DUTTA
 MALENG BAMUN GAON
 P.O. BARKHELIA
 DIST. JORHAT
ASSAM

16: RUNJUN SAVAPANDIT
 DHARMESWAR BARUAH PATH
 NEAR TARAJAN PUJA MANDIR
 DIST. JORHAT
ASSAM

17: RANJIT BORAH
 NANDANPUR PATH
 KOTAKI PUKHURI
 P.O. NEIST (RRL)
 DIST. JORHAT
 PIN-785006
ASSAM

18: BOLIN BORA
VILL. GAJPURIA
 P.O. JALUKBARI
 P.S. TITABOR
 DIST. JORHAT
 PIN-785630
ASSAM

19: SUREN KALITA
                                                                   Page No.# 4/13

            GARMUR DULIA GAON
            P.O. JEC
            DIST. JORHAT
            PIN-785007
            ASSA

            VERSUS

            THE UNION OF INDIA AND 3 ORS.
            THROUGH SECRETARY MINISTRY OF AGRICULTURE DEPTT. OF
            AGRICULTURE AND COOPERATION AND FARMERS WELFARE KRISHI
            BHAWAN, NEW DELHI-110001, DIST. NEW DELHI, NEW DELHI, DELHI

            2:ECONOMIC AND STATISTICAL ADVISER DIRECTORATE OF ECONOMICS
            AND STATISTICS
             DEPTT. OF AGRICULTURE AND COOPERATION AND FARMERS WELFARE
            ROOM NO. 144
             KRISHI BHAWAN
             NEW DELHI-110001
             DIST.-NEW DELHI
             DELHI

            3:THE CHAIRMAN
             GOVERNING BODY AND VICE CHANCELLOR
            ASSAM
            AGRICULTURAL UNIVERSITY
             JORHAT
            ASSAM

            4:THE HONARARY DIRECTOR
            AERC AND JOINT REGISTRAR
            AAU
             JORHAT
            ASSA

Advocate for the Petitioner   : MR. M CHOUDHURY

Advocate for the Respondent : ASSTT.S.G.I.




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                             ORDER

Date : 25-11-2021 Page No.# 5/13

Heard Mr. M. Choudhury, learned counsel for the petitioners. Also heard Mr. A.K. Dutta, learned CGC appearing for the respondent nos. 1 and 2 and Mr. P. Kataki, learned counsel appearing for the respondent nos. 3 and 4.

2. The present petitioners have filed the present writ petition challenging the action of the respondent authorities for not granting pension to the petitioners.

3. The petitioners' are retired employees of the Agro Economic Research Centre, which is a part of Assam Agricultural University. 15 Agro Economic Research Centres were established by the Government of India for the purpose of research and study in the field of Agriculture and attached them to different Universities. The Agro Economic Research Centres (AERCs) were supplementing the functioning of the Ministry of Agriculture and on the attachment of the AERCs, the AERCs were merged with the respective Universities, one of them being with the Assam Agricultural University.

4. The Government of India and the various Universities executed MoUs to the effect that the Central Government would provide grant-in-aid according to the approved budget, for payment of the pension and allowances of the persons working in the AERCs. However, in respect of some universities like the Assam Agriculture University and Sardar Patel University in Gujarat, which was earlier known as Vallabhbhai Vidyapith, no Memorandum of Understanding (MoU) was signed between the Central Government and the above two Universities.

5. The petitioners' counsel submits that the petitioner nos. 1 to 14 have retired from the AERC under the Assam Agricultural University, Jorhat, while the petitioner nos. 15 to 19 are still in service. He submits that all the petitioners have been appointed by the Central Government to the AERCs between the period from 1961 to 1995. He submits that the grant of pensionary benefits to the petitioners is a settled issue, as the judgment of Delhi High Court and Gujarat High Court have been upheld by the Apex Court in Civil Appeal No. 8183- 8184 of 2015, which was disposed of on 08.02.2018 and Civil Appeal No. 8196/2015, which was disposed of on 20.04.2018.

He also submits that the employees of the AERC under the University of Allahabad had filed a writ petition before the Allahabad High Court for grant of pension. The same was Page No.# 6/13

dismissed. An appeal was thereafter filed in the Apex Court by the employees of the AERC, Allahabad. The Apex Court vide order dated 30.03.2012 permitted the employees to withdraw the petition with liberty to make a representation to the Central Government for grant of pension. Subsequently, the Central Government vide order dated 11.03.2019 issued by the Ministry of Agriculture & Farmers Welfare granted the payment of pension to the employees of the AERC, Allahabad.

6. The learned counsel for the petitioners submits that in the judgment of the Delhi High Court, the petitioners therein had been granted pension by the Delhi High Court, on the basis of the Memorandum of Understanding (MoU) signed between the respondent No. 1 and the host University. He submits that the respondent No. 1 had prepared a common MoU for integration of all the AERCs with the host Universities/Institutions. The MoU for the AERC, Jorhat was sent to the respondent No. 3 (Assam Agricultural University) for formal signing on 20.09.1994. However, the said MoU was not signed by the respondent No. 3 for reasons best known to them. He submits that though MoUs have been signed in respect of 8 out of the 13 AERCs in the country, all the staff and employees of all the AERCs fall under the same category and would enjoy the same benefits at par with the employees of the host Universities/Institutions, inasmuch as, Clause (ix) of the MoUs states as follows:-

"(ix) The staff of the Centre would be considered at par with the regular employees of the University for all the privileges enjoyed by the regular staff of the University i.e pension, gratuity, provident fund allotment of quarter as per the existing rules, medical benefits all other benefits etc. as applicable to the staff of the University. They will also be considered for such advances an loans as may be extended by the University to its staff."

The petitioners' counsel submits that even in the case of the AERCs, which was attached with the Sardar Patel University in Gujarat, no MoU had been signed by the respondent No. 1 with the University. However, despite the absence of an MoU, the Gujarat High Court held that pension was payable to the staff and employees of the AERC therein. He accordingly submits that the petitioners being similarly placed as the employees of the AERC of the Sardar Patel University, a similar direction for payment of pension should be passed.

7. Mr. A.K. Dutta, learned CGC appearing for the respondent nos. 1 and 2 submits that the cases referred to by the learned counsel for the petitioners for grant of pension was on the basis of the MoUs executed between the Central Government and the University Page No.# 7/13

concerned. However, as no MoU had been signed between the Central Government and the Assam Agricultural University in respect of the persons working under the AERCs in the Assam Agricultural University, the judgments referred to by the petitioners counsel could not be made applicable to the present case.

8. Mr. P. Kataki, learned counsel for the respondent nos. 3 and 4 submits that once the Central Government releases the finances for payment of pension to the University, the University will disburse the same under the Assam Pension Rules, 1969 to the entitled persons.

9. I have heard the learned counsels for the parties.

10. The facts which are not disputed is to the effect that in the year 1954, the Government of India established the first Agro Economic Research Centres (AERCs) at Santiniketan, Visha- Bharati University, West Bengal under the Ministry of Food and Agriculture. The AERC for North-East India, Jorhat was established vide letter dated 14.08.1959 in the campus of the Assam Agriculture College, Jorhat by the respondent No. 1. In 1971, the administrative control of the AECR, Jorhat was transferred to the Assam Agricultural University vide Order dated 28.05.1971. It was stated in the order that the respondent No. 1 will provide 100% financial aid on annual basis and financial control with regard to sanction of posts, budget grants, etc to the AERC. During 1971, the cost of Cultivation Scheme, which is also an integral part of the AERC, Jorhat was introduced and the total administration of the Scheme was under the control of the AERC, Jorhat. The employees appointed under the Scheme were also governed by the same rules and regulations of the Assam Agricultural University, Jorhat. In view of the establishment of the Agricultural University, Jorhat, the Government of India constituted a review committee under the Chairmanship of Professor M.L. Dantawala. The committee recommended that the pay scales, provident fund, salaries and dearness allowances, service rules etc. of the AER Centre/Units in India should be similar with the University in which the Centres are located. Accordingly, as per recommendation the pay scales of the employees of the AER Centre, Jorhat were revised in 1978 and made at par with AAU's pay scales. The Directorate of Economics & Statistics also communicated the recommendations given by the review committee in the year 1984, to all the AER centres/units. Under their recommendation at Clause I(b) it was stipulated that:-

Page No.# 8/13

"The staff of the Centre/Unit would be considered at par with regular employees of the University for all the privileges enjoyed by the regular staff of the University/Institute i.e. pension, gratuity, provident fund etc. allotment of quarters as per the existing rules, medical benefits and all other benefits as applicable to the staff of the University/Institute. They should also be considered for such advances and loans as may be extended by the University/Institute to its permanent staff."

11. That the second review committee was also formed by the government, which submitted its report in the year 1985. One of the recommendation made was AER Centres be made permanent and should be an integral part of the Universities to which they are attached. Accordingly, vide Order dated 21.05.1990, the respondent No. 1 declared all the centres including Jorhat AERC permanent. The Govt. of India also vide another letter dated 21.05.1990 informed the AERCs that it would not be necessary for the AERC to obtain prior concurrence of this Department for revision of pay scale and allowance of the staff in the centre whenever pay scale of equated posts in the University are revised.

12. The Delhi High Court, in its judgment and order dated 13.05.2013 passed in WP(C) 8032/2009 " Shri Radharanjan Pattanaik & Ors Vs. Union of India and Ors ." and WP(C) No. 8090/2009, "Smt. Chabi Rani Pal Vs. Union of India and Ors., was to decide whether pension could be granted to the petitioners who were working in the AERC under the Visva Bharati University, Santiniketan, West Bengal. The Government of India and the University had executed a memorandum of understanding (MoU), which was to the effect that the Ministry of Food and Agriculture would release grant-in-aid to the University according to the approved budget provision every year. The MoU also stated that the staff of the AERC would be at par with the regular employees of the University for all the privileges enjoyed by the regular staff of the University, i.e., pension, gratuity etc. The Delhi High Court in its judgment and order dated 13.05.2013, also reproduced the letter dated 21.05.1990 issued by under Secretary to the Government of India, Ministry of Agriculture Department, Department of Agriculture Corporation, which states that 12 AERCs and one Centre for Management for Agriculture, IIM Ahmedabad was declared as permanent institutions. The AERC in the Assam Agriculture University, Jorhat, was one of the 12 AERCs mentioned in the above letter dated 12.05.1990.

13. The Delhi High Court vide its judgment and order dated 13.05.2013 passed in WP(C) Page No.# 9/13

No. 8032/2009 and WP(C) No. 8090/2009 thereafter held that the petitioners therein were entitled to pension and directed the Union of India to give the necessary financial resources to the University, for payment of pensionary benefits to the petitioners therein.

14. The judgment and order dated 13.05.2013 passed in WP(C) 8032/2009 and WP(C) 8090/2009 was put to challenge by the Union of India in LPA 677/2013 and 678/2013. However, the Division Bench of the Delhi High Court dismissed the LPA 677/2013 and LPA 678/2013 vide its judgment and order dated 16.09.2013.

15. The Union of India thereafter preferred appeals which were registered as Civil Appeal No. 8183-8184 of 2015. The Apex Court dismissed the appeals vide order dated 08.02.2018.

16. The Gujarat High Court was seized of a similar matter regarding the claim for payment of pension vide members of the staff engaged in "Cost of cultivation scheme of Agro Economic Research Centre". The only difference with the case decided by the Delhi High Court was that no MoU had been signed between the Central Government and the host University with regard to the staff of the AERC. The staff engaged in the "Cost of cultivations scheme of Agro Economic Research Centre" were staff of the AERC, "Sardar Patel University", Gujarat, which was earlier known as "Vallabhbhai Vidyapith". The case of the petitioners in the Gujarat High Court case, which was registered as Special Civil Application No. 25157/2007, was to the effect the teaching and non-teaching staff of the university were getting pay, allowances, gratuity and pensionary benefits according to the University Rules. However, the members of the staff engaged in Agro Economic Research Centre were denied pensionary benefits, even though they were to be treated at par with the staff of the University.

The Gujarat High Court, after considering the issue held that even though no MoU was signed between the Central Government and the University with regard to payment of pension, the employees of the AERC were entitled to all service benefits including pension, as was made available to the other employees of the university. The Gujarat High Court thereafter directed the Union of India to provide the financial resources to enable the University to make payment of pensionary benefits to the members of the petitioner Association.

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17. The operative portion of the judgment and order dated 17.01.2014 passed by the Division Bench of the Gujarat High Court in Civil Application No. 25157/2007, which is at paragraph nos. 15.1 and 19 are reproduced below:-

15.1." We are in respectful agreement with the views expressed by His Lordship of the Delhi High Court so far as the discrimination in grant of pension is concerned. However, we may note one distinguishable feature. In the case before the Delhi High Court there was a Memorandum of Understanding entered into between the Union and the University and the terms of the Memorandum of Understanding were interpreted by the Court on the basis of which it reached to the conclusion that the employees of the EERC, who became employees of the University by virtue of the Memorandum of Understanding, were entitled to all the service benefits including the pension as those which were available to the other employees of the University. Although in the present case there is no such Memorandum of Understanding entered into between the Union and the University, yet that, by itself, would not be sufficient to hold that the members of the petitioner association are not entitled to draw pension. As discussed above, when the members of the petitioner association were to be treated at par with the other employees of the University and when the service conditions including the rules and regulations governing the same were also to be applied mutatis mutandis, then in such circumstances, we do not find any justifiable reason for denying pension to the members of the association.

19. " The petition is allowed. It is declared that the members of the petitioner association are entitled to all the pensionary benefits as available to the employees of the Sardar Patel University. The respondent no. 3- Union of India is directed to provide the necessary financial resources by making necessary budgetary allocation for ensuring that the respondent no. 1, Sardar Patel University, gets the finances for the payment of pensionary benefits to the members of the association. The respondent no. 1 University is directed to release the pensionary benefits, including the arrears accumulated so far, within a period of three months from today. The respondent no. 3, Union of India, is directed to ensure that within the present financial year the necessary financial resources according to the Business Rules are transferred to the Page No.# 11/13

respondent no. 1- University so that the pensionary benefits can be granted to the members of the petitioner association.

18. The Judgment and order dated 17.01.2014 passed by the Division Bench of the Gujarat High Court in Special Civil Application No. 25157/2007 was put to challenge before the Apex Court in Civil Appeal No. 8196/2015. The same was dismissed on 20.04.2018 by the Apex Court holding that it did not find any merit in the appeal.

19. The Union of India being aggrieved by the dismissal of their appeals by the Apex Court filed review petitions, registered as review petition (C) diary no. 38816 of 2018 and review petition (C) no. 1696/2019. They were both dismissed vide orders dated 05.12.2018 and 05.02.2019 respectively.

20. In view of the fact that the staff and employees of different AERCs attached to other Universities, whether having executed an MoU or not, are entitled to payment of pension in terms of the judgments of the Delhi High Court and Gujarat High Court which had been affirmed by the Apex Court, this Court finds that the petitioners who are similarly placed, cannot be denied the benefit provided in the said judgments. Accordingly, the petitioners herein are, in the considered view of this Court, entitled to grant of pensionary benefits, as is applicable to the staff and employees of the Assam Agricultural University.

21. In the case of State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava & Ors., reported in (2015) 1 SCC 347, the Apex Court has held that the normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit, or else it would be violative of Article 14 of the Constitution. However, this principle is subject to the well recognized exceptions in the form of laches and delay as well as acquiescence. In the present case, at the time of filing the writ petition on 30.05.2019 the petitioner No. 1 had already been in retirement for approximately 10 years, the petitioner No. 2 for 26 years, petitioner No. 3 for 18 years, petitioner No. 4 for 11 years, petitioner No. 5 for 24 years, petitioner No. 6 for 27 years, petitioner No. 7 for 11 years, petitioner No. 8 for 14 years, petitioner No. 9 for 19 years, petitioner No. 10 for 14 years, petitioner No. 11 for 11 years, petitioner No. 12 for 15 years, petitioner No. 13 for 1 year and petitioner No. 14 for less than 1 year.

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In terms of the judgment of the Apex Court in State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava & Ors. (Supra), the petitioner Nos. 1 to 12 can be treated to be fence- sitters and laches and delay would be a valid ground to dismiss their claim. However, the cause of action for grant of pension arises every month and as such, the question to be decided is whether the petitioners would be entitled to payment of pension as applicable to the staff and employees of the Assam Agricultural University from their date of retirement.

22. In the case of Union of India & Ors. Vs. Tarsem Singh, reported in (2008) 8 SCC 648, the Apex Court has also held that recovery of pension arrears should be restricted to 3 years prior to filing the writ petition. The Apex Court in Union of India & Ors. Vs. Tarsem Singh (Supra) has held at paragraph No. 7 as follows:-

""To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."

23. In view of the judgment mentioned above and keeping in view the finding of this Court that the petitioners are entitled to payment of pension as applicable to the staff and employees of the Assam Agricultural University, this Court holds that the petitioner Nos. 1 to 12 will be entitled to payment of pension from a date of 3 years, prior to the date of filing of this petition, which is 30.05.2019. For all the other petitioners, pension will naturally be given Page No.# 13/13

from their date of retirement.

24. Accordingly, the respondent No. 1 is directed to sanction and give the necessary financial resources by making necessary budgetary allocations for ensuring that the Assam Agricultural University gets the finances for payment of the arrear and current pensionary benefits to the petitioners as per their entitlement.

25. It is needless to add that any CPF that may have been given to the retired petitioners would be adjusted against the pensionary benefits to be paid to them in terms of the applicable Pension Rules. The entire exercise should be concluded within a period of 4 (four) months from today.

26. The writ petition is accordingly allowed.

JUDGE

Comparing Assistant