1. The petitioner was the Principal of INE School of Medical Education, Kottayam, who retired from service on 31.3.2009. She challenges Exts.P9 and P12 orders by which she was informed that she will not be entitled for grant of pension.
2. The facts necessary for the disposal of the case are the following: The petitioner was initially working in Government service as Nursing Tutor when she joined as such on 20.12.1984. On 30.9.1989 she was promoted as Lecturer and later on 6.1.1994 she was further promoted as Assistant Professor. In November, 1995 she was promoted as Associate Professor under the Directorate of Medical Education, Government of Kerala.
3. The first respondent Mahatma Gandhi University is having a School of Medical Education which is directly being run by it. According to the petitioner, the University repeatedly requested her to join the said School of Medical Education and the University had even promised her that she will be permitted to get her previous services transferred from the Government of Kerala and that all her retirement benefits will be paid by the University. Ultimately, she was pursuaded to join the service of the University and after a selection process she was appointed as per Ext.P1 order dated 17.10.1997 as Professor in the scale of pay of Rs.4500 - 7300. Later, she requested the Government to relieve her and permission was granted by Ext.P2 order passed by the Government, to take up employment as Professor in the School of Medical Education. Accordingly, she joined service on 15.11.1997 in the School of Medical Education. Ext.P3 is the proceedings of the University dated 15.5.2001 informing her that the Vice Chancellor has granted sanction to declare that she has satisfactorily completed the period of probation on the forenoon of 15.11.1998.
4. Ext.P4 is yet another University Order dated 6.2.2004 based on the decision of the Syndicate dated 19.1.2004. The said order shows that the petitioner was absorbed as Principal of the University Institute of Nursing Education, School of Medical Education with effect from 19.1.2004. It also informed her that the Syndicate had resolved to get her previous services transferred from Government of Kerala and her age of retirement is fixed as 60 years. It is also ordered that "she will be granted pensionary benefits without waiting for receipt of pension contribution from Government of Kerala, as a special case."
5. In the School of Medical Education, Gandhi Nagar, an incident of ragging occurred which caused certain trouble to the petitioner also, and according to her, for political reasons. As per the averments in para 8 of the writ petition, a complaint was raised against her that she did not complain to the police after the receipt of complaint of ragging. According to her, a complaint was lodged with the police by her on receipt of the written complaint and she lodged a formal complaint under the Prohibition of Ragging Act, but it was suppressed and she was arrested, ridiculed and harassed. She was arrayed as the 7th accused in the case and accordingly she was placed under suspension with effect from 18.11.2005. Even though a departmental enquiry was instituted, it did not result in any finding against her. The suspension was continued in the light of the pending criminal proceedings. She was also sanctioned subsistence allowance, as evident from Ext.P5. She was discharged from the main offence by order dated 14.8.2007, which was upheld by this Court as evident from the judgment reported in Mariam v. State of Kerala (2008 (3) KLT 104), but was tried with regard to the offence alleged concerning destruction of evidence. Ultimately, she was acquitted by the judgment dated 25.2.2009.
6. Seeking for reinstatement in service and for other reliefs, she
approached this Court by filing W.P.(C) No.10056/2008, wherein by order dated 20.3.2009 in I.A. No.3943/2009, produced as Ext.P6, she was ordered to be reinstated and accordingly she was reinstated in service by Ext.P7 order dated 21.3.2009.
7. The petitioner had requested the University to disburse various amounts towards arrears of salary, Provident Fund, Staff Welfare Fund, Gratuity, pensionary benefits and other retirements, as per request dated 25.3.2009 (Ext.P8). Ext.P8 (a) is another request seeking to sanction retirement benefits and to treat the period of suspension as duty and Ext.P8 (b) is the option form submitted under Rule 28A of Part I K.S.R. Ext.P8(c) is the covering letter showing that she has no liability. It is at that stage Ext.P9 communication was received by her, which according to the petitioner, is pre dated. The same was served in May 2009, but it is dated 20.3.2009. It informed her that the Syndicate resolved to cancel the minutes dated 19.1.2004 granting pensionary benefits as it was taken without Government sanction and as she is working in a self financing institution of the University which is not included in the University Statutes. She filed Ext.P10 representation and thereafter approached this Court by filing this writ petition. Ext.P11 is the order issued by the Government incorporating a Note to Rule 20 of Part III K.S.R., which according to the petitioner, allows reckoning of the service rendered in Government prior to her entry in the University service, for the purpose of granting pensionary benefits. Finally, pending the writ petition, the representation was rejected as per Ext.P12.
8. Heard learned counsel for the petitioner Shri Bechu Kurian Thomas and learned Standing Counsel for the University, Shri T.A. Shaji. On behalf of the University, the Registrar has filed a counter affidavit justifying the orders Exts.P9 and P12.
9. Learned counsel for the petitioner submitted that the orders impugned are totally arbitrary and bad in law. The University cannot unilaterally change the conditions of service, that too on the verge of retirement of the petitioner. The petitioner was working in Government service and was persuaded to accept the job under the University and accordingly the service conditions were prescribed, as evident from Exts.P1 and P4. Ext.P1 evidently states that the appointment will be governed by the Mahatma Gandhi University First Statutes, 1991. She was appointed in the scale of pay of Rs.4500 -7300. Her probation was declared by Ext.P3, with effect from 15.11.1998 and by Ext.P4 she was absorbed as Principal. It is pointed out that the benefits that were granted by Ext.P4 to get the previous service transferred to the University, fixing the age of retirement as 60 and grant of pensionary benefits without waiting for receipt of pension contribution from the Government of Kerala, are binding on both parties and could not have been varied unilaterally to her disadvantage, which has caused adverse civil consequences to her.
10. It is pointed out that Ext.P9 order is not based on any agenda item in the said meeting of the Syndicate with regard to the item decided. It is therefore contended that it was really due to extraneous and political reasons.
11. An analysis of Exts.P1, P3, P4, P9 and P12 orders will show the following: Ext.P1 shows that the petitioner was selected and appointed as a Professor and on condition that her appointment will be governed by the provisions of the Mahatma Gandhi University First Statutes, 1991. The University was satisfied about her service which led to the passing of Ext.P3 declaring that she has satisfactorily completed her probation on 15.11.1998 F.N. Ext.P4 is quite important while judging the claims of the petitioner. It shows that she was "absorbed as Professor" in the 5.29th meeting of the Syndicate held on 19.1.2004. The conditions of such absorption are specified therein. They had resolved to get her previous services transferred from Government of Kerala. Her retirement age has been fixed as 60 years. It was specified that she will be granted pensionary
benefits without waiting for receipt of pension contribution from the Government of Kerala "as a special case. The words "as a special case" are quite important, so as to analyse the stand now taken by the University, contrary to the same. It shows that they wanted to get the service of the petitioner as Principal by offering various service benefits. Ext.P9 will show that the Syndicate was only considering the application to revoke her suspension and to reinstate her in the post. Item 6 therein is the request dated 3.3.2009. The proceedings show that the fact that she was acquitted in S.C. No.79/2007 has been considered. The matter was placed before the Syndicate as per the order of the Vice Chancellor dated 3.3.2009. Therefore, the only item in the agenda before the Syndicate regarding the petitioner was the request for reinstatement. But the Syndicate passed another resolution with regard to non-grant of pensionary benefits, evidently without any agenda item therein. As per item 7 in Ext.P9, they resolved to cancel Ext.P4 decision which incorporated a condition that she will be granted pensionary benefits without waiting for pension contribution from the Government of Kerala, as a special case. The date shown in Ext.P9 is 20.3.2009, even though learned counsel for the petitioner submitted that it was served only in May 2009, obviously after the date of retirement.
12. The counter affidavit of the University justifies the action taken by them stating that the initial appointment of the petitioner was for a temporary period of three years and in the notification it was mentioned that it was likely to be made permanent. Para 6 of the counter affidavit deals with the steps taken to approve the recommendation of the Selection Committee by selecting her, leading to her appointment as well as subsequent absorption as Principal. What is emphasised in the counter affidavit is that the School of Medical Education is a self financing institution and therefore a decision to grant pensionary benefits could have been taken only with the sanction of the Government. Self financing institutions are not included in the University Statutes.
13. Learned Standing Counsel for the University Shri T.A. Shaji submitted that being a self financing institution of the University, it is not included as a statutory department under Chapter 42 of the Statutes. The counter affidavit does not explain why the Government sanction was required and the statutory provision, if any, in that regard has not been explained.
14. It cannot be disputed that the University is an autonomous institution functioning under the University Act. Section 5 of the Act deals with the powers of the University. A reading of Section 5 shows that
previous sanction from the Government is specified in clauses (xii), (xiii) and (xxvii). Clause (xii) deals with the power to fix and regulate, with the previous sanction of the Government, the fees payable in colleges and recognised institutions affiliated to the University. Clause (xiii) deals with the power to regulate the emoluments and pattern and to prescribe the duties and conditions of service of teachers and non-teaching staff in private colleges. Clause (xxvii) deals with the previous sanction of the Government as regards the purpose and amount of loan and subject to such conditions as may be specified by the Government as to security and rate of interest, to borrow any sum of money form the Central Government, any other Government, or any other incorporated body. None of these provisions will apply here.
15. Learned Standing Counsel for the University Shri Shaji submitted that since it is a self financing college, previous sanction of the Government was required to provide pension to the petitioner. Of course, no orders issued by the Government are relied upon in that regard.
16. But if we analyse the orders Exts.P1, P3 and P4, it can be seen that the petitioner was sanctioned a scale of pay initially as per Ext.P1, viz. Rs.4500 - 7300. It was explicitly made clear in the order itself that the appointment will be governed by the Mahatma University First Statutes, 1991. The period of probation was declared as per Ext.P3 which belies the plea now raised in the counter affidavit that the appointment was only for a temporary period. Ext.P4 actually absorbs her in the service as Principal which is quite important. The age of retirement has also been fixed as 60 years. It is only in respect of grant of pensionary benefits, now the stand is taken that previous sanction of the Government was required. If such sanction was not required for fixing the other service conditions, it is unexplainable as to how, for the said part of the order alone, the Syndicate by Ext.P9 felt that Government sanction ought to have been obtained while taking the resolution mentioned in Ext.P4. They fully knew that she came from Government service and the requirement to get the previous service transferred and the manner of transferring the pension contribution from the Government of Kerala. It was granted to her as a "special case". In fact, pensionary benefits were offered without waiting for receipt of such pension contribution also. Therefore, evidently there was unequivocal offer on certain conditions of service which was accepted by the petitioner. Can it be said that on the verge of retirement, such a condition of service provided, could be unilaterally reviewed and she can be denied the benefits of service already offered?
17. The conditions of service thus offered, mutually binds the
parties. The attempt, therefore, now to wriggle out of the same by a mere plea of want of Government sanction, cannot help the respondents. The fact that the said decision was taken long after five years of Ext.P4, is also important as she was due to retire from service on 31.3.2009. Therefore, she was not in a position to bargain for anything at that point of time, even if she wanted to do so. Therefore, the action taken by the University was quite arbitrary. The decision in Ext.P9 was taken by the Syndicate, as rightly pointed out by the learned counsel for the petitioner, without any agenda specifically for the item. The only subject before the Syndicate was the request for reinstatement and the matter was placed as ordered by the Vice Chancellor also. Therefore, such a decision was not warranted at that point of time in that meeting. It is not explained as to how the said matter was placed before the Syndicate, in the counter affidavit. The petitioner alleges extraneous and political reasons for the same. Whatever that be, it cannot be disputed that it was a hasty decision taken, that too without any notice to the petitioner also. When the conditions of service are sought to be changed, that too unilaterally, it is evident that the principles of natural justice ought to have been observed, as adverse civil consequences have been caused to the party concerned. For that reason also, Ext.P9 is invalid. Evidently, the contract of employment is not subsisting after 31.3.2009, as she retired from service.
18. It is submitted by the learned counsel for the petitioner that pending the writ petition, the entire arrears of salary excluding salary for the last month, have been paid. It is stated in the counter affidavit in para 14 that process for disbursing Provident Fund to her has been initiated. The petitioner relied upon Ext.P11 order passed by the Government dated 2.2.2001 adding a Note to Rule 20 of Part III K.S.R. Of course, herein the University by Ext.P4, had decided to grant pension without waiting for receipt of pension contribution from the Government of Kerala. But still they can request the Government to transfer the pension contribution evidently, as she had rendered several years of service with the Government.
19. In that view of the matter, as already found, the conditions of service which was offered and was accepted by the petitioner, could not have been varied to her disadvantage, that too after extracting her service upto the date of retirement. She had accepted the job in the University on such terms and conditions while working in the cadre of Associate Professor in the Directorate of Medical Education. According to her, as Principal, she had six institutions under her administration. Whatever that be, the University is estopped from varying the service conditions which were prescribed at the relevant point of time by the Syndicate on the unsustainable plea that the Government sanction was required which was not obtained. Evidently, no statutory support is sought with regard to the said decision also.
20. For all these reasons, the petitioner is entitled to succeed in this writ petition. Therefore, the writ petition is allowed. Exts.P9 and P12 are quashed. There will be a direction to the University to compute the admissible retirement benefits including DCRG, earned leave surrender, staff welfare fund as well as pay fixation benefits, if any, and the last month's salary and disburse the same within a period of one month from the date of receipt of a copy of this judgment. Appropriate orders will be passed sanctioning pension, for which the University will have to move the Government within one month for transferring the pension contribution and appropriate orders will be passed by the third respondent transferring the pension contribution of the petitioner, to the University within three months. The pension along with arrears will be disbursed to her accordingly. It is made clear that the directions as above are issued in the particular facts of this case. No costs.