LE Correspondent

New Delhi, December 2, 2021: The Supreme Court has directed a University in Kochi to calculate the amount of pension due to a retired Lecturer at its School of Legal Studies after considering the period of his practice as an advocate at the Bar in addition to the service rendered at the University.

Setting aside a 2019 judgement of the Division Bench of the Kerala High Court at Ernakulam, a bench of Justices M.R. Shah and B.V. Nagarathna provided relief to the appellant Lecturer whose request was denied by the Registrar of the Cochin University of Science and Technology, Kochi 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 (KSR) 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.

The appellant had contended that his appeal petition before the University was rejected on the ground that the proviso to Rule 25 (a), Part III, KSR was inserted in the said Rule with effect from 12th February 1985, even though 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 Lecturer also argued that one Dr. Leela Krishnan, who was similarly situated as the appellant, was granted the benefits prescribed under Rule 25 (a), Part III, KSR, even though the same were denied to him.

The apex court, in its order dated December 1, said that perusal of extracts from the pension book of Dr. 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.

“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.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.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),” the order read.

The apex court, while accepting that the settled position of law is that the rule applicable in matters of determination of pension is that which exists at the time of retirement, said “we are unable to find any legal basis in the action of the respondent University of selectively allowing the benefit of Rule 25 (a)”.

“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,” it said.

The bench further said, “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”.

Setting aside the judgment of the Division Bench as well as that of the Single Judge of the High Court dated 29th August 2019 and 3rd April, 2006 respectively, the order written by Justice Nagarathna said, “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”.

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