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2007(6) Supreme 107
Supreme Court of india
(From Allahabad High Court)
G. P. Mathur & D.K. Jain, JJ.
Visitor & Ors. — Petitioner
versus
K.S. Misra — Respondent
Appeal (civil) 4102 of 2007
Decided on : 06-09-2007
(b)Aligarh Muslim University Statutes – Statute 61(6)(iv) – Sub-clause (c) of Statute 61(6)(iv) provides for the consequences which will ensue in the event of non-exercise of option within the prescribed period of one year – Hence it is not merely directory as held by the High Court, but mandatory. (Para 9 and 10)
(2003) 3 SCC 433 – Relied upon.
(c)Aligarh Muslim University Statutes – Statute 61(6)(iv) – The respondent after proceeding to Yemen had resigned from Benaras Hindu University – After a long gap he joined AMU – Hence it is not at all a case of transfer of an employee as there was no question of consent of the organization (Benaras Hindu University) – Therefore, the provisions of Statute 61(6)(iv) can have no application and the respondent is not entitled for counting of service rendered by him in Benaras Hindu University for the purpose of grant of pensionary benefits in Aligarh Muslim University. (Para 13)
Facts of the case :
The respondent was appointed in the English Department of Benaras Hindu University on 10.8.1960, where he worked till 20.10.1979. He thereafter proceeded abroad and joined University of Yemen. After working there for nearly seven years, he came back to India and joined Shillong University on contract basis from where he resigned and joined Aligarh Muslim University on 14.4.1987. He was permanently absorbed on 1.6.1988 and finally retired from the university on 31.7.1997. His request for counting service rendered in Benaras Hindu University for the purpose of payment of pension was declined by Aligarh Muslim University. The respondent then filed a writ petition in Allahabad High Court, which was allowed.
Findings of the Court :
In the facts and circumstances of the case, respondent is not entitled to any relief.
Result : Appeal allowed.
JUDGMENT
G. P. MATHUR, J.—
1.Leave granted.
2.This appeal, by special leave, has been preferred against the judgment and order dated 10.2.2006 of Allahabad High Court, by which it was directed that the past service rendered by the respondent K.S. Misra in Benaras Hindu University shall be counted for the purpose of payment of pension and other retiral benefits.
3.The respondent was appointed in the English Department of Benaras Hindu University on 10.8.1960, where he worked till 20.10.1979. He thereafter proceeded abroad and joined University of Yemen. After working there for nearly seven years, he came back to India and joined Shillong University on contract basis from where he resigned and joined Aligarh Muslim University on 14.4.1987. He was permanently absorbed on 1.6.1988 and finally retired from the university on 31.7.1997. His request for counting service rendered in Benaras Hindu University for the purpose of payment of pension was declined by Aligarh Muslim University. The respondent then filed a writ petition in Allahabad High Court, which was allowed by the order under challenge and it was directed that on the respondent’s depositing Rs.16,944.47, the amount of gratuity received from Benaras Hindu University and the interest which may have become due till date, the service rendered by him in Benaras Hindu University shall be taken into consideration and shall be counted for the purpose of payment of pension.
4.In order to appreciate the controversy involved, it is necessary to take note of the relevant statute of the University dealing with the subject viz. Statute 61(6)(iv), which is reproduced below :-
“Statute 61(6) (iv) & (v) iv.The University employees who have already been sanctioned or received pro-rata retirement benefits for their past service from their previous employer mentioned in sub-clause (i) and (ii) will have the option either :
a.to retain such benefits and in that event their past service will not qualify for pension or other retirement benefits in the University, or
b.to have the past service counted as qualifying service for pension in the University in which case the pro-rata retirement benefits or their terminal benefits if already received by them will have to be deposited along with interest thereon (at such rate and in such manner as may be prescribed by the Executive Council) from the date of receipt of those benefits till the date of deposit with the University. The right to count previous service shall not revive until the whole amount has been refunded. In other cases where pro-rata retirement benefits have not been drawn the previous authority shall make the payment to the University.
c.The option under this clause shall be exercised within a period of one year. If no option is exercised by such employees within the prescribed time limit they will be deemed to have opted for retention of the benefits already received by them. The option once exercised will be final.
d.Where no terminal/retirement benefits have been received, previous service will be counted as qualifying service for retirement benefits under the University rules only if the previous employer accepts the pension liability for the service in accordance with the principles laid down in this clause. In no case pension contribution/liability shall be accepted from the employee concerned.
v.Provisions of the above amendments will be applicable only where the transfer of the employees from the other organization to the University and vice versa was/is with the consent of that organization including the cases where the individual had secured employment directly on his own volition provided he had applied through proper channel with the permission of the administration/authority concerned.”
5.The Executive Council of the University amended Rule 6A of the General Rules and Regulation of the Council relating to sanction for payment of pension and gratuity on 29.3.1989 and the amended provision reads as under :
“Rule 6A Condonation of
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