Madhya Pradesh High Court
Jawaharlal Nehru Krishi ... vs The State Of Madhya Pradesh on 20 December, 2022
Author: Nandita Dubey
W.P. No.13035/2016
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE NANDITA DUBEY
WRIT PETITION NO. 13035 of 2016
BETWEEN
JAWAHARLAL NEHRU KRISHI VISHVAVIDYALAYA
PENSIONER ASSOCIATION
PETITIONER
AND
STATE OF M.P. AND ANOTHER
RESPONDENTS
ORDER
Post for : 20/12/2022
(NANDITA DUBEY)
JUDGE
19/12/2022
W.P. No.13035/2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE NANDITA DUBEY
WRIT PETITION NO. 13035 OF 2016
BETWEEN:-
JAWAHARLAL NEHRU KRISHI
VISHVAVIDYALAYA PENSIONER ASSOCIATION,
REG. NO. 17149, THROUGH ITS PRESIDENT
RAMGOPAL SAHU, S/O DAYARAM SAHU, 1273-A-
1, CHITRA GUPTA CHOWK, ADHARTAL,
JABALPUR (M.P.)
.....PETITIONER
(BY SHRI RAJESH POHANKAR -ADVOCATE)
AND
1. STATE OF M.P.,DEPARTMENT OF KRISHI KALYAN
TATHA KRISHI VIKAS VIBHAG, THROUGH ITS
PRINCIPAL SECRETARY, VALLABH BHAWAN,
BHOPAL (M.P.)
2. JAWAHARLAL NEHRU KRISHI VISHVAVIDYALAYA
THROUGH ITS REGISTRAR, KRISHI NAGAR,
ADHARTAL, JABALPUR (M.P.)
..... RESPONDENTS
W.P. No.13035/2016
(RESPONDENT NO.1/STATE BY SHRI VIJAY SONI - GOVT.
ADVOCATE)
(RESPONDENT NO.2 BY SHRI SANJAY AGRAWAL - SR. ADVOCATE
WITH SHRI S. KULSHRESHTHA - ADVOCATE)
Reserved on : 15.09.2022
Pronounced on : 20.12.2022
This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced
the following :
ORDER
This petition takes an exception to the order dated
01.07.2016 (Annexure P/1) and consequential order dated
27.07.2016 (Annexure P/2) whereby pension, on the basis of
Pay Revision Rules, 2008 (6 th Pay Commission) has been made
applicable with effect from 01.04.2014 for employees who have
retired on or after 01.04.2014, whereas those who retired
between 01.01.2006 to 01.04.2014 shall be entitled for pension
on the basis of salary fixed under 5th Pay Revision Rules, 1998.
3. Petitioner is a registered association of retired non-
teaching employees of the respondent no.2/University who
retired after 01.02.2006 and receiving pension as per the
W.P. No.13035/2016
provisions of M.P. Civil Services (Pension) Rules, 1976 which
has been computed on the basis of pay scale fixed with effect
from 01.01.2006.
4. The petitioners submitted that the respondent
no.2/University has adopted the M.P.Civil Services (Pension)
Rules, 1976 for the purpose of regulation of grant of pension and
gratuity to its employees. The pension scheme dated 09.11.1994
was also enforced by respondent no.2 with effect from 01.07.1987,
further to implement the scheme additional Statute, 1989 was
promulgated. The employees continued to get the benefit of
pension scheme wherein pension has been revised from time to
time on adoption of Revision of Pay Rules,1998 (with effect
from 1996) and further in 2006. Thus, the pension of all the
employees who retired on or after 01.01.2006 has been fixed on
the basis of the salary fixed under the Pay Revision Rules of
2008 i.e. 6th Pay Commission. The respondent no.2/University
made a demand to respondent no.1/State Govt. for enhancement
of grant to meet out the additional financial burden. The
Government in its meeting vide order dated 28.04.2015
modified the Pension Scheme of 1994 with some amendments
and it was stipulated that the modified pension scheme will be
made applicable with effect from 01.04.2014. The respondent
no.2/University adopted the order dated 01.04.2014 in toto on
W.P. No.13035/2016
11.09.2015 and in furtherance thereof passed the impugned
orders whereby the pension of petitioners was drastically
reduced by consolidating the pension on the basis of salary
under the Pay Revision Rules, 1998, whereas the
pensioners/employees who retired after 01.04.2014 continued to
receive the pay computed on the basis of Pay Revision Rules,
2008.
5. Contention of learned counsel for the petitioner is that the
impugned orders dated 01.07.2016 and 27.07.2016 are executive
instructions and cannot override the provisions of the Statute. It
is submitted paucity of funds cannot be a ground for reducing
the pension. It is contended that modified scheme cannot be
implemented with retrospective effect as the petitioners are
already receiving the pension computed on basis of 6 th Pay
Revision Rules duly sanctioned by the State Government.
It is stated that revision of pension is in violation of Rule
52 of the M.P.Civil Services (Pension) Rules, 1976 which
provides that :-
"52. Revision of pension after sanction. - (1) Subject to the
provisions of Rules 8 and 9 pension once sanctioned after
final assessment shall not be revised to the disadvantage of
the Government pensioner, unless such revision becomes
necessary on account of detection of clerical or
computational error subsequently;
W.P. No.13035/2016
Provided that no revision of pension to the disadvantage of
the pensioner shall be ordered by the pension sanctioning
authority without the sanction of the Finance Department, if
the clerical or computational error is detected after a period
of two years from the date of sanction of pension;
(2) For the purposes of sub-rule (1), the Government
pensioner concerned shall be served with a notice by the
pension sanctioning authority, requiring him to refund the
excess payments of pensions within a period of two months
from the date of receipt of notice by him;
(3) In case the Government pensioner fails to comply with the
notice, the pension sanctioning authority shall, by order in
writing, direct that such excess payment shall be adjusted by
short payments of pension in future, in one or more
instalments, as the said authority may direct."
It is urged that pension once fixed cannot be revised to the
disadvantage of the pensioner. Moreover, the earlier order dated
28.04.2015 (Annexure P/14) nowhere says that the pension
which is already being paid and revised since 01.04.1987 shall
be reduced. Rather, it provides that self financing pension
scheme made applicable in 1994 with effect from 01.04.1987
will be applicable in modified form with effect from 01.04.2014.
6. Learned counsel for the respondents opposed the relief. It
is contended that the State Government permitted the University
to adopt the self contributory pension scheme with a condition
that the State Government shall not provide any financial aid for
the scheme. Due to paucity of funds/financial crunch, additonal
grant was requested from the State Government. The State
W.P. No.13035/2016
Government by order dated 28.04.2015 lay down the condition
for want of block grant by State Government and payment.
Pursuant to which vide impugned order dated 27 th July, 2016 the
State Government has directed to consolidate the salary of
employer retired between 01.01.2006 and 01.04.2014 by
consolidating their salary on basis of 5th Pay Commission. It is
stated that State Government has taken above decision on basis
of financial resources available with the State Government, as
the University is not capable of generating its own funds to meet
out such heavy expenditure.
7. No other ground has been raised or argued by learned
counsel for the parties.
8. I have heard the learned counsel for the parties and
perused the record.
9. It is not in dispute that additional Statute, 1989 has been
issued under the provisions of the Adhiniyam and has the
statutory force. As per the Statute, the M.P. Civil Services
(Pension) Rules, 1976, as amended from time to time, have been
made applicable to the employees of the University. Clause 1.1
of the additional Statute prescribes that :-
W.P. No.13035/2016
1.1. The pension, gratuity, family pension and
commutation of pension benefits admissible to the
Govt. servants of Madhya Pradesh, under the
Madhya Pradesh Civil Services (Pension) Rules,
1976 and the M.P.Civil Pension (Commutation)
Rules,1976, as amended from time to time may be
made applicable to the officers, teachers and service
personnels, other than the Chancellor and the Vice-
Chancellor, with effect from 1.4.1987.
The said Statute provides for two Schemes for
employees/teachers/officers and service personnels. Scheme-B
reads as under :-
Scheme-B - Pension and Gratuity Scheme of the
State Govt. of Madhya Pradesh, under the M.P.Civil
Services (Pension) Rules, 1976, as amended from time
to time.
Clause 8 of the Statute provides that :-
8. Pension and Gratuity Fund :-
In order to meet the expenditure on pension and
gratuity disbursement to the employees of the Vishwa
Vidyalaya as prescribed in the M.P. Civil Service
(Pension) Rules, 1976 and in order to meet other
incidental expenses on the operation of the Scheme,
a Pension and Gratuity Fund shall be created
centrally, to be operated by the Comptroller . It
shall comprise and be constituted out of the
following amounts :
(a) Monthly contributory provident fund
subscription made by the Vishwa Vidyalaya to the
account of each employee as the Vishwa Vidyalaya
share in respect of persons who elect to join the
Pension & Gratuity Scheme under this Statute;
W.P. No.13035/2016
(b) The accumulated balance of the subscription to
the Contributory Provident Fund of each employee
made by the Vishwa Vidyalaya as Vishwa Vidyalaya
share together with interest thereon (upto
31.03.1987) will be credited to the Pension and
Gratuity Fund. The Vishwa Vidyalaya share of the
employees who have opted to retain the Contributory
Provident Fund Scheme, will not be transferred to
the Pension and Gratuity Fund but shall be
continued to be maintained separately as per
provisions of the existing Contributory Provident
Fund Scheme;
(c) Grant-in-aid sanctioned by the government to
the V.V.from time to time against the payment of 10%
of the employees share shall be debited to the funds
created for running the Pension and Gratuity
Scheme without any additional liability to the
Government;
(d) Amount mentioned under Additional Statute
6(ii);
(e) Amount earned as interest on investment of the
Fund;
(f) The employees who have already retired on or
after 1.4.1987 and have given option for joining the
Pension and Gratuity Scheme and have received part
or full amount with interest of their contributory
provident fund, shall be required to deposit in one
instalment in the Vishwa Vidyalaya the part or full
share of the Vishwa Vidyalaya contribution towards
provident fund along with the interest thereon paid to
them along with simple interest on the above amount
at 5% from the date of receipt of the amount till the
date on which the amount is credited to the Pension
Fund for transferring to the Pension and Gratuity
W.P. No.13035/2016
Fund within a period of six months from the date of
promulgation of this Statute to get the benefit of the
Pension and Gratuity Scheme.
Clause 13-General Provisions provide that in case of
doubt or where any provision in the Statute is not clear, the
rules as laid down in the M.P.Civil Service (Pension) Rules,
1976 will be applicable.
10. A perusal of above reproduced provisions make it clear
that while calculating the pension, family pension, gratuity and
commutation in respect of retired employees of the respondent
no.2/University, provisions of M.P. Civil Services (Pension)
Rules, 1976 and M.P. Civil Pension (Commutation) Rules,
1976, as amended from time to time by the Government shall
be applicable mutatis mutandis, and accordingly, the retired
employees were extended the benefit of pay revision.
11. Peri materia provisions of other Statutes, applicable to
other Universities, were subject-matter of consideration before
the different benches of this Court, and it was held that as per
the object, scheme and mandate of the Statute, the principal
formula and the method of determination of pension needs to be
applied to the retired employees of Universities which is
applicable to the State Government employees.
W.P. No.13035/2016
12. The respondent/University has contended that due to
financial crunch additional grant was requested from the
Government, pursuant to which the State Government vide
order dated 27.07.2016 issued certain directions on basis of
financial resources available to the University, as the University
is not capable to generating its own funds to meet out the heavy
expenditure.
13. Paucity of funds cannot be a ground to deny pension or
revise it to the disadvantage of the pensioner . This aspect has
been considered by a coordinate bench of this Court in WP No.
16974/2011 (Rani Durgawati Vishwa Vidyalay Pensioners
Association vs. Mahamahim Kuladhipati Rani Durgawati
Vishwa Vidyalaya, (Governors House), Bhopal vide order
dated 17.08.2016, and the Court has opined thus :-
"19. In the considered opinion of this Court, the
Statute in no uncertain terms, makes it clear that the
respondents have to follow the mandate of the Pension
Rules. The paucity of fund,in my view, cannot be a
ground to discharge the statutory liability. Clause (c)
of Statute makes it clear that while issuing grant-in-
aid, the Government shall ensure that it covers the
deficiency of fund in running the Pension and Gratuity
W.P. No.13035/2016
Scheme. This is also trite law that by issuing executive
instructions, the benefits flowing from Statutory
provisions cannot be taken away. The executive
instructions can supplement the Statute but it cannot
supplant it. If instruction is in conflict with Statute or it
takes away a benefit flowing from Statute, the
executive instructions must be ignored and it should
give way to the statutory mandate. The Apex Court in
Pepsu Road Transport Corporation, Patiala Vs.
Mangal Singh and others, (2011) 11 SCC 702 opined
as under:
29. It is well settled law that the Regulations
madeunder the statute laying down the terms
and conditions of service of the employees,
including the grant of retirement benefits,
have the force of law. The Regulations validly
made under statutory powers are binding and
effective as the enactment of the competent
legislature. The statutory bodies as well as
general public are bound to comply with the
terms and conditions laid down in the
Regulations as a legal compulsion. Any action
or order in breach of the terms and conditions
of the Regulations shall amount to violation of
Regulations which are in the nature of
statutory provisions and shall render such
W.P. No.13035/2016
action or order illegal and invalid.
[Emphasis supplied]
Similarly, the Apex Court in Accountant General, State
of M.P. vs. S.K. Dubey and another reported in (2012) 4
SCC 578 has observed that subject to the provisions of the
Constitution, the executive power of a State extends to the
matters with respect to which the legislature of the State has
power to make laws (as per Article 162, Constitution of India) .
In other words, the executive power of the State executive is
coextensive with that of the State Legislature. The executive
instructions could fill in gaps not covered by the rules but such
instructions cannot be in derogation of the statutory rules.
Insofar as executive power of the State is concerned, there is no
difference in the legal position in a case where rules remain
silent on certain aspects although legislature had power to make
rules and in the situation where no rules have been framed. The
exercise of executive power by the State Government,
obviously, must not be inconsistent with the constitutional
provisions or statutory provision or the State Rules framed.
14. The Apex Court in Deokinandan Prasad vs. The State
of Bihar and others reported in 1971 (2) SCC 330 has
observed thus :-
W.P. No.13035/2016
31. "The matter again came up before a Full Bench of
the Punjab and Haryana High Court in K.R.Erry v.
The State of Punjab ILR 1967 Punj & Har 278. The
High Court had to consider the nature of the right of
an officer to get pension. The majority quoted with
approval the principles laid down in the two earlier
decisions of the same High Court, referred to above,
and held that the pension is not to be treated as a
bounty payable on the sweet will and pleasure of the
Government and that the right to superannuation
pension including its amount is a valuable right
vesting in a Government servant. It was further held
by the majority that even though an opportunity had
already been afforded to the officer on an earlier
occasion for showing cause against the imposition of
penalty for lapse or misconduct on his part and he has
been found guilty, nevertheless, when a cut is sought to
be imposed in the quantum of pension payable to an
officer on the basis of misconduct already proved
against him, a further opportunity to show cause in
that regard must be given to the officer. This view
regarding the giving of further opportunity was
expressed by the learned Judges on the basis of the
relevant Punjab Civil Service Rules. But the learned
Chief Justice in his dissenting judgment was not
prepared to agree with the majority that under such
circumstances a further opportunity should be given to
an officer when a reduction in the amount of pension
payable is made by the State. It is not necessary for us
in the case on hand, to consider the question whether
before taking action by way of reducing or denying the
pension on the basis of disciplinary action already
taken, a further notice to show cause should be given
to an officer. That question does not arise for
consideration before us. Nor are we concerned with
the further question regarding the procedure, if any, to
be adopted by the authorities before reducing or
withholding the pension for the first time after the
retirement of an officer. Hence we express no opinion
W.P. No.13035/2016
regarding the views expressed by the majority and the
minority Judges in the above Punjab High Court
decision, on this aspect. But we agree with the view of
the majority when it has approved its earlier decision
that pension is not a bounty payable on the sweet will
and pleasure of the Government and that, on the other
hand, the right to pension is a valuable right vesting in
a government servant."
Similarly in Pepsu Road Transport Corporation,
Patiala vs. Mangal Singh and others (2011) 11 SCC 702, the
Apex Court has observed thus :-
"34. Pension is a retirement benefit partaking of the
character of regular payment to a person in
consideration of the past services rendered by him. We
hasten to add that although pension is not a bounty but
is claimable as a matter of right, yet the right is not
absolute or unconditional. The person claiming pension
must establish his entitlement to such pension in law.
The entitlement might be dependent upon various
considerations or conditions. In a given case, the
retired employee is entitled to pension or not depends
on the provisions and interpretation of the Rules and
Regulations. The contributory provident fund appears
to be a simple mechanism where an employee is paid
the total amount which he has contributed along with
the equal contribution made by the employer ordinarily
at the time of retirement of an employee. In short, we
quote what was repeatedly said by this Court that
"pension is payable periodically as long as the
pensioner is alive whereas C.P.F. is paid only once on
retirement". Therefore, conceptually, pension and C.P.F.
are separate and distinct.
15. In the present case, it is undisputed that the petitioners
were extended the benefit of pension scheme wherein the
W.P. No.13035/2016
pension was revised from time to time on adoption of revision
of pay rules as may be made applicable and their pension has
been fixed on the basis of salary fixed with effect from
01.01.2006 under the Pay Revision Rules, 2009 i.e. 6 th Pay
Commission (Annexure P/11), and accordingly, consolidation
was directed vide notification dated 08.07.2010 (Annexure
P/13). The benefit that has already been extended to the
pensioners cannot be taken away or revised to their detriment by
the administrative order or executive instructions as the same
cannot override the provisions of the Statute and the benefits
flowing from it.
The reply filed in this petition was adopted earlier in WP
No.17007/2016 (Dr.S.K. Agrawal and others vs. State of
M.P.) which, after detailed consideration and comparing the
order passed in WP No.12169/2013 has already been allowed by
this Court vide order dated 24.04.2019.
16. Resultantly, the orders dated 01.07.2016 (Annexure P/1)
and 27.07.2016 (Annexure P/2) are quashed. The writ petition
is allowed. The respondent/University is directed to extend all
the pensionary benefits to the petitioners.
(Nandita Dubey)
Judge
20.12.2022
Digitally signed by JITIN KUMAR
CHOURASIA
Date: 2022.12.20 17:34:36 +05'30'
