Kerala High Court
M.G.Sreekumar vs Indian Institute Of Management, ... on 5 February, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
WP(C) NO. 20174 OF 2021
PETITIONER/S:
M.G.SREEKUMAR
AGED 61 YEARS
FLAT NO.1302, SATHYAM MAJESTIC, PLOT NO.28, SECTOR 18,
ULWE, NAVI MUMBAI-410 206
BY ADVS.
SHAJI THOMAS
MOHAN PULIKKAL(K/64A/1985)
JEN JAISON(K/000208/2017)
RESPONDENT/S:
1 INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE (IIMK)
KOZHIKODE, IIM KOZHIKODE CAMPUS P.O, KOZHIKODE-673 570,
REPRESENTED BY ITS CHAIRMAN
2 THE CHIEF MANAGER (HR),
INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE, IIM
KOZHIKODE CAMPUS P.O, KOZHIKODE-673 570
3 ASSISTANT ADMINISTRAIVE OFFICER (HR) (STAFF MATTERS),
INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE, IIM
KOZHIKODE CAMPUS P.O, KOZHIKODE-673 570
4 ADDL.R4 COMPTROLLER AND AUDITOR GENERAL OF INDIA,
DEEN DAYAL UPADHYAYA MARG NEAR MATA SUNDARI RAILWAY
COLLEGE, NEW DELHI- 110 002
5 ADDL.R5 PRINCIPAL DIRECTOR OF AUDIT (GENERAL) ,
INDIAN AUDIT & ACCOUNTS DEPARTMENT, CHENNAI KOCHI
BRANCH GOLDEN JUBILEE ROAD, KALOOR, KOCHI- 682 017
6 ADDL.R6 MINISTRY OF HUMAN RESOURCE DEVELOPMENT,
DEPARTMENT OF HIGHER EDUCATION, SHASTRI BHAWAN, NEW
DELHI- 110 001 [ADDL.R4 TO R6 IMPLEADED AS PER ORDER
WP(C) No.20174/2021 2
2024:KER:98369
DATED 13.02.2024 IN I.A-3/2023 IN WP(C) 20174/2021]
BY ADVS.
R1 BY SHRI.M.GOPIKRISHNAN NAMBIAR
R5 BY SHRI.MAYANKUTTY MATHER K.I
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
JAI MOHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.11.2024 THE COURT ON 05.02.2025 DELIVERED THE FOLLOWING:
WP(C) No.20174/2021 3
2024:KER:98369
JUDGMENT
The petitioner, who was the Chief Librarian and Information
Officer of the 1st respondent, the Indian Institute of Management,
Kozhikode, has approached this Court with this Writ Petition, being
aggrieved by the non-disbursal of the pension payable to him under
the GPF-cum-Pension Scheme.
2. The facts that led to the filing of this Writ Petition are as
follows:
2.1. The petitioner commenced his career as a Senior Librarian
at the National Institute of Research in Tuberculosis (NIRT),
Chennai, on 15.06.1992. While working in the NIRT, which is an
institution under the Indian Council of Medical Research, the
petitioner joined GPF-cum-Pension Scheme of the Central
Government. While continuing in NIRT, the petitioner applied for the
post of Librarian under the 1st respondent and on getting selected, the
petitioner resigned from NIRT with effect from 19.11.1997.
Thereafter, he joined the 1st respondent as a Librarian on 20.11.1997.
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st
2.2. On 24.10.2000, the 1 respondent issued Ext.P1 Circular
by which they have taken a decision to introduce GPF-cum-Pension
scheme for the employees who were the members of the Scheme in
the organizations in which they had worked earlier, subject to the
condition that, the pro-rata pension under the previous employer
should be transferred to the 1st respondent within a reasonable time.
Accordingly, the petitioner opted for the GPF-cum-Pension Scheme
in the light of Ext.P1 Circular. It is to be noted in this regard that, the
employees of the 1st respondent were governed by the contributory
pension scheme. Later, as per Ext.P2, the 1 st respondent decided to
implement the National Pension Scheme (NPS) for regular faculty
and staff of the Institute who joined the 1 st respondent on or after
01.01.2004. In Ext.P2 also, it was clearly mentioned that, the GPF-
cum-Pension Scheme would be applicable only to those employees
working in other organizations before joining the 1 st respondent, and
were members of the GPF-cum-Pension Scheme, subject to the
condition of the previous employer undertaking to transfer pro rata
pensionary benefits of such employees to the 1st respondent-Institute.
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2.3. As the petitioner submitted options to continue as a
member of the GPF-cum-Pension Scheme, the 1 st respondent issued a
series of letters totalling six in numbers to the NIRT requiring them
to transfer the pro-rata pension in the account of the 1 st respondent to
enable the petitioner to avail the benefits of Ext.P1 Circular. The
petitioner had also made similar requests before the NIRT. However,
the said requests were turned down by the NIRT by contending that,
as the petitioner resigned from the post, he had forfeited his service
benefits. In such circumstances, the petitioner was constrained to
approach the Central Administrative Tribunal, Chennai, by filing
O.A.No.310/1731/2015. The said O.A. was ultimately decided by the
C.A.T as per the order dated 26.11.2018, holding that the stand taken
by the NIRT is not proper and, therefore, a direction was issued to
reconsider the claim of the petitioner. Accordingly, in compliance
with the directions issued by the CAT, Ext.P4 Office Memorandum
dated 10.04.2019 was issued by the NIRT granting approval to the
release of the pro-rata pension in respect of the service of the
petitioner from 15.06.1992 to 19.11.1997. Exhibit P4 was
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implemented by transferring an amount of Rs 8,57,260/- as the pro-
rata pension to the account of the 1st respondent, as evidenced by the
Ext P5 OM dated 13.11.2019.
2.4. However, the 1st respondent did not take any steps to
include the petitioner in the pension scheme, and accordingly, Ext.P6
representation was submitted by him before the 1 st respondent. In
reply to the same, Ext.P7 was issued by the 1 st respondent, stating
that, the request of the petitioner cannot be considered as the same
can be done only after receiving orders from the Parliamentary
Committee/Public Accounts Committee.
2.5. This Writ petition was submitted by the petitioner in such
circumstances inter alia seeking to quash Ext.P6 order and to direct
the 1st respondent to disburse the pension payable to the petitioner
under GPF-cum-Pension Scheme with effect from 16.01.2021, the
date on which the petitioner availed voluntary retirement .
3. A detailed counter affidavit was submitted by the 1 st
respondent by justifying the stand taken by them in Ext.P7. It was
averred that, apart from the petitioner, the 1 st respondent granted the
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benefits of Ext.P1 to nine other employees, but the same was
objected to by the CAG unit Chennai branch on the reason that, the
GPF pension was sanctioned to the said employees, without getting
any specific order from the Administrative Ministry. Exhibits R1(a)
and R1(b) were relied on to substantiate the same. According to the
1st respondent, it was due to that reason, the amounts were not
disbursed to the petitioner.
4. Besides, it was also averred that the benefits of Ext.P1
were extended to those persons who joined the 1 st respondent after
leaving the other organizations governed by the GPF pension scheme
and whose previous employer, had transferred the pro-rata pension
within a reasonable time. It was further averred that, as far as the
petitioner is concerned, the pro-rata pension was expressly declined
by the previous employer initially, and the same was ultimately
received only in the year 2019. By that time, audit objection by the
CAG was there and hence it was not possible for them to grant the
benefits to the petitioner.
5. A reply affidavit was submitted by the petitioner to the
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counter affidavit, wherein it is mentioned that, after the objection
raised by the CAG, some of the employees who were included in the
GPF-cum-Pension Scheme in the light of Ext.P1 Circular were
granted pension as per the said Scheme. The petitioner specifically
named five such persons who availed of the said benefits. It was also
pointed out that, now, the 1st respondent had notified the Indian
Institute of Management, Kozhikode Regulations 2021 (hereinafter
referred to as Regulations 2021), wherein a statutory coverage is
provided to the benefits contemplated under Ext.P1 Circular. It was
pointed out that, in Regulation 11 thereof, it is specifically mentioned
that, the GPF-cum-Pension Scheme would be applicable only to
those regular employees who, before joining IIM, Kozhikode on or
before 31.12.2003 were working in organizations where the GPF-
cum-Pension Scheme was in operation and had opted for the same,
by transferring their pension from the earlier organizations to IIM,
Kozhikode.
6. An additional counter affidavit was also submitted by the
1st respondent wherein they further explained the stand taken by
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them. It was reiterated that, as far as the other employees, to whom
the pension under GPF was disbursed are concerned, the pro-rata
pension amounts of such employees were transferred to the 1 st
respondent within a reasonable time, whereas it was not so in the
case of the petitioner. The petitioner submitted an additional reply to
the aforesaid counter by reiterating his contentions and also
producing the details indicating the claim made by the petitioner
before the authorities concerned.
7. The 5th respondent in the writ petition, the Controller and
Auditor General of India has also submitted a counter affidavit.
Among other contentions, it was also pointed out by referring to the
audit objections that, the Ministry expressed its agreement with the
facts and figures included in the paragraph 13.8 of the CAG report 12
of 2017 and stated that, the Ministry of HRD is taking up the matter
to the Ministry of Finance for regularization of nine employees under
GPF-cum-Pension Scheme as a special case keeping in view that, the
IIM, Kozhikode is a self sustained central autonomous body and not
getting any grant-in-aid from the Government of India for its
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recurring and non recurring expenditure. It was also pointed out that,
the petitioner was not among the nine employees referred to therein.
In the said counter affidavit, they also referred to the reply issued by
the 1st respondent to them, when the explanation was sought by the
5th respondent for granting pension to the said employees under GPF-
cum Pension Scheme. It is averred that, in the said reply, it was stated
that the same was granted based on the letter dated 12.07.2000 of the
MHRD which stipulated that, the faculty and staff from the
institutions enjoying pensionary benefits shall be allowed to retain
the same in new Indian Institute of Management.
8. Heard Sri. Shaji Thomas, the learned counsel appearing
for the petitioner, Sri.M. Gopikrishan Nambiar, the learned counsel
appearing for the 1st respondent and Sri. K.I.Mayankutty Mather, the
learned counsel appearing for the 5th respondent.
9. The question that arises in this case is as to whether the
stand taken by the 1st respondent while denying the pension to the
petitioner under GPF-cum-Pension Scheme is justifiable or not. The
objections raised by the 1st respondent in this regard are two fold: The
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first objection is that, as per Ext.P1 Circular, the benefit of being
included in the GPF-cum-Pension Scheme was available to only
those employees whose pro-rata pension from the previous
organization where they worked, was transferred to the 1 st respondent
within a reasonable time. However, in the case of the petitioner, the
amount was transferred only in the year, 2019 even though the option
was submitted in this regard in the year, 2000. The second objection
was regarding the audit objection raised by the CAG in respect of the
employees who were already granted the benefits of Ext.P1.
10. As far as the first objection viz., the delay in transferring
of the pro-rata pension is concerned, I am of the view that, the same
cannot be a reason to deny the benefits to the petitioner. This is
mainly because, the delay cannot be attributed to the petitioner under
any circumstances. It is an undisputed fact that the 1 st respondent
itself has issued six communications to the NIRT requesting the
transfer of the pro-rata pension of the petitioner, which did not evoke
any positive response. Ultimately, the petitioner was constrained to
move the CAT and only as per the directions issued by the CAT in its
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order dated 26.11.2018, the amounts were disbursed to the 1 st
respondent by the NIRT by issuing Exts.P4 and P5 dated 10.4.2019
and 13.11.2019 respectively. It is also evident that, the petitioner had
also submitted requests before the NIRT in this regard. Therefore,
the petitioner was diligently pursuing his claim and it was ultimately
upheld by the CAT as well. Therefore, in view of the fact that the
delay, if any occurred, in transferring the pro-rata pension was not
due to any lapses on the part of the petitioner, I do not find any
justification for denying the benefits to the petitioner on account of
the same.
11. While considering this aspect, another important aspect to
be noticed is that, later, the 1 st respondent formulated Regulation
2021 (Ext.P9) and Regulation 11(1) thereof reads as follows:
11. Constitution of pension, insurance and
provident funds for the benefit of the academic,
administrative, technical and other staff.-
(1) The Institute adopted the "National
Pension System" (NPS) for the regular
employees who joined IIM Kozhikode on or after
01.01.2004 and the Contributory Provident Fund
(CPF) for the regular employees who joined on
or before 31.12.2003 as per Notification
No.4(1)-EV/2006(1) of MHRD dated 12.7.2007.
GPF cum Pension scheme would be applicable
only to those regular employees who prior to
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joining IIM Kozhikode on or before 31.12.2003,
were working in organizations where the GPF
cum Pension scheme was in operation and had
opted for the same by transferring their
Pension from the earlier Organization to IIM
Kozhikode. Other regular employees who entered
into service on or before 31.12.2003 and were
governed by the CPF Scheme, are not eligible
for switch over to the GPF-cum- Pension
Scheme. They will continue to be governed by
the CPF Scheme."
(Underlined for emphasis)
12. From the reading of the aforesaid provision, it is evident
that, the GPF-cum-Pension Scheme was made applicable to those
regular employees who, prior to joining the 1 st respondent on or
before 31.12.2003, were working in organizations where, the GPF
pension scheme was in operation and the employees have opted for
the same by transferring the pension from the earlier organization to
the 1st respondent. As far as the petitioner is concerned, the petitioner
had complied with the said conditions. Even though there was some
delay in transferring the pro-rata pension, this Court has already
found that, the same cannot be a reason to deny the benefits to the
petitioner. Thus, in the light of the introduction of the Regulation
2021 which was done in exercise of the powers conferred upon the 1 st
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respondent under section 35 of the Indian Institute of Management
Act, 2017, the right of the petitioner to get the pension has become a
statutory right as well. Therefore, the petitioner has every right to get
the said right enforced by invoking the powers of this Court under
Art. 226 of the Constitution of India.
13. When moving on to the second objection, I find that the
same is also not justifiable. It is true that the CAG has raised certain
objections with regard to the decision taken by the Board of
Governors of the 1st respondent as per Ext.P1 to extend the benefits
of GPF-cum-Pension Scheme to the employees who joined the 1 st
respondent from the organizations where the GPF-cum-Pension
Scheme was applicable. The said objection was raised by the CAG
mainly on the reason that such a decision was taken without the
approval of the concerned Ministry in this regard. However, the fact
remains that, even after the said objections, the benefits as per Ext.P1
were granted to nine employees, in respect of whom the audit
objection was raised. Besides, in the counter affidavit filed by the 5 th
respondent, after referring to the draft Action Taken Note submitted
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by the MHRD, it was averred that, the Ministry expressed its
agreement with facts and figures included in the paragraph 13.8 of
the CAG's report 12 of 2017 and stated that the Ministry of HRD has
treated the regularization of nine employees under GPF cum pension
scheme as a special case keeping in view that, IIM, Kozhikode is a
self sustained central autonomous body. Therefore, the said objection
cannot be treated as a valid ground for denying the said benefits to
the petitioner, as the petitioner is a similarly situated person with that
of the said employees.
14. This is particularly so, in view of the fact that, the 1 st
respondent, vide Ext P1, has consciously taken a decision to extend
the benefits of GPF cum Pension Scheme to a class of employees
who were enjoying the benefits of the said scheme prior to the
joining the 1st respondent. It is evident from the averments made by
the 5th respondent that, as per the reply submitted by the 1 st
respondent to them, the 1st respondent extended the said benefits to
such employees in view of the letter dated 12.07.2000 issued by the
MHRD, which stipulated that, the faculty and staff from the
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Institutions enjoying pensionary benefits shall be allowed to retain
the same in the new Indian Institute of Management. Moreover, now
the benefits contemplated as per Ext.P1 have been escalated into a
statutory benefit by virtue of the introduction of Regulation 11 of the
Institute of Management, Kozhikode Regulation 2021 (Ext.P9). That
apart, all the nine other persons, who were similarly situated persons
of the petitioner were granted the said benefits and therefore, denial
of the same to the petitioner would amount to discrimination, which
is prohibited as per Art. l4 of the Constitution of India. Therefore, the
stand taken by the 1st respondent in not extending the said benefits to
the petitioner is not all justifiable.
15. Of course, the learned counsel for the 1st respondent made
available a note regarding the financial implications on the 1 st
respondent upon including the petitioner in GPF scheme, instead of
the contributory pension fund (CPF). However, I am of the view
that, the same cannot be a reason to deny the said benefits to the
petitioner in view of Ext.P1 Circular and also the statutory stipulation
contained in clause 11 of Regulations, 2021. The fact that, the
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similarly situated persons were admittedly granted the said benefits
fortifies the contentions of the petitioner. Therefore, the reliefs
sought in the writ petition are only to be allowed.
Accordingly, this Writ Petition is disposed of quashing Ext.P7,
with a direction to the 1st respondent to sanction and release the
pension payable to the petitioner by including him in the GPF cum
Pension Scheme. The necessary steps in this regard shall be taken,
and the amounts shall be released within a period of three months
from the date of receipt of a copy of this judgment.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
2024:KER:98369
APPENDIX OF WP(C) 20174/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF CIRCULAR DATED 24.10.2000
ISSUED BY THE 1ST RESPONDENT
EXHIBIT P2 TRUE COPY OF OFFICE ORDER DATED 24.1.2014
ISSUED BY THE 1ST RESPONDENT
EXHIBIT P3 TRUE COPY OF LETTER DATED 8.7.2015 FROM THE
1ST RESPONDENT OT NIRT
EXHIBIT P4 TRUE COPY OF OM DATED 10.04.2019 ISSUED BY
THE NIRT
EXHIBIT P5 TRUE COPY OF OM DATED 13.11.2019 ISSUED BY
NIRT
EXHIBIT P6 TRUE COPY OF LETTER DATED 4.11.2020 FROM
THE PETITIONER TO THE 2ND RESPONDENT
EXHIBIT P7 TRUE COPY OF OM DATED 13.11.2020 ISSUED BY
THE 3RD RESPONDENT
EXHIBIT P8 TRUE PHOTOCOPY OF REQUEST DATED 01.11.2000
SUBMITTED BY THE PETITIONER BEFORE THE
RESPONDENTS
EXHIBIT P9 TRUE PHOTOCOPY OF THE INDIAN INSTITUTE OF
MANAGEMENT, KOZHIKODE REGULATIONS 2021
EXHIBIT P10 TRUE PHOTOCOPY OF LETTER DATED 27.11.2000
SENT BY THE OFFICER ON SPECIAL DUTY OF IIM
KOZHIKODE
EXHIBIT P12 TRUE PHOTOCOPY OF THE LETTER DATED
15.01.2021 ISSUED BY THE DIRECTOR OF IIM
KOZHIKODE
EXHIBIT P11 TRUE PHOTOCOPY OF THE APPLICATION DATED
06.11.2020 SUBMITTED BY THE PETITIONER
RESPONDENT EXHIBITS
EXHIBIT -R5(A) TRUE COPY OF THE RELEVANT EXTRACT OF
2024:KER:98369
COMPTROLLER AND AUDITOR GENERAL OF INDIA
REPORT NO. 12 OF 2017 CONTAINING THE
OBSERVATION AS PARAGRAPH 13.8
EXHIBIT R1(A) TRUE COPY OF THE LETTER FROM THE DEPUTY
DIRECTOR, OFFICE OF THE PRINCIPAL DIRECTOR
OF AUDIT (CENTRAL)CHENNAI DATED 31.05.2016
TO THE 1ST RESPONDENT ALONG WITH THE
STATEMENT OF FACTS ON AVOIDABLE PAYMENT
TOWARDS PENSIONARY PAYMENTS.
EXHIBIT R1(B) TRUE COPY OF THE LETTER DATED 10.08.2016
ISSUED BY THE SENIOR AUDIT OFFICER, DEPUTY
DIRECTOR, INDIAN AUDIT AND ACCOUNTS
DEPARTMENT TO THE 1ST RESPONDENT.
EXHIBIT R1(C) TRUE COPY OF THE LETTER DATED 16.10.2018
ISSUED BY THE UNDER SECRETARY TO THE GOVT.
OF INDIA, MINISTRY OF HUMAN RESOURCES
DEVELOPMENT TO THE 1ST RESPONDENT
EXHIBIT R1(D) TRUE COPY OF THE LETTER DATED 10.08.2018
ISSUED BY THE UNDER SECRETARY TO THE GOVT.
OF INDIA, MINISTRY OF HUMAN RESOURCES
DEVELOPMENT TO THE 1ST RESPONDENT.
EXHIBIT R1(E) TRUE COPY OF THE NOTICE DATED 12.11.2018
ISSUED BY THE MINISTRY OF HUMAN RESOURCES
DEVELOPMENT, GOVT. OF INDIA (WITHOUT
ENCLOSURE)
EXHIBIT R1(F) TRUE COPY OF THE OFFICE MEMORANDUM DATED
5.11.2018 BY THE PUBLIC ACCOUNTS COMMITTEE,
LOK SABHA SECRETARIAT (WITHOUT ENCLOSURE)
