IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WA.No. 928 of 2008(G) -------------------------- AGAINST THE JUDGEMENT IN WPC.30098/2006 .................... APPELLANT: PETITIONER --------------------------- DR.T.V.GOPALAN, FORMERLY, PROFESSOR AND HEAD, DEPARTMENT OF TRAINING, PLACEMENT & LINKAGE, NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT, RESIDING AT 33/5487 A, TRICHAMBARAM HOUSE, SUB STATION ROAD, CHEVAYUR, CALICUT - 673 017. BY ADV. SRI.T.P.KELU NAMBIAR (SR.ADVOCATE) SRI.P.G.RAJAGOPALAN SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENTS: RESPONDENTS ----------------------------------- 1. NATIONAL INSTITUTE OF TECHNOLOGY, REPRESENTED BY THE DIRECTOR AND SECRETARY TO THE GOVERNING BODY OF THE NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT - 673 601. 2. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HUMAN RESOURCE DEPARTMENT, DEPARTMENT OF SECONDARY AND HIGHER EDUCATION, SHASTRY BHAVAN, NEW DELHI - 110 001. ADV. SRI.P.J.PHILIP, C.G.C FOR R2 ADV. SRI.MILLU DANDAPANI FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. ------------------------------------------------------------ W.A.NO: 928 of 2008 ----------------------------------------------------------- Dated this the 26th August, 2008. JUDGMENT Koshy, J. Appellant-petitioner was recruited to the National Institute of Technology as Professor with effect from 22.5.1990. He retired on superannuation on 30.6.2005. He wants the benefit of Rule 30 of CCS Pension Rules. The above reads as follows:- “Addition to qualifying service in special circumstances (1) A Government servant who retires from a service or post after the 31st March, 1960, shall be eligible to add to his service qualifying for superannuation pension (but not for any other class of pension) the actual period not exceeding one- fourth of the length of his service or the actual period by which his age at the time of recruitment exceeded twenty five years or a period of five years, whichever is less, if the service or post to which the Government servant is appointed is one---- a) for which post graduate research, or specialist qualification or experience in scientific, technological or professional fields, is essential; and b) to which candidates of more than twenty-five years of age are normally recruited: Provided that this concession shall not be admissible to a Government servant unless his actual qualifying service at the time he quits Government service is not less than ten years: Provided further that this concession shall be admissible only if the Recruitment Rules in respect of the said service or post contain a specific provision that the service or post is one which carries the benefit of this rule.” 2. Petitioner made various representations for adoption of the rule W.A.928/08 2 as it was not adopted by the Board . By Ext.P3 resolution it was adopted. Ext.P3 reads as follows:- “BG.7.15 “Incorporation of Rule 30 of CCS Pension Rules on “addition to qualifying services under special circumstances” (Deferred item No:6.14) The Board considered the above proposal and it was decided that the above provisions under Rule 30 of CCS Pension Rules would be applicable to faculty positions only. It is further clarified that such faculty members who had an M.Tech degree at the time of initial recruitment in the faculty cadre would only be eligible for this benefit on superannuation. This would be applicable in respect of retirements/superannuation from 1.4.2006.” 3. The contentions of the petitioner are three fold. First contention is that the respondents have adopted Rule 30 of the CCS Pension Rules. Benefit of the above Rule 30 was available to all persons who are retiring from the services with effect from 3.1.3.1960. When the rule is adopted by the respondents, a different way cannot be fixed. Respondents should also give the benefit to all persons who retired from service after 31.3.1960. Secondly, it was contended that even if they can fix any date other than 31.3.1960, the fixation of date as 1.4.2006 is arbitrary. There is no reason for fixing 1.4.2006 as the cut off date. Thirdly, it was contended that the rule was adopted by the Board of the first respondent only because of his representation. Denial of benefit of the above adoption of the rule to the petitioner is discriminatory and arbitrary. With regard to the first contention we note that the respondent is not obliged to adopt CCS Pension Rules. It is not governed by CCS Rules, it has its own rules.. But it is free to adopt the provisions of CCS Rules. In Rule 30 itself it is stated that it will be applicable to W.A.928/08 3 other services only if the recruitment rules or service rules contains a similar provisions to adopt the said provision. The Board of the first respondent considered the matter at its meeting on 24.2.2006 and decided that the above rule will be adopted with effect from 1.4.2006. In other words it will be applicable in respect of superannuation on 1.4.2006. We are of the view that since the first respondent is not bound to adopt CCS Rules it cannot be stated that provisions adopted should be adopted from the date on which the rule is adopted in the Central Government Service. The provision of Rule 30 is decided to be adopted in respect of retirement on superannuation from 1.4.2006. In view of second proviso to the CCS Rules itself, it can be seen that the applicability of the rule has to be decided by the establishment concerned. Board decided to adopt it from 1.4.2006 and the employees who retired prior to 1.4.2006 cannot claim the benefit on the basis of the rule. There is no provision of law to insist that in an institution Rule 30 should be adopted from the date mentioned in the CCS Rules when adoption itself was specifically with effect from 1.4.2006. Therefore the Board's resolution cannot be challenged on that ground. With regard to the second ground that fixation of cut off date of 1.4.2006 is arbitrary, it can be seen that in the meeting of the Board on 24.2.2006 the above was adopted. If past cases are considered, it will create financial liability. Here, respondent adopted it from a prospective date, the beginning of the next financial year. That is why it adopted the date from 1.4.2006 by resolution dated 24.2.2006 after the bank's decision. It cannot be W.A.928/08 4 stated that fixation of date is arbitrary. Apex Court in Government of A.P. v. Subbarayudu {2008 (2) KLT 681 (SC)} held that Courts should not normally interfere with the fixation of cut of dates unless it appears to be on the face of it blantantly discriminatory and aribitrary. The Supreme Court also relied on the decision of State of Punjab and others v. Amar Nath Goyal and others {(2005) 6 SCC 754}. With regard to the contention that no reasoning is given in the resolution regarding fixation of cut off date, we are of the opinion that even if no reason is shown, unless it is shown that cut of date is whimsical, the Court cannot interfere in the cut of date fixed. It is true that the petitioner has made representations. Several others also might have represented the matter. But the Board decided the matter and has decided that it should be implemented with effect from the beginning of the next financial year, immediately after the resolution. We cannot state that it is discriminatory or arbitrary. In any event, it does not warrant interference by this Court under Art.226 of the Constitution of India . In the above circumstances we dismiss the writ appeal. J.B.KOSHY Judge THOMAS P. JOSEPH Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: