Kerala High Court
Lt.Col.Pankajakshan K( Retd.) vs The National Institute Of ... on 6 October, 2021
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
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
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
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
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
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
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.
