Tuesday 7 December 2021

Supreme Court: Pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement

  While we accept the settled position of law that

the rule applicable in matters of determination of

pension is that which exists at the time of

retirement, we are unable to find any legal basis in

the action of the respondent University of

selectively allowing the benefit of Rule 25 (a). The

law, as recognized by this Court in Deoki Nandan

Prasad and Syed Yousuddin Ahmed (supra) unequivocally

states that the pension payable to an employee on

retirement shall be determined on the rules existing

at the time of retirement. However, the law does not

allow the employer to apply the rules differently in

relation to persons who are similarly situated. {Para 32}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6994/2021

DR. G. SADASIVAN NAIR Vs COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY 

Author: NAGARATHNA J.

Dated: 1st December, 2021.

This appeal is directed against the judgment and

order dated 29th August 2019, passed by the Division

Bench of the High Court of Kerala at Ernakulam in

Writ Appeal No. 988/2012, wherein the aforesaid writ

appeal was dismissed.

2. Succinctly stated, the facts in the instant

appeal are that the appellant herein was appointed as

a Lecturer in the School of Legal Studies of the

respondent No. 1 University, namely, Cochin


University of Science and Technology, Kochi, with

effect from 7th September 1984. Prior to such

appointment, the appellant was a lawyer practising in

the District Court and Subordinate Courts at North

Parur, Ernakulam, Kerala for the period between 11th

March 1972 and 2nd February 1980. During the period

between March 1980 and February 1984, the appellant

was pursuing his PhD programme on availing a

University Grants Commission Fellowship. The

appellant resumed practice as an advocate in the

Kerala High Court and Subordinate Courts after

obtaining his PhD, upto the date of his appointment

as a lecturer in the respondent University.

3. On 10th November 2004, the appellant made a

representation before the Registrar of the respondent

University, requesting to reckon his practice of

eight years at the Bar for the purpose of determining

his pensionary benefits payable to him on his

superannuation. In making such a representation

seeking consideration of his practice at the Bar, the

appellant relied on Rule 25 (a), Part III, Kerala

Service Rules (hereinafter referred to as “KSR” for

brevity) which provides that experience at the Bar

could be reckoned as qualifying service for the

purpose of determining superannuation pension,

subject to a condition that only a person who was

recruited into service after attaining the age of 25

years could avail such benefit. In such a situation,

the Rule allows addition of as many years by which a

person exceeds the age of 25 years. The benefit of

additional service shall also be limited to the

actual number of years of practice at the Bar,

subject to a maximum of ten years.

4. The appellant received a letter on 7th January

2006, from the Registrar of the respondent University

declining appellant’s request to reckon his tenure of

practice at the Bar for the purpose of determining

appellant’s superannuation pension. In rejecting the

representation made by the appellant, the Registrar

relied on the proviso to Rule 25 (a), Part III, KSR

which provides that the benefit under Rule 25 (a)

would be available only to such employees who are

recruited when practising at the Bar, to those posts

requiring a qualification in law and experience at

the Bar. Having regard to the aforestated proviso,

the Registrar in his letter dated 7th January 2006,

stated that experience at the Bar was not essential

for appointment to teaching posts at the University

and therefore, the question of reckoning previous

experience at the Bar would not arise in relation to

the appellant.

5. The appellant preferred an appeal petition

against the decision of the Registrar of the

respondent University dated 7th January 2006, before

respondent No. 3 herein, namely, the Chancellor of

Cochin University of Science and Technology,

contending that the Registrar had rejected his

request for reckoning his tenure of practice at the

Bar for the purpose of determining his superannuation

pension, without following the relevant rules in

their proper perspective. The appellant stated in his

appeal petition before the Chancellor – respondent

no.3 that the proviso to Rule 25 (a), Part III, KSR

was inserted in said Rule with effect from 12th

February 1985. The appellant contended that the

proviso could not be made applicable to him as the

same was not in force as on the date on which he

joined service at the respondent University, i.e., 7th

September 1984. The appellant also stated in his

representation that one Dr. Leela Krishnan, who was

similarly situated as the appellant, was granted the

benefits prescribed under Rule 25 (a), Part III, KSR.

6. As there was no response to his representation,

the appellant on the same grounds as those urged in

the appeal petition preferred before respondent No.

3, also preferred a writ petition before the High

Court of Kerala at Ernakulam being W.P. (C) No.

10057/2006. The High Court in its judgment dated 3rd

April 2006 directed respondent No. 3 to decide,

within a period of four months from the date of

receipt of the judgment of the High Court, the

question, as to, whether the the appellant was

entitled to get the benefit under Rule 25(a),

Part III, KSR.

7. In accordance with the High Court’s judgment

dated 3rd April 2006, respondent No. 3 afforded an

opportunity of hearing to the appellant on 12th July

2006 and subsequently dismissed the appeal petition

preferred by the appellant on 7th October, 2006 by

holding that the Government or any other statutory

body has the right to modify the service conditions,

even retrospectively. Respondent No. 3 further held

that since the proviso was introduced in Rule 25 (a)

while the appellant herein was still in service of

the respondent University, the proviso would apply to

him, thereby limiting the benefit of Rule 25 (a),

Part III, KSR.

8. Aggrieved by the dismissal of the appeal petition

by respondent No. 3, the appellant preferred a writ

petition before the High Court of Kerala at

Ernakulam, being W.P. (C) No. 28410/2006. The Single

Judge of the High Court by judgment dated 25th January

2012 dismissed the writ petition preferred on the

ground that it was open to the Government to

unilaterally alter the service conditions of

employees during their service and therefore, what

was applicable was the rule prevailing as on the date

of retirement and not that which existed as on the

date of entering service.

9. During the pendency of the writ petition, the

appellant was to superannuate from service of the

respondent University on 19th October 2006. But by

virtue of Rule 60 (C), Part I, KSR, the appellant was

entitled to continue in service till the last day of

the month in which the academic year ends i.e. until

30th April 2007. The appellant retired on 30th April

2007 from the post of Professor and Director, School

of Legal Studies, Cochin University of Science and

Technology.

10. Aggrieved by the judgment of the Single Judge of

the High Court of Kerala, dated 25th January 2012 in

W.P. (C) No. 28410/2006, the appellant herein

preferred an intra-court writ appeal being W.A. No.

988/2012. The Division Bench of the High Court, in

its judgment dated 29th August 2019, confirmed the

findings of the Single Judge and dismissed the writ

appeal preferred by the appellant. Being aggrieved, a

special leave petition was filed by the appellant

before this Court in which leave was granted on 22nd

November 2021.


11. Before proceeding further, it would be useful to

encapsulate the reasoning of the High Court of Kerala

in dismissing the writ appeal filed by the appellant

herein, as under:

(a) The High Court relied on the decision of this

Court in Deoki Nandan Prasad v. State of

Bihar - AIR 1971 SC 1409, wherein it was held

that the rule applicable in matters of

determination of pension is that which is

existing at the time of retirement.

Similarly, in Government of Andhra Pradesh &

Ors. v. Syed Yousuddin Ahmed - 1997 (7) SCC

241, it was held that the emoluments forming

a part of the pension payable to an employee

shall be determined on the basis of the rule

existing as on the date of retirement.

In light of the above citations of this

Court, the High Court stated that the right

to receive pension arises and crystallises

into a vested right only on the date of

superannuation. The High Court held that the

appellant was entitled to obtain pension in


accordance with the rules existing as on the

date of superannuation.

(b) The High Court found that the argument

advanced on behalf of the appellant herein,

that other Universities require candidates to

possess Bar experience for appointment as

teaching faculty, was irrelevant and

inconsequential.

(c) The High Court held that the Government was

authorised under Article 309 of the

Constitution of India, to make laws

determining service conditions of Government

employees and to amend such laws, even

retrospectively.

12. The writ appeal preferred by the appellant herein

was dismissed by the High Court on making the

aforestated observations.

13. We have heard Dr. K.P. Kylasanatha Pillay,

learned Senior Counsel along with Mr. Sajith P.

Warrier, learned counsel for the appellant, Ms.

Malini Poduval, learned counsel for respondent nos.1


and 2, and Mr. G. Prakash, learned counsel for

respondent-State and perused the material on record.

14. Dr. Pillay, learned Senior Counsel for the

appellant, submitted that the Rule 25 (a), Part III,

KSR as it stood at the time of appointment of the

appellant to the post of lecturer in the School of

Legal Studies of the respondent University, allowed

experience at the Bar to be reckoned as qualifying

service for the purpose of determining superannuation

pension. The said Rule prescribed a condition that

only a person who was recruited into service after

attaining the age of 25 years could claim such

benefit of additional service. The Rule allowed for

addition of as many years by which a person exceeds

the age of 25 years. The benefit of additional

service was limited to the actual number of years of

practice at the Bar, subject to a maximum of ten

years.

15. Learned Senior Counsel for the appellant

contended that the proviso to Rule 25 (a), Part III,

KSR, which limited the scope of the benefit conferred

under Rule 25(a) by stating that such benefit

would only be available to such employees as are

recruited to those posts requiring a qualification in

law and experience at the Bar, was introduced with

effect from 12th February 1985. That the said proviso

could not have been made applicable to the appellant

as it was not in force at the time of his

appointment, i.e., on 7th September 1984. That the

benefit of the Rule could not be denied by applying

the proviso retrospectively, in the absence of

express direction to that effect in the Amendment to

the Rule by which the proviso was inserted in Rule

25(a). It was submitted that the intention of

inserting the proviso in Rule 25 (a) was not to

exclude previously appointed law teachers from the

purview of the said Rule, but to streamline the

condition regarding pension for future appointees. It

was stated that the appellant had acquired a vested

right to his pension when he joined service which

could not have been taken away at the time of his

retirement.

16. Learned Senior Counsel for the appellant

highlighted that Dr. P. Leela Krishnan, former Head

of the Department of Law and Dean, Faculty of Law,

Cochin University of Science and Technology who

superannuated from service of the respondent

University with effect from 30th April 1996, was

granted the benefit of additional service as provided

for under Rule 25 (a), Part III, KSR; that Dr. P.

Leela Krishnan had practiced as an advocate at the

Kerala Bar during the period between 29th March 1962

and 24th June 1969, i.e. for a period of 7 years, 2

months and 26 days. Dr. P. Leela Krishnan served in

the Law Faculty of the respondent University from 24th

June 1969 to 30th April 1996. His retirement benefits

were granted, having regard to the period of service

rendered at the University as well as the period of

practice at the Bar. The respondent University found

his length of qualifying service for the purpose of

grant of pension to be 33 years, 7 months and 4 days,

which included 26 years, 9 months and 2 days of

service at the respondent University and 7 years, 2

months and 26 days of practice at the Bar.

17. In that context, learned counsel for the

appellant contended that the appellant is similarly

situated as Dr. P. Leela Krishnan as they both were

appointed from the Bar before the proviso to Rule 25

(a) came into effect, i.e. before 12th February 1985;

and that they both superannuated after the proviso

was brought into force. However, while the proviso to

Rule 25(a) was applied in relation to the appellant,

thereby denying him the benefit of Rule 25(a), but

the said proviso was not applied in the case of Dr.

P. Leela Krishnan. That the respondent University has

singled out the appellant without any legal basis and

has arbitrarily denied to him the benefit of Rule

25(a), Part III, KSR, which is discriminatory and in

violation of Article 14 of the Constitution of India.

18. As opposed to the aforesaid arguments, Ms.

Poduval, learned counsel for respondent no.1 and 2,

relied on the proviso to Rule 25(a), Part III, KSR

and contended that the benefit under the said Rule

was rightly withheld by the respondent University in

light of the proviso. That the proviso would be


applicable in relation to the appellant as it is

trite law that the rule applicable in the matter of

determination of pension is that which exists at the

time of retirement. In the case of the appellant, the

date of superannuation was 30th April 2007, on which

date the proviso to Rule 25(a) was in force and

therefore it would apply, limiting the benefit of the

Rule.

19. In relation to the appellant’s contention that

other employees of the respondent University who were

similarly situated as the appellant, had been granted

the benefit under Rule 25(a), it was submitted that

the appellant cannot claim such relief relying on an

earlier illegal order. That such a claim based on

negative equality in favour of the appellant was

untenable.

20. It was further submitted on behalf of the

respondents that the appellant made a representation

before the Registrar of the respondent University

after an inordinate delay and had not adhered to the

time limit prescribed under Rule 22C, Part I, KSR,

for making such claim. Rule 22C, Part I, KSR

stipulates that an officer who wishes to get his

prior service counted shall apply for the same within

a period of five years from the date of his entry

into service. Rule 22C also provides that an order

reckoning previous service shall not be issued by the

Competent Authority within a period of less than five

years before the date of retirement on

superannuation.

21. The respondents relied on the aforestated rule

and submitted that the appellant made a

representation before the Registrar of the respondent

University requesting him to reckon appellant’s

practice of eight years at the Bar, only on 10th

November 2004, i.e. over 20 years after his

appointment as a lecturer at the respondent

University. That the claim of the appellant was

rightly not entertained by the authorities of the

respondent University after such an inordinate delay.

22. Learned counsel for respondents urged that the

case of the appellant has been rightly appreciated in

its true perspective, having due regard to the

relevant law, by the High Court in its judgment while

dismissing the appeal preferred by the appellant

herein, which judgment would not call for any

interference in this appeal.

Points for consideration:

23. Having regard to the submissions of the learned

Senior Counsel and learned counsel for the respective

sides, the following points would arise for our

consideration:

(i) Whether the appellant herein is entitled to

the benefit of Rule 25(a), Part III, Kerala

Service Rules?

(ii) Whether the High Court was justified in

dismissing the appeal preferred by the

appellant herein?

(iii) What Order?

24. The fact that the appellant was appointed to the

post of lecturer in the School of Legal Studies of

the respondent University with effect from 7th

September 1984, is not in dispute. The appellant

practised as an Advocate at the District Court and

Subordinate Courts at North Parur, Ernakulam, Kerala

for the period between 11th March 1972 and 2nd February

1980. The appellant sought for reckoning of his

experience at the Bar as qualifying service for the

purpose of determination of superannuation pension,

as provided under Rule 25 (a), Part III, KSR. The

same was denied by the authorities of the respondent

University. During the pendency of litigation in this

regard before the High Court, the appellant retired

from service of the respondent University on

attaining the age of superannuation with effect from

30th April 2007.

25. Learned counsel for the respondents have relied

upon the proviso to Rule 25 (a) of Part III, KSR in

urging that the respondent University rightly denied

the claim of the appellant for reckoning the period

of practice at the Bar. Rule 25 (a) together with the


proviso inserted by way of an Amendment, with effect

from 12th February 1985, is reproduced hereunder:

“25 (a) Persons recruited from the Bar after the

age of 25 years to appointments in Government

service may add to their service qualifying for

superannuation pension (but not for any other

kind of pension) the actual period (not exceeding

ten years) by which their age at the time of

recruitment exceeded 25 years provided that no

employee can claim the benefit of this rule

unless his actual qualifying service at the time

he becomes eligible for superannuation pension is

not less than eight years. This concession is

also subject to the condition that the period

that may be so added shall not at any time exceed

the actual period of the employee's practice at

the Bar. No application will be entertained for

pension on the ground that the appointee did not

get an opportunity for service for the qualifying

period.

Provided that the benefit under this sub-rule

shall be available only to employees who are

recruited when practicing at the Bar to posts

requiring law qualification and experience at the

Bar.”

26. The proviso limits the benefit of the Rule by

restricting its application only to such employees as

are recruited when practicing at the Bar, to those

posts requiring a qualification in law and experience

at the Bar. The respondent University has contended

that since the post of a lecturer to which the

appellant was appointed in 1984, did not require

prior experience at the Bar, the proviso would be

attracted thereby disentitling the appellant of the

benefit under Rule 25(a). Although the proviso was

inserted by way of an amendment, with effect from 12th

February 1985 and was not in force at the time of

appointment of the appellant in 1984, the respondent

University has contended that the rule applicable in

the matter of determination of pension is that which

exists at the time of retirement. That the appellant

superannuated on 30th April 2007, on which date the

proviso to Rule 25(a) was in force and therefore it

would apply, limiting the benefit of the Rule.

27. The appellant brought to our attention that in

the case of one Dr. P. Leela Krishnan, a Professor of

Law who was similarly situated as the appellant

herein, the respondent University duly considered the

period of practice at the Bar as a part of Dr. P.

Leela Krishnan’s qualifying service for the purpose

of determining pension payable on his superannuation.

28. Perusal of extracts from the pension book of Dr.

P. Leela Krishnan, reveals that his experience of

practice at the Bar, of 7 years, 2 months and 26 days

was added to the period of his service at the


University, being 26 years, 9 months and 2 days. The

respondent University in determining his

superannuation pension, considered 33 years, 7 months

and 4 days as the qualifying period of service.

29. No argument has been advanced on behalf of the

respondents as to the manner in which the case of the

appellant is different from that of Dr. P. Leela

Krishnan and on what basis the benefit of Rule 25 (a)

was granted to Dr. P. Leela Krishnan but was withheld

in relation to the appellant.

30. We find that the appellant and Dr. P. Leela

Krishnan were in fact similarly situated. Both these

individuals were appointed as teaching faculty at the

respondent University after practicing as advocates

in various Courts of Kerala. They were both appointed

before the proviso to Rule 25 (a) came into effect,

i.e. before 12th February 1985 and retired after the

said proviso came into force.

31. In the circumstances, we find no valid ground to

sustain the application of the proviso in relation to

the appellant, thereby denying the benefit of Rule


25(a), when the same was not applied in the case of

Dr. P. Leela Krishnan, thereby allowing the benefit

of Rule 25(a).

32. While we accept the settled position of law that

the rule applicable in matters of determination of

pension is that which exists at the time of

retirement, we are unable to find any legal basis in

the action of the respondent University of

selectively allowing the benefit of Rule 25 (a). The

law, as recognized by this Court in Deoki Nandan

Prasad and Syed Yousuddin Ahmed (supra) unequivocally

states that the pension payable to an employee on

retirement shall be determined on the rules existing

at the time of retirement. However, the law does not

allow the employer to apply the rules differently in

relation to persons who are similarly situated.

33. Therefore, we are of the view that if the

respondent University sought to deny the benefit of

Rule 25 (a), in light of the proviso which was

subsequently inserted thereby limiting the benefit of

the Rule, it ought to have done so uniformly. The


proviso could have been made applicable in relation

to all employees who retired from service of the

respondent University following the introduction of

the proviso, i.e. after 12th February 1985. However,

the action of the respondent University of

selectively applying the proviso to Rule 25(a) in

relation to the appellant, while not applying the

said proviso in relation to similarly situated

persons, is arbitrary and therefore illegal. Such

discrimination, which is not based on any reasonable

classification, is violative of all canons of

equality which are enshrined in the Constitution of

India.

34. Hence, in the instant case, the denial of the

benefit under Rule 25 (a), KSR, to the appellant is

arbitrary and not in accordance with law.

Consequently, the appellant is entitled to receive

pension having regard to his total qualifying

service, inclusive of the period of his service at

the respondent University and the period of his

practice as an Advocate in various Courts of Kerala.

35. In view of the aforesaid discussion, we set

aside the judgment of the Division Bench as well as

that of the learned Single Judge of the High Court

dated 29th August 2019 and 3rd April, 2006

respectively and allow the instant appeal.

36. The respondent University is directed to

calculate the amount of pension short paid to the

appellant from the date of his superannuation i.e.

30th April 2007, till date and disburse such amount

together with interest at the rate 5% p.a. till date

of payment in favour of the appellant within a period

of two months from the date of receipt of a copy of

this judgment. It is needless to observe that such

calculation shall be carried out after considering

the period of practice of the appellant as an

advocate at the Bar and the service rendered at the

respondent University.

37. Parties to bear their respective costs.

………………………………………J.

(M.R. SHAH)

…………………………….…..J.

(B.V. NAGARATHNA)

NEW DELHI;

1st December, 2021.


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