Open University (Ignou) vs The Indira Gandhi National Open ...
2022 Latest Caselaw 247 Mani

SHAMURAILATP                                                                         Page |1

AM SUSHIL
SHARMA                                     IN THE HIGH COURT OF MANIPUR
                                                     AT IMPHAL
Digitally signed by
SHAMURAILATPAM
                                                   WP(C) No. 95 of 2021
SUSHIL SHARMA
Date: 2022.06.08 12:01:00   Dr. S.J. Neethi Rajan, aged about 62 years, S/o V.
+05'30'
                            Shanmugakani, a resident of Nagaram Block B behind

                            Eagel High School, P.O. Lamlong & P.S. Heingang,

                            Imphal East District, Manipur-795010, presently

                            working as Regional Director, Indira Gandhi National

                            Open University (IGNOU), Regional Centre Imphal,

                            Asha-Jina Complex, North AOC, Imphal West District,

                            Manipur-795001.

                                                                      ....Petitioner

                                                      -V E R S U S-

                            1.    The Indira Gandhi National Open University

                                  (IGNOU), Maidan Garhi, New Delhi-110068.

                            2.    The Vice Chancellor, Indira Gandhi National

                                  Open University (IGNOU), Maidan Garhi, New

                                  Delhi-110068.

                            3.    The Registrar (Administration), Indira Gandhi

                                  National Open University (IGNOU), Maidan

                                  Garhi, New Delhi-110068.




                            WP(C) No. 95 of 2021
                                                            Page |2



4.    The Director ACD, Indira Gandhi National Open

      University (IGNOU), Maidan Garhi, New Delhi-

      110068.

5.    The Director RSD, Indira Gandhi National Open

      University (IGNOU), Maidan Garhi, New Delhi-

      110068.

6.    The Union of India, represented through the

      Secretary, Ministry of Education, Government of

      India, 127-C Shastri Bhawan, New Delhi-110001.

                                                   .... Respondents

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner :: Dr. RK Deepak, Advocate

For the Respondents :: Mr. S. Suresh, Advocate

Date of Hearing and reserving Judgment & Order :: 06.05.2022

Date of Judgment & Order :: 06.06.2022

JUDGMENT AND ORDER (CAV)

This writ petition has been filed by the petitioner to

quash the impugned orders dated 8.1.2021 and 11.1.2021,

which direct the petitioner to recover/pay the excess salary paid

WP(C) No. 95 of 2021 Page |3

to the petitioner to the tune of Rs.15,96,778/- on account of 308

days of Extraordinary Leave granted to him on medical ground

and to be paid in 10 installments starting from the salary for the

month of January, 2021. The petitioner also sought direction on

the respondents to consider his past services,

transfer/adjustment of his EL, HPL, gratuity etc. and to convert

his CPF to GPF.

2. Briefly stated, the case of the petitioner is as

follows:

The petitioner joined the services of North Eastern

Regional Institute of Science and Technology (NERIST) as

Lecturer on 14.9.1994 and subsequently, he was promoted to

Lecturer (Senior Grade) on 10.7.2002. While serving at the

NERIST, the petitioner applied for the post of Regional Director,

Indira Gandhi National Open University (IGNOU) through proper

channel and joined the IGNOU Regional Centre, Itanagar on

21.6.2007 with a lien from NERIST for two years. He gave his

technical resignation on 18.6.2009 and joined the Regional

Centre, Imphal as Regional Director on 2.7.2018. On

16.10.2018, the petitioner was granted Extra Ordinary Leave

(EOL) without pay by IGNOU from 28.2.2017 to 1.7.2018 when

he was on medical leave. Thereafter, the petitioner requested

WP(C) No. 95 of 2021 Page |4

IGNOU to consider his past service, leave, gratuity etc. and also

for converting his CPF to GPF vide several representations.

2.1. The Board of Management of IGNOU has

considered the switchover from CPF to GPF by some of the

employees of IGNOU and a notification dated 2.12.2019 was

issued by IGNOU complying with the Board of Management

resolution. Since the petitioner's case was not considered, on

29.1.2020, he made a representation requesting IGNOU to

consider his past service, leave, gratuity etc. and also for

switchover of his CPF to GPF. Instead of considering the

representations of the petitioner, the Director, ACD issued an

order dated 25.2.2020 demanding an action taken report from

RC-Imphal and RC-Bhagalpur for recovery of excess salary paid

to him on account of the salary enjoyed by the petitioner during

his medical leave of 308 days.

2.2. Aggrieved by the same, the petitioner has made

several representations, which includes the representation dated

13.11.2018 to the IGNOU authorities to consider his past

services and to convert his CPF to GPF. Instead considering the

representations of the petitioner, the Director, ACD issued the

impugned orders directing to recover the excess salary paid to

petitioner on account of 308 days of EOL granted to him on

WP(C) No. 95 of 2021 Page |5

medical ground. According to the petitioner, the recovery of the

amount of Rs.15,96,778/- is to be made in 10 instalments starting

from the salary for the month of January, 2021.

2.3. According to the petitioner, the Director, ACD also

sent e-mail dated 18.1.2021 attaching the response dated

15.1.2021 which disposes of the representations dated

16.11.2020 and 14.8.2020 and others regarding correction in

pay/increment. The Director, ACD also sent another e-mail

dated 18.1.2021 disposing of the representations dated

19.11.2020, 27.8.2020 and 6.12.2019 thereby refusing to

consider the request of the petitioner for consideration of his past

services, transfer/adjustment of his EL, HPL, gratuity etc. and

conversion of his CPF to GPF. Challenging the impugned orders

dated 8.1.2021 and 11.1.2021, the petitioner has filed the present

writ petition.

3. The respondents 1 to 5 filed affidavit-in-opposition

stating that the petitioner proceeded on leave from 14.6.2013 to

23.6.2013 (commuted leave on medical ground); from 24.6.2013

to 24.7.2013 (extended commuted leave/EL for another 31

days); from 25.7.2013 to 23.8.2013 (extended his leave HPL/EL)

for another 30 days); from 24.8.2013 to 6.9.2013 (extended his

leave for another 14 days); from 7.9.2013 to 9.9.2013 (extended

WP(C) No. 95 of 2021 Page |6

his leave for another 2 days). Thus, the petitioner, all along

requested for extension of leave on almost at the last day or fag

end of expiry of leave. Finally, after availing commuted leave of

about 157 days, he joined as Regional Director, Bhgalpur on

9.9.2013.

3.1. It is stated that while serving as Regional Director,

Bhagalpur, there had been issues with regard to his functioning

as a Regional Director and an Advisory was issued to the

petitioner on 23.3.2014 and he was advised to adopt a balance

approach to office administration maintaining the dignity of the

position. Thereafter, the petitioner was transferred from RC-

Bhagalpur to Regional Centre at Delhi-II as Deputy Director and

after issuance of the transfer order, he was again proceeding on

leave and had also filed petition before the Patna High Court in

W.P.(C) No.5145 of 2017 for staying his transfer. The petitioner

did not join duties and in continuation of his earlier EL kept on

extending his leave from 4.4.2017 to 1.7.2018 respectively and

finally, with the decision of the Patna High court, he was

transferred to Regional Centre, Imphal as its Regional Director

on 18.6.2018.

3.2. It is stated that even though the petitioner had not

joined his duties, he continued to draw his salary despite non-

WP(C) No. 95 of 2021 Page |7

availability of any kind of leave to his credit. Accordingly, the

Regional Director, Bhagalpur was directed to stop his salary with

immediate effect or till further orders vide order dated 3.7.2018.

However, before his salary could be stopped, the petitioner

joined his duties at his new place of posting at Regional Centre,

Imphal with effect from 2.7.2018.

3.3. The case of the respondents is that the petitioner

remained absent from duties for almost 468 days with effect from

20.3.2017 till he joined at RC-Imphal. However, the University

vide order dated 16.10.2018 favourably considered his leave and

his period of absence from 20.3.2017 to 1.7.2018 was

neutralized by adjusting the leave available to his leave account

including HPL/Medical/EL and by granting EOL without pay with

effect from 28.8.2017 to 1.7.2018 on medical grounds for the

remaining period of 308 days since no leave were available to

his credit and RC-Bhagalpur was requested to recover his salary

as per rules.

3.4. According to the respondents, instead of depositing

the salary drawn by the petitioner, he continued to divert the

issue by requesting to transfer his leave from NERIST, his

previous employer or adjust in future etc. As per the terms of the

Office Memorandum dated 27.8.2018 and in terms of CCS Leave

WP(C) No. 95 of 2021 Page |8

Rules, 1972, transfer leave from NERIST to IGNOU is not

permissible and at best the petitioner could be granted cash

equivalent of leave salary by his earlier employer provided such

leaves are available at his credit and the rules of NERIST and

Government of India permit such encashment after lapse of more

than 13 years of his leaving from that Institution.

3.5. It is stated that on 25.2.2020 the RC-Imphal headed

by the petitioner was directed to recover the amount of salary

drawn against the Rules from the salary of the petitioner.

However, the petitioner using his administrative control of the

office of the Regional Centre, Imphal did not given effect to the

recovery of the amount and instead again kept on diverting the

recovery by submitting irrelevant representations. The University

after examining the request of the petitioner, vide order dated

21.1.2021 informed the petitioner about his leave status and that

he had been on long leave out of which 308 days were on

account of no leave available to his leave account and the same

was regularized by granting EOL without pay with effect from

28.8.2017 to 1.7.2018 on medical grounds since no leave were

available to his credit, subject to production of medical certificate

and fitness certificate. Since the petitioner has only 14 months

to retire from the services of the University, he was directed to

WP(C) No. 95 of 2021 Page |9

deposit the amount drawn by him against the Rules as salary for

the period of 308 days in not more than 10 instalments starting

from January, 2021 by the impugned orders.

3.6. It is stated that the petitioner is a member of New

Pension Scheme and no amount of CPF is available with the

University since he was in the CPF Scheme in the NERIST and

would have cleared his accounts there. He has very limited leave

to his credit that he had earned after his joining the RC-Imphal in

2018, which he might consume during the next one year prior to

his retirement. Even otherwise the number of leave is very less

which is insufficient to compensate even one fourth of the amount

to be recovered from his salary. Therefore, it has become

absolutely necessary to recover the amount from his salary. In

fact, the petitioner is mischievously trying to divert the issue of

recovery of Government money amounting to Rs.15,96,778/- by

mixing and raising the issues of transfer of his leave from

NERIST after a lapse of more than nine years of leaving NERIST

and joining IGNOU as well as by requesting after almost 12 years

of joining IGNOU to convert from NPS to GPF by counting his

past service at NERIST where he was in CPF knowing fully well

that there is no provision to convert from NPS to GPF or carry

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forward the scheme of CPF for those who have joined new post

after 1.1.2004.

4. Assailing the impugned orders and taking through

the Office Memorandum dated 27.8.2018 and the relevant Rules

of Central Civil Services (Leave) Rules, 1972 and also the Office

Memorandum dated 11.6.2020 of the Ministry of Personnel,

Public Grievances and Pension, Government of India, the

learned counsel for the petitioner has made the following

submissions:

● No joining time leave is granted, as is required

under the CCS (Joining Time) Rules, 1979.

● Though the leave record shows that the petitioner

has taken 16 days of leave from 6.4.2009 to

21.4.2009, he joined duty on 19.4.2009 and

availed only 14 days leave.

● Though the leave record shows that the petitioner

was taken 12 days of leave from 1.10.2012 to

12.10.2012, he joined the duty on 9.10.2012 and

availed only 8 days of leave.

WP(C) No. 95 of 2021 P a g e | 11

● Five days of leave from 6.4.2015 to 10.4.2015 was

erroneously sanctioned as EL, whereas it should

have been adjusted as CL.

● Five days of leave from 6.7.2015 go 10.7.2015

shown in the Leave Record is erroneous, as the

petitioner never applied for leave during this

period.

● The Leave Records does not take into account the

leave that should be made available to the

petitioner for the month of April, 2022.

● 122 days of leave earned at NERIST should be

transferred to the petitioner's Leave Account at

IGNOU.

● The petitioner never had the opportunity to

challenge the 308 days of EOL granted to him

since the Leave Account was never given to him

till 31.3.2022 on the direction of this Court.

5. Insofar as the prayer of the petitioner to convert the

CPF to GPF is concerned, the learned counsel for the petitioner

taking through the IGNOU Act, 1985 and the 137 th Board of

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Meeting held on 16.10.2019 submitted that the in the 137th Board

of Meeting, it was resolved to allow around 43 to 46 employees

to switch over from CPF to GPF Scheme and the benefit given in

the said resolution is to be extended to the case of the petitioner

also.

6. The learned counsel further submitted that the

petitioner is not a new entrant to IGNOU and he was appointed

as a Regional Director having qualified for the post looking into

his past service and experience at NERIST. Though the

petitioner requested through several representations for

conversion from CPF to GPF, the same has not been considered

so far.

7. The learned counsel for the petitioner argued that

the proposed recovery of Rs.15,96,778/- in 10 monthly

installments from the petitioner violates the right of the petitioner

to a decent living. Out of the petitioner's salary of about Rs.2.20

lakh a month, he has to pay about Rs.50,000/- per month as

income tax and about Rs.18,000/-per month as NPF contribution.

Therefore, directing the petitioner to pay such an exorbitant

amount so late at the fag end of his career, unmindful of the

livelihood of the petitioner and his family is irrational,

unreasonable and unjustified. The action of the IGNOU

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authorities is therefore bias and unjust and also violates the

petitioner's right to life enshrined under Article 21 of the

Constitution of India.

8. Per contra, by placing reliance upon the Office

Memorandum dated 11.6.2020, particularly, 2(c), the learned

counsel for the respondents submitted that the employees under

CPF will not be allowed to entry into the Old Pension Scheme on

appointments from 1.1.2004 and, accordingly, the request of the

petitioner for conversion from NPS to GPF was not considered.

He would submit that the University had never questioned the

status of the nature of service of the petitioner. However, in terms

of applicable Rules qua Pension Scheme and status of the

petitioner, who was under the CPF, cannot be permissible to

change to GPF.

9. The learned counsel for the respondents further

submitted that the University has time and again requested the

petitioner to deposit the amount of pay drawn in violation of law

while he was absent from duty. In this regard, several letters

have been issued to the concerned office, including the Regional

Centre, Bhagalpur and Imphal to recover/regulate his salary as

per Rules. In fact, by the letter dated 25.2.2020, the Regional

Centre, Imphal, headed by the petitioner was requested to

WP(C) No. 95 of 2021 P a g e | 14

recover the amount from his salary in 20 installments. However,

on the pretext, the petitioner was avoiding the payment. As a

result, the University has no option but to recover the said

amount in 10 instalments since he is retiring in April, 2022.

10. The contention of the learned counsel for the

petitioner that the petitioner has to pay income tax for the amount

etc., the learned counsel for the respondents submitted that the

University has no role to play and cannot interfere in tax

deductions by the Government for the amount drawn by the

petitioner. He submits that it is obligatory on the part of the

petitioner to deposit the amount of salary drawn against law.

11. This Court considered the rival submissions and

also perused the materials available on record.

12. The petitioner filed the present writ petition praying

inter alia for quashing and setting aside the impugned letters

dated 8.1.2021 and 11.1.2021. By way of interim measure, on

3.2.2021, this Court passed an order suspending the operation

of the impugned letters and the said order still continued.

13. The grievance of the petitioner is that he being a

Government servant and was working as Lecturer and then

Lecturer (Senior) in NERIST since 14.9.1994 and remains a

WP(C) No. 95 of 2021 P a g e | 15

Government servant. When he is still working as a Regional

Director at Regional Centre, Imphal, IGNOU since joining IGNOU

on 21.6.2007 and the new pension scheme came into force with

effect from 1.1.2004 and is applicable only to all new entrants to

the Central Government except the Armed Forces joining service

after 1.1.2004, the new pension scheme cannot be applied in

the case of the petitioner, who is not a new entrant to the Central

Government service. The petitioner cannot be regarded as a new

Government servant on his joining the IGNOU with effect from

21.6.2007.

14. The case of the petitioner is that Rule 9(2) of the

1972 Leave Rules provides that when a Government servant

resign his post on getting a new post under the Government of

India where his application is forwarded through proper channel,

such resignation shall not result in the lapse of the leave to his

credit. Further, Rule 39-D provides for granting of leave cash

equivalent of leave salary in respect of earned leave at the credit

of an employee on the date of absorption subject to a maximum

of 240 days.

15. The petitioner urged that the Office Memorandum

dated 27.8.2018 provide for carrying forward of leave benefits

subject to an overall limit of 300 days. For proper appreciation,

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the relevant portion of the said Office Memorandum dated

27.8.2018 is extracted hereunder:

"Carry Forward of Leave Benefits

3. In terms of Rule 9(2) of the CCS (Leave) Rules, 1972, technical resignation shall not result in the lapse of leave to the credit of the Government servant. The balance of unutilized CCL as well as all other leaves of the kind due & admissible will be carried forward.

As per rule 39-D of the CCS (Leave) Rules, 19772, in case of permanent absorption in PSUs/Autonomous Bodies/State Government etc., the Government servant shall be granted cash equivalent of leave salary in respect of EL & HPL at his credit subject to overall limit of 300 days."

16. Rule 9(2) of the Central Civil Service (Leave) Rules,

1972 provides:

"9. Effect of dismissal, or resignation on leave at credit. -

(1) ...

(2) Where a Government servant applies for another post under the Government of India but outside his parent office or department and if such application is forwarded through proper channel and the applicant is required to resign his post before taking up the new one,, such

WP(C) No. 95 of 2021 P a g e | 17

resignation shall not result in the lapse of the leave to his credit."

17. Rule 39-D of the Central Civil Service (Leave)

Rules, 1972 provides that:

"39-D. Cash equivalent of leave salary in case of permanent absorption in public sector undertaking/autonomous body wholly or substantially owned or controlled by the Central/State Government.- A Government servant who has been permitted to be absorbed in a service or post in or under a corporation or company wholly or substantially owned or controlled by the Central Government of State Government or in or under a body controlled or financed by one or more than one such Government shall be granted suo motu by the authority competent to grant leave cash equivalent of leave salary in respect of earned leave at his credit on the date of absorption subject to a maximum of 240 days. This will be calculated in the same manner as indicated in clause (b) of sub-rule (2) of Rule 39.

Note.- The expression "permanent absorption" used in Rule 39-D shall meant the appointment of a Government servant in a Public Sector Undertaking or an Autonomous Body, for which he had applied through proper channel and resigns from the Government service to take up that appointment."

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18. According to the petitioner, though the Office

Memorandum dated 27.8.2018 is provisional, a conjoint reading

of the Central Civil Service (Leave) Rules, 1972 and the Office

Memorandum makes it clear that it is legally possible for the

petitioner to carry forward his leave credits from NERIST to

IGNOU. However, while considering the claim of the petitioner,

the IGNOU authorities have failed to follow and perform its legal

duties and responsibilities as an employer. In fact, the impugned

order dated 8.1.2021 states as under:

"Reference Office Order No.479 dated 16th October, 2018 and Office Order No.70 dated 25.2.2020 Dr. S.J.Neethirajan, RD, Imphal was asked to deposit the amount of excess salary paid for 308 days w.e.f. 28.2.2017 to 1.7.2018. A copy of the Order was also marked to S.O. - RC-Imphal for further necessary action. The amount was to be recovered in 20 installments. However, till date no information has been received regarding recovery of amount.

Dr. Neethirajan is due to retire in April, 2022. Therefore, S.O. RC-Imphal is directed to recover the excess salary paid to Dr. S.J. Neethirajan from his salary in 10 equal installments w.e.f. salary of this month i.e. January, 2021 onward immediately under intimation to this office."

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19. Another impugned order dated 11.1.2021, reads

thus:

"In continuation with this Division's communication No IG/TA/1/615/07/7430 dated 8th January, 2021, it is further informed that as per the pay drawn by Dr. S.J.Neethirajan in June, 2018, the amount to be recovered from Dr. S.J.Neethirajan, RD for 308 days is amounting to Rs.15,96,778/-.

          The     amount    may      be    recovered      from
          Dr.S.J.Neethirajan,   in   not   more    than     10
          installments.

Therefore, the Regional Centre RC Imphal is directed to do the needful immediately and send the compliance to this office before 5th of each month."

20. After considering the representations of the

petitioner dated 16.11.2020, 14.8.2020, the Director, ACD has

passed the following order on 15.1.2021:

"With reference to your letter dated 16.11.2020, 14.08.2020 and other reference/mails on the subject cited above, this is to inform you had been on long leave out of which 308 days were on account of non leave available to your leave account. Therefore, this period of 308 days (from 28.08.2017 to 01.07.2018), was regularized as Extraordinary leave

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on medical grounds, subject to submission of Medical Certificate and the Fitness Certificate in Original. However, this office is yet to receive any of these supporting documents till date.

As per rules, for earning an annual increment, an employee is required to be in office for minimum qualifying period of atleast 6 months as on 1st July of that year. Qualifying service of less than six months between 1st July of previous year and 30th June of the year on account of EOL (without (MC) will have the effect of postponing the increment except under conditions laid down in OM, dated 18.1.1986 - FR 26, GoI. Since you, Dr. S.J. Neethirajan, were on leave for more than six months, hence increment for 2017-18 has not been credited.

You are also informed, that despite there being no leave to you credit, you continued to draw salary for a period of 308 days from the Office. As a result you have an outstanding amount of about Rs.15,96,778/- which is to be paid by you to the University. However, despite regular Orders/communications and reminders from the University, the amount unduly drawn by you has not been paid/deposited in the University accounts.

Rather, you have been evading the recovery on one or other pretext like transfer of leave from your previous employer NERIST, adjusting the amount paid by you to NERIST towards leave salary contribution for retaining the lien in NERIST,

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adjusting the amount towards the future leave etc. knowing very well that there is no provision of transfer of leave from one institute to another on direct recruitment basis. Thus, you requests for correction/accrual of annual increment for the period 2017-18, transfer of leave from NERIST or adjusting in future leave credit has not been acceded to.

Also, you have only 14 months to retire from the services of the University, therefore, you are directed to deposit the amount drawn by you as salary for the period of 308 days, as already communicated to you, in Not more than 10 Installments starting from January 2021.

All your representations on the matter stands disposed off accordingly."

21. As regards the medical leave taken by the

petitioner, it is the submission of the learned counsel for the

petitioner that one cannot predict the time of falling ill and hence,

there is no question of seeking prior medical leave. But the fact

is that the authorities of IGNOU had granted 308 days EOL and

the respondents now cannot take up the issue of taking a lot of

leaves on medical ground.

22. On the other hand, the learned counsel for the

respondent IGNOU argued that in addition to availing of several

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leave, including those not sanctioned in advance, the petitioner

remained absent from duties for almost 468 days with effect from

20.03.2017 to 1.7.2018 and the University, however, favourably

considered his leave and his period of absence with effect from

20.03.2017 to 1.7.2018 was neutralized by adjusting the leave

available to his leave account, including HPL/Medical/EL and by

granting EOL without pay with effect from 28.8.2017 to 1.7.2018

on medical ground for the remaining period of 308 days since no

leave were available to his credit.

23. In reply, the learned counsel for the petitioner

argued that there were lot of miscalculations in the leave granted

to the petitioner and the respondent IGNOU may be directed to

recalculate the leave afresh.

24. This Court finds from the records that some days of

leave has also been accumulated since the granting of 308 days

of EOL till the respondent files additional affidavit before this

Court pending writ petition. This Court also finds from the

records that as per the leave account issued by the Assistant

Registrar, Regional Centre, Imphal, the petitioner has 120 days

of EOL and 80 days of HPL at his credit by 30.6.2022. There

are also 122 days of EL earned by the petitioner while at the

NERIST. In fact, the possibility of adjustment of the said days to

WP(C) No. 95 of 2021 P a g e | 23

the leave account of the petitioner has not been considered by

the respondent IGNOU. It is also evident from the

representations annexed to the writ petition that the petitioner

has already requested the authorities of IGNOU to provide the

leave account as recorded in his service book, but the same has

not been provided to him. Since the petitioner superannuated in

the month of April, 2022, the subsequent development warrants

the respondent IGNOU to reconsider the leave account of the

petitioner in the light of the leave available on his credit. For the

said purpose, the matter needs to be remanded back to the

respondent IGNOU for consideration of matter afresh.

25. The learned counsel for the petitioner submitted

that the petitioner requested through several representations for

conversion of CPF to GPF scheme and the same has not been

considered so far. The learned counsel for the petitioner also by

citing the decision of the Hon'ble Supreme Court in that case of

V.Sukumaran v. State of Kerala, (2020) 8 SCC 106 has

contended that the benefit of pensionary provisions must be

given a liberal construction as a social welfare measure.

26. In V.Skumaran (supra), the Hon'ble Supreme

Court held:

WP(C) No. 95 of 2021 P a g e | 24

"22. We begin by, once again, emphasizing that the pensionary provisions must be given a liberal construction as a social welfare measure. This does not imply that something can be given contrary to rules, but the very basis for grant of such pension must be kept in mind i.e. to facilitate a retired government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities."

27. The petitioner contended that the Board of

Management of IGNOU in its 137th and 139th Meetings held on

16.10.2019 and 17.3.2020 respectively inter alia considered

switchover from CPF to GPF scheme of some of the employees

of IGNOU and the petitioner is also entitled to switchover from

CPF to GPF scheme.

28. On a perusal of the records, it is seen that the

following is the resolution passed in 137th Board of Management

of IGNOU against Agenda No.15:

"Item No.15 : To consider the MHRD Letter No.5- 19/2016-DL dated 20.09.2019 regarding switchover from CPF to GPF by some of the employees of IGNOU.

BM 137.15.1 : The Chairman referred the MHRD's letter No.5-19/2016-DL dated 20.9.2019 regarding

WP(C) No. 95 of 2021 P a g e | 25

switchover from CPF to GPF by some of the employees of IGNOU, which was placed before the BOM for information (Appendix-6). The Board noted that the MHRD has mentioned the letter No.25(4).E- V/2018(Pt.) dated 22.08.2019 of the Deptt. of Expenditure, Ministry of Finance advising that the issue of conversion of CPF to GPF-cum-Pension in case of some of the employees (number of employees 43 to 46) to be verified) of IGNOU is to be dealt with strictly as per the IGNOU Act, 1985 and the Statute made there under without any deviation/relaxation whatsoever. It was also clarified that no additional financial allocation will be made by the central government and IGNOU has to bear the implications and decide as per the powers available to them.

BM 137.15.2 : The Board directed the University to take necessary action in the matter strictly as per the advise of the MHRD letter dated 20.09.2019, as referred to above."

29. In view of the aforesaid resolution of the BOM, the

petitioner requested the concerned authorities of the IGNOU to

consider for switchover his CPF to GPF scheme by way of

several representations. However, the Director, ACD, without

considering the aforesaid BOM has belatedly passed the order

dated 15.1.2021 holding that neither the petitioner nor his

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previous employer has ever confirmed that the petitioner was a

member of GPF-cum-Pension Scheme.

30. As stated supra, the request of the petitioner to

switchover his CPF to GPF scheme is of the year from 2019 and

without considering the case of the petitioner qua switchover

immediately upon representations, the Director, ACD has

hurriedly passed the order dated 15.1.2021 rejecting the request

of the petitioner to switchover that too after passing order for

recovery of excess salary, which this Court would deal as the

next aspect of the matter infra. This Court is of the view that while

passing such order dated 15.1.2021, the Director, ACD has not

given personal hearing to the petitioner. It is the duly of the said

authority to hear the petitioner before passing such order.

31. The specific case of the petitioner is that he was

regularly contributing to the CPF at NERIST and when he joined

the assignment at IGNOU, the IGNOU authorities should have

automatically put him under Old Pension Scheme. According to

the petitioner, by putting him under the NPS scheme, the IGNOU

authorities have violated the petitioner's right to enjoy the GPF

scheme.

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32. At this juncture, the learned counsel for the

respondents - IGNOU has made a reference to the Office

Memorandum of the Ministry of Personnel, Public Grievances

and Pensions, Department of Pension and Pensioners Welfare,

Government of India, dated 26.5.2005, more particularly,

paragraph 2(ii), which reads thus:

"2. The matter has been considered in consultation with the Ministry of Finance and it is clarified as follows:

(i) ...

(ii) The employee who entered into service on or before 31.12.2003 and who were governed by CPF scheme or any pension scheme of Central or State Government, other than the pension scheme under Central Civil Services (Pension) Rules, 1972 on submission of technical resignation to take up new appointment on or after 1.1.2004, cannot be allowed to join the old pension scheme under Central Civil Services (Pension) Rules, 1972 because entry to the said scheme ceased w.e.f. 31.12.2003 and no new entry can be allowed in the pension scheme under above Rules.

However, such employees can seek pensionary/terminal benefits from the

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previous organization/Department, if admissible under the rules of that organization/Department, for the period of service rendered under that organization/Department.

33. According to the petitioner, the aforesaid Office

Memorandum dated 26.7.2005 does not put any restriction on an

employee who is subscribing to the CPF scheme to continue in

that scheme after 31.12.2003 and it only restricts new recruits

entry into the Old Pension Scheme.

34. From the above, it is clear that seeking terminal

benefits from the previous employer is only a choice and those

subscribing to the CPF scheme have been continuing the same

scheme both in the IGNOU and in the NERIST. As stated supra,

even the IGNOU Act allows transfer of CPF accumulation to the

employee's CPF account in the University and the CPF

subscribers numbering 43 to 46 were allowed to switchover to

the GPF scheme by the University in its 137th and 139th BOM. It

is seen from the records produced by both parties, the petitioner

has been discriminated by not allowing him to switchover to GPF

scheme is not convincing. At this juncture, it is to be pointed out

that various representations of the petitioner qua switching over

his CPF to GPF scheme has not been dealt with the by the

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respondent IGNOU in proper manner and without affording

personal hearing, the authority of the IGNOU has passed orders

rejecting the claim of the petitioner regarding switchover of his

CPF to GPF scheme. Since these aspects have not been clearly

dealt with by the respondent authorities, the matter needs to be

remitted back to the respondent IGNOU for consideration of the

said issue afresh.

35. Insofar as the impugned order dated 11.1.2021 for

recovery is concerned, the Director, ACD on 16.10.2018 issued

an order granting 308 days of EOL to the petitioner without pay

with effect from 28.08.2017 to 1.7.2018 on medical ground and

he joined back his duty on 2.7.2018. Accordingly, the Regional

Centre, Bhagalpur was requested to recover/regular his salary

as per rules. Challenging the order dated 16.10.2018, the

petitioner submitted several representations and one of the

representations is dated 13.11.2018 where the petitioner

requested the IGNOU authorities to consider his past service

rendered by him in NERIST on 25.1.2017 and get transfer

the existing EL and HPL from his former institute to IGNOU. He

had also requested to adjust the EOL from his leave credit in

NERIST since he has sufficient leave in his credit for the serve

period he had rendered there. He had also having EL and HPL

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in his credit at IGNOU. Hence, he requested to adjust the EOL

sanctioned for his medical leave period vide order dated

16.10.2018 with his leave credit available in his account, the

shortage of the leave may be adjusted with leave not due which

(EL and HPL) credited in his account in future, according to his

future service period in IGNOU and to waive off the order of

recovery. Considering the representation of the petitioner, the

Director, ACD stated to have passed the impugned order dated

8.1.2021 directing to recover the excess salary paid to the

petitioner. Regarding the adjustment of the EOL sanctioned for

medical leave, this Court referred the matter to the respondent

IGNOU for consideration of the said issue afresh.

36. Admittedly, the impugned order dated 8.1.2021 is

not the consideration of the representations of the petitioner and

there is no reference of any representation made by the petitioner

in it. In the impugned order dated 11.1.2021, the Director, ACD,

quantified the amount as Rs.15,96,778/- and ordered to be

recovered in not more than 10 installments and accordingly, the

Regional Director, Imphal was directed to do the needful.

37. It appears that suddenly on 15.1.2021, the Director,

ACD passed the impugned order rejecting the representations

dated 16.11.2020 and 14.8.2020 of the petitioner, thereby

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directing the petitioner to deposit the amount drawn by him as

salary for the period of 308 days as already communicated to

him. Admittedly, while considering the aforesaid representations

of the petitioner dated 16.11.2020 and 14.8.2020 and passing

the impugned order dated 11.1.2021 or the order 15.1.2021, the

petitioner has not been heard.

38. As stated supra, both the aforesaid impugned

orders were suspended by this Court by the order dated 3.2.2021

and the said order still continuing. Thus, the impugned orders

have not been given effect. The fact remains that the petitioner

attained superannuation in the month of April, 2022.

39. Pursuant to the direction of this Court dated

24.3.2022, the respondents 1 to 5 have filed additional affidavit

and the additional affidavit reads thus:

"I, Dr. Oinam Jayalakshmi Devi, aged about 46 years, now serving as Assistant Regional Director, RC Imphal, IGNOU, am conversant with the facts and circumstances of the case and having been authorized, I am competent to swear this Additional Affidavit for and on behalves of Respondent Nos.1, 2, 3, 4 and 5. Accordingly, I swear this affidavit on solemn oath and affirm as hereunder.

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2. That, in terms of order passed by this Hon'ble High Court on 24.03.2022, the authority of the IGNOU has prepared a chart marked ANNEXURE- G/26 indicating therein leave account of the petitioner from the date of commencement of service in IGNOU w.e.f. 21.06.2007 upto 25.03.2022 based on the leave account maintained in FORM-2 (Referable to Rule 15 of the Central Civil Services (Leave) Rules, 1972) marked ANNEXURE-G/27 to the present Affidavit for appreciation of the Hon'ble Court. It may also be mentioned that as on 31.03.2022 petitioner has 98 days of Earned Leave (EL) and 65 days of Half Pay Leave (HPL) to his credit.

3. That, it may also be pertinent to mention here that entitlement of pension of the petitioner is governed and regulated by the New Restructured Defined Contribution Pension System, a New Pension Scheme which has been implemented for all employees of the IGNOU who have joined w.e.f. 01.01.2004 as can be seen from the Circular dated 19.07.2004 marked ANNEXURE-G/15 to the Affidavit-in-Opposition dated 17.03.2021 respondent Nos.1 to 5.

Further, petitioner is a subscribed to a scheme of a pension fund under the provisions of Pension Fund Regulatory and Development Authority Act, 2013. Individual pension` account No. of the petitioner

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under NPS is 2010100000000345 and PRAN No.is 111003972465."

40. Though as per the additional affidavit of the

respondents 1 to 5, the petitioner has 98 days EL and 65 days

HPL to his credit as on 31.3.2022, the petitioner was never had

an opportunity to challenge the 308 days of EOL granted to him

since the leave account was never given to him till 31.03.2022.

As stated supra, the 122 days allegedly earned at NERIST has

not been considered by the Director, ACD while issuing the

impugned order dated 11.1.2021.

41. It appears that under various representations, the

petitioner has been requesting the authorities of IGNOU to

consider his past service at NERIST as he had applied for the

present post through proper channel and joined IGNOU after

completing a lien of two years and tendered his technical

resignation. He had also requested for transfer of about 270

days of leave in his credit in NERIST and to adjust those leaves

to 308 days of EOL without pay sanctioned by IGNOU on medical

ground. While passing the impugned orders, admittedly, the

Director has not dealt with the said aspect in proper perspective.

Before passing the order, if the Director has given personal

hearing to the petitioner, he would have appeared and produced

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materials in support of his claim. However, in the instant case, as

stated supra, no record has been produced by the respondents

to show that the impugned orders were passed after affording

reasonable opportunity to the petitioner. In the absence of any

materials, it can safely be concluded that the respondent

Director, ACD while passing the impugned orders dated

08.01.2021 and 11.1.2021 has failed to follow the principles of

natural justice.

42. It is to be noted that the excess salary for 308 days

paid to the petitioner was not because of any misrepresentation

or fraud on his part. The 308 days period relates from 28.8.2017

to 1.7.2018 and the impugned order came to be passed on

08.1.2021 and 11.1.2021 respectively almost 2 ½ years later.

43. The Hon'ble Supreme Court in the case of State of

Punjab v. Rafiq Masih, (2015) 4 SCC 334 held as under:

"18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarize the following few

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situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.

44. Nothing has been produced by the respondents to

show that while issuing the impugned order for recovery of

excess salary they have considered the decision of the Hon'ble

Supreme Court in the case of Rafiq Masih (supra).

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45. The fact also remains that through various

representations right from 2019 till 2020, the petitioner requested

for waiver of the amount allegedly paid in excess. Admittedly,

such representations have not been considered by the

respondent authorities of the IGNOU immediately after the

receipt of the same. However, with a considerable delay that too

after issuing the impugned orders herein, the respondents have

sent response to the petitioner. Such a delayed response, in fact,

infringes the right of the petitioner to get a fair and just

determination of the issue on hand.

46. A person who submitted a representation to the

authorities has a right to receive a response from them to his

representation on time. Such right is fundamental and in order

to satisfy the test of Article 14 of the Constitution of India.

47. Article 14 of the Constitution of India guarantees all

citizens equally before law and equal protection of law. It hinders

any form of discrimination and forbids both discriminatory laws

and administrative action. Article 14 of Constitution of India,

establishes to be safeguard against any arbitrary or

discriminatory State action. The sphere of equality as embodied

in Article 14 has been expanding as a result of the judicial

decisions.

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48. Article 14 of the Constitution of India manifests in

the form of following propositions:

(i) A law granting freehand and unhindered power on an authority is dreadful for being arbitrary and discriminatory.

(ii) Art. 14 illegalize prejudice in the definite exercise of any discretionary power. (iii) Art. 14, smacks at arbitrariness in administrative action and guarantees fairness and equality of treatment.

49. The Audi Alteram Partem rule, in essence, enforce

the equality clause in Article 14 of the Constitution of India, is

applicable not only to quasi-judicial bodies, but also to an

administrative order adversely affecting the party unless the rule

has been excluded by the relevant Act and Rules.

50. Time and again the Hon'ble Supreme Court had

opined that Article 14 of the Constitution of India is an authority

for the proposition that the principles of natural justice are an

integral part of the guarantee of equality assured by Article 14 an

order depriving a person of his civil right passed without affording

him an opportunity of being heard suffers from the vice of

violation of natural justice.

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51. The rule of Audi Alteram Partem is an ingredient of

Article 14 of the Constitution of India. For the reason that Article

14 states "no order shall be passed at the back of a person,

prejudicial in nature to him, when it entails civil consequences"

an in such a manner Article 14 of the Constitution holds the

element of Natural justice into it".

52. In the instant case, the respondents being statutory

authorities ought to have responded to the representations of the

petitioner on time. On the other hand, having received the

representations of the petitioner of the year 2017, 2018, 2019

and 2020, responded only in the year 2021 i.e. on 15.01.2021.

The issuance of such order that the petitioner should pay the

amount of Rs.15,96,778/- in 10 installments from the salary of

the month of January, 2021 regardless to the representations of

the petitioner is arbitrary and unjust. It is also to be noted that

asking the petitioner to pay such an amount at the fag end of his

career is irrational and violates the petitioner's right to life

enshrined under Article 21 of the Constitution of India.

53. It is settled law that the expression "procedure

established by law‟ can be read as principles of natural justice.

The Hon'ble Supreme Court of India ruled that the word "law‟

under Article 21 could not be read as rules of natural justice.

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Since, the rules of natural justice are vague and imprecise and

thus the Constitution could not be read as laying down an

indistinguishable standard. The principle of reasonableness

which legally as well as philosophically is an essential element of

equality or non-arbitrariness pervades Article 14 like a brooding

omnipresence. Therefore, the procedure laid in Article 21 "must

be right, just and fair" and shall not be arbitrary, oppressive,

otherwise, it would be no procedure at all and the requirements

under Article 21 of the Constitution of India would not be fulfilled.

54. In the result, the writ petition is allowed and the

impugned orders dated 8.1.2021 and 11.1.2021 directing the

petitioner to pay the excess salary paid to him to the tune of

Rs.15,96,778/- on account of 308 days of EOL granted to him on

medical ground to be paid in 10 installments stand set aside and

the matter is remanded back to the respondent authorities of the

IGNOU, particularly, the Director, ACD, IGNOU to consider the

case of the petitioner in accordance with law and in the light of

various representations submitted by him and the subsequent

development that the petitioner retired from service. The Director,

ACD, IGNOU is directed to afford reasonable opportunity to the

petitioner before passing order and thereafter pass a reasoned

order. The said exercise is directed to be completed within a

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period of 8 (eight) weeks from the date of receipt of a copy of this

order. No costs.

JUDGE

FR/NFR

Sushil

WP(C) No. 95 of 2021