Navin Bhatnagar vs Higher Education Department
2022 Latest Caselaw 13530 MP

                                                                                        WP No.8086/2021
                                                                         1

                                                In the High Court of Madhya Pradesh
                                                             At Indore

                                                   BEFORE
                                   HON'BLE SHRI JUSTICE SUBODH ABHYANKAR

                                                  ON THE 14TH OF OCTOBER, 2022

                                                         Writ Petition No.8086/2021
                           Between: -
                           Navin Bhatnagar S/o Shri P.S. Bhatnagar,
                           Age- 70 years, Occupation- Retired,
                           R/o- C 14/45, MIG, Rishi Nagar,
                           Ujjain, District Ujjain (MP)

                                                                                      .....PETITIONER
                           (By Shri Murtuza M. Bohra, Advocate)

                           AND
                           The State of Madhya Pradesh,
                           Through Principal Secretary,
                           Higher Education Department,
                           Government of Madhya Pradesh,
                           Vallabh Bhawan, Bhopal (MP)

                           The Commissioner,
                           Higher Education Department,
                           5th Floor, Department of Higher Education,
                           Satpura Bhawan, Bhopal (MP) 462 001

                           The Vikram University,
                           Through its Registrar, University Road,
                           Madhav Bhawan, Ujjain (MP) 456 010

                           (State of Madhya Pradesh by Shri Anendra Singh Parihar, Government
                           Advocate AND Vikram University by Shri Sandeep Mehta, advocate)
                                                             .....RESPONDENTS
                           ...............................................................................................................................

                                    This PETITION coming on for orders this day, the court
                           passed the following:
                                                                        ORDER

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

Heard finally, with the consent of the learned counsel for the parties.

This petition has been filed by the petitioner under Article 226 of the Constitution of India seeking the following relief: -

"7. RELIEF PRAYED FOR: -

This Hon'ble Court may graciously be pleased -

                                  (a)    To allow the present petition.
                                  (b)    To issue appropriate writ / order / direction to the

respondents to grant revised pension with entire arrears in accordance with notification dated 11.06.2018 and to revise the pension of the petitioner from time to time at par with the state government employee in future also.

(c) To issue appropriate writ / order / direction to the respondents to pay the interest @ 12 % on delayed payment of pension and pensionary benefits as per Finance Department Circular F.B.6/19/83/Rule-2/Four dated 25-04-1984 upheld decision passed by Division Bench in State of M.P. v. Ramji Das Agarwal reported in 2013 (1) M.P.L.J. 53.

(d) Any other relief that this Hon'ble Court deems fit. "

2. The grievance of the petitioner is that he is not being given the revised pension as per the 7 th Central Pay Commission Revision and arrears of pension and pensionary benefits including Gratuity and Leave Encashment, as per notification dated 11.06.2018 at par with the State Government employees.

3. Counsel for the petitioner has submitted that the case of the petitioner is squarely covered by the decision dated 03.02.2015 rendered by the Single Bench of this Court in the case of Dr. Surendra Kumar Gupta S/o Late Shri Dhirendra Narayan Gupta v. The State of Madhya Pradesh and another (Writ Petition No.12169/2013) wherein the

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

Court has allowed the petition, directing the State of Madhya Pradesh to extend all the pensionary benefits to the petitioner in view of notification dated 03.08.2009.

4. Counsel for the respondent / State, on the other hand, has not opposed the prayer. H owever, it is not denied that the decision rendered by this Court in Writ Petition No.12169/2013 was challenged by the State before a Division Bench of this Court in Writ Appeal No.372/2015, which was dismissed on 29.01.2016, affirming the order passed by the Writ Court; and thereafter, Petition for Special Leave to Appeal (C) No (s).10143/2016 (Arising out of impugned final judgment and order dated 29.01.2016 in WA No.372/2015 passed by the High Court of MP At Indore) preferred by the State of Madhya Pradesh was also dismissed on 22.04.2016.

5. In view of the same, considering the relief sought by the petitioner and the order passed by this Court in the case of Dr. Surendra Kumar Gupta (supra), which reads as under:-

"The petitioner before this court a retired Professor, who has attained the age of superannuation after serving the Vikram University, Ujjain, aged about seventy three years has approached this court on account of non-grant of pensionary benefits, which have been extended to the State Government employees, vide notification dated 03-08-2009.

03. The contention of the learned counsel for the petitioner is that the petitioner has attained

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

the age of superannuation on 31-07-2002. It has been further stated that earlier the employees of the University were entitled for contributory provident fund. However, as a need was felt by the State Government to grant pension to the employees, the Vikram University, Ujjain, in exercise of powers conferred under the Madhya Pradesh Vishwavidhyalaya Adhiniyam, 1973, enacted statute No.37, for grant of pension and gratuity to the employees of the Vikram University, Ujjain.

04. Learned counsel for the petitioner has also argued that by virtue of statute No. 37, a consolidated pension fund has been created which is under the control of the State Government and the State Government is regularly paying pension to the petitioner and other retiral benefits to other employees of the Vikram Univeristy, Ujjain. He has further stated that by virtue of Statute No.37, the provisions of the Madhya Pradesh Civil Services (Pension) Rules, 1976 and the Madhya Pradesh Civil Pension (Commutation) Rules, 1976 as amended from time to time as applicable to the State Government employees are applicable to the petitioner, who is a retired employee of the University. He has also drawn the attention of this court towards the judgment delivered by the High Court of Chhattisgarh, Bilaspur in Writ Petition (s) No. 196/2011 (Santosh Kumar Upadhyay and others Vs. State of Chhattisgarh and others) and his contention is that in similar circumstances the Chhattisgarh High Court has extended the benefit of revised pension on account of 6th Pay Commission to the employees of Ravishankar University. Learned counsel for the petitioner has prayed for issuance of an appropriate writ, order or direction directing the State of Madhya Pradesh to

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

grant pension, arrears of pension and other benefits, in terms of the notification dated 03-08- 2009.

05. On the other hand, learned counsel appearing for the Vikram University has not disputed the Statute No.37. However, has argued before this court that so far the payment of pension is concerned, it is the State Government, which is required to pay pension to the retired employees of the University and it is not the University, which is required to pay pension to the employees, keeping in view the Staute No. 37, framed under the provisions of the Madhya Pradesh Vishwavidhyalaya Adhiniyam, 1973.

06. Reply has been filed by the State Government and the stand of the State Government is that pension of the employees of the Vikram University is being paid from the self finance fund with the aid of the State Government and in case of Government servants, pension is being paid by the State Government, alone. It has been stated that the petitioner cannot claim parity with the employees of the State Government. It is also been stated that a State Government has taken a decision to grant the benefit of revised pension passed upon the recommendation of the 6th Pay Commission to the petitioner by the order dated 31-10-2014 and he will be paid revised pension with effect from 01-04-2014 and no arrears will be paid to him, keeping in view the order dated 31- 10-2014.

07. Heard learned counsel for the parties and perused the record. The matter is being heard finally, with the consent of all the parties at motion hearing stage itself.

08. In the present case, it is an admitted fact that the petitioner is a retired Professor and has

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

attained the age of superannuation after serving the Vikram University, Ujjain on 31-07-2002. The Statute No.37 has been enacted in exercise of powers conferred under the provisions of the Madhya Pradesh Vishwavidhyalaya Adhiniyam, 1973 and the relevant paragraph of Statute No.37 reads as under :-

"9. Creation and Constitution of University Employees Pension and Gratuity Fund :-In order to meet the expenditure on pension and gratuity disbursement to the employees of the University 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 University Employees Pension and Gratuity Fund (UNIPENGRAF) shall be created and it shall be centrally controlled and administered by the Madhya Pradesh Uchcha Shiksha Anudan Ayog, Bhopal. It shall comprise and be constituted out of the following amounts :-

a) Monthly contributory provident fund subscription made by the University to the account of each employee as University share as per Statute No.26 of the University in respect of persons who elect to join the pension and Gratuity Scheme under this Statute.

b) The accumulated balance of the subscription to the contributory provident fund of each employee made by the University as University share together with interest thereon (upto the date of transfer of the amount by University) will be credited to the University Employees Pension and Gratuity Fund (UNIPENGRAF) maintained at the level of the MP. Ucchcha Shiksha Anudan Ayog. The University share of the employee who have opted to retain the Contributory Provident Fund Scheme, will not be transferred to the University Employees Pension and Gratuity Fund (UNIPENGRAF) but shall be continued to be maintained separately as per provisions of the existing Contributory Provident Fund Scheme under Statute No.26.

In order to implement the pension Scheme, the Registrar of the University will ensure that atleast 90% of the accumulated balance of University share is credited to University Employees Pension and Gratuity Fund (UNIPENGRAF) within one month from the date of promulgation of the statute. Only such employees in respect of whom 90% of the University share is credited to the pension fund within prescribed time shall be covered under the scheme. Where a University has granted house building advance to any employee to the extent of 75% of the total amount of CPF as provided in the relevant Statute, the condition regarding deposit of 90% of University share due to an employee could be relaxed by the M.P. Uchcha Shiksha Anudan Ayog on merits of each case. For this purpose the M.P.U.S.A.A. would be competent to issue necessary directions and such directions will be binding on the University. Where M.P.U.S.A.A.

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

has granted relaxation in respect of an employee, such employee would be covered by this scheme. The remaining amount of 10% of the university share with interest shall be deposited by the Registrar in the University Employees pension and gratuity Fund (UNIPENGRAF) within a maximum period of six months from the date of promulgation of the statute in respect of the employees who opt to join this scheme.

c). Grant-in-aid sanctioned by the Government from time to time to cover the deficiency of funds in running the Pension and Gratuity Scheme. Procedure for pension and gratuity payment to the University Employees :-

a) When calculating the pension, family pension, gratuity and commutation amount payable to the employee on retirement, the procedure, the proformas and the Rules as laid down in the M.P. Civil Service (Pension) Rules, 1976 and the M.P. Civil Pension (Commutation) Rules, 1976 as amended from time to time by the Government shall be applicable mutatis-mutandis."

09. The aforesaid provision of law makes it very clear that while calculating pension, family pension, gratuity and commutation in respect of retired employees of Vikram University, Ujjain, the provisions of the Madhya Pradesh Civil Services (Pension) Rules, 1976 and the Madhya Pradesh Civil Pension (Commutation) Rules, 1976 as amended from time to time by the Government shall be applicable mutatis mutandis. Not only this, the Chhattisgarh High Court while dealing with the similar controversy in paragraphs 8 to 17 held as under in Writ Petition (s) No. 196/2011 (Santosh Kumar Upadhyay and others v. State of Chhattisgarh and others):-

"8. Clause 9 of Statute No.32 provides for contribution for creation of employees pension and gratuity fund. It is further provided that each employee will make a contribution to the fund and the University will also contribute the same amount to the said fund. The said fund shall be centrally controlled and administered by the Madhya Pradesh Uchha Shiksha Anudan Ayog/Department of Higher Education. It is further provided that the grant- in-aid sanctioned by the Government from time to time will be made to cover the deficiency of funds in running the Pension and Gratuity Scheme.

9. Clause-13 of Statute No.32 provides for procedure Regulating the Payment of Pension and Gratuity to the Employees and clause 14 provides for procedure for Pension and Gratuity Payment to the University

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

Employees.

10. It is well settled principle of law that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right of pension is a valuable right vesting in a Government servant (see Deokinandan Prasad v. The State of Bihar and others SCC pg. 344 para-31).

11. The Supreme Court recently in Pepsu Road Transport Corporation, Patiala v. Mangal Singh and others, observed as under :-

"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 depend on the provisions and interpretation of Rules and Regulations....................."

It is further held that :-

"29. It is well settled law that the Regulations made under the statute laying down the terms and conditions of service of employees, including the grant of retirement benefits, has 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 action or order illegal and invalid. "

12. The fund so created will be controlled and administered by the Madhya Pradesh Uccha Shiksha Anudan Ayog/Department of Higher Education. Now, it will be done by the Higher Education Department of the Government, as the Shiksha Anudan Ayog was abolished, in 1994.

13. Subsequently, under the provisions of the Madhya Pradesh Uchcha Shiksha Anudan Ayog (Nirsan) Adhiniyam, 1994 (for short "the Adhiniyam, 1994"), the Madhya Pradesh Uchcha Shiksha Anudan Ayog Adhiniyam, 1973 was repealed and as a result, under sub- section (1) section 3 of the Adhiniyam, 1994, the Ayog stood dissolved.

14. Sub-section (2) Section 3 provides that all assets and liabilities of the Ayog on the appointed day shall stand vested in the State Government and the State Government shall have all powers necessary to take possession, recover and deal with such assets and to

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

discharge such liabilities.

15. Sub-section (3) Section 3 of the Adhiniyam, 1994 provides that any proceeding pending immediately before the appointed day to which the Ayog was party shall be continued as if the State Government was party thereof in lieu of the Ayog.

16. In view of the above, all the responsibilities and functions of the Ayog continued to be performed by the State Government. The petitioners being the employees of the University are entitled to all the benefits, as afore-stated, at par with the Government employees.

Accordingly, the respondents are directed to grant retiral benefits to the petitioners, as revised from time to time for the State Government employees in accordance with the provisions of Statue No.32 and as per the Circular dated 6th December, 1989 issued by the then, State of Madhya Pradesh and the memo dated 22nd March, 2001 of the State of Chhattisgarh.

17. As an upshot, the writ petition is allowed to the extent indicated above, leaving the parties to bear their own costs."

10. This court keeping in view the aforesaid statutory provision of law and the judgment delivered in an identical case is of the considered opinion that the petitioner, who is a retired employee of Vikram University cannot be discriminated in the matter of grant of pension as the provisions of Madhya Pradesh Civil Services (Pension) Rules, 1976 are applicable mutatis- mutandis in case of the petitioner also, by virtue of Statute No.37.

11. It has also been brought to the notice of this court that the Professors working under the State of Madhya Pradesh and in Vikram University, Ujjain are receiving the same pay scale and, therefore, the action of the respondents is amounting to disparity, within the same rank. In light of the aforesaid, it can be safely gathered that the action of the respondents which brings disparity between the same rank specially when same rules are applicable to all persons in the matter of grant of pension, the petitioner is being

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

discriminated vis-a-vis his counter parts who have attained the age of superannuation from the services of the State of Madhya Pradesh.

12. The apex court while deciding the land mark case in the matter of grant of pension in case of D.S. Nakara and others v. Union of India reported in (1983) 1 SCC 305 in paragraphs 20, 27, 29, 31 and 36 held as under:-

"20. The antequated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar & Others. (1) wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of 182 quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab & another v. Iqbal Singh (1).

27. Viewed in the light of the present day notions pension is a term applied to periodic money payments to a person who retires at a certain age considered age of disability; payments usually continue for the rest of the natural life of the recipient. The reasons underlying the grant of pension vary from country to country and from scheme to scheme. But broadly stated they are

(i) as compensation to former members of the armed forces or their dependents for old age, disability, or death (usually from service causes),

(ii) as old age retirement or disability benefits for civilian employees, and

(iii) as social security payments for the aged, disabled, or deceased citizens made in accordance with the rules governing social service programmes of the country.

Pensions under the first head are of great antiquity. Under the second head they have been in force in one form or another in some countries for over a century but those coming under the third head are relatively of recent origin, though they are of the greatest 185 magnitude. There are other views about pensions such as charity, paternalism, deferred pay, rewards for service rendered, or as a means or

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

promoting general welfare (see Encyclopaedia Britannica, Vol. 17 p.575.) But these views have become otiose.

29. Summing-up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required to fall back on savings. One such saving in kind is when you gave your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.

31. From the discussion three things emerge :

(i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Art. 309 and clause (5) of Art. 148 of the Constitution;

(ii) that the pension is not an ex-gratia payment but it is a payment for the past service rendered; and

(iii) it is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to ten months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to requirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.

36. Having set out clearly the society which we propose to set up, the direction in which the State action must move, the welfare State which we propose to build up, the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy especially of security in old age at least to those who have rendered useful service during their active years, it is indisputable, nor was it questioned, that pension as a retirement benefit is in consonance with and furtherance of

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

the goals of the Constitution. The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured at least when it is mostly needed and least available, namely, in the fall of life."

In light of the aforesaid, it is evident that the payment of pension is payment for the past services rendered. Its a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch and, therefore, in the opinion of this court the petitioner is certainly entitled for the same benefit which has been extended to the retired persons of the State of Madhya Pradesh, specially when the Madhya Pradesh Civil Services (Pension) Rules, 1976 are applicable mutatis-mutandis in case of the petitioner also.

11. Resultantly, the writ petition is allowed. The State of Madhya Pradesh is directed to extend all pensionary benefits to the petitioner, in view of the notification dated 03-08-2009. The exercise of granting pension, arrears of pension and other benefits by issuing a revised pension payment order be completed, within a period of ninety days, from the date of receipt of certified copy of this order.

No order as to costs."

it is found that the aforesaid decision would be applicable to the facts and circumstance of the case mutatis mutandis.

6. Accordingly, Writ Petition No.8086/2021 stands allowed. The respondents are directed to act, in accordance with the direction contained in Dr. Surendra Kumar Gupta (supra). The State of

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11 WP No.8086/2021

Madhya Pradesh is directed to extend all pensionary benefits to the petitioner in view of the notification dated 11.06.2018. The exercise of granted pension, arrears of pension and other benefits by issuing a revised Pension Payment Order (PPO) be completed within a period of ninety days from the date of receipt of certified copy of this order.

All the other pending interlocutory applications, if any, shall stand disposed of.

Certified copy as per rules.

(Subodh Abhyankar) Judge Pithawe RC

Signature Not Verified Signed by: RAMESH CHANDRA PITHWE Signing time: 20-10-2022 14:23:11