1994 JTR(SC) 24
1994 AIR(SC) 972 ; 1994 AIR(SCW) 1104 ; 1994 2 APLJ 1 ; 1994 68 FLR 294 ; 1994 1 JT 15 ; 1994 LIC 801 ; 1994 1 LLJ 926 ; 1994 1 LLN 573 ; 1994 2 OLR 120 ; 1994 2 RSJ 690 ; 1994 1 Scale 22 ; 1994 1 SCC 750 ; 1994 SCC(L&S) 566 ; 1994 2 SCT 102 ; 1994 1 SLR 319 ; 1994 1 UJ 269 ; 1994 1 UPLBEC 353 ; 1994 KHC 752
SUPREME COURT OF INDIA
S. C. AGRAWAL AND N. VENKATACHALA, JJ.
Chander Sain, Appellant
Versus
State of Haryana and others, Respondents.
Civil Appeal No. 38 of 1994 (arising out of Spl. Leave Petn. (C) No. 13745 of 1990), D/- 7-1-1994.
Constitution of India,1950 - Article 226 – Employment and Service matter - Service as Director of Physical Education – Retirement - Death-cum-retirement gratuity – pension - Appellant joined service as Director of Physical Education in Dronocharya Sanatan Dharam College, a Government aided college - College was taken over by State with effect from - After take over of college, appellant was absorbed in the service of Government - He retired on attaining age of 58 years - On retirement, he has been paid a sum by way of death-cum-retirement gratuity for period and he is being paid pension at rate per month calculated on basis of service for period - Appellant filed a writ petition under Article 226 of Constitution in High Court of Punjab & Haryana wherein he claimed that he was entitled to continue in service up to age of 60 years and further that he should have been allowed gratuity and pension on basis of entire period of service - Said writ petition of appellant was, however, dismissed by High Court by order dated - Appellant has filed this appeal against said order of High Court - Appellant became an employee of State Government on his absorption in service of Government, he was governed by service rules applicable to employees of Government – Held, appellant did not retire prior to take over of college by State Government but retired after it was so taken over, does not mean that he is not entitled to claim gratuity in respect of period of service rendered by him before college was taken over by State - Appellant is entitled to payment of gratuity computed on basis of entire period of his service covering period of service rendered by him while college was under private management as well as service rendered by him after college was taken over by State Government - In respect of period of service rendered by the appellant while college was under private management, liability of State Government would, however, be restricted to 75% of amount of gratuity payable for that period in view of fact that in respect of aided institutions State Government was contributing towards deficit of salary, gratuity, etc. to extent of 75% of total deficit - Appeal is therefore allowed to extent that appellant is entitled to payment of gratuity to be computed on basis of his entire length of service, inclusive of service rendered by him while college was under private management before it was taken over by State Government - Liability of State Government for gratuity payable for period of service rendered by appellant while college was under private management before it was taken over by State Government would be restricted to extent of 75% only - Appeal allowed.
Constitution of India,1950 - Article 226 – Employment and Service matter - Service as Director of Physical Education – Retirement - Death-cum-retirement gratuity – pension - Appellant joined service as Director of Physical Education in Dronocharya Sanatan Dharam College, a Government aided college - College was taken over by State with effect from - After take over of college, appellant was absorbed in the service of Government - He retired on attaining age of 58 years - On retirement, he has been paid a sum by way of death-cum-retirement gratuity for period and he is being paid pension at rate per month calculated on basis of service for period - Appellant filed a writ petition under Article 226 of Constitution in High Court of Punjab & Haryana wherein he claimed that he was entitled to continue in service up to age of 60 years and further that he should have been allowed gratuity and pension on basis of entire period of service - Said writ petition of appellant was, however, dismissed by High Court by order dated - Appellant has filed this appeal against said order of High Court - Appellant became an employee of State Government on his absorption in service of Government, he was governed by service rules applicable to employees of Government – Held, appellant did not retire prior to take over of college by State Government but retired after it was so taken over, does not mean that he is not entitled to claim gratuity in respect of period of service rendered by him before college was taken over by State - Appellant is entitled to payment of gratuity computed on basis of entire period of his service covering period of service rendered by him while college was under private management as well as service rendered by him after college was taken over by State Government - In respect of period of service rendered by the appellant while college was under private management, liability of State Government would, however, be restricted to 75% of amount of gratuity payable for that period in view of fact that in respect of aided institutions State Government was contributing towards deficit of salary, gratuity, etc. to extent of 75% of total deficit - Appeal is therefore allowed to extent that appellant is entitled to payment of gratuity to be computed on basis of his entire length of service, inclusive of service rendered by him while college was under private management before it was taken over by State Government - Liability of State Government for gratuity payable for period of service rendered by appellant while college was under private management before it was taken over by State Government would be restricted to extent of 75% only - Appeal allowed.
B.S.MALIK, Indu Malhotra, R.K.JAIN, R.K.Khanna, Shirin Jain
Judgment
S. C. AGRAWAL, J. - Heard learned Counsel for the parties.
Special leave granted.
2. The appellant joined service as Director of Physical Education in Dronocharya Sanatan Dharam College, Gurgaon, a Government aided college (hereinafter referred to as the college). The college was taken over by the State of Haryana with effect from January 14, 1980. After the take over of the college, the appellant was absorbed in the service of Government of Haryana. He retired on attaining the age of 58 years on February 1, 1990. On retirement, he has been paid a sum of Rs. l7,500/- by way of death-cum-retirement gratuity for the period from January 14, l980 to January 31, 1990 and he is being paid pension at the rate of Rs. 517/- per month calculated on the basis of the service for the period from January 14, 1980 to January 31, 1990. The appellant filed a writ petition under Article 226 of the Constitution in the High Court of Punjab & Haryana wherein he claimed that he was entitled to continue in service up to the age of 60 years and further that he should have been allowed gratuity and pension on the basis of the entire period of service from August, 1959. The said writ petition of the appellant was, however, dismissed by the High Court by order dated May 30, 1990. The appellant has filed this appeal against the said order of the High Court.
3. The terms and conditions on which the college was taken over by the Government of Haryana are contained in Letter No. 23. 13-79-Edu.I(2) dated December 14, 1979 from the Secretary to Government, Haryana, Education Department. to the Director of Public Instructions, Haryana, Chandigarh.
Para 10 of the said conditions is in the following terms : -
"10: In regard to such member of the staff as are regularly absorbed after completion of the formalities as indicated in sub-para 2(2) above, the conditions for Pension and Provident Fund shall be the same as were made applicable to the teachers of privately managed schools taken over by the Government."
4. Since the appellant became an employee of the State Government on his absorption in the service of the Government of Haryana, he was governed by the service rules applicable to the employees of Government of Haryana. Under the said rules, the age of retirement is 58 years. The appellant cannot, therefore, claim that he could not be retired on his attaining the age of 58 years and should have been allowed to continue up to the age of 60 years, on the ground that the age of retirement for the staff of the college before it was taken over by the Government was 60 years. Similarly in the matter of pension we find that the staff of the college before it was taken over were not entitled to pension but were having provident fund by way of retirement benefit. The appellant is, therefore, entitled to claim provident fund benefit for the period of service rendered by him prior to the taking over of the college by the State, and for the period subsequent to said take over, he is entitled to pension in accordance with the service rules of the State. It is not disputed that the petitioner has received the provident fund benefit in respect of the period of service rendered by him prior to the take over of the college by the State and in respect to the service subsequent to such take over he is receiving pension in accordance with the service rules.
5. The only grievance of the appellant that has been stressed by Shri R. K. Jain during the course of his submission, is with regard to the amount of gratuity that has been paid to the appellant. As mentioned earlier, the appellant has been paid gratuity in respect of the period January 14, 1980 till January 31, 1990, the period after the take over of the college by the State. Shri Jain has submitted that the appellant should have been paid gratuity by taking into account the entire period of his service including the service when the college was under private management. In this context, Shri Jain has pointed out that the, period of his service prior to the take over of the college has been taken into consideration for the purpose of fixation of his pay after his absorption in Government service and it has been urged that the said period should also be taken into account while computing the amount of gratuity payable to the appellant. The submission of Shri Jain is that a number of teachers have been paid gratuity by taking into consideration the period of service rendered by them prior to the take over of the college by the State and specific mention has been made of S/Shri S. B. Kalra and Ayerender Sharma.
6. On behalf of the respondent-State, it has been pointed out that period of service prior to the take over of the college by the State Government could not be taken into account for computing the amount of gratuity payable to the appellant and that gratuity could only be computed on basis of the period of service rendered by him after the take over of the college by the State Government. As regards S/Shri S. B. Kalra and Ayerender Sharma, it has been submitted that both these persons were not appointed by the State Government after the college was taken over and that they had retired prior to January 14, 1980 and they were paid gratuity according to Private College Rules for the service rendered by them under the private management of the college and that the said gratuity was paid by the Government as liabilities of that institution for the reason that the Government used to contribute 75% of the total deficit of the private college relating to salary, gratuity, etc. for the post approved by the Government. It has been stated that the State Government has sanctioned Rs. 13,800/- to Shri S. B. Kalra and Rs. 12,100/- to Shri Ayerender Sharma as 75% amount of gratuity due and payable by the Government.
7. The learned counsel appearing for the State of Haryana has also placed on record Memo No. 3/ l-79-C-II(2) dated March 28, 1979 from the Director of Public Instruction, Haryana to the Presidents Managing Committee and Principals of private colleges containing the decisions taken by the Government on consideration of a Report of the Survey Committee that had been appointed to look into the affairs of private colleges in the State. In para 3 of the said Memo it is stated
"3: The private colleges shall pay gratuity to their employees on the same pattern as is admissible to Government employees. The amount of gratuity shall be taken into consideration while calculating the deficit for the purpose of maintenance grant in the year in which the amount of gratuity is disbursed. This decision shall apply only to cases of employees who retire on or after 1-4-1979."
8. The learned counsel for the respondent-State has urged that the said Memo shows that if the appellant had retired from service before the college was taken over by the State Government, he would have been entitled to gratuity on the basis of the service rendered by him while the college was in private management and the State would have contributed to the extent of 75% towards such gratuity, but since the appellant had not retired till the college was taken over by the State Government, there is no liability of the State Government towards the gratuity payable in respect of the period of service rendered by the appellant prior to its take over by the State Government.
9. We do not find any merit in this contention of the learned counsel for the respondent-State. Para 3 of the Memo dated March 28, 1979 indicates that the employees in private colleges who were to retire on or after 1-4-1979 have to be treated on par with Government employees in the matter of gratuity. The mere fact that the appellant did not retire prior to the take over of the college by the State Government but retired after it was so taken over, does not mean that he is not entitled to claim gratuity in respect of the period of service rendered by him before the college was taken over by the State. If the appellant would have been entitled to payment of gratuity on the basis of the service rendered by him when the college was under private management if he had retired prior to the college being taken over by the State Government, there appears to be no reason why the said period of service of the appellant while the college was under private management should be ignored for the purpose of computing gratuity payable to him. Merely because he retired after the college had been taken over by the State Government that shall not make any difference. The language of para 3 of the Memo dated March 28, 1979 does not support the submission of the learned counsel for the respondent-State that since the appellant retired after the college was taken over by the State Government, gratuity payable to him can only be computed on the basis of the service rendered by him after the college was taken over by the State Government and not for the period of service rendered by him before the college was taken over. Para 3 of the said Memo imposes an obligation on the management of a private college to pay gratuity to the employees. It cannot be construed as denying payment of such gratuity to a class of employees who were subsequently absorbed in Government Service and have retired after such absorption. In our opinion, therefore, the appellant is entitled to payment of gratuity computed on the basis of the entire period of his service covering the period of service rendered by him while the college was under private management as well as service rendered by him after the college was taken over by the State Government. In respect of the period of service rendered by the appellant while the college was under private management, the liability of the State Government would, however, be restricted to 75% of the amount of gratuity payable for that period in view of the fact that in respect of aided institutions the State Government was contributing towards deficit of salary, gratuity, etc. to the extent of 75% of the total deficit.
10. The appeal is, therefore, allowed to the extent that the appellant is entitled to payment of gratuity to be computed on the basis of his entire length of service, inclusive of the service rendered by him while the college was under private management before it was taken over by the State Government. The liability of the State Government for the gratuity payable for the period of service rendered by the appellant while the college was under private management before it was taken over by the State Government on January 14, 1980 would be restricted to the extent of 75% only. After adjusting the amount that has already been paid to the appellant, the respondents are directed to pay the balance amount to the appellant within a period of two months. The judgment of the High Court under appeal is set aside and the writ petition filed by the appellant is allowed accordingly. No order as to costs.
Appeal allowed.
For Citation : AIR 1994 SC 972