Madhya Pradesh High Court
The Commissioner Kendriya ... vs Jagannath Prasad Kashyap on 12 June, 2023
Author: Rohit Arya
(1)
IN THE HIGH COURT OF MADHYA
PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 12th OF JUNE, 2023
WRIT PETITION NO. 7318 OF 2015
BETWEEN :-
1. GOVERNMENT OF MADHYA
PRADESH, THROUGH ITS
SECRETARY, GOVERNMENT
OF MADHYA PRADESH,
MINISTRY OF TECHNICAL
EDUCATION, VALLABH
BHAWAN, BHOPAL (MADHYA
PRADESH) 462011.
2. THE SECRETARY,
GOVERNMENT OF MADHYA
PRADESH, MINISTRY OF
TECHNICAL EDUCATION,
VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH) 462011.
3. PRINCIPAL, GOVT. DR. B.R.
AMBEDKAR POLYTECHNIC
COLLEGE (FORMERLY
KNOWN AS GOVT. CENTRAL
TECHNICAL INSTITUTE,
POLYTECHNIC), GWALIOR
(MADHYA PRADESH).
.....PETITIONERS
(2)
(SHRI VIVEK KHEDKAR - ADDITIONAL ADVOCATE
GENERAL)
AND
1. JAGANNATH PRASAD
KASHYAP S/O LATE R.P.
KASHYAP, AGED : 73 YEARS,
R/O SURYA VIHAR COLONY,
NEAR PINTO PARK NO.2, GALI
NO.3, HOUSE NO.3, GWALIOR
(MADHYA PRADESH) - 474006.
2. COMMISSIONER, KENDRIYA
VIDYALAYA SANGATHAN, 18,
INDUSTRIAL AREA, SHAHEED
JEET SINGH MARG, NEW
DELHI - 110 016.
3. ADDITIONAL COMMISSIONER
(ADMINISTRATION) O/O
KENDRIYA VIDYALAYA
SANGATHAN, 18, INDUSTRIAL
AREA, SHAHEED JEET SINGH
MARG, NEW DELHI - 110 016.
4. DEPUTY COMMISSIONER,
KENDRIYA VIDYALAYA
SANGATHAN, GRAND PARADE
ROAD, K.V. NO.2 CAMPUS,
CANTONMENT AREA, AGRA
CANTT. (U.P.).
5. PRINCIPAL, KENDRIYA
VIDYALAYA NO.2 M.A.F.,
GWALIOR (M.P.) - 1474020.
.....RESPONDENTS
(SHRI J.P. SAXENA - ADVOCATE FOR RESPONDENT
(3)
NO.1 AND SHRI RAJNEESH SHARMA - ADVOCATE FOR
RESPONDENTS NO.2 TO 5)
WRIT PETITION NO. 7783 OF 2015
BETWEEN :-
1. THE COMMISSIONER,
KENDRIYA VIDYALAYA
SANGATHAN, 18, INDUSTRIAL
AREA, SHAHEED JEET SINGH
MARG, NEW DELHI - 110 016.
2. ADDITIONAL COMMISSIONER
(ADMINISTRATION) O/O
KENDRIYA VIDYALAYA
SANGATHAN, 18, INDUSTRIAL
AREA, SHAHEED JEET SINGH
MARG, NEW DELHI - 110 016.
3. THE DEPUTY COMMISSIONER,
KENDRIYA VIDYALAYA
SANGATHAN, GRAND PARADE
ROAD, K.V. NO.2 CAMPUS,
CANTONMENT AREA, AGRA
CANTT. (U.P.).
4. THE PRINCIPAL, KENDRIYA
VIDYALAYA NO.2 M.A.F.,
GWALIOR (M.P.) - 474020.
.....PETITIONERS
(SHRI RAJNISH SHARMA - ADVOCATE)
AND
1. JAGANNATH PRASAD
KASHYAP S/O LATE R.P.
KASHYAP, AGED : 73 YEARS,
R/O SURYA VIHAR COLONY,
(4)
NEAR PINTO PARK NO.2, GALI
NO.3, HOUSE NO.3, GWALIOR
(MADHYA PRADESH) - 474006.
2. GOVERNMENT OF MADHYA
PRADESH, THROUGH ITS
SECRETARY, GOVERNMENT
OF MADHHYA PRADESH,
MINISTRY OF TECHNICAL
EDUCATION, VALLABH
BHAWAN, BHOPAL (MADHYA
PRADESH) 462011.
3. THE SECRETARY,
GOVERNMENT OF MADHYA
PRADESH, MINISTRY OF
TECHNICAL EDUCATION,
VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH) 462011.
4. PRINCIPAL, GOVT. DR. B.R.
AMBEDKAR POLYTECHNIC
COLLEGE (FORMERLY
KNOWN AS GOVT. CENTRAL
TECHNICAL INSTITUTE,
POLYTECHNIC), GWALIOR
(MADHYA PRADESH).
.....RESPONDENTS
(SHRI J.P. SAXENA - ADVOCATE FOR RESPONDENT
NO.1 AND SHRI VIVEK KHEDKAR - ADDITIONAL
ADVOCATE GENERAL FOR THE RESPONDENTS NO.2 TO
4/GOVT. OF MADHYA PRADESH)
-------------------------------------------------------------------------------
These Writ Petitions coming on for orders this day,
JUSTICE ROHIT ARYA passed the following:
ORDER
These two Writ Petitions i.e. W.P.No.7318 of 2015 (Govt.
of Madhya Pradesh and others Vs. Jagannath Prasad Kashyap and
others) and W.P.No.7783 of 2015 (The Commissioner Kendriya
Vidyalaya and others Vs. Jagannath Prasad Kashyap and others)
arise out of the common order dated 13.01.2015 passed by the
Central Administrative Tribunal, Jabalpur Bench, Circuit Sitting :
Gwalior in Original Application No. 955 of 2012.
2. Respondent No.1 Jagannath Prasad Kashyap S/o late
R.P.Kashyap, who stands retired on 30th September 2002,
approached the Tribunal seeking indulgence in the matter of
reckoning of period of service rendered by him with the State of
Madhya Pradesh for the period w.e.f. 21.12.1962 to 12.08.1975 in
the matter of computation of his pension and retiral benefits, as
the same was turned down by the State Government vide
impugned order dated 14.10.2011.
3. The Tribunal, after notice to the parties, heard the matter on
merits. The Tribunal relied upon the O.M.No.28-10/84-Pension
Unit dated 29.8.84 issued by the Government of India,
Department of Personnel & A.R. besides, the decisions rendered
by the Tribunal in the case of O.P.Trivedi Vs. Kendriya
Vidyalaya Sangathan and others, Original Application No.304
of 2001 decided on 29.04.2003 and K.P.Srivastava Vs. kendriya
Vidyalaya Sangathan and others, Original Application No.205
of 2009 decided on 30.11.2012. The relevant part of the
aforementioned OM is quoted below :-
"(a) in case of Autonomous bodies where pension
scheme is in operation -
(i) Where a Central Government employee
borne on pensionable establishment is allowed to
be absorbed in an autonomous body, the service
rendered by him under the Government shall be
allowed to be counted towards pension under the
autonomous body irrespective of whether the
employee was temporary or permanent in
Government. The pensionary benefits will
however, accrue only if the temporary service is
followed by confirmation. If he retires as a
temporary employee in the autonomous body, he
will get terminal benefits as are normally available
to temporary employee under the Government.
The same procedure will apply in the case of
employees of the autonomous bodies who are
permanently absorbed under the Central
Government.
The Government/autonomous body will
discharge its pension liability by paying in
lumpsum as a one-time payment, the prorata
pension/service gratuity/terminal gratuity and
retirement gratuity for the service upto the date of
absorption in the autonomous body/government,
as the case may be. Lumpsum amount of the pro
rata pension will be determined with reference to
commutation table laid down in CCS
(Commutation of Pension) Rules, 1981, as
amended from time to time."
Accordingly, the Tribunal vide order dated 13.01.2015
allowed the O.A. by quashing the impugned order dated
14.10.2011.
4. In terms of the order so passed, respondent No.1 Jagannath
Prasad Kashyap has been held entitled for the benefit of length of
service rendered by him with the State of Madhya Pradesh in the
matter of calculation of pension and other retiral benefits.
Accordingly, KVS has been directed to do the needful in that
behalf. Besides, the State of Madhya Pradesh has also been
directed that if the proposal for payment of pro-rata retiral
benefits is received from the KVS, the same must be made good
within a period of 60 days from the date of such proposal. The
applicant, however, has not been held entitled for any interest on
the payment of pension and other retiral benefits on account of
revision of pension.
5. Shri Vivek Khedkar, learned Additional Advocate General
appearing for the State of Madhya Pradesh while taking exception
to the impugned order,inter alia submits that the Tribunal failed to
appreciate that before applying for employment in KVS, no
permission was sought from the State Government, albeit after
selection, respondent No.1 Jagannath Prasad Kashyap had
tendered resignation on 31.07.1975 and indeed was accepted by
the State Government on 12.08.1975. Thereafter, he joined KVS
on 14.08.1975. Under such circumstances, by force of Rule 37 of
the Central Civil Services (Pension) Rules, 1972 (hereinafter shall
be referred to as the Rules), the applicant shall not be entitled for
the benefit of past service rendered with the State Government in
the matter of computation of pension and retiral benefits after he
attained the age of superannuation while serving at KVS. Learned
counsel relied upon the judgment of the Supreme Court in the
case of Union of India and another Vs. V.R.Chadha reported in
(1997) 11 SCC 242 to bolster his submission.
6. Shri Rajnish Sharma, learned counsel appearing for the
respondents Kendriya Vidyalaya Sangathan while adopting the
submissions advanced by Shri Khedkar further submits that since
the controversy involved is referable to the reckoning of the
period of past service rendered by the respondent No.1 Jagannath
Prasad Kashyap with the State Government, KVS is not involved
in the context of merits of the dispute. Nevertheless, as per the
instructions, the pension and retiral benefits of the respondent
No.1 Jagannath Prasad Kashyap have been revised in terms of the
impugned order passed by the Tribunal. Thereafter, KVS has also
forwarded to the State Government the portion of the revised
pension required to be paid by the State Government with
reference to the service period i.e. 21.12.1962 to 12.08.1975
rendered by the respondent Jagannath Prasad Kashyap with the
State Government and the same is pending with the State
Government.
7. Per contra, Shri J.P.Saxena, learned counsel for the
respondent No.1 Jagannath Prasad Kashyap while supporting the
impugned judgment submits that in terms of the Government of
India's orders appended to Rule 14 of the Rules, relied upon by
the Tribunal, respondent No.1 has rightly been held entitled for
computation of period of service rendered by him with the State
of M.P. for the purpose of revision of pension and pensionary
benefits.
8. Heard.
9. Before adverting to the rival contentions, it is expedient to
observe that Shri Vivek Khedkar, learned Additional Advocate
General is at loss to state at Bar that the original records of the
service of respondent No.1 are not available.
10. The moot question that arises for consideration is as to
whether in terms of Rule 37 of the Rules, absorption of
respondent No.1 Jagannath Prasad Kashyap was with the
permission of the State Government and secondly the said
absorption was declared by the State Government to be in public
interest as interpreted by the Supreme Court in the case of
V.R.Chadha (supra) for attracting the benefits flowing from the
provisions of Rule 37 of the Rules.
11. There is nothing on record to demonstrate that there was no
order of the State Government either permitting him to be
absorbed in KVS or declaring such absorption in public interest
except the order (Annexure P/1), which does not have any
reference of such orders.
On the contrary, in the resignation letter dated 31.07.1975
(Annexure R/1-5) submitted by the respondent No.1 addressed to
the State Government, he had specifically mentioned that he may
be relieved on 12.08.1975 so that he may join his appointment at
KVS. The said fact has not been either denied or rebutted before
the Tribunal. Under such circumstances, submissions of Shri
Khedkar can not be countenanced, hence, rejected.
12. That apart, since respondent No.1 Jagannath Prasad
Kashyap reached the age of superannuation way back on 30 th
September 2002 and more than 21 years' period has passed by,
now at this distance of such long time, in the obtaining facts and
circumstances, when the original record of respondent No.1 is
not available with the State Government, we see no reason to
draw any adverse inference against him, rather we take the view
that the factum of his selection as Work Experience Teacher in
KVS was in the knowledge of the State Government and
thereafter due permission was given for resignation, so that he
could join at the subsequent appointment with the KVS. Hence,
no illegality is found in the impugned order passed by the
Tribunal awarding him said benefits.
13. Consequently, we hereby direct that the State Government
shall pay the difference of revision of pay to the respondent No.1
Jagannath Prasad Kashyap in terms of the order passed by the
Tribunal in OA No.955/2012.
With the aforesaid directions, both the Writ Petitions stands
dismissed.
A copy of this order be retained in the connected Writ
Petition.
(ROHIT ARYA) (SANJEEV S KALGAONKAR)
JUDGE JUDGE
SP
SANJEEV KUMAR
PHANSE
2023.06.13
16:02:24 +05'30'
