Madras High Court
S.Kalamohan vs The State Of Tamil Nadu on 5 April, 2024
W.P.(MD)Nos.8717 to 8726 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.04.2024
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.(MD)Nos.8717 to 8726 of 2024
and
W.M.P.(MD).Nos.7955, 7957, 7958, 7959, 7960, 7961, 7962, 7963,
7964, 7965, 7968, 7969, 7980, 7981, 7982, 7983, 7985, 7986, 7987
and 7988 of 2024
Prayer in W.P(MD).No.8717 of 2024
S.Kalamohan ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Higher Education Department,
Secretariat,
St.George Fort,
Chennai.
1/21
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W.P.(MD)Nos.8717 to 8726 of 2024
2.The Registrar,
Madurai Kamaraj University,
Madurai.
3.The Director,
Department of Local Fund Audit,
No.571, Officers building,
Veterinary Hospital Campus,
Nandanam,
Chennai-600 035. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India for issuance of Writ of Certiorari, calling for the records
relating to the impugned order passed by the second respondent vide
his proceedings in Ref.Emp.No.A1678/MKU/Show Cause Notice/
Reply/2024 dated 26.03.2024 and quash the same as illegal.
In all Writ Petitions
For Petitioners : Mr.M.Ajmal Khan
Senior Counsel for
M/s.Ajmal Associates
2/21
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W.P.(MD)Nos.8717 to 8726 of 2024
For Respondents : Mr.T.Amjad Khan – for R1 & R3
Government Advocate
Mr.Aasiq Ismail – for R2
for Mr.T.Cibi Chakraborthy
COMMONORDER
Heard Mr.Ajmal Khan, learned Senior Counsel appearing
for the petitioners, Mr.T.Amjad Khan, learned Government Advocate
appearing for the respondent Nos.1 and 3 and Mr.Aasiq Ismail,
learned counsel representing for T.Cibi Chakrboorthy, learned
counsel appearing for the respondent No.2.
2. The writ petitioners, who have served as Senior
Deputy Registrar and Senior Superintendent respectively at the time
of retirement during the years 2013, 2014 and 2015, have filed these
Writ Petitions challenging the order of the second respondent
University revising their pension pursuant to the Government Order
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issued in G.O.(D).No.282, Higher Education (H2) Department, dated
13.10.2022.
3. The revision was on the premise that in the
Government side, there is no equivalent posts available to that of the
Senior Deputy Registrar and the Senior Superintendent, which were
held by the petitioners in the second respondent University; due to
paucity of funds, certain budgetary measurements were taken by
revising the provisional pension given to the petitioners; this is in
view of the fact that they held posts equivalent for which available in
the Government with the less pay.
4. Mr.Ajmal Khan, the learned Senior Counsel appearing
for the petitioners submitted that the Government Order in G.O.
(D).No.282, Higher Education (H2) Department, dated 13.10.2022,
cannot be issued superseding the statutory provisions and further the
executive instructions cannot take away the rights of the petitioners
which have been granted to them in accordance with the statutory
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W.P.(MD)Nos.8717 to 8726 of 2024
entitlement. It is further submitted that even for any reason, the
Government Order can be enforceable only with a prospective effect
and cannot be operated retrospectively by affecting the pension
already accorded in favour of these petitioners. Reliance was placed
on the judgments of the Hon'ble Supreme Court of India held in the
case of State of Jharkhand vs. Jitendra Kumar reported in (2013)
12 SCC 210 and State of Madhya Pradesh and others vs. Yogendra
Shrivastava reported in (2010) 12 SCC 538.
5. However, Mr.T.Cibi Chakraborthy, the learned
counsel appearing for the second respondent submitted that the
Government Order has been approved by the Syndicate which is the
supreme body of the University and the implementation has been
done only in accordance with law and according to the statutory
requirement. It is further submitted that prior to revision, notice has
been issued to the petitioners and they have made their submissions
and after considering their submissions, the impugned order has been
passed; however, no recovery has been made and the revision of
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pension has been effected. Hence, these petitioners cannot attack the
same.
6. In G.O.(D).No.282, Higher Education (H2)
Department, dated 13.10.2022, certain decisions have been taken
pursuant to the suggestions and undertaking given by the University
to the Government. One of the proposals so sent to the Government
was to revise the provisional pension on the revised pay certified by
the Local Fund Audit Department wherever applicable. For the sake
of clarity, the above part of the Government Order is extracted
hereunder:
“5.(v) The provisional pension shall be revised based
on the revised pay certified by the Local Fund Audit
Department where ever applicable. The number of persons
drawing provisional pension due to non settlement of audit
paras should be reduced immediately starting from the
earliest ones to the recent ones.”
7. Even according to the second respondent University,
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the proposal was given only to the revised provisional pension and
not the regular pension which has been granted to these petitioners.
Admittedly, the petitioners were not given with any provisional
pension and whatever that has been accorded to them was subsequent
to their retirement and the regular pension for which they are entitled
to.
8. It is trite law that the Government Order cannot be
superseded by any statutory provisions which are governing the
service conditions of the employees. So far as these petitioners are
concerned, they had retired from service and the relation between the
petitioners and the second respondent University as that of employee
and employer had ceased to exist. It is not the argument of the
respondent that the posts, by names, Senior Deputy Registrar and
Senior Superintendent, were not in existence at the time of their
employment. Only because those posts are available, the petitioners
were rightly placed in those posts on their promotion and they were
allowed to retire as how they have been designated. In this regard, it
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is worthwhile to refer to the judgment of the Hon'ble Supreme Court
of India in the case of State of Jharkhand vs. Jitendra Kumar
reported in (2013) 12 SCC 210, wherein, it has been held that the
right to receive pension is recognised as a right in “property” and the
executive instructions cannot have a statutory character and hence
those executive instructions cannot be called as law. In the words of
the Hon'ble Supreme Court of India it is given as under:
“16. The fact remains that there is an imprimatur to the
legal principle that the right to receive pension is recognised as
a right in “property”. Article 300-A of the Constitution of India
reads as under:
“300-A. Persons not to be deprived of property
save by authority of law.- No person shall be
deprived of his property save by authority of law”.
Once we proceed on that premise, the answer
to the question posed by us in the beginning of this
judgment becomes too obvious. A person cannot be
deprived of this pension without the authority of law,
which is the constitutional mandate enshrined in
Article 300-A of the Constitution. It follows that
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attempt of the appellant to take away a part of
pension or gratuity or even leave encashment without
any statutory provision and under the umbrage of
administrative instruction cannot be countenanced.
17. It hardly needs to be emphasised that the
executive instructions are not having statutory character
and therefore, cannot be termed as “law”within the
meaning of the aforesaid Article 300-A. On the basis of
such a circular, which is not having force of law, the
appellant cannot withhold even a part of pension or
gratuity. As we noticed above, so far as statutory Rules are
concerned, there is no provision for withholding pension or
gratuity in the given situation. Had there been any such
provision in these Rules, the position would have been
different.
18. We, accordingly, find that there is no merit in the
instant appeals as the impugned order of the High Court is
without blemish. Accordingly, these appeals are dismissed
with costs quantified at Rs.10,000/- each.”
9. With regard to the date of implementation of any of the
Statutory Rules leaving alone the executive instructions, it has been
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W.P.(MD)Nos.8717 to 8726 of 2024
categorically held that such Rules can operate only with prospective
effect and not retrospectively. In the said judgment, it has been held
as under:
“15. It is no doubt true that Rules made under
Article 309 can be made so as to operate with
retrospective effect. But it is well settled that rights
and benefits which have already been earned or
acquired under the existing Rules cannot be taken
away by amending the Rules with retrospective effect.
(See N.C.Singhal vs. Armed Forces Medical Services;
K.C.Arora vs. State of Haryana and T.R.Kapur vs.
State of Haryana). Therefore, it has to be held that
while the amendment, even if it is to be considered as
otherwise valid, cannot affect the rights and benefits
which had accrued to the employees under the
unamended rules. The right to NPA @ 25% of the
pay having accrued to the respondents under the
unamended Rules, it follows the respondent
employees will be entitled to non-practising
allowance @ 25% of their pay upto 20-05-2003.”
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10. The petitioners, who were working as Senior Deputy
Registrar and Senior Superintendent, were not subjected to any
disciplinary proceedings and while allowing them to retire no
conditions were imposed in view of any pending or contemplated
disciplinary action. As stated already, the pensionary benefits
sanctioned to the petitioners are all regular pension in accordance
with the Rules. Hence, the respondents have got no authority to call
for those orders which are given already and to revise the same
pursuant to the subsequent Government Order issued due to change
of policy of the University.
11. The learned Senior Counsel appearing for the
petitioners submitted that the order which has not been issued for
recovery of the pension already granted itself would amount to
implementing the Government Order with prospective effect and
hence, they can not be given with retrospective effect.
12. The reduction of pension has been made only because
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the posts by names Senior Deputy Registrar and Senior
Superintendent are something luxurious and hence, they have to be
re-designated as Superintendent and Deputy Registrar respectively,
as how they available in the government departments. Such re-
designation has been made with effect from the year 2008 and
consequence thereof, the pension due to the petitioner has been
revised through the impugned order. No re-designation can be
impacted on those persons who are no more in service. In other
words if any re-designation exercise is done in respect of retired
individuals that is possible only by going posterior in time.
Whichever way it is looked, the attempt of the second respondent
University to implement the Government Order against the
petitioners in a retrospective manner is glaringly visible.
13. Coming to the next point of issuing executive
instruction not supported by statutes and enactments, it is held after
having made elaborate discussion in the case of the Madras
University Staff Association, represented by its President,
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W.P.(MD)Nos.8717 to 8726 of 2024
University of Madras, Chennai-5 vs. State of Tamil Nadu,
represented by the Secretary to Government, Higher Education
Department, Fort St.George, Chennai-9 and another, it is held that
it is ultravires to issue instructions contrary to the enactment of the
legislature and concluded as under:-
32. In view of my elaborate discussions in the
foregoing paragraphs, I would sum up the conclusions in the
following terms:
(i) As the law has been made by the State
legislature conferring the power of regulation of
service conditions of non-teaching staff of the
universities on Syndicate, the executive is not
empowered to pass the impugned order in regard
to that matter in exercise of his executive power
under Article 162 of the Constitution nor can he
exercise such power with reference to that matter
through the officers subordinate to him.
(ii) A law having occupied the field, it is not
open for the State, in exercise of its executive
power, to prescribe the same field, by an executive
order.
(iii) Executive power of the State cannot be
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repugnant to the enactment of the legislature.
(iv) Executive order of the State can be
issued only when the statutes or enactments are
having gaps and do not cover the area by the
existing Rules.
(v) Mere funding of the State to the
Universities does not confer any privilege on the
State to issue executive orders, so as to interfere
with the administration of the Universities.
(vi) Executive order (i.e) the impugned order
of the First respondent in G.O.Ms.No.402, Higher
Education (H2) Department, dated 13.12.2006 is
inoperative and it is, accordingly declared ultra
vires to the provisions of the Acts.
14. In the cases in hand, the entitlement of the petitioners
to get pension in accordance with the provisions of pension has been
reduced and modified through an administrative order which is
thoroughly illegal. In reality, the petitioners’ services with the
respondent university had ended and thereafter the posts held by the
petitioner can not be re-designated as against them. In other words
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the petitioners are no more holding the posts of Senior Deputy
Registrar and Senior Superintendent in order to get it re-designated.
Such an action would amount to doing something on a thing which
does not exist. Hence in all possibilities and realities of rule of law,
the respondents do not have authority to pass the impugned order. As
the impugned notices are against the spirit and scope of the statutory
protection given to the petitioners, they are illegal and liable to be set
aside.
15. Insofar as the petitioner in W.P.(MD)No.8720 of
2024 is concerned, he was working in the post of Superintendent at
the time of his retirement. The impugned order, dated 26.03.2024
passed by the second respondent would state that the petitioner being
a Superintendent, was given with a pension higher than that of the
persons worked in similar posts in the Government Department.
Since audit objection has been raised, the second respondent has
passed the impugned order.
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16. The conditions of service of this petitioner and the
Government servants were not claimed to be equal and the petitioner
is governed by the Rules and Regulation of the University. Each time
when the Government Orders are passed with regard to any of the
service benefits or service conditions, it is the Syndicate of the
University which has to take a call and pass a Resolution whether
such orders or scheme is applicable to the University and whether the
University is going to implement or not ?
17. At the time when this petitioner was working as a
Superintendent, the University has not chosen to take any decision to
equate the service conditions of the persons who are working as
Superintendent in the University to the Superintendent working in
the Government Departments. If the respondent University takes
such a decision, that can be implemented prospectively and the
petitioner cannot cast it back to the days, in which, the petitioner was
working with the University and thereby, revise the pension. Though
the impugned order would show that the revision of pension has been
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implemented in a retrospective manner, but the foundational right or
the reason for which the pension impact has been made has got its
footing retrospectively. Hence, the impugned order even as against
this petitioner, is also not legal.
18. Accordingly,
(i) The Writ Petition in W.P(MD).No.8717 of 2024 is
allowed and the impugned order passed by the second respondent
vide proceedings in Ref.Emp.No.A1678/MKU/Show Cause
Notice/Reply/2024, dated 26.03.2024, is quashed.
(ii) The Writ Petition in W.P(MD).No.8718 of 2024 is
allowed and the impugned order passed by the second respondent
vide proceedings in Ref.Emp.No.A1680/MKU/Show Cause
Notice/Reply/2024, dated 26.03.2024, is quashed.
(iii) The Writ Petition in W.P(MD).No.8719 of 2024 is
allowed and the impugned order passed by the second respondent
vide proceedings in Ref.Emp.No.A1643/MKU/Show Cause
Notice/Reply/2024, dated 26.03.2024, is quashed.
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(iv) The Writ Petition in W.P(MD).No.8720 of 2024 is
allowed and the impugned order passed by the second respondent
vide proceedings in Ref.Emp.No.A1690/MKU/Show Cause
Notice/Reply/2024, dated 26.03.2024, is quashed.
(v) The Writ Petition in W.P(MD).No.8721 of 2024 is
allowed and the impugned order passed by the second respondent
vide proceedings in Ref.Emp.No.A1651/MKU/Show Cause
Notice/Reply/2024, dated 26.03.2024, is quashed.
(vi) The Writ Petition in W.P(MD).No.8722 of 2024 is
allowed and the impugned order passed by the second respondent
vide proceedings in Ref.Emp.No.A1637/MKU/Show Cause
Notice/Reply/2024, dated 26.03.2024, is quashed.
(vii) The Writ Petition in W.P(MD).No.8723 of 2024 is
allowed and the impugned order passed by the second respondent
vide proceedings in Ref.Emp.No.A1679/MKU/Show Cause
Notice/Reply/2024, dated 26.03.2024, is quashed.
(viii) The Writ Petition in W.P(MD).No.8724 of 2024 is
allowed and the impugned order passed by the second respondent
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vide proceedings in Ref.Emp.No.A1694/MKU/Show Cause
Notice/Reply/2024, dated 26.03.2024, is quashed.
(ix) The Writ Petition in W.P(MD).No.8725 of 2024 is
allowed and the impugned order passed by the second respondent
vide proceedings in Ref.Emp.No.A1684/MKU/Show Cause
Notice/Reply/2024, dated 26.03.2024, is quashed.
(x) The Writ Petition in W.P(MD).No.8726 of 2024 is
allowed and the impugned order passed by the second respondent
vide proceedings in Ref.Emp.No.A1653/MKU/Show Cause
Notice/Reply/2024, dated 26.03.2024, is quashed.
There shall be no order as to costs. Consequently,
connected Miscellaneous Petitions are closed.
05.04.2024
NCC :yes/no
Index :yes/no
Internet :yes/no
RM
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W.P.(MD)Nos.8717 to 8726 of 2024
To
1.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Higher Education Department,
Secretariat,
St.George Fort,
Chennai.
2.The Registrar,
Madurai Kamaraj University,
Madurai.
3.The Director,
Department of Local Fund Audit,
No.571, Officers building,
Veterinary Hospital Campus,
Nandanam,
Chennai-600 035.
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W.P.(MD)Nos.8717 to 8726 of 2024
R.N.MANJULA, J.
RM
W.P.(MD)Nos.8717 to 8726 of 2024
05.04.2024
https://www.mhc.tn.gov.in/judis
