Tripura High Court
Onkar Sadhan Adhikari vs Tripura University on 16 April, 2021
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 404 of 2020
Onkar Sadhan Adhikari
son of late Bibhuti Bhusan Adhikari,
Ex-Registrar, Tripura University,
presently residing at Flat No. 1, 4D/8,
Dharmatala Road, Kolkata-700 039
-----Petitioner(s)
Versus
1. Tripura University
represented by the Registrar,
Tripura University,
P.O-Suryamaninagar, P.S-Amtali,
District-West Tripura, Pin-799022
2. The Vice-Chancellor,
Tripura University, P.O- Suryamaninagar,
P.S-Amtali, District-West Tripura, Pin-799022
3. Mahesh Kumar Singh,
Department of Chemistry,
Senior Most Professor and Vice-Chancellor (In-charge),
Tripura University, P.O-Suryamaninagar,
P.S-Amtali, District-West Tripura, Pin-799022
4. The Registrar,
Tripura University,
P.O-Suryamaninagar, P.S-Amtali,
District-West Tripura, Pin-799022
5. The Finance Officer,
Tripura University,
P.O-Suryamaninagar,
P.S-Amtali, District-West Tripura, Pin-799022
-----Respondent(s)
For Petitioner(s) : Mr. T. Debbarma, Adv.
For Respondent(s) : Mr. B. N. Majumder, Sr. Adv.
Mr. Raju Datta, Adv.
Mr. R. Tewari, Adv.
Date of hearing
& date of delivery of
judgment and order :16.04.2021
Whether fit for reporting : Yes
HON‟BLE MR. JUSTICE S. TALAPATRA
Judgment & Order (Oral)
Heard Mr. T. Debbarma learned counsel appearing for the
petitioner as well as Mr. B. N. Majumder, learned senior counsel
assisted by Mr. R. Datta and Mr. R.Tewari, learned counsel appearing
for the respondents.
[2] By means of this petition, the petitioner has challenged the
decision of the executive council taken in its 32nd meeting (Annexure-23
to the writ petition). In the said meeting, it was resolved as under:
"(ii) The Report of the Committee constituted vide
letter No.TU/REG/EC/29/2017, dated 27.01.2017 was
placed in the meeting. The members of the Council
resolved that the existing pension at the rate of Central
University be stopped to Shri Onkar Sadhan Adhikari, Ex-
Registrr, T.U Instead, Shri Adhikari be allowed pension as
per the norms and rules of the University of Calcutta
where he held the substantive pot before joining to the
tenure post of the Registrar at Tripura University. Further,
it is resolved that necessary steps be taken to recover the
excess amount paid to Shri Adhikari beyond the
admissible rules.
Further, it has been resolved that adequate steps be
taken by the University to fix the responsibilities for the
breach of rules for showing undue favour to Shir O.S.
Adhikari, Ex-Registrar and necessary action be taken as
per the established rules."
[Emphasis added]
[3] It is evident from the notification dated 27.11.2017
(Annexure-R3 to the reply filed by the University respondents) that a
committee was constituted to look into the matter relating to the
pension for employees of Tripura University and to the matter of
pension of the petitioner who has served as the Registrar of Tripura
University, hereinafter referred to as the University, even though there
had been no express reference. The said committee, as referred, in the
resolution as adopted in the 32nd meeting of the Executive Council has
made certain observation in respect of the pension that has been
accorded by the Tripura University in respect of the petitioner:
2] The matter of pension of Shri O.S. Adhikari, Former
Registrar of Tripura University
Following documents were examined in detail.
(i) Fundamental Rule and Supplementary Rules of Govt. of
India.
(ii) Tripura University Act, 2006 No.9 of 2007;
(iii) Copy of appointment letter issued to Sri O.S. Adhikari,
Ex-Registrar stating terms of appointment/
(iv) Copy of Memo No.F.TU/REG/PF-OFFICER/29/2014
dated 12th February, 2018 issued by Tripura University
in favour of Sri O.S. Adhikari, former Registrar.
Observation of the Committee:
1. Registrar‟s post of Tripura University as per the
Tripura University Act, 2006 is a „Tenure post;
2. According to the Fundamental Rules of Govt. of India
point no.(22), page no.9, „Permanent post‟ means a
post carrying a definite rate of payment sanctioned
without limit of time; whereas „Tenure Post‟ means a
permanent post which an individual Government
servant may not hold for more than a limited period;
3. Tripura University Act, 2006 does not provide for a
„Probationary Period‟ to a tenure post;
4. Sri O. S. Adhikari, former Registrar was serving as the
Controller of Examination at University of Kolkata on a
substantive post under West Bengal State University
Act prior to Joining Tripura University.
5. However, appointment letter no.TU/REG/PF-
OFFICER/29/2014, dated 30.01.2014 issued by
Tripura University to Sri O. S. Adhikari, former
Registrar, states in the third paragraph "He will be on
probation for a period of one year from the date of
joining".
6. Tripura University through its memo no.F.TU/REG/PF-
OFFICER/29/2014 dated 12.02.2015 state "Sri Onkar
Sadhan Adhikari, Registrar, Tripura University has
successfully completed one year of his service period
and the University authority has been pleased to
absorb him permanently to the post of Registrar for a
tenure of five years or till the attainment of sixty tow
years of age from the date of his joining to this
Universtiy from 12th February, 2014 onwards."
7. Now the appointment letter and the memo (aforesaid
point No. 5 and 6 respectively) do not conform to the
provisions of the Fundamental Rules of Govt. of India
& Tripura University Act, 2006 regarding the
appointment to the post of Registrar.
Under the circumstances, it found that
pensionary benefits extended to Sri O.S. Adhikari,
former Registrar as per the Central University norms is
not in conformity to the existing "Fundamental Rule"
of Govt. of India and Tripura University Act, 2006 and
the Committee felt this matter requires further
clarifications, if necessary.
[4] The said report has been accepted by the said resolution. As
the said report is subsidiary material, the petitioner has preferred not to
challenge the said report. Further, it has been also pointed out by the
petitioner that the notification that has been issued for constituting the
committee has not been issued in conformity to the resolution taken in
the 29th meeting of the Executive Council held on 14.11.2017. in this
regard, reference has been made to Agenda is 14/29/2015 as recorded
in the proceeding minutes (Annexure-22 of the writ petition). For
purpose of reference, the agenda and the resolution as taken are
reproduced hereunder:
Agenda 14/29/2017: To place the letter of the Dean, Faculty
of Science, Tripura University regarding
"Pension scheme for employees of
Tripura University who joined after July
2007".
Recommended that a committee be
constituted to look into the matter.
[5] It has been asserted that the committee at the time of
issuing the notification has been unauthorisedly expanded its authority
for extraneous reasons.
[6] Further, the petitioner has challenged the memorandum
dated 27.05.2020 (Annexure-19 to the writ petition). By the said
memorandum dated 27.05.2020, the pension of the petitioner was
determined under West Bengal State Aided Universities (Death-cum-
Retirement Benefit ) Scheme, 2010. The petitioner being the officer of
the Central University was supposed to be guided by CCS(Pension)
Rules, 1972. However, for purpose of reference, the entire text of the
said memorandum (Annexure-19 to the writ petition) is reproduced
below:
No.F.TU/REG/PF-OFFICE/29/2014 Dated 27th May, 2020
MEMO
Sub: Sanction of Provisional Pension in favour of Shri
Onkar Sadhan Adhkari, Ex. Registrar, Tripura
University.
In pursuance of the decision of the Executive
Council of Tripura University in its 32nd & 33rd meeting
held on 13.12.2018 and 30.08.2019 (vide Agenda
No.01/32/2018 & 02/33/2019) the Provisioal Pension in
respect of Shri Onkar Sadhan Adhikari, Ex. Pregistrar
Tripura University, retired from service on 30.06.2017
sanctioned to him as per West Bengal State Aided
Universities (Death-cum-Retirement Benefit) Scheme,
2010 at the rate and as per details shown below:-
Provisional At the rate of Rs.35,520.00 Rupees
Pension Thirty Five Thousand Five Hundred
w.e.f. Twenty) only p.m. plus D.R. 58% of
01.07.2017 Rs.55520/- Rs.20602/- and Medical
Allowances (M.A.) Rs.300/- as
admissible under Rules from time to
time.
This is issued in modification of earlier Memo of even
No.datd 14th June, 2017 in accordance with the decidion of
the Executive Council (EC) in its 32nd and 33rd meeting
held on 13.12.2018 and 30.08.2019.
The expenditure involved on this account is
debitable against the Head of Account for Pension and
other retirement benefit.
(Dr. K. B. Jamatia)
Registrar (I/C)
[7] On the foundation of the said challenge, the petitioner has
urged this court to issue the mandamus directing the respondents to
release all terminal benefits considering him the officer of the Central
University with interest. The petitioner has admitted however, that the
petitioner was paid provisional pension counting his service rendered in
the University of Calcutta w.e.f. 27.07.1998 to 11.02.2014. In terms of
Rules 13 and 14 read with Rule 26(2) of the CCS(Pension) Rules, 1972,
it has been declared that the period from 27.07.1988 to 11.02.2014 has
to be counted as qualifying service for pension and other benefits by the
memorandum dated 01.06.2017 (Annexure-8 to the writ petition). For
purpose of reference, the text of the said memorandum dated
01.06.2017 is extracted hereunder:
Tripura University
(A Central University)
Suryamaninagar
Tripura West
PIN: 799022
No.F.TU/REG/PF-OFFICER/29/2014 dated 1st June, 2017
MEMO
Whereas, Sri O.S Adhikar, Registrar had been
serving as Asstt. Controller of Examinations w.e.f.
27.07.1988 to 31.08.2001 and from 31.08.2001 (A.N)to
11.02.2014 (A.N) as Controller of Examinations in the
University of Calcutta on substantive basis.
And, whereas, Sri Adhikari applied for the post of
Registrar, T.U. through proper Channel in response to
advertisement and, being selected joined the post of
Registrar, Tripura University on 12.02.2014 (F.N.) without
any break and retaining his lien in post of Controller of
Examinations, Calcutta University.
And, whereas, Sri Adhikari has been absorbed
permanently in the post of Registrar, Tripura university,
w.e.f. 12.02.2014 and the university of Calcutta
suspended his lien to the post of Calcutta University from
the same date.
And, whereas, the University of Calcutta has already
remitted pro-rata pension and other retirement benefits in
respect of Sri Adhikari and all those amount has been
deposited in the account of Tripura University.
Therefore, the service rendered by Sri O.S. Adhkari
in the University of Calcutta w.e.f. 27.07.1988 to
11.02.2014 has been counted as qualifying service for
pension & other retirement benefits under Rule 13 & 14
read with Rule 26(2) of CCS (Pension) Rules, 1972.
This is issued with the approval of Hon‟ble Vice-
Chancellor, Tripura University.
(M.M. Reang)
Joint Registrar
[8] Despite issuance of the said memorandum dated
01.06.2017, the petitioner was not getting the full pension, gratuity,
leave salary etc. By the memorandum dated 14.06.2017 (Annexure-9
to the writ petition) the petitioner‟s provisional pension w.e.f.
01.07.2017 @ Rs.38,500/- was sanctioned and issued. Thereafter, by
the memorandum No.F.TU/REG/PN/16/2018 dated 11.10.2018, the
revisional pension was introduced for the employees who retired after
01.01.2016. It has been provided in the said memorandum that amount
of the monthly pension/family pension/retirement gratuity/cash
equivalent of leave salary (CELS) in respect of 17 pensioners and family
pensioners stood revised along with admissibility of arrear death-cum-
retirement gratuity and CELS as per the statement as enclosed with the
said memorandum subject to adjustment of the amount already drawn
by dint of the orders issued from time to time.
[9] After the issuance of the memorandum the entitlement has
been recalibrated. It would be apparent from the statement showing the
details of the due for fixation of the revised pay and other retiral
benefits w.e.f. 01.01.2016 as per recommendation of 7 th CPC. The
petitioner has been found to be entitled to an outstanding of
Rs.1,99,600/-
[10] In view of the revision that has been effected from
01.07.2017, the revised pay of the petitioner as on 01.01.2016 rose to
Rs.1,99,600/-. On that basis, the revised pension was calculated at
Rs.99,800/-. Similarly, arrear gratuity rose to Rs.20,00,000/-. The
revised CELS rose to Rs.20,75,840/- It may be further noted that the
petitioner received a sum of Rs.10,00,000/- as gratuity and on the
account of CELS - Rs.18,17,200/-. Thus, the petitioner is entitled to get
further amount, on account of gratuity to the extent of Rs.10,00,000/-
whereas on account of CELS, the petitioner is entitled to get further
sum of Rs.2,53,640/-
[11] When the petitioner was not getting the due entitlement, he
had represented to the Registrar, Tripura University for expediting the
process so that he can get that amount, by the representations dated
06.04.2019, which was followed by the remainders dated 20.06.2019,
26.07.2019, 30.08.2019, 25.11.2019 and 06.04.2020. The petitioner
has further urged that a writ of prohibition be issued by this court
against the recovery from him on the basis of the calculation as made
by the University-respondent. By the letter dated 08.04.2020
(Annexure-17 to the writ petition), the petitioner was apprised that in
the 32nd meeting of the Executive Council it has been decided to fix the
pecuniary benefits as entitled to the petitioner. It has been observed in
the said letter dated 08.04.2020 that the said decision as taken in the
said 32nd meeting of the Executive Council, held on 13.11.2020, shall
strictly be followed.
[12] The petitioner has further challenged the consequential
memorandum No.F.2/FIN/175/Pension/2020 dated 26.06.2020
(Annexure- 25 to the writ petition) whereby the Registrar in charge
Tripura University communicated the petitioner that by the
memorandum No.F.TU/FIN/175/Pension/2020 dated 26.06.2020, it has
been decided that the "excess amount" as received as the pensionary
benefit by the petitioner be recovered. According to the respondents,
the said memorandum dated 26.06.2020 was issued with approval of
the Vice Chancellor, Tripura University. For purpose of record, it may be
noted that by the order dated 17.07.2020, it had been ordered by this
court that till the next date i.e. 07.08.2020, the said memorandum
dated 26.06.2020 shall not be given effect to. The said interim order
has been continuing till this date of hearing.
[13] The brief facts as are necessary for appreciating the
challenge as projected in this writ petition are that in response to the
advertisement No.TU/01/2013 dated 20.03.2013 (Annexure 1 to the
writ petition), the petitioner being eligible for appointment to the post of
Registrar (tenure post for 5 years) applied for selection. Essential
qualifications as required for such selection had also been mentioned in
the said advertisement. The petitioner got selected by the Selection
Committee as constituted by the Tripura University. On
recommendation of the Selection Committee, the offer of appointment
dated 30.01.2014 (Annexure 3 to the writ petition) was issued. It is
pertinent to note that in the offer of appointment, it had been clearly
laid down that the petitioner will be placed on probation for a period of
one year from the date of joining. The petitioner resigned from the
University of Calcutta where he had held the post of the Controller of
Examinations on 11.02.2014 afternoon to enable him to join the post of
the Registrar Tripura University. The University of Calcutta had issued
the release certificate on 11.02.2014 (Annexure-4 to the writ petition).
By the notification dated 14.02.2014 (Annexure-5 to the writ petition)
the taking over of charge by the petitioner as the Registrar, Tripura
University on 12.02.2014 [forenoon] has been acknowledged. On
16.05.2017, by a communication (Annexure-7 to the writ petition), the
petitioner was apprised that he would retire from the services on
30.06.2017 [afternoon] on attaining the age of 62 years being his date
of birth on 06.06.1955. Accordingly, the petitioner was asked to take
clearance from the library, laboratory, if applicable updating of service
book and adjustment of advance, etc. As stated earlier, by the
memorandum dated 01.06.2017 (Annexure-8 to the writ petition), it
has notified by Tripura University how the pension of the petitioner
would be determined. Even the revision of pension and other benefits
had also been decided. Since the petitioner‟s legal entertainment was
being deferred for inaction of the respondents, the petitioner made
several representations for undoing the injustice.
[14] As pointed out earlier on the basis of one committee report,
the executive council took the decision for releasing the pension and
other retirement benefits of the petitioner from the Tripura University,
but at the rate of University of Calcutta. But when the said decision
reached to the petitioner, he had reacted sharply.
[15] The petitioner has asserted that in terms of his
representation dated 03.02.2014, the Vice-Chancellor, University of
Calcutta allowed him leave without pay to keep lien on the substantive
post of the Controller of Examinations, University of Calcutta for a
period of one year. The said decision was subsequently ratified by the
Syndicate of University of Calcutta in its meeting held on 03.02.2014.
The petitioner was released from the post of the Controller of
Examinations, University of Calcutta on 11.02.2014. By the
communication dated 11.02.2014 (Annexure 4 to the writ petition). On
the following day, the petitioner took charge of the post of Registrar in
Tripura University (the respondent No.1). The petitioner had
successfully completed his probation, even though no probation is called
for, by the recruitment rules, and by the memo dated 12.02.2015
(Annexure 6 to the writ petition), the petitioner was informed that he
had been absorbed permanently in the post of Registrar for a period of
five years or till he attained the age of 62 years from the date of joining
in the Tripura University. It had been clearly stated by the
memorandum dated 12.02.2015 that the services of the petitioner will
be governed by the Tripura University Act, 2006, Statutes, Ordinances,
Regulation and rules of the University. Having considered the relevance
of the memorandum dated 12.02.2015 (Annexure 6 to the writ petition)
its text is reproduced hereunder:
TRIPURA UNIVERSITY
(A Central University)
Suryamaninagar-799022, Tripura India
No.F. TU/REG/PF-OFFICER/29/2014 Date: 12th February, 2015
MEMO
Sri Onkar Sadhan Adhikari, Registrar, Tripura University
has successfully completed one year of his service period
and the University authority has been pleased to absorb
him permanently to the post of Registrar for a tenure of
five years or till the attainment of sixty two years of age
from the date of his joining to this University from 12 th
February, 2014 onwards.
The others terms and service of Sri Adhikari, Registrar will
continue to be governed by the Tripura University Act
2006, Statutes, Ordinances, Regulations and Rules of the
University.
This is issued with the approval of the Hon‟ble Vice-
Chancellor, Tripura University.
(M.M. Reang)
Joint Registrar
To
Sri O.S. Adhikari,
Registrar
Tripura University
[16] Later on, by the communication dated 16.05.2017
(Annexure 7 to the writ petition) the Joint Registrar of Tripura
University asked the petitioner to get clearance from the various
departments so that his pension and other retirement benefits can be
settled. In this regard, it is pertinent to note that by issuing a
memorandum dated 1.6.2017 the Joint Registrar of Tripura University
had apprised the petitioner with approval of the Vice-Chancellor that the
petitioner had been absorbed permanently in the post of the Registrar
of Tripura University w.e.f. 12.02.2014. It was recorded that the
University of Calcutta had suspended the lien over the post as held by
the petitioner before joining the post of the Registrar Tripura University
w.e.f. 12.02.2014. It has been placed on record that the University of
Calcutta had remitted pro-rata pension and retirement benefits in
respect of the petitioner and the said amount had been deposited in the
account of Tripura University. It is further evident from the said
memorandum dated 01.06.2017 (Annexure 8 to the writ petition) that
the petitioner had rendered his services in University of Calcutta from
27.07.1988 to 11.02.2014. The petitioner had rendered his services in
Tripura University from 12.02.2014 to 30.06.2017. If those period are
counted, the petitioner has completed the qualifying service for pension
and other retirement benefits under Rule 13 & 14 read with Rule 26(2)
of Central Civil Service (Pension) Rules 1972 and it has been indicated
that the said memorandum had been issued with approval of the Vice-
Chancellor of Tripura University. The said memorandum dated
01.06.2017 (Annexure-8 to the writ petition), has been reproduced
before.
[17] By the memorandum dated 14.06.2017 (Annexure 9 to the
writ petition), the Joint Registrar of Tripura University conveyed the
sanction of Provisional Pension as admissible under the Rules at
Rs.38,500 w.e.f. 01.07.2017. That apart, the petitioner was paid the
terminal benefits as per 6th CPC including the gratuity to the extent of
Rs.10,00,000 and leave salary to the extent Rs.18,17,200/- and GPF
withdrawal to the extent of Rs.61,300/- But the petitioner has not been
given the commuted value of pension. By the memorandum dated
11.10.2018 (Annexure-10 to the writ petition), the Registrar (In
Charge) of Tripura University revised the pension retirement gratuity
and cash equivalent of leave salary of the petitioner along with other 17
pensioners. From a reading of the said memorandum dated 11.10.2018
(Annexure 10 to the writ petition), it is apparent that in the following
manner, the pension, arrears, gratuity and leave salary were worked
out.
Sl. Name of Date of Date from which Revised pay as
No. Pensioner/Family retirement pension/Family on 01.01.2006
Pensioner pension is
effective
17 Shri Onkar Sadhan 30.06.2017 01.07.2017 Rs.1,99,600/-
Adhikari, Retd,
Registrar
Revised Arrear Gratuity Arrear Cash Equivalent of
Pension/Family Leave Salary (CELS)
Pension
Rs.99,800/- Revises Gratuity Rs.20,00,000/- Revised CELS Rs.20,75,840
Less Drawn Rs.10,00,000/- Less drawn Rs.18,17,200
Net Payable: Rs.10,00,000/- Net Payable Rs.2,58,640
[18] The petitioner has asserted that he wrote few letters to the
Registrar of Tripura University on 06.04.2019, 20.06.2019 and
26.07.2019 for release of arrears of gratuity and arrears of cash
equivalent of salary, but it seems that his claim had fallen on deaf ears
of the respondents, so far it is concerned with release of those benefits.
The letters/representations (Annexure-11 to the writ petition) has
clearly demonstrated the entitlement of the petitioner. Even, on
30.08.2019, 25.11.2019 and 06.04.2020, the petitioner urged the
respondents by three representations, issued on those days, for release
of his retirement benefits viz; gratuity, leave salary and the commuted
value of pension. Those representations (Annexure-12 to the writ
petition) had not been responded to. The petitioner has come across a
communication dated 09.10.2019 (Annexure-13 to the writ petition)
whereby the Accountant General (Audit) Tripura, Agartala had informed
the Vice-chancellor (Acting) of Tripura University as regards the audit
queries dated 03.07.2018 made in the course of the performance audit
of on functioning on of University Grant Commission (UGC) for the
period 2012-2018. During the said performance audit, the matter
relating to the retirement benefits including the pension given to the
petitioner was verified, based on the documents provided for audit as
per audit requisition, but no irregularities were noticed.
[19] By the representation dated 19.12.2019 (Annexure-14 to
the writ petition), the petitioner had urged the Secretary University
Grant Commission (UGC) to intervene as despite the salary and
retirement benefits had been revised in tune with the recommendation
of 7th Central Pay Commission, the petitioner was yet to receive the
arrears of gratuity, arrears of leave salary and the commuted value of
pension. By the letter dated 15.02.2020 (Annexure-15 to the writ
petition), the Deputy Secretary University Grant Commission requested
the Registrar of Tripura University to look into the complaint of the
petitioner (Annexure-14 to the writ petition). Even, thereafter, the
petitioner made representation to the Joint Secretary (Central
University) Ministry of Human Resources Development on 16.02.2020
(Annexure-16 to the writ petition) complaining about inaction of Tripura
University in releasing of arrears of gratuity, the cash equivalent to
leave salary and the commuted value of pension and requested the said
Ministry to intervene in the matter.
[20] The petitioner received on email on 08.04.2020 from the
Registrar (Acting) Tripura University whereby he was informed that a
report of the Committee constituted by the letter NO.TU/IG/EC/29/2017
dated 27.11.2017 was placed in the meeting of the Executive Council
held on 13.12.2018. In that meeting, the Council had resolved that the
existing pension of the petitioner as per Central University Rules be
stopped and the petitioner be allowed to draw pension as per rules of
the University of Calcutta where the petitioner held substantive post
before his joining to the tenure post of the Registrar of Tripura
University. It was further resolved that necessary steps be taken to
recover the amount drawn in excess beyond what is admissible under
the rules. It was further informed that the decision taken in the 32 nd
Meeting of Executive Council, was approved and confirmed in the 33rd
meeting of the Executive Council, held on 13.08.2019. The said
communication dated 08.04.2020 (Annexure-17 to the writ petition) is
instrumental to the challenge, made in this writ petition. The petitioner
was taken aback having received the communication dated 08.04.2020
(Annexure-17 to the writ petition) inasmuch as the Executive Council of
Tripura University had acted behind his back and keeping him
absolutely in the dark. Without affording any opportunity of hearing, the
University-respondent stopped the pension of the petitioner as per
Central University rules.
[21] The petitioner has expressed his dismay ON discovering the
fact that the pension as determined with approval of the Vice-Chancellor
had been revised arbitrarily when the Vice-Chancellor is the Chairman
of the Executive Council. As per the recommendation of 7th CPC, the
petitioner received his due arrear pension from July, 2017 to July, 2018
at the rate of Rs.1,01,205/- but for the change of the decision abruptly
and refixation of the pension based on the report of the committee as
stated before the petitioner has claimed to have suffered serious
detriment. The petitioner on 26.04.2020 made a detailed representation
to the Registrar (Acting), Tripura University. According to the petitioner,
the decision that had been taken in the 32nd meeting of the Executive
Council was taken ignoring the terms and conditions of the offer of
appointment as issued to the petitioner. The said decision as well stands
contrary to the observation of the Accountant General (Audit), Tripura.
The petitioner had intended to have the various records as relied by the
Executive Council or the committee that was constituted by them for
purpose of finding out the rationale. According to the petitioner, the
Tripura University Act, 2006 extends power to the Vice-Chancellor to
exercise any power conferred on any authority of the University by or
under the said Act. For purpose of reference, the relevant provisions in
this regard are reproduced below:
12. The Chancellor --(1) The Chancellor shall be appointed
by the Visitor in such manner as may be prescribed by the
Statutes.
(2) The Chancellor shall, by virtue of his office, be the
head of the University and shall, if present, preside at the
Convocations of the University held for conferring degrees
and meetings of the Court.
13. The Vice-Chancellor.--(1) The Vice-Chancellor shall be
appointed by the Visitor in such manner as may be
prescribed by the Statutes.
(2) The Vice-Chancellor shall be the principal executive
and academic officer of the University and shall exercise
general supervision and control over the affairs of the
University and give effect to the decisions of all the
authorities of the University.
(3) The Vice-Chancellor may, if he is of opinion that
immediate action is necessary on any matter, exercise any
power conferred on any authority of the University by or
under this Act and shall report to such authority at its
next meeting the action taken by him on such matter:
Provided that if the authority concerned is of the opinion
that such action ought not to have been taken, it may
refer the matter to the Visitor whose decision thereon
shall be final:
Provided further that any person in the service of the
University who is aggrieved by the action taken by the
Vice-Chancellor under this sub-section shall have the right
to represent against such action to the Executive Council
within three months from the date on which decision on
such action is communicated to him and thereupon the
Executive Council may confirm, modify or reverse the
action taken by the ViceChancellor.
(4) The Vice-Chancellor, if he is of the opinion that any
decision of any authority of the University is beyond the
powers of the authority conferred by the provisions of this
Act, the Statutes or the Ordinances or that any decision
taken is not in the interest of the University, may ask the
authority concerned to review its decision within sixty
days of such decision and if the authority refuses to
review the decision either in whole or in part or no
decision is taken by it within the said period of sixty days,
the matter shall be referred to the Visitor whose decision
thereon shall be final.
(5) The Vice-Chancellor shall exercise such other powers
and perform such other duties as may be prescribed by
the Statutes or the Ordinances.
[Emphasis added]
[22] The petitioner has submitted that on 27.05.2020, he
received the notification dated 27.05.2020 issued by the Registrar
(Acting), Tripura University fixing the provisional pension of the
petitioner w.e.f. 01.07.2017 as per the West Bengal State Aided
Universities (Death-cum-Retirement Benefits) Scheme, 2010. In sequel
to the said decision taken in the 32nd and 33rd meeting of the Executive
Council respectively held 13.12.2018 and 30.08.2019, the quantum of
provisional pension as was sanctioned from 01.07.2017, was reduced to
Rs.35,520/- with DR 58% i.e. 26.602/- and the medical allowance of
Rs.300/- as admissible. The petitioner without prejudice to his
contention against the said decision, reflected in the notification dated
27.05.2020 (Annexure-19 to the writ petition), has stated that the said
quantum of pension has been determined on the basis of the last pay
drawn by the petitioner in the University of Calcutta, whereas the same
ought to have been fixed on the last pay as drawn by him in Tripura
University assuming but denying, at the rate admissible under the
revised rate under the West Bengal State Aided Universities (Death-
cum-Retirement Benefits) Scheme, 2010.
[23] The petitioner has admitted that the he had received an
amount of 51,422/- as pension for the month of May 2020, which was
disbursed as per the West Bengal State Aided Universities (Death-cum-
Retirement Benefits) Scheme, 2010. The amount was less than half of
the pension which the petitioner is entitled to, under the Central
University Rules .
[24] Mr. T. Debbarma, learned counsel appearing for the
petitioner has contended that some statements has been made by the
respondent without any basis and in complete violation of principle of
natural justice, meaning without affording any opportunity of hearing.
According to Mr. Debbarma, learned counsel appearing for the
petitioner, the decision of 32nd and 33rd meeting of the Executive
Council is in contrast to the provisions of the relevant rules. The entire
decision is a mala-fide action. In this respect, a reference has been
made to the resolution of the 29th meeting of the Executive Council held
on 14.11.2017 where a resolution was adopted to the effect that the
pension scheme for employees of Tripura University who joined after
July, 2007 would be studied by a committee. The said committee as
constituted, placed their report in 32nd meeting of the Executive Council
held on 13.12.2018 and on the basis of the said report the Executive
Council had resolved to stop the pension as had been determined earlier
by the authority of Tripura University.
[25] Mr. Debbarma, learned counsel has pointed out that for
purpose of arriving at that decision, the permanent post of Registrar
Tripura University has been termed only as the tenure post, whereas
the said post according to the recruitment rules, is a post having the
whole time salaried post [permanent post] but the term is determined
for five years or till attaining the age [superannuation] of 62 years.
Even the Accountant General (Audit) Tripura had on due verification did
not raise any objection in respect of determination of pension prior to
the impugned decision as has been taken in 32nd meeting. It has been
also asserted that since the petitioner had asked for payment of the
revised pension as per the 7th CPC, the earlier decision was revisited
and reversed by the said resolution as adopted in 32nd meeting of the
Executive Council. Since the petitioner was not afforded any
opportunity, according the petitioner, the said decision of recalculating
the pension under the West Bengal State Aided Universities (Death-
cum-Retirement Benefits) Scheme, 2010 on the basis of the last pay
drawn in the University of Calcutta in the post of the Controller of
Examinations is unsustainable. Even after filing of the writ petition on
29.06.2020, the petitioner had received a memorandum via e-mail
from the university respondent on 26.06.2020 under
No.F.TU/FIN/175/Pension/2020 (Annexure-26 to the writ petition) for
recovering the excess payment as made in terms of the earlier decision
of the university authority.
[26] According to the petitioner, the said action of the
respondent suffers from serious illegality for violation of the statutory
right and for mala-fide action. Hence, the resolution of the Executive
Council adopted in 32nd meeting and confirmed in 33rd meeting as
communicated to the petitioners by the letter and memorandum
respectively dated 08.04.2020 and 27.05.2020 is required to be set
aside and the respondent be prohibited from giving any effect of the
said decision as taken in 32nd meeting of the Executive Council
concerning the petitioner.
[27] As consequence thereof, the memorandum dated
27.05.2020 (Annexure-19 to the writ petition) shall also be interfered
with and set aside. Further, the respondents be directed to make
payment of the balance benefits as entitled to the petitioner under
Central University Rules with interest within a stipulated time. Further,
the subsequent memorandum dated 26.06.2020 (Annexure-26 to the
writ petition) be interfered with and set aside inasmuch as the decision
taken by the Executive Council in its 32nd meeting is grossly illegal and
in contrast to the statutory rules.
[28] Mr. Debbarma, learned counsel has finally referred to the
recruitment rules for the post of the Registrar in the Tripura University,
which was in force at the time of recruitment of the petitioner. For
purpose of reference, the entire text of the recruitment rules is
reproduced hereunder.
TRIPURA UNIVERSITY RECRUITMENT RULES FOR THE
POST OF REGISTRAR
1 Name of post Registrar
2 Number of Post(s) 1 No.
3 Classification Group „A‟
4 Scale of pay Pay Band: Rs.37400-67000/-
Grade Pay: 10000/-
5 Whether selection or Not applicable
non-selection post
6 Whether benefit of No
added years of service
admissible under Rule
30 of the
CCS(Pension) Rules,
7 Age Limit for direct Preferably below 57 years.
recruits
8 Educational and other (i) A Master‟s degree with at least
qualifications required 55% of the marks or its equivalent
for direct recruits grade of B in the UGC seven-point
scale from a recognized
University/Institute.
(ii) At least 15 years of experience
as Assistant Professor in the AGP of
Rs.7000 and above or with 8 years of
service in AGP of Rs.8000/- and
above including as Associate
Professor along with experience in
educational administration
Or
Comparable experience in research
establishment and/or other
institutions of higher education
Or
15 years of administrative
experience of which 8 years as
Deputy Registrar or an equivalent
post.
9 Whether age and Not applicable
educational
qualifications
prescribed for direct
recruits will apply in
the case of promotes.
10 Period of probation, if No Probation
any
11 Method of Deputation or on contract for a
recruitment: whether tenure upto 5 years or till attaining
by direct recruitment the age of 62 years whichever is
or by earlier.
promotion/absorption (shall be eligible for re-appointment)
and percentage of the
posts to be filled by
various methods.
12 In case of recruitment Deputation or on Contract
by promotion As indicated in Col.8
/deputation/absorptio
n, grades from which
promotion/deputation
/absorption to be
made
13 Composition of DPC or As per Tripura University Act, 2006
Selection Committee
Note: (i) The minimum requirement of 55% shall not be
insisted upon for the Registrars, Deputy Registrars or its
equivalent and for the existing incumbents who are
already in the university system. However, these marks
should be insisted upon for those entering the system
from outside and those at the entry points of Assistant
Registrars and its equivalent.
(ii) Recruitment for the post of Registrar shall be through
open advertisement.
[29] On the basis of the said recruitment rules, Mr. Debbarma,
learned counsel has contended that the post of Registrar is a permanent
post. Mr. Debbarma, learned counsel has submitted that from the
advertisement dated 20.03.2013 (Annexure-1 to the writ petition), it
will be also apparent that the post of the Registrar is under the Regular
pay band of 37,000-67000 with the Grade Pay of Rs.10000. In this
regard, specific reference has been made to the offer of appointment
dated 30.01.2014 (Annexure-3 to the writ petition) to show the
„contract‟ of the recruitment. The conditions of appointment has been
shortly recited therein. The entire text of the offer of appointment has
been reproduced below.
Tripura University
A Central University
Suryamananagar, West Tripura- 799022
F.No/TU/REG/PF-OFFICER/29/2014 dated 30.01.2014
OFFER OF APPOINTMENT
Shri Onkar Sadhan Adhikari is hereby appointed as
Registrar, Tripura University for a term of five years or till
the attainment of 62 years which ever is earlier in the Pay
Band of Rs.37,000/- 67,000/- with GP of Rs.10,000/- plus
admissible allowances as per Rules with effect from the
date his joining the post.
His pay in the above scale will be fixed by the
University as per University rues.
He will be on probation for a period of one years
from the date of joining.
His services under the university will be governed
by the Tripura University Act, 2006 Statutes, Ordinances,
Regulations, Rules and Orders as are in force and as may
be prescribed and amended from time to time.
He shall have to join with one month from the date
of issue of this offer of appointment by submitting Medical
Fitness Certificate. If the candidate fails to join within the
prescribed date the offer will be treated as cancelled.
No TA DA shall be paid for joining the post.
This is issued in pursuance of the decision of the
twenty second Meeting of the Executive Council Tripura
University held on 25th January, 2014.
(S. Debbarma)
Registrar (Officiating)
To
Shri Onkar Sadhan Adhikari,
S/O. Lt. Bibhuti Bhusan Adhikari
84/B/16 Dumdum Cossipore Road,
Aikatan Abasan,
Kolkata-700074
No other „contract‟ has been placed.
[30] According to Mr. Debbarma, the petitioner was paid his
salaries from the consolidated fund of India [as the Tripura University is
a Central University] or was paid from the local fund administered by
the state government. He was working all through under the
pensionable establishment. From the offer of appointment, it is quite
evident that the petitioner was not appointed on deputation. The past
service of the petitioner rendered in the post from which he had
resigned for joining the post of the Registrar in Tripura University
without any interruption shall not entail forfeiture as that had been so
done with proper permission to take up another appointment whether
temporary or permanent under the government where the service
qualifies (see Rule 26(2) of CCS (Pension) Rules, 1972). Thus, Mr.
Debbarma, learned counsel has contended that the impugned decision
as taken in the 32nd meeting of the Executive Council and confirmed in
the 33rd meeting of the Executive Council is grossly inappropriate,
arbitrary and illegal. The said decision was communicated to the
petitioner by e-mail dated 08.04.2020 - Annexure 17 to the writ
petition) . Hence, the principal memorandum dated 27.05.2020
(Annexure 19 to the writ petition) is liable to be interfered with. He has
urged for release of the pensionary benefits to the petitioner
considering him holding the permanent post of an officer in Tripura
University.
[31] Mr. B. N. Majumder, learned senior counsel assisted by Mr.
R. Datta and Mr. R. Tewari, learned counsel for the respondents has
submitted that the petitioner was holding purely a tenure post, not the
permanent post and hence he was not borne in the pensionable
establishment. He has made serious allegation against the senior
officials of the university-respondent for misdemeanour and extending
support to the petitioner "for his sheer abuse of office". For this purpose
in Para 5 of the reply filed by the respondent No.3, in response to the
interim prayer, it has been asserted that while holding the tenure post,
the petitioner got his service converted in the regular posting by
misusing his official position. But they have admitted quite categorically
that before the petitioner‟s appointment as the Registrar in Tripura
University, he was serving as the Controller of Examinations in the
University of Calcutta and during that time his pension and retirement
benefits were supposed to be governed by West Bengal State
Universities (Death-cum-Retirement) Scheme, 2010, whereas Tripura
University is a Central University and that scheme is not germane for
the said university.
[32] It has been asserted by the Mr. Majumder, learned senior
counsel that the very memorandum dated 20.03.2013, based on which
the petitioner was appointed on tenure basis lays down that the said
post is for a term of five years or till attaining of the age of
superannuation at 62 years and whichever is earlier. According to him,
there is no provision for absorption. There is no dispute about the date
of joining i.e. 12.02.2014. An employee holding a tenure post cannot
aspire to carry forward the past benefits in the post. Even the
memorandum dated 01.06.2017 was issued "at the instance of the
petitioner purporting that his past service in the parent department has
been taken as qualifying service in the respondent University as per
Rule 13 and 14 read with Rule 26(2) of the CCS (Pension) Rules, 1972.
No sooner than the irregularities came to the notice of the respondent
University, the appropriate steps were initiated for „corrective‟ action.
On the basis of the report dated 19.11.2018 as submitted by the
committee constituted by the Executive Council, the resolutions dated
13.12.2018 and 30.08.2019 (Annexures-23 and 24 to the writ petition)
were taken and the petitioner was communicated of the said
resolutions. According to the University- respondent, the petitioner had
effective and alternative remedy. The petitioner ought to have
approached the Executive Council for redress of his grievances. But the
University respondent has admitted petitioner had filed the
representation were by expressing his grievances on 26.04.2020. But
before the representation were disposed of, the petitioner had
approached this court by filing this writ petition.
[33] According to the university-respondent, the petitioner had
manoeuvred the „whopping" and "illegal benefit" of Rs.1,17,756/- as
pension which is double the amount the petitioner is entitled to. The
allegation of mala fide has been denied by the University respondent. In
Para 22 of the said short affidavit filed on 06.08.2020, the University
respondent has made an attempt to explain their action for recovering
the purported excess payment. It has been averred as follows:
"The Government of India Office Memorandum No
F.18/26/2011. Estt. (Pay-I) Ministry of Personnel. PG and
Pension Department of Personnel and Training dated, 6th
February, 2014 while citing the Orders of Hon‟ble
Supreme Court in the Chandi Prasad Uniyal & Ors. Versus
State of Uttarakhand & Ors. 2012 AIR S.C.W 4742 (2012)
& S.C.C. 417 had candidly laid down guidelines that
wherever excess payments are brought to notice, on
account of wrong pay fixation, grant of scales without
approval etc., immediate corrective must be taken for
recovery from the recipient on recovery of excess
payments to employees.
The aforesaid O.M. further advised that for
recoveries of such excess payments, the
Department/Ministry may issue a Show cause notice to
give the employee an opportunity to represent and a
speaking order to be passed with reason for the decision.
It has also been stipulated in the same OM that in
cases of excess payments reaching hands of an employee
was due to fraud, misrepresentation, collusion, favoritism,
negligence, carelessness etc. roles of persons responsible
for the excess payment and the employee benefiting from
such excess payments are to be identified for appropriate
departmental/criminal actions.
That though steps were taken by the Respondent
university for investigation into misuse and other
irregularities for passing on wrongful benefits to the
petitioner, it could not make fast progress due to
interruptions coming from lockdowns in wake of the wide-
spread COVID-19 pandemic."
[part of Para 22 of the short affidavit]
[34] The petitioner, according to the university respondent is
supposed to get the pension from his parent department, not from the
Tripura University. The respondents No. 1, 2, 4 and 5 had filed a
detailed affidavit contending that unless the members of the Executive
Council are made parties, the said resolution adopted by Executive
Council cannot be interfered with. The university-respondent in their
detailed affidavit filed on 29.08.2020 have referred to Proviso to 2
Section 13(3) of the Tripura University Act, 2006. As the writ petitioner
had filed the representation, unless the said representation was
disposed of, no legal action would lie against the University respondent.
Thus, the statement made by the petitioner that there had been no
alternative remedy cannot be sustained. It has not been disputed by the
university-respondent that the petitioner served the University of
Calcutta from 27.07.1988 to 11.02.2014 as Assist Controller of
Examinations and the Controller of Examinations in University of
Calcutta substantively.
[35] The university respondents have categorically admitted that
the advertisement No.TU/01/2013 dated 20.03.2013 has laid down that
the post of Registrar is a tenure post for five years or till 62 years,
whichever is earlier. The petitioner had knowing full well of those
conditions participated in the selection process and got appointed.
Hence, no further interpretation of that clause can be resorted to the
petitioner. It has been also asserted by the university-respondent that
the petitioner‟s tenure is for a period of five years or till attainment of
62 years and whichever is earlier. It has been also asserted that the
petitioner‟s service will be governed by the Tripura University Act, 2006.
It has been also asserted that considering the date of birth of the
petitioner on 06.06.1955, he was due to superannuate on 30.06.2015
from the said tenure post.
[36] By filing the said detailed reply, the respondents No1, 2, 4
and 5 have reiterated that since the Executive Council had not taken
any decision on the representation of the petitioner, the writ petition be
considered premature and the same be dismissed as not maintainable
for existence of the said alternative remedy. In Para 7 of the said reply,
the service particular as provided by the respondents have not been
disputed by the petitioner as those are based on the records. True it is
that before the petitioner was recruited as the Registrar, Tripura
University (a Central University) he was occupying the post of Controller
of Examination in the University of Calcutta on regular basis and his
pension and other retirement benefits were supposed to be regulated
under West Bengal Aided Universities (Death-cum-Retirement Benefit)
Scheme, 2010. So far the pension and the retirement benefit of an
officer in Tripura University are concerned, those are to be governed by
the rules of the Central government as adopted by the Tripura
University mutatis mutandis. They have stated that "pre-dated noting
was done with hypothetical successful completion of probation supposed
to be terminated on 12.03.2015". According to the university-
respondents, there was no review of the periodical performance. In the
same breath, those respondents have stated that there was no
requirement of probation as per the recruitment rules to the post of
Registrar. In Para 9 of the said reply, those respondents have asserted
as follows:
"9. That the answering respondents humbly say
that in the said advertisement the post of Registrar is
mentioned as tenure post for a period of 5 years or till
attainment of 62 years whichever is earlier. In the
advertisement, it is no where
indicated/suggested/mentioned that above mentioned
post will be converted into a permanent post after the
completion of probation period and it was no where stated
that the petitioner would be absorbed permanently after
completion of probation period and moreover there was
no single whispering about the said probation period in
the said advertisement. The answering respondents at the
time of issuing the said advertisement being conscious
and knowing fully well did not insert or mention the
clause of probation period or confirmation or service only
on the ground that the said post is a tenure post and
tenure post cannot be converted as a permanent post and
tenure post cannot be absorbed as a permanent post and
as per Recruitment Rules approved by Executive Council
and Tripura university in consonant with Tripura
University Act, 2006, the post of Registrar, Tripura
University is a tenure post. In these circumstances, if
tenure post is absorbed as a permanent post then other
eligible candidates will be deprived from participation in
the selection of the permanent post of Registrar, Tripura
University. For ready reference as per Fundamental Rules,
the definition of permanent. Post tenure post and
temporary post are as follows:-
"Permanent Post means a post carrying a definite
rate of pay sanctioned without limit of time."
"Tenure Pot means a permanent post which an
individual government servant may not hold for more than
a limited period."
"Temporary Post means a post carrying a definite
period of pay sanctioned for a limited period."
So, it is crystal clear from the aforesaid definitions
that the post of Registrar (Tenure post for 5 years),
Tripura University is a tenure post or temporary post and
not a permanent post. The petitioner is a highly educated
person and after being fully aware about the definitions of
tenure post, temporary post and permanent post, he
participated in the said selection process and he was
selected and subsequently he served in Tripura University
for about more than 3 years though the said post was for
a period of 5 years and in the meantime he crossed his
upper age limit i.e. 62 years."
This is the crux of the main objection projected by the said
respondents against the reliefs as urged by the writ petitioner.
[37] The respondent have however, relied on the advertisement
dated 20.03.2013 to buttress their claim. According to them, since the
tenure of the post and the superannuation clause were adverted, the
petitioner had the knowledge that he could not continue beyond the age
of 62 years as whichever would come early. Even in the offer of
appointment the said condition was clearly laid. To pursue the decision
of 32nd meeting of the Executive Council of Tripura University held on
25.01.2014, it is really strange to know that the memorandum dated
12.02.2015 has been stated by the respondents to be collusive in
nature, whereas the very memorandum has noted that the decision that
was being communicated under the said memorandum was taken by
the Vice-Chancellor of Tripura University. According to the respondents,
the Vice-Chancellor, Tripura University had no authority to absorb the
petitioner on permanent basis without approval of the Executive Council
of Tripura University as well as the Ministry or Human Resource
Development. By the said memorandum dated 12.02.2015, the
probation was terminated as the petitioner had performed satisfactorily
during that period even though there is no prescription of probation in
the recruitment rules. According to the respondents, the purported
absorption is non-est . According to the respondents the post like Vice-
Chancellor, the Finance Officer and Controller of Examinations are all
tenure based post which cannot be made permanent, otherwise it will
violate Tripura University Rules. Thereafter, the university-respondents
have asserted having referred to the committee that was constituted by
the Notification dated 27.05.2017 for reviewing the matter relating to
the pensionary benefits of the petitioner as under:
"The said committee by a resolution dated 19.11.2018
came to a conclusion that the petitioner is not entitled to
pensionary benefits as per Central University norms and
as a result the matter was referred to Executive Council,
Tripura University. Accordingly the matter was placed
before the 32nd meeting of Executive Council held on
13.12.2018. In the said meeting, it was unanimously
decided that the existing pension at the rate of Central
University Rules be stopped to the petitioner instead the
petitioner be allowed pension as per the norms and rules
of the University of Calcutta and on the basis of 32 nd and
33rd Executive Council meeting the Registrar (I/C) issued
a memo dated 27.05.2020 and sanctioned the pension of
the petitioner was per West Bengal State Aided
Universities (Death cum retirement) Scheme, 2010."
[38] Thus, they have denied that the petitioner is entitled to the
amount of gratuity, leave salary and GPF withdrawal, as claimed by
him, inasmuch as the purported absorption of the petitioner was a
wrongful act which had been reviewed and reversed by 32nd and 33rd
Executive Council meetings. It has been decided by the Executive
Council meeting that the petitioner cannot get the pension under the
Central University Rules and hence his pension may immediately be
stopped. It has been stated further that the opinion of the Accountant
General (Audit) cannot supersede the resolution adopted in the
Executive Council meetings. Based on the recommendation the
committed constituted for reviewing the matter relating to pensionary
benefits of the petitioner the Executive Council took the decision which
has been challenged in this writ petition. On the aspect of affording
reasonable opportunity to the petitioner, it has been stated that that
the petitioner was fully aware that those resolutions were taken by the
Executive Council. Thus, the respondent did not have any say why the
pre-decisional hearing was not afforded to the petitioner. Thereafter, it
has been stated any decision taken by the executive council is binding
on the Vice-Chancellor (the respondent No.2 herein). Filing of the
representation to the various authorities according to the university
respondent amounts to give in to the jurisdiction for alternative remedy.
Those respondents have further stated that "once a person is appointed
to a tenure post, his appointment to the said post begins when he joins
and it comes to an end on the completion of tenure such a person does
not superannuate, he only goes out of the office on completion of his
tenure." While making the reply, no reference has been made to the
recruitment rules for the post of the Registrar or the advertisement that
was made for selection in the post of Registrar, Tripura University. The
said observation stands entirely in contrast to the recruitment rules.
The university respondents have defended the decision taken in 32nd
and 33rd Executive Council meetings.
[39] It has been also asserted that absorption of the petitioner in
the post of the Registrar, Tripura University was ex facie illegal.
According to those respondents, the Accountant General (Audit) cannot
decide whether the petitioner is entitled to receive pension under
Central Pension Rules or under the rules prevalent in the University of
Calcutta. Hence, the communication received from the Accountant
General (Audit) Tripura does not carry any value for the present
purpose. Notwithstanding the said observation made by the Accountant
General (Audit) Tripura the petitioner cannot get the benefits as claimed
in this writ petition. The benefits those have been received by the
petitioner, before the matter was reviewed by the Executive council of
Tripura University, were not the petitioner‟s entitlement. Hence, the
respondent have very right to ask for refund of those benefits. Such
order is in tune with Chandi Prasad Uniyal (supra). The Executive
Council of Tripura University could not take early decision for disruption
created by the pandemic. The petitioner is in no way prejudiced as his
pension and other retirement benefits have been released in terms of
the prevalent rules in the University of Calcutta.
[40] The petitioner has filed a rejoinder in response to the reply
filed by the respondents. In the rejoinder, the petitioner has reasserted
the facts based on which the reliefs in the writ petition are claimed. The
petitioner has clearly stated that he is not aggrieved by any action or
inaction on the part of the Accountant General (Audit), Tripura, the
University Grant Commission (UGC) and the erstwhile Ministry of
Human Resource Development (HRD) and this is the reason why they
have not been impleaded them as the party-respondents. The petitioner
has stated that in terms of Statute 7(f), the Registrar represents the
University which includes the Executive Council. Hence, no impleadment
of the members of the Executive Council is required. Being aggrieved by
the decision of the Executive Council held on 13.12.2018 as
communicated by the email dated 08.04.2020, the petitioner has
categorically stated that his representation had fallen on deaf ears of
the various authorities, to whom he had represented for recalling the
decision taken by the Executive Council on 13.12.2018. The petitioner
has expressed his serious resentment for refixing his pension in terms
of the West Bengal State Aided Universities (Death-cum-Retirement
Benefits) Scheme, 2010. As the authorities in the Tripura University did
not respond to his representation, the petitioner having no alternative,
has filed the instant writ petition. He was with sufficient emphasis
reiterated that he had worked in the post of Registrar and his services
were to be governed the Tripura University Act, Statutes and Rules as
mentioned in the appointment letter. Thus, for purpose of fixing the
pension and other retirement benefits, no recourse can be taken to
West Bengal State Aided Universities (Death-cum-Retirement Benefits)
Scheme, 2010 for settlement of the petitioner‟s pension and other
benefits. Hence, the impugned action is grossly illegal and illogical. The
petitioner has stated in his rejoinder as under:
"It is stated that the Respondent University
appointed me to the post of Registrar for a period of five
years or till attaining the age of sixty-two years,
whichever is earlier. Now the University having perpetual
succession cannot disown its commitment and make such
an absurd and irresponsible statement that it expected I
„automatically relinquish‟ the post of Registrar and go
back to my parent organization before my lien ended to
superannuate at the age of sixty years from that
organization,. This is simply ridiculous and unjust. The
expectation of the Respondent University would have
carried some meaning had it been clarified in the
Advertisement and clearly written in the appointment
letter that appointment to the post was subject to a
probation period and that service in that post did not carry
any retiral benefits.
Notwithstanding that the Recruitment Rules of the
University mandates no probation for the post of
Registrar. I was put on probation for one year. This was
on obvious act of the Respondent only.
As I was kept on probation for a period of one year,
the Respondent University could have sent me back to my
parent organization at the material point of time. But it
could not do so in the absence any adverse report from
any quarter against me. Therefore, when my probation
was over, the Respondent University on its own
assessment and wisdom decided to retain me in the post
of Registrar and issued the Memo and started deducting
money from my monthly salary as employee‟s contribution
to GPF bearing A/c No.TU/PF/0210 maintained by it. This
is again an act of the Respondent and I cannot be framed.
The said Memo in effect is an official letter issued on
completion of my probation to me to complete my term of
appointment of five years or attaining the age of sixty-two
years, whichever is earlier. No more or no less."
[41] The petitioner has categorically stated in the said rejoinder
that the post of the Registrar was not converted as the permanent post
by the then Vice-Chancellor and the Joint Registrar under his influence.
The Memorandum that has been referred by the University-respondent
is confined only to confirmation after successful probation. The
condition of probation was incorporated in the letter of appointment and
as the petitioner was placed under probation that required assessment
of performance and confirmation in the service. Thus, the petitioner has
denied the said allegation. The petitioner has restated that Accountant
General (Audit) Tripura had on due scrutiny not found infirmity in the
method by means of which the petitioner‟s pension and other
retirement benefits were settled. The petitioner has, thereafter, referred
to the Statute 6 of the Tripura University which deals with the terms
and condition of the service perks and responsibilities of the Registrar.
The part of the statute, as reproduced by the petitioner, is extracted
hereunder:
"6(1) The Registrar shall be appointed by the Executive
Council on the recommendation of a Selection Committee
for the purpose and shall be a whole-time salaried officer
of the University.
6(2) He shall be appointed for a term of five years and
shall be eligible for re-appointment.
6(3) The emoluments and other terms and conditions of
service of the Registrar shall be such as may be prescribed
by the Executive Council from time to time.
Provided that the Registrar shall retire on attaining the
age of sixty-two years. Provided further that a Registrar
shall, notwithstanding his attaining the age of sixty-tow
years, continue in office until his successor is appointed
and enters upon his office or until the expiry of a period of
one year, whichever is earlier."
[42] The petitioner has categorically asserted that such tenure
post is always a permanent post. Whenever an appointment is made to
the post of Registrar, it is for the period of five years at one go. If that
tenure does not collide with the age of superannuation. The petitioner
has also admitted that there is no definition or terminological
explanation of the tenure post in the Tripura University Cadre
Recruitment Rules. The posts of Registrar, Finance Officer and
Controller of Examination are clubbed together under the category of
"Statutory post". Statute 20 deals with the issue of appointment in a
fixed tenure and what that Statute provides is reproduced below:
"The Executive Council may appoint a person selected in
accordance with the procedure laid down in Statute 18 for
a fixed tenure on such terms and conditions as it deems
fit."
[43] Notwithstanding that the University respondent has taken
recourse to the Fundamental Rules and wrongly interpreted the
definition of tenure post as appearing in the Fundamental Rules. They
have overlooked the basic tenets in considering the consequence of
superannuation as condition. By definition The tenure post means a
permanent post, but the University respondent has equated "tenure
post" with "temporary post". True it is that in the advertisement, it had
been clearly provided that the post of Registrar is "tenure post of five
years". But, it cannot be understood as that post is not a permanent
post or a temporary post. The petitioner has disagreed with the
proposition that a person holding tenure post cannot get pension and
other retirement benefits. In this regard, the petitioner has quite
categorically asserted as follows:
"The Respondent University also never objected to
receiving payment on account of pro-rata pension and
other benefits one by one in respect of me from his parent
organization University of Calcutta.
Moreover, in January, 2020, that is, about two and a
half years of my retirement the Respondent University has
granted pension and all other retirement benefits to its
former Finance Officer, Sir Uttam Kumar Das on his
superannuation from the similar post of Finance Officer of
the University. Sri Uttam Kumar Das entered in service in
Tripura University on 16.02.1996 and later joined to the
Statutory post of Finance Officer on 23.01.2017 and
retired from the same post on superannuation on
22.01.2020. This clearly indicates that the stand taken by
the Respondent University is selective and
discriminatory."
[44] According to the petitioner the university respondents have
failed to place any cogent reason for denial of benefits against the
service rendered by the petitioner in the University. The University
respondents have failed to refer to any university rule or the
government of India rule that permits the university respondents to
deny the benefits as claimed by the petitioner or as was extended to
him earlier. The petitioner has reiterated that his pension and other
retirement benefits were fixed as per the central university rule and
even during the All India performance Audit, the earlier decision was
referred, as would be evident from the communication dated
03.07.2018 (Annexure 25 to the writ petition) to the Accountant
General (Audit). In the said All India Performance Audit in response to
the query No. 5, the university respondents had responded as follows:
As his retirement would be within the stipulated period as termed in the
appointment letter i.e. 62 years of age and his „Lien‟ in the parent post
could not be extended beyond 60 years which is the age of retirement
in his parent State University of Calcutta and the Executive Council did
not give any instruction to revert him back to his parent post before
attaining the age of 60 years, thus they approved the continuation of
service up to the age of 62 years as per Act/Statute of Tripura
University. Since, Sri Adhikairi was appointed with the approval of E.C
for a tenure of 5 years or till the age of superannuation of 62 years of
age, whichever is earlier, he was allowed to continue in that service in
Tripura University up to the age of 62 years (up to date of retirement)
which is nothing but absorption to the post of the Registrar permanently
till the retirement age of 62 years of which is within 5 years of tenure.
It has been further asserted thus:
"As per the Govt. of India rules/DOPT order No.28(10)84-
P & PW.Vol.II dated 07.02.1986 and order
No.28/30/2004-P PW(B) dated, the 28th October, 2009
(Copy enclosed in Annexure-5 and 6) on the subject of
Counting of service for the purpose of pension of
employees of Central Government and Central
Autonomous Bodies seeking absorption in autonomous
Bodies under the state Government and vice-versa and
Mobility of personnel amongst Central/State &
Autonomous Bodies working under a pensionable
establishment is permissible. Sri Adhikari had been
serving in Calcutta University which is a pensionable
establishment under State Government. Here permanent
absorption is the absorption till the attainment of 62 years
which was applicable to Sri Adhikari."
[Emphasis added]
[45] Another query being the query No.6 was that whether there is
any provision in the Tripura university Act, 2006 for providing pension
to the incumbent retired from the tenure post who joined in the
university in the tenure post from the other government state
university, the university-respondents had categorically stated as
follows:
For service mattes, the university is following the Govt. of
India rules/orders as applicable to Central Govt. Civilian
employees. In this regard, the latest UGC letter No.22-
9/2017/(CU) dated 01 May 2018 on the subject of
adoption of Government of India/UGC rules for various
administrative, financial, establishment and service
matters till framing of relevant Statutes, Ordinances and
Regulations of the University is enclosed in annexure-7.
"Further nowhere in the pension rules of Government of
India including the Central Civil Services (Pension) Rules,
1972 which is followed by the Tripura University, it is
mentioned that period of Tenure service will not be
eligible for pension or counting for pension nor
order/instruction has been issued form the UGC/MHRD
regarding nonpayment of pension to the incumbent
retired from tenure service or post.
Moreover, „Pension‟ is neither a bounty nor a matter of
grace depending upon the sweet of the employer, no an
ex-gratia payment. It is the payment for the past service
rendered by the employee in a pensionable service."
[Emphasis added]
[46] Based on the said observation, the petitioner has
emphatically stated in his rejoinder that how the university respondent
can take a contrary stand from the stand they had taken during the All
India performance Audit on the functioning of University Grants
Commission for the period from 2012-13 to 2017-18. As the university
respondent have taken a stand that the tenure post including the post
of Vice-Chancellor will not be entitled to pension or other retiral benefits
like the regular officer of the university, in this regard, the petitioner
has drawn attention of this court to statute 2(5)(ii) which reads as follows:
"The Vice-Chancellor shall be entitled to such
terminal benefits and allowances as may be fixed by the
Central Government from time to time: Provided that
where an employee of the University, or a college or an
institution maintained by, or admitted to the privileges of,
the University, or any other University or any college or
institution maintained by or admitted to the privileges, of,
such other University is appointed as the Vice-Chancellor,
he may be allowed to continue to contribute to any
provident fund of which he is a member and The
University shall contribute to the account of such person
in that provident fund at the same rate at which the
person had been contributing immediately before his
appointment as the Vice-Chancellor:
Provided further that where such employee had
been a member of any pension scheme, the University
shall make the necessary contribution to such scheme."
Thus, payment of pension is an obligation.
[47] Thus, according to the petitioner, the assertion of the
university-respondents is both statutorily and factually incorrect. Even,
the petitioner has seriously questioned the attempt of the university-
respondents after three years of his retirement for bringing some
unfounded allegations of illegal and wrongful act without citing any
record. Such comments are unfair and disparaging in nature. The
petitioner, thereafter has stated that the university-respondents have
admitted pension and the other retiral benefits accrued against the
substantive post. The post of registrar is „statutory‟ and „permanent‟
post as per the Tripura University /UGC/MHRD rules but their action has
been commenced on extraneous consideration. Even the petitioner has
seriously criticized the stand taken by the university respondent in
respect of the memorandum dated 11.10.2018, whereby the university
has declared arrears of pension benefit under 7th CPC, payable to the
petitioner. It is not a mistake on the contrary the impugned action
taken by the university-respondent is contrary to the norms. The
petitioner has quite categorically stated that the committee constituted
by the Executive Council has traveled far beyond the terms of reference
and set its own agenda to look into his pension benefits. The said
committee has recommended that all employee joining the university
shall be governed by the Central University Rules, but when the matter
relating to the petitioner is mentioned against the item no. 2, the said
committee took an opposite view. Reference has been made to the
memorandum dated 02.11.2007 (Annexure 27 to the rejoinder) and
19.06.2018 (Annexure 28 to the rejoinder) in order to show how the
scheme for revision of pay has been spelled out for the post of the
Registrar who would superannuate at the age of 62 years. For the last
three years, the petitioner has not been paid his due which had been
calculated by the university-appropriately. But and in the name of
correcting the mistakes, they have altered the assessment as a whole.
The petitioner in the rejoinder has referred to the correspondence
between the Accountant General (Audit) Tripura and the Tripura
University.
[48] The petitioner has also asserted in the rejoinder that his
letters dated 06.04.2019, 20.06.2019 and 26.07.2019 addressed to the
Registrar, Tripura University for release of arrear retirement benefits
were not responded to. On 26.04.2020, the petitioner had asked the
Registrar, Tripura University to supply him the copies of the documents,
papers, reports and rules that formed the basis of the decision taken by
the Executive Council. The petitioner did not get any reply pursuant to
the said letters. In Para 15 of the rejoinder, the petitioner has asserted
having referred to the memorandum dated 02.11.2017 (Annexure 27 to
the writ rejoinder) and the memorandum dated 19.06.2018 (Annexure -
28 to the rejoinder) as follows:
"....it may be stated that, the Respondent University could
not produce any specific rule/order of the Government of
India that mandates the Registrar to „exit‟ from the post
and to treat the period of service rendered by him in the
University as a non-qualifying service for fixation of
pension and other retiral benefits. Attention of the
Hon‟ble Court is drawn to a Memo of the MHRD bearing
No.1-7/2015-U.1(2) dated 02.11.2017 on scheme of
revision of pay for the posts of Registrars etc. wherein the
age of superannuation of the statutory posts of
Registrar/Finance officer/Controller of examinations has
been clearly spelled out to be 62 years of age and another
of the UGC bearing F.No.11-4/2017 (CU) dated
19.06.2018 on revision of pension of retired faculty and
other staff of Central Universities as per 7th CPC."
[Emphasis added]
[49] It would be appropriate at this juncture to reproduce the
relevant part of the correspondence dated 02.11.2017 which the
petitioner has referred as the memorandum (Annexure-27 to the writ
rejoinder)
1. Registrar//finance officer/Controller of Examination
(i) Registrar/Finance Officer/Controller of Examination,
presently in the Pay Band of Rs.37,400-67,000/- with
Grade Pay of Rs.10,000/- shall be placed at Level 14 with
Rationalised Entry Pay of Rs.1,44,200/- as per 7th CPC Pay
Matrix given at Annexure-1 and pay of these officers shall
be fixed at the appropriate cell in the Pay Matrix in
accordance with the guidelines issued by the Ministry of
Finance, based on the recommendation of 7the Central
Pay Commission.
It has been further observed in the said correspondence
dated 02.11.2017 as follows
6. Date of implementation of revised pay and allowance
and payment of arrears:
(i) The revised Pay and revise rates of Dearness
Allowance under this Scheme shall be effective from
01.01.2016.
(ii) Payment of arrears may be released by Central
Universities and Centrally funded Deemed Universities
after the funds for the purpose is provided by the Ministry
of Finance and released to the Universities through the
UGC.
(iii) An undertaking shall be taken from every beneficiary
under this Scheme to the effect that any excess payment
made on account of incorrect fixation of pay in the revised
Pay Bands or grant of inappropriate Pay Band/Academic
Grade Pay or any other excess payment made shall be
adjusted against the future payments due or otherwise to
the beneficiary.
(iv) The revised pay in the relevant Level and Cell with the
applicable allowances including arrears of salary as
mentioned above shall be paid to all eligible beneficiaries
under this Scheme pending issue of Regulations by the
UGC."
[50] The petitioner has further stated that after he had received the
letter dated 08.04.2020 issued by the Registrar, Tripura University
which was sent via email, he had made several representations to the
University-respondent, UGC and MHRD but those authorities did not
make any communication to the petitioner. The petitioner has
categorically stated that no excess payment has been made to him and
as such there is no question of recovery. In this regard, the petitioner
has referred to the Office Memorandum dated 02.03.2016 (Annexure-
29 to the rejoinder) which deals with recovery of wrongful/excess
payment made to the Government servant. It may be pointed out that
the said memorandum was issued for implementing the judgment of the
apex court in State of Punjab vs. Rafiq Masih (White Washer)
delivered in CA No.11527 of 2014. Para 4 of the said judgment as this
court thinks it relevant, is extracted below:
4. The Hon‟ble Supreme Court while observing that 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 has summarized the following
few 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 wrongfuly
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
on 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.
[51] Thereafter the petitioner has made the following submission
having referred to the advertisement of the University of Karnataka
(Annexure-31A to the rejoinder) and the office memorandum dated
11.06.2020 Annexure 31B to the rejoinder) issued by the Ministry of
Public Grievances and Pension where it has been provided inter alia as
under:
"3. Subsequently, vide this Department‟s O.M of even
number dated 28.11.2009, the benefit of counting of past
service under the CCS(Pension) Rules, 1972 was extended
to those employees who were initially appointed before
1.1.2004 in (i) Central Government Departments covered
under Railway Pension Rules or other similar non-
contributing pensionable establishments of Central
Government covered by old Pension Scheme/rules other
than CCS(Pension) Rules, 1972 OR, (ii) State Government
covered under old pension scheme similar to
CCS(Pension) Rules, OR (iii) Central State Autonomous
Body covered by the old pension scheme and who
resigned to join a Central Government Department Office
or a Central Autonomous Body having pensionable
establishment."
[Extracted from the office memorandum dated
11.06.2020]
In the rejoinder, the petitioner has placed the submission in
that context, thus;
"(a) Had I not been put on probation after selection to the
post I would have certainly enquired about my pension
entitlement of pensionary benefits and had I been
apprised that no pension and other retirement benefit
shall accrue on retirement from the post of Registrar, I
would have declined the offer.
(b) Even, before either retaining me in the post of
Registrar or receiving payment pro-rata pension and other
benefits from the University of Calcutta had the University
given me the slightest hint or whispered of non-
entitlement to pension and other retiral benefits in the
post of Registrar, I would have certainly reverted back to
my parent organization.
(c) That, I cannot resist myself from drawing the attention
of the Hon‟ble Court to advertisement for recruitment to
the post of Registrar and Controller of Examination issued
by the Central University of Karnataka in 2018 as an
example to show how specific should it be so that per son
selected do not suffer harassment and humiliation after
retirement like me and to the Office Memo issued by the
DoPPW, Government of India bearing No.28/30/2004-
P&PW(B) dated 11th June, 2020 which further clarifies the
already existing mobility of personnel amongst
Central/State & Autonomous Bodies while working under
Pensionable establishments in view of National Pension
System (NPS)."
[52] The petitioner has asserted that as per the CCS (Pension)
Rules 1972, the petitioner is entitled to the monthly pension of Rs.
92,800/-, but the University- respondents have reduced the pension to
Rs.35,520/-. The petitioner has made a significant statement that the
West Bengal State Aided Universities (Death-cum-Retirement) scheme
2010 has been revised in accordance with the revised pension scheme
the petitioner is entitled to get Rs.98,945/- retrospectively under the
West Bengal State Universities (Death-cum-Retirement) Scheme 2010.
Thus, the petitioner has suffered serious detriment. The respondents
have filed a short additional affidavit in terms of the orders dated
13.01.2021 and 03.02.2021 whereby the university- were directed to
place the decision taken by the Executive Council of the representations
of the petitioner dated 26.04.2020. According to the university-
respondent, the Executive Council in their 35th meeting, held on
29.01.2021, has restated their decision taken in 32nd and 33rd meetings
of the Executive Council. The details of the decision have been shown in
appendix (i). For purpose of reference, the text of Appendix (i) is
reproduced hereunder:
In view of order dated 13.01.2021 of Hon‟ble High Court
of Judicature at Tripura, in Civil Writ Petition No.W.P.(C)
404 of 2020, wherein, the Hon‟ble Court directed the
Executive Council of this University to take final decision
on Shri Om Sadhan Adhikari„s representation dated
26.04.2020 in terms of Section 13(1) of the Tripura
University Act, 2006. Accordingly, the Executive Council
convened its 35th meeting on 29th January 2021 at
University Campus and carefully examined the issue in
detail. It is observed by the Executive council that-
Shri Onkar Sadhan Adhikari served at the Calcutta
University as Assistant Controller of Examinations from
27.07.1988 to 31.08.2001 and then as Controller of
Examination still 11.02.2014. The Calcutta University is a
state university in terms of U.G.C act, where Shri Adhikari
was holding substantive post and his retirement benefits
were governed under West Bengal State aided Universities
(Death cum Retirement) Scheme 2010. The Tripura
University is a Central University, the terms of service,
including pay & allowances and retirement benefits of it
employees/officers are governed mutatis mutandis the
Central Civil Services and the Fundamental Rules.
Under the extant rules of Tripura University as made
under the Tripura University Act 2006, certain top-mot
posts including of the Registrar are tenure post s which
are filled by deputation on tenure contract. All recruitment
rules are approved by the Executive Council of the
University, having a Selection Committee to recommend
appointments per laid down procedures for filing any post,
in conformity with the said Tripura University Act and
rules/regulations made thereunder.
The Tripura University vide its advertisement dated
20.03.2013 invited applications from eligible candidates
for the post of Registrar for fixed tenure of vive years or
till attaining the age of 62 years, whichever was earlier.
Other benchmark and desirable terms and conditions were
laid down for being considered for the said post through
an interview. Shri Adhikari was selected for this tenure
ost of the Registrar through the selection process of this
University and the joining letter was issued ot him. Since
it was a tenure post, he availed of one year lien in his
parent department and after being relieved on 11.02.2014
from there, he took charge of post Registrar at this
University on 12.02.2014 (forenoon).
At his stage, it is important to highlight certain dates and
events, as extracted from records of the University, which
took place in the few succeeding years after his joining
this University. As per details about this date of birth, his
selection under this University‟s terms and his parent
department‟s rules, he was due to superannuate on
30.06.2015 (at attaining 60 years) in his parent
department, though he could continue till 30.06.2017 (at
attainment of 62 years) in Tripura University by virtue of
the tenure post, but taking retirement on 30.06.2015 at
the Calcutta University was must. However, it was found
that he neither took steps to get his one year line
extended beyond 12.02.2015 nor any steps for his
retirement on 30.06.2015 (at Calcutta University) and
instead on the same i.e. 12.02.2015, he got the office
memo issued from this University‟s Joint Registrar
conveying his successful completion of one year probation
and the Vice Chancellor‟s approval on his permanent
absorption in this University‟s services with his past
services of his parent department as qualifying for his
pensionary benefits form this University. He also got
issued letters from this University for transfer of pro rata
pensionary benefits from his parent department and on
basis of such requests from this University his parent
department acceded to accordingly.
In this way, he continued in the post of Registrar of
this University and took retirement from here on
30.06.2017 and his pension and took retirement from here
on 30.06.2017 and his pension and other benefits were
fixed effective 01.07.2017 on Tripura University‟s rule
which were at par with central government‟s Seventh pay
scales. These irregularities came to light and thereafter a
five members committee formed by the University vide
Notification dated 27.11.2017 to look into them. This
Committee after detail examining resolved on 19.11.2018
that Shri Adhikari was not entitled to pensionary benefits
under central University rules and referred the matter
further to the Executive Council of the University, which is
the apex policy and decision making multi-member body
of the University.
Thereupon, the Executive Council of the University in it s
32nd and 33rd meetings (on13.12.2018 and 30.08.2019)
after examining the entire matter in detail, rightly came
conclusion that, being not eligible for absorption in this
University through a fixed tenure post, his pensionary
benefits at Central University rates be stopped and
allowed at such ratea as admissible I Calcutta University.
After being satisfied, the then Vice-Chancellor (Acting)
accepted the report an in pursuance of it, notification
dated 08.04.2020 was issued to him, through the then
Acting Registrar to the effect that his pensions at the
central rates be stopped and instead he be allowed to
draw his pension as per rules of the Calcutta University,
where he held the substantive post. This notification was
followed by Memo dated 27.05.2020 whereunder, his
provisional pension was fixed effective 01.07.2017, as per
the West Bengal State aided Universities (Death cum
retirement) Scheme 2010. Accordingly, his pension for the
month of May 2020 was released on this rate while all
excesses already paid remained to be recovered. This 35th
Executive Council of the University after considering the
entire records, documents and representations dated
26.04.2020 and 27.05.2020 of the Shri Adhikari hereby
resolved that the 32nd and 33rd Executive Council of the
University has rightly resolved that Shri Adhikari being
not eligible for absorption in this University rates be
stopped and allowed at such rates as admissible in
Calcutta University and all excesses already paid to be
recovered."
[53] On reading of the text of the said Appendix (i), it appears
that the university-respondents did not consider the petitioner to be
eligible for „absorption‟ in a fixed tenure post and hence he will not be
entitled to the pensionary benefit as per the Central University Rules.
For benefit of this court, the petitioner has prepared a
calculation sheet on his entitlement under the extent rules of Tripura
University and the University of Calcutta. For reference, the said
calculation is extracted below:
CALCULATION OF PENSIONARY BENEFITS IN RESPECT OF
SRI ONKAR SADHAN ADHIKARI, EX REGISTRAR, TRIPURA UNIVERSITY
GRATUITY
Retirement Presumed Gratuity entitled (in Rs) as Gratuity
Age Retirement per rules of drawn (In
date Rs.)
TU CU
60 30.06.2015 10,00,000 60,00,000 10,00,000
62 30.06.2017 20,00,000 12,00,000
LEAVE SALARY
Retirem Presumed Actual Admissibl Admissible leave Salary (in Rs) as per
ent age Retirement Basic e D.A. rules
date Pay On revised Pay On Revised Pay
TU CU TU CU
60 30.06.2015 73180 82693 155873 x x
62 30.06.2017 77000 104720 1817200 X 2075840 x
PENSION
(Tentative as per CU Rules)
Retiremen Presumed Basic Pension With D.R. Amount M.A. Total in
t Age Retirement effect from Amount in Rs @ in Rs
date in Rs Rs.
60 30.06.2015 01.07.2017 36590 31101 @ 85% 300 67981
01.01.2018 36590 @ 73480
100%
01.01.2019 45737 @ 82627
125%
Revised 94036 x 500 94536
01.01.2020
(x 2.57)
62 30.06.2017 01.07.2017 38500 32725 @85% 300 71525
01.01.2018 38500 77300
@100%
01.01.2019 48125 86925
@125%
Revised 98945 x 500 99445
01.01.2020
(x 2.57)
(Actual as per TU Rules)
62 30.06.2017 Revised 99800 4990 @ 5% 500 105290
01.07.2017
(x 2.57)
01.01.2018 6986 @7% 107286
01.07.2018 8982 @9% 109282
01.01.2019 11976 @12% 112276
01.07.2019 16966 @17% 117266
01.03.2020 99800 [email protected]% 1000 117766
There is no objection as regards the calculation made by the
petitioner for the reason that University- respondent have clearly taken
a stance that petitioner‟s retirement benefits would be reckoned in
terms of the University of Calcutta rules as revised time to time. The
petitioner has parallely shown his entitlement in terms of the rules of
Tripura University.
[54] Mr. T. Debbarma, learned counsel appearing for the
petitioner has added that from the employment notification dated
20.03.2013 (Annexure 1 to the writ petition), the offer of appointment
dated 30.01.2014 (Annexure 3 to the writ petition) and the
memorandum of absorption dated 12.02.2015 (Annexure-6 to the writ
petition). It is apparent that the post of Registrar even though
categorized as the tenure post for five years, but the recruitment rules
the post of the Registrar (Annexure R1 filed by the respondents ) it has
been shown as the permanent post, categorized Group A officer in the
Pay Band 3700 -400 670000 with Grade Pay of Rs.10,000/- But in the
method of recruitment, it has been stated that the post of the registrar
can be filled up by deputation or on contract for tenure upto five years
or till attaining the age of 62 years, whichever is earlier. The post of the
Controller of Examinations carries the similar conditions of service and it
is also a permanent post in the university. Mr. Debbarma, learned
counsel has referred to the definition of the tenure post as made in FR
30 A. Both the provisions of FR 30 A with note is reproduced for
reference.
(30-A) Tenure post means a permanent post which an
individual Government servant may not hold for more than
a limited period.
Note: In case of doubt, the Central Government may
decide whether a particular post is or is not a tenure post.
[55] Mr. Debbarma, learned counsel has referred to Rule 13 of
the CCS(Pension)Rules, 1972 in respect of the qualifying service. The
said rule 13 of CCS(Pension) Rules, 1972 provides that subject to
provision of those rules, qualifying service of a government servant
shall commence from the date he takes charge of the post to which he
is first appointed either substantively or in officiating or temporary
capacity; provided that officiating or temporary service is followed
without interruption by substantive appointment in the same or
another service or post. In this regard, he has also referred to Rule 14
of the CCS (Pension) Rules, 1972. For purpose of reference, the said
rule reads as follows:
14. Conditions subject to which service qualifies
(1) The service of a Government servant shall not
qualify unless his duties any pay are regulated by
the Government, or under conditions determined by
the Government.
(2) For the purposes of sub-rule(1), the expression
„Service‟ means service under the Government and
paid by that Government from the consolidated
Fund of India or a Local Fund administered by that
Government but does not include service in a non-
pensionable establishment unless such service is
treated as qualifying service by that Government.
(3) In the case of a Government servant belonging
to a State Government, who is permanently
transferred to a service or post to which these rules
apply, the continuous service rendered under the
State Government in an officiating or temporary
capacity, if any, followed without interruption by
substantive appointment, or the continuous service
rendered under that Government in an officiating or
temporary capacity, as the case may be, shall
qualify:
Provided that nothing contained in this sub-rule
shall apply to any such Government servant who is
appointed otherwise than by deputation to a service
or post to which these rules apply.
[56] Even though the university-respondents have not raised any
objection as regards the forfeiture of the past service as rendered by
the petitioner in the University of Calcutta, Mr. Debbarma, learned
counsel appearing for the petitioner has referred to Rule 26(2) of the
CCS(Pension) Rules, 1972. The reference in particular has been made
to Rule 26(2) of the CCS (Pension) Rules 1972. The said rule provides
succinctly as follows:
"26.
(1)... *** *** ***
(2) A Resignation shall not entail forfeiture of past service
if it has been submitted to take up, with proper,
permissible, another appointment, whether temporary or
permanent, under the Government where service
qualifies."
[57] Mr. Debbarma, learned counsel has further submitted that
in view of FR 30A the tenure post is a permanent post and as the
petitioner was appointed substantively in the said permanent post, he is
entitled to the retirement benefits under the Central University Rules.
He was also placed under probation even though it was not required by
the recruitment rules. Thereafter, by the memorandum dated
12.02.2015 (Annexure-6 to the writ petition) the petitioner was
confirmed in the service on terminating the probation. The analogy as
adopted by the respondents have jeopardized the petitioner. The
promise they had extended to the petitioner in the offer of appointment
has been violated on burying the statutory requirement.
[58] From the circular of the Ministry of Human Resource
Development (MHRD) dated 02.11.2017 (Annexure 27 to the
rejoinder), it has been clearly understood that the Registrars shall be
placed at Level 14 with raitionalised entry pay of Rs.1,44,200 as per 7th
CPC Pay matrix given at Annexure 1 of that correspondence dated
02.11.2017 and the pay shall be fixed at the appropriate cell in the pay
matrix in accordance with the guidelines issued by the Ministry of
Finance based on the recommendation of 7th Central Pay Commission.
In that correspondence dated 02.11.2017 (Annexure 27 to the
rejoinder) it has been clearly stipulated that the age of superannuation
as at present shall continue to be 62(sixty two) years for Registrars/the
Finance Officer/Controller of Examination. It may be noted at this
juncture that the petitioner has retired on attaining the said age of
superannuation. Thus, he will be entitled to get the revised pay and the
revised pension in terms of the said correspondence dated 02.11.2017.
[59] Mr. B. N. Majumder, learned senior counsel assisted by Mr.
R. Tewari and Mr. Raju Data, learned counsel for the university
respondents has asserted that no pension can be claimed against a
tenure post. Thus, what the Executive Council of Tripura university has
decided in their 32nd and 33erd meetings are legally sound. No
interference of this court is required.
[60] To buttress his contention, Mr. Majumder, leaned counsel
has referred a decision of the apex court in Dr. L.P Agarwal vs Union of
India and Others reported in (1992) 3 SCC 526 where the apex court
had occasion to observe in the context of that case as follows:
"16. We have given our thoughtful consideration to the
reasoning and the conclusions reached the High Court. We
are not inclined to agree with the same. Under the
Recruitment Rules the post of Director of the AIIMS is a
tenure post. The said rules further provide the method of
direct recruitment for filling the post. These service-
conditions make the post of Director a tenure post and as
such the question of superannuating or prematurely
retiring the incumbent of the said post does not arise. The
age of 62 years provided under Proviso to Regulation
30(2) of the Regulations only shows that no employee of
the AIIMS can be given extension beyond that age. This
has obviously been done for maintaining efficiency in the
Institute-Services. We do not agree that simply because
the appointment order of the appellant mentions that "he
is appointed for a period of five years or till he attains the
age of 62 years", the appointment ceases to be to a
tenure-post. Even an outsider (not an existing employee
of the AIIMS) can be selected and appointed to the post of
Director. Can such person be retired prematurely
curtailing his tenure of five years? Obviously not. The
appointment of the appellant was on a Five Years Tenure
but it could be curtailed in the event of his attaining the
age of 62 years before completing the said tenure. The
High Court failed to appreciate the simple alphabet of the
service jurisprudence. The High Court's reasoning is
against the clear and unambiguous language of the
Recruitment Rules. The said rules provide "Tenure for five
years inclusive of one year probation" and the post is to
be filled "by direct recruitment". Tenure means a term
during which an office is held. It is a condition of holding
the office. Once a person is appointed to a tenure post, his
appointment to the said office begins when he joins and it
comes to an end on the completion of the tenure unless
curtailed on justifiable grounds. Such a person does not
superannuate, he only goes out of the office on
completion of his tenure. The question of prematurely
retiring him does not arise. The appointment order gave a
clear tenure to the appellant. The High Court fell into error
in reading "the concept of superannuation" in the said
order. Concept of superannuation which is well
understood in the service jurisprudence is alien to tenure
appointments which have a fixed life span. The appellant
could not therefore have been prematurely retired and
that too without being put on any notice whatsoever.
Under what circumstances can an appointment for a
tenure be cut short is not a matter which requires our
immediate consideration in this case because the order
impugned before the High Court concerned itself only with
premature retirement and the High Court also dealt with
that aspect of the matter only. This Court's judgment in
Dr. Bool, Chand, v. The Chancellor, Kurukshetra
University, AIR 1968 SC 292 relied upon by the High Court
is not on the joint involved in this case. In that case the
tenure of Dr. Bool Chand was curtailed as he was found
unfit to continue as Vice-Chancellor having regard to his
antecedents which were not disclosed by him at the time
of his appointment as Vice-Chancellor. Similarly the
judgment in Dr. D.C.Saxena v. State of Haryana, (1987) 3
SCC 251 has no relevance to the facts of this case."
[Emphasis added]
[61] Mr. Majumder, learned senior counsel has further referred
another decision of the apex court in P. Venugopal vs Union of India
reported in (2008) 5 SCC 1 where the apex court has observed as
follows:
"32. From the above quotation, as made in para 16 of the
said decision of this Court, it is evident that this Court has
laid down that the term of 5 years for a Director of AIIMS
is a permanent term. Service Conditions make the post of
Director a tenure post and as such the question of
superannuating or prematurely retiring the incumbent of
the said post does not arise at all. Even an outsider (not
an existing employee of the AIIMS) can be selected and
appointed to the post of Director. The appointment is for a
tenure to which principle of superannuation does not
apply. "Tenure" means a term during which the office is
held. It is a condition of holding the office. Once a person
is appointed to a tenure post, his appointment to the said
post begins when he joins and it comes to an end on the
completion of tenure unless curtailed on justifiable
grounds. Such a person does not superannuate, he only
goes out of the office on completion of his tenure."
[Emphasis added]
Even though the reference has been made in K.
Anbazhagan and Another vs. Registrar General, High Court of Madras
and Another reported in AIR 2018 SC 3803 but the said decision does
not carry any relevance in the spectrum of the present controversy as
raised in the writ petition.
[62] For appreciation of the submission of the counsel for the
parties, this court at the outset shall revisit to the Statute 6 of the
Tripura University placed in the schedule to the Tripura University Act,
2006. Statute 6 provides, inter alia that the Registrar shall be appointed
by the Executive Council on the recommendation of a Selection
Committee constituted for the purpose and shall be a whole-time
salaried officer of the University. He shall be appointed for a term of five
years and shall be eligible for re-appointment. The emoluments and
other terms and conditions of service of the Registrar shall be such as
may be prescribed by the Executive Council from time to time, provided
that the Registrar shall retire on attaining the age of sixty-two years
and provided further that a Registrar shall, notwithstanding his attaining
the age of sixty two years, continue in office until his successor is
appointed and enters upon his office or until the expiry of a period of
one year, whichever is earlier.
It is thus apparent that according to the Statute the
Registrar is "a whole time salaried officer of the University" even though
a person who is selected on the recommendation of a selection
committee be appointed as the Registrar for a term of five years
provided that Registrar shall retire on attaining the age of 62 years.
[64] The university-respondents have in support of the decision
taken by the Executive Council in its 32nd meeting and confirmed in its
33rd meeting contended that a person appointed in a tenure post does
not superannuate. He only goes out of the office on completion of his
tenure. In the report of the committee, it has been also observed that
according to the fundamental Rules permanent post means a post
carrying pay sanctioned without limit of time whereas the tenure post
means a „permanent post‟ which an individual government servant may
hold a limited period. This observation is mutually destructive
inasmuch as, true it is that, permanent post means a post carrying
definite rate of payment, but in the same breath they have stated that
tenure post means a permanent post which an individual government
servant may not hold for more than a limited period. The committee in
their report and the Executive Council, as it appears, has ignored the
meaning of tenure post as provided under FR 30A by unambiguously
providing that the tenure post means a permanent post, which an
individual government servant may not hold for more than a limited
period. Therefore, the observation that the tenure post cannot be a
permanent post as a person is appointed in those posts for a limited
period.
[65] On reading of FR 30A there cannot be any confusion as to
the nature of the tenure post. That apart the terms and conditions of
the service can be regulated and provided by the appointing authority.
Further, Mr. B. N. Majumder, learned senior counsel appearing for the
university respondents has relied on the decision of the apex court in
Dr. L.P Agarwal vs Union of India and Others (supra) as in that report
a question has been considered by the apex court in respect of the post
of the Director of AIIMS. From the service conditions, the apex court
has found that the post of a Director is a tenure post and as such
question of superannuation or prematurely retiring would not arise. The
apex occur has also observed that even though there is a proviso to the
regulation 30(2) of the Regulations which provides that no employee of
AIIMS can be given extension beyond the age of 62 years. The apex
court has also observed since the appointment order of the person who
was appointed in the post of the Director AIIMS it was provided he was
appointed for a period of 5 years or till he attains the age of 62 years,
the appointment cannot cease to be a tenure post.
[66] It has been also observed by the apex court in the said
report that the concept of the superannuation which is well understood
in the service jurisprudence is alien to the tenure appointment which
has a fix life span. The reliance has also been placed on P Venugopal
(supra) where apex court had occasion to observe that the appointment
when is for a fixed tenure the principal of superannuation does not
apply. Such a person who is appointed in a tenure post does not
superannuate he only goes out of the office on completion of his tenure.
This decision according to this court cannot be deemed as precedent for
all occasion inasmuch as the said observation has been made by the
apex court having due regard to the Statute and condition of service of
the post of the Director AIIMS where no such provision was embodied in
respect of superannuation. A general provision was brought for that
purpose. But in the present case, provision of superannuation is the
essential part of the service contract.
[67] Having studied the recruitment rules as extracted before
and the Statutes 6 [as reproduced] there cannot be any confusion that
the Registrar of Tripura University is a whole time salaried officer of the
University and he "shall retire on attaining the age of 62 years. Proviso
1 below Statute 6(3) is a clause for superannuation having association
with the term of the tenure post. Similar provision was definitely not
available for the post of the Director, AIIMS as could be gathered from
the decision as rendered in Dr. LP Agarwal vs Union of India and Ors
(supra). That apart, certain admitted factual aspects are to be
specifically associated as those could indicate how the said appointment
was to be perceived by the university-respondents. From the
memorandum dated 01.06.2017 as reproduced before it would be
apparent that the petitioner was absorbed „permanently‟ in the post of
the Registrar, Tripura University w.e.f. 12.02.2014 and the University of
Calcutta had suspended his lien on the post of Controller of
Examinations from the same date.
[68] It is further evident from the said memorandum dated
01.06.2017 that "the University of Calcutta has already remitted pro-
rata pension and retirement benefits in respect of the petitioner and all
those amount has been deposited in the account of Tripura university."
Further, it has been observed that the service rendered by the
petitioner in the university of Calcutta w.e.f 27.08.1998 to 11.02.2014
has been counted as qualifying service for pension and other retirement
benefits under rules 13 and 14 read with rule 26(2) of the CCS
(Pension) Rules, 1972.
[69] This court does not find any infirmity in absorbing the
petitioner permanently in the post of Registrar from the date of his
appointment inasmuch as the tenure is a „permanent post‟ but that act
does not dilute the length of tenure. As such, the objection of the
university-respondents in this regard does not get support from their
own Statute and FR 30A. Again it was only natural when someone is
permanently appointed in the post outside the cadre, the lien that was
kept on the former post shall be suspended from the date when the
person is treated to be appointed permanently. The university-
respondents have not disputed the remittance of pro-rata pension and
other retirement benefits in respect of the petitioner and their
acceptance of that amount by depositing in their own account. This
aspect is a vital indicator when the University-respondents have
admitted that they would be responsible for pension that the petitioner
would be entitled to for the period the petitioner had served in the
University of Calcutta and only that period will be treated as the
qualifying service. Therefore, they had accepted the pro-rata pension
and other retirement benefits as remitted by the University of Calcutta.
[70] This court has noted that the Tripura University had
sanctioned the provisional pension by the memorandum dated
27.05.2020 which is prefaced by the reference to the decision of the
Executive Council of Tripura University as adopted in their 32nd and 33rd
meeting. It has been categorically observed that the petitioner has
retired from service on 30.06.2017 and hence the petitioner be
sanctioned the provisional pension as per West Bengal State Aided
universities (Death-cum-retirement) Scheme 2010. Thus, it is not the
question or the substance of objection raised by the university-
respondents whether the petitioner will be entitled to pension after his
retirement on superannuation or not but it is the question according to
the university-respondents whether the petitioner shall get such
pension and retirement benefits as per the Central University Rules or
his pension will be determined under the West Bengal State Aided
University (Death-cum-Retirement) Scheme, 2010. It is to be noted
further that the said memorandum dated 27.05.2020 had been issued
in modification of the earlier memorandum dated 14.06.2017 whereby
the petitioner‟s pension and other retirement benefits were reckoned
and determined under the Central University Rules. There is no dispute
that for the impugned decision, the petitioner‟s basic pension has come
down from Rs.99,800 to Rs.35,520/- as is evident from the
memorandum dated 27.05.2020.
[71] Consequentially, the petitioner was apprised that the excess
amount that he had received would be recovered from him. From the
memorandum dated 11.02.2017, it has surfaced that the service of the
petitioner would be governed by the Tripura University Act, 2006,
Statute, Ordinances and rules of the University. The past service as
rendered by the petitioner in the University of Calcutta had been added
as qualifying service for purpose of pension and other retiral benefits
under Rules 13 and 14 read with rule 26(2) of the CCS(Pension)Rules,
1972. The pension and other retirement benefits were revised in the
terms of the 7th CPC and the petitioner‟s entitlement has been
computed. As per the recommendation of the 7th CPC the petitioner has
received his due arrear pension from July 2017 to July 2018 @
Rs.1,02,405/-. It had been brought to the notice of this court that the
Accountant general (Audit), Tripura had also ratified the said
computation. It may be clarified that the Accountant General (Audit),
Tripura is supposed to verify the computation on the basis of the extant
rules which govern the entitlement of the concerned officer. It has been
brought to the notice of this court further that the pension that has
been determined by the university-respondents have been determined
on the last pay the petitioner received from the University of Calcutta.
Thus, a conundrum has been created by non-explaining the obvious
propositions viz; (i) whether the petitioner‟s service as rendered in the
University of Calcutta is liable to added to his service in the Tripura
University (ii) if Tripura University does not have any liability to pay
pension for the service of the petitioner has rendered as the Registrar,
why the University-respondents have taken the responsibility of
recommending the pension?
[72] This court does not have any dilemma to hold that the
service rendered by the petitioner in the University of Calcutta is liable
to be added with the service that the petitioner has rendered as the
Registrar in Tripura University. If it were the view of the Tripura
University that the petitioner is not entitled to any pension or other
retirement benefits for holding the post of the Registrar, the University-
respondents ought not have accepted the deposit in the form of pro rata
pension and other retirement benefits from the University of Calcutta
and they could not recommend the pension and other retiral benefits as
the appointing authority of the petitioner. It is made absolutely clear
that the decision of the Tripura university to grant pension under the
West Bengal State Aided Universities (Death-cum-Retirement) Scheme,
2010 is grossly illegal as the university-respondents do not have any
jurisdiction whatsoever under the West Bengal State Aided Universities
(Death-cum-Retirement) Scheme, 2010. In no way they can exercise
any authority under the said Scheme. They can apply their jurisdiction
under the Central University Rules. Thus, the University-respondents
have acceded their jurisdiction by directing the pension and other
retirement benefits under the West Bengal State Aided Universities
(Death-cum-Retirement) Scheme 2010.
[73] The allegation that has been made that the petitioner
maneuvered for „hoping an illegal benefit" is not substantiated. On the
contrary when the court has verified the process and the records it has
surfaced that the competent authority has given the due prior sanction
and thus, the allegation as brought against the petitioner is not
sustainable and accordingly it is quashed. There is no dispute so far the
pension and other retirement benefits of an officer in Tripura University
is concerned, determination and payment of those are to be governed
by the rules of Central Government as adopted by the Tripura
University mutatis mutandis. That apart, the petitioner has been
substantively appointed in the Tripura University with effect from
12.02.2014. The other objection as raised by the University-
respondents is that the petitioner had the efficacious remedy. But such
objection cannot be sustained inasmuch as, no provision of the statute
has been placed before this court under which the petitioner had the
right to appeal. Thus, whether an aggrieved person would represent
before the same authority which has passed the order by which the
person is affected, or not, it is absolutely within the preference of that
person who is so affected. That mechanism, even if exercisable, cannot
be treated as existence of efficacious alternative remedy. Thus, the
objection does not have any substance and is accordingly discarded.
[74] Even the respondents have not raised any question as
regards whether the petitioner was appointed by the Executive Council
with the terms and conditions as embodied in the appointment letter
NO.TU/REV/PF/29/ dated 30.01.2014. Thus, the subsequent
observation in respect of placing the petitioner on probation is sort of a
review after the right of the petitioner has taken a change by way of
formal absorption on termination of the said probation. Now the
respondents taking a stand contrary to their own memorandum
No.F.TU/REV/PF/Officer/29/2014 dated 12.02.2015 whereby the
probation was terminated with consequential absorption permanently to
the post of Registrar "for a tenure of five years or till the attainment of
62 years of age from the date of joining the university from 12.02.2014
onwards", the said status cannot be reviewed without affording
reasonable opportunity to the petitioner as a right as consolidated by
efflux of time as vested right. Thus, the unilateral decision of the
University-respondents is visited by absolute arbitrariness and hence on
that account also their decision on the basis of the recommendation of
the committee is unsustainable.
[75] We have read the recommendation of the said committee
meticulously. But there is no observation as regards what would be the
consequence of superannuation clause. Even their reading of FR 30A is
selective in nature, inasmuch as they did not proceed further whether
holding a permanent post even for a limited period can entitle a person
for pension or not. Abruptly in Para 7 of their recommendation, they
have stated that the appointment letter and the memorandum dated
12.02.2015 do not conform the provisions of the Fundamental Rules of
and Tripura University Act, 2006 regarding the appointment to the post
of the Registrar. The said recommendation has been accepted by the
Executive Council without proper appreciation. Consequently, they took
the decision in their 32nd and 33rd meeting held on 13.12.2018 and
30.08.2019. The memorandum dated 27.05.2020 as challenged in this
writ petition is the outcome of the said decision.
[76] Further, the committee as constituted, even though for a
different purpose, had visited the issues relating to the pension and
pensionary benefits of the petitioner and came to the conclusion that
the petitioner is not entitled to pension and other retirement benefits as
her was holding a tenure post (the post of Registrar, Tripura
University). Thus, he was granted the pension and other retiral benefits
in terms of the West Bengal Stated Aided Universities (Death cum
Retirement) Scheme 2010. As this court has already observed that
Tripura University does not have any authority to exercise any power
under the said scheme. As this court has already held the service
rendered by the petitioner under the University of Calcutta is eligible to
be added with the service that the petitioner has rendered in Tripura
University and the entire period of service is liable to be treated as
qualifying service as the petitioner was holding a permanent post in the
University of Calcutta and the petitioner had joined in the permanent
post of the Registrar in Tripura University substantively and without
interruption by substantive appointment in another service of post. Both
the services comes within the meaning of service under the
Government and the incumbent was paid from the consolidated fund of
India or a local fund administered by the government. It is provided
that qualifying service cannot be computed on inclusion of the service in
a non-pensionable establishment. There cannot be any doubt that the
petitioner had been substantively appointed in the post of the Registrar
of Tripura University. Hence, the service rendered by the petitioner
under the University of Calcutta and Tripura University would be treated
as the qualifying service.
[77] As this court has already distinguished that there can be
broadly two situations viz; the tenure post without any superannuation
clause and the tenure post with the superannuation clause. While
framing the statute (Statute 6), the superannuation clause has been
added conscientiously. That is the reason why that has been
accommodated in the recruitment rules. Thus, the inference drawn in
Dr. L.P Aggarwal vs Union of India (supra) cannot be allowed with the
present context. In the said report, the apex court had considered a
case where no superannuation clause was available. A reference was
made only in the employment notification. In that context, the apex
court has held that the concept of superannuation, which is well
understood in the service jurisprudence, is alien to the tenure
appointments which have a fixed life span. The appellant in that case
could not therefore be permitted to retire prematurely and that too
without being put on notice. But, even though the post of the Registrar
is a tenure post for five years but the same is curbed by the
superannuating clause at the age of 62 years. Thus, the ratio of Dr. L P
Agarrwal vs Union of India (supra) cannot be accepted as the universal
principle. In the case of the petitioner, he had to superannuate in view
of the said superannuation clause. As the petitioner has superannuated
from the permanent post of the Registrar (see the statute 6 wherein it
has been categorically provided that the Registrar is a whole time
salaried officer of the University), even though the said post is a tenure
post and hence, the petitioner is entitled to pension and other
retirement benefits under the Central University Rules. It is made
further clear that the petitioner will be entitled to all benefits in terms of
Statute 2(5)(ii) as reproduced before.
[78] As consequence of the above observation, the decision as
taken by the Executive Council in its 32nd and 33rd meetings held on
13.12.2018 and 30.08.2019 so far the pension and other retirement
benefits of the petitioner are concerned, is liable to be interfered with
and as consequence thereof the said decision stands set aside. The
consequential memorandum dated 27.05.2020 is bound to be quashed.
It is ordered accordingly.
As corollary to the above observations, the decision to
recover the purported excess payment [by the memorandum dated
26.06.2020] is interfered with and set aside. The petitioner shall
continue to get his pension as per the Central University Rules and he
shall also be entitled to the revised pension and other retirement
benefits under the 7th CPC including arrears. The University-respondents
shall release the pension and other retirement benefits to the petitioner
within a period of two months from today, else the said, as due amount,
shall carry interest at the rate of 7% per annum from the date when the
amount fell due till the amount is paid.
In terms of the above, this writ petition stands allowed.
There shall be no order as to costs.
JUDGE
Dipak
