A minimum of 20 years of qualifying service is required for retiring pension : Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 27th September 2021 W.P.(C) 10222 2021 & CM No. 31509 2021 DR. MUHAMMAD ABULAISH Petitioner Through: Mr. Chandra Shekhar Adv. with Mr. Prashant Shekhar Mr. Ashwani Saini & Mr. Vivek Sharma Advs. JAMIA MILIA ISLAMIA UNIVERSITY Through: Mr. Pritish Sabharwal ASC Respondent HON BLE MR. JUSTICE V. KAMESWAR RAO V. KAMESWAR RAO J.The present petition has been filed by the petitioner with the following prayers: “In view of the facts and circumstances stated herein above it shall be expedient for the ends of justice and equity that this Hon ble Court may graciously be pleased to: a. Issue writ order or direction in the nature of certiorari calling for the record of the petitioner s the orders decisions) dated 21.06.2021 & 27.08.2021 the petitioner s application notice dated 01.06.2021 and 28.06.2021 for Voluntary Retirement and quash the same and further issue writ order or direction in the nature of mandamus commanding process the petitioner s case of Retiral Benefits the respondent W.P10222 2021 Page 1 and other incidental exercise to be performed following the petitioner s voluntary retirement in accordance with law. Pass such other or further orders as this b. Hon ble Court deems fit and proper in facts and circumstances coming to the notice during the pendency this petition.” In substance the petitioner is challenging the rejection of his application notice for voluntary retirement with a consequential prayer that he be granted the retiral benefits. The case of the petitioner as contended by Mr. Chandra Shekhar learned counsel on behalf of the petitioner is that the petitioner joined the respondent University on January 06 2004 pursuant to an appointment letter issued on December 26 2003. At the time of joining the age of the petitioner was 32 years 5 months and 2 days as his date of birth is August 04 1971. On June 01 2021 the petitioner served a notice of three months seeking voluntary retirement on the respondent University. According to Mr. Chandra Shekhar on the said date the petitioner had in all put in 17 years 7 months and 26 days of service. The said request of the petitioner was turned down by the respondent University vide the impugned communication dated June 21 2021 on the ground that the request of the petitioner was examined under Rule 48(A) of CCS Pension Rules 1972and the petitioner did not fulfill the criteria of having qualifying service. It is stated by Mr. Chandra Shekhar that on June 28 2021 the petitioner gave a representation adverting to the fact that the petitioner did not seek voluntary retirement under Rule 48(A) of the Pension Rules as the contents of the petitioner’s letter dated June W.P10222 2021 Page 2 01 2021 clearly discloses that he sought voluntary retirement under Rule 56(k) of the Fundamental Rules and on that basis he sought reconsideration of the respondent’s decision dated June 21 2021. As no action was taken by the University the petitioner approached this Court by way of a writ petition being W.P.(C) 8204 2021 challenging the order dated June 21 2021 with a further prayer that he be relieved w.e.f. August 31 2021. The said writ petition was disposed of by this Court on August 23 2021 directing the respondent to consider the representation of the petitioner dated June 28 2021. According to Mr. Chandra Shekhar it is pursuant thereto that the representation of the petitioner was rejected vide impugned order dated August 27 2021 on two grounds which include that the petitioner did not possess qualifying service of 15 years as required under Rule 56(k) of the FR because the petitioner availed Extraordinary Leave from time to time and the said period is awaiting regularization. Mr. Chandra Shekhar would submit that this ground of the petitioner not having the qualifying service of 15 years is untenable as the petitioner has availed the EOL after due sanction and the same is awaiting regularization. That apart even the stand of the learned counsel for the respondent that the proviso appended to Rule 56(k) of the FR that the petitioner having served South Asian University New Delhi his request could not have been considered till such time he does not serve for a period of one year is also unsustainable as the South W.P10222 2021 Page 3 Asian University is not a Foreign Government for this stipulation to be made applicable. That apart Mr. Chandra Shekhar would contend that Ordinance 5(v) of the Ordinance of the Jamia Millia Islamia University relates to Leave Rules applicable to teachers. Rule 1.1(v) of the Leave Rules defines “completed years of service” to mean continuous service of the specified duration under the University and includes period spent on duty as well as on deputation with Government and leave including EOL unless otherwise provided. According to him EOL is always without pay and allowance. The EOL shall not count for increment except in a case where leave was granted to accept an invitation to a teaching post or fellowship or research cum teaching or an assignment for technical or academic work of importance. In the case of the petitioner he first proceeded on EOL after being duly granted by the Competent Authority for a period between August 27 2007 to February 08 2009. The same was for taking up teaching assignment as Assistant Professor at College of Computer Science King Khalid University Abha Saudi Arabia. The petitioner joined back the respondent University on February 09 2009 much prior to the expiry of the leave period. The Vice Chancellor of the University permitted the petitioner to join before the expiry of the leave period and approved the said period for notional increments w.e.f. February 09 2009. The second spell of EOL was from October 25 2010 to December 23 2012 which was sanctioned by the Competent Authority to take up a teaching assignment as Associate Professor at W.P10222 2021 Page 4 Center of Excellence in Information Assurance King Saud University Saudi Arabia. Upon joining the Vice Chancellor of the University not only permitted the petitioner to resume his duties but also approved and granted notional increment to the petitioner w.e.f. December 24 2012. The third spell of EOL was from February 01 2016 to June 23 2017. This time also the same was availed for taking up the teaching assignment as Associate Professor at the Department of Computer Science of South Asian University New Delhi. It may be stated that subsequently the EOL on deputation was extended upto January 30 2021. Thus the petitioner remained on deputation after sanction of leave for a period between February 01 2016 to January 30 2021. Mr. Chandra Shekhar would submit the pre conditions for applicability of Rule 56(k) of FR are two fold i.e. the Government servant ought to have entered the service before attaining 35 years of age and such Government servant may exercise his option to voluntarily retire from service provided he has attained 50 years of his age. It is clear that a reading of Rule 56(k) of FR does not refer to ‘qualifying service’. 11. Mr. Chandra Shekhar states that the issue relating to the applicability and its pre conditions as against the power authority of the employer has been settled in the case of Tek Chand v. Dile Ram 3 SCC 290 Union of India & Ors. v. Harendralal Bhattacharyya 5 DRJ 310 andUnion of India & Ors. v. Sh. Ved Prakash Sharma W.P.(C) No. 8102 2010 decided on February 15 2011. Mr. Chandra Shekhar states that the respondent could not have rejected the request of the petitioner W.P10222 2021 Page 5 seeking voluntary retirement under Rule 56(k) of FR and also the retiral benefits thereof. On the other hand Mr. Pritish Sabharwal learned counsel for the respondent does not dispute the facts as noted above except that out of the total period of service in JMI as 17 years 7 months and 26 days out of which the petitioner availed the EOL and deputation in the following period: i) From August 27 2007 to February 09 20091 month and 29 days) ii) From October 25 2010 to December 23 2012 From February 01 2016 to January 31 2021 of FR is 15 years. He relies upon a judgment of this Court in the case of K. Lalitha v. Government of NCT of Delhi & Ors. W.P.(C) 7704 2014 decided on August 28 2015. W.P10222 2021 Page 6 Having heard the learned counsel for the parties the issue which arises for consideration is whether the respondent University is justified in passing the impugned order. To appreciate the issue which falls for consideration it is necessary to reproduce the contents of the impugned order as under: “4. As per record Mr. Abulaish was initially appointed as Lecturer on probation basis w.e.f. 06.01.2004. His total period of qualifying service in JMI is 17 years 07 months 26 days out of which he availed EOL and deputation as mentioned below: i. On EOL from 27.08.2007 to 09.02.2009 Worked as Asstt Prof. King Khalid University K.S.A.Worked as Associate Prof. King Saud University KSA 10222 2021 Page 7 age of thirty : five years) and in all other cases after he has attained the age of fifty five. Even though he is fulfilling the criteria of joining Govt. service before 35 years of age and applying VRS after attaining the age of 50 yrs. his 15 years of servicein JMI is not completing due to his non regularized EOL and Deputation period. In the light of the above facts and circumstances the request of Dr. Muhammad Abulaish for Voluntary Retirement under FRSR 56is rejected as he does not fulfill the conditions laid down under the said rule.” It may be stated here though earlier the University has decided the petitioner’s request for voluntary retirement treating it as a notice under Rule 48(A) of the Pension Rules but during the hearing of petition being W.P.(C) 8204 2021 decided on August 23 2021 this Court had directed the respondent University to decide his representation dated June 25 2021 by a speaking order. From the impugned order it is seen that the stand of the respondent University is that the petitioner having availed EOL in three spells totaling 8 years 7 months and 12 days and his net qualifying service being 9 years and 14 days the request of the petitioner is rejected as he does not fulfill the conditions laid down in the said Rules. To answer the issue posed by this Court it is necessary to reproduce the relevant part of Rule 56(k) of FR: “56 (1) Any Government servant may by giving notice of not less than three months in writing to the appropriate authority retire from service after he has attained the age of fifty years if he is in Group ‘A’ or Group ‘B’ service or post and in all other cases after he has attained the age of fifty five years:” W.P10222 2021 Page 8 Rule 56(k) of FR also enables a government servant by giving notice of not less than three months in writing to retire from service if he has attained the age of 50 years if he is in Group A or Group B service or post and has entered the government service before attaining the age of 35 years. There is no dispute that the petitioner had joined the respondent University before he has attained the age of 35 years. It is also not disputed that his request for voluntary retirement was after he has attained the age of 50 years. To that extent even the case of the University is that the petitioner is fulfilling the criteria under Rule 56(k) of FR i.e. he has joined before 35 years and applied for voluntary retirement after the age of 50 years. The primary objection of the University appears to be that he has not completed 15 years of service due to the non regularization of EOL and deputation period. In support of his submission that the authority could not have rejected the request of voluntary retirement Mr. Chandra Shekhar has relied upon the Judgments of the Supreme Court and this Court in Tek Chand Ved Prakash Sharma and Harendralal Bhattacharyya 4 SCC 441 has in Paras 13 & 17 held as under: “13. F. Rule 56 is one of the statutory rules which binds the Government as well as the government servant. The condition of service which is envisaged in Rule 56(c) giving an option in absolute terms to a government servant to voluntarily retire with three months previous notice after he reaches 50 years of age or has completed 25 years of service cannot therefore be equated with a contract of employment as envisaged in Explanation 2 to Rule 119. W.P10222 2021 Page 9 17. The High Court committed an error of law holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F. Rule 56(c). Since the conditions of F. Rule 56(c) are fulfilled in the instant case the appellant must be held to have lawfully retired as notified by him with effect from August 2 1976.” It is not the case of the University that the petitioner was under suspension or departmental proceedings are pending against the petitioner for refusal to accept the request of the petitioner for voluntary retirement. Rather the case of the respondent University is that he has not completed 15 years of qualifying service for being granted the voluntary retirement. Suffice to state there is no requirement in FR 56(k) for a government servant to have 15 years of qualifying service for getting voluntary retirement. I have already spelt out the requirement under FR 56(k). If that be so the petitioner was within his right to seek retirement which has to be accepted by the University except if he is under suspension any disciplinary proceedings are pending against him or if any judicial proceedings are pending which may amount to grave misconduct. It is only the withdrawal of the notice which requires the acceptance of the University. It is not such a case here. Even this court in the case of Harendralal Bhattacharyyahas in Para 20 held as under: “(20) That this view is right is borne out by Dinesh Chandra Sangma v. State of Assam and others:(1978) ILLJ 17 SC. In the Fundamental Rule 56 under consideration in that case the equivalent of sub rule was sub rule 10222 2021 Page 10 Government servant under F.R. 56(c) to voluntarily retire from service by giving the Government three months notice in writing. There is no question nf acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right under F.R. 56(c). Emphasis mine) And it was held that: ‘The High Court committed an error of law in holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F.R. 56 c).” Having said that the petitioner is not only challenging the impugned communication to the extent that his request for voluntary retirement has been rejected his consequential prayer is that he be granted retiral benefits. It is the submission of Mr. Chandra Shekhar that the EOL whenever taken was counted for the purpose of grant of increment. This appears to be because of Ordinance 5(v) of the Ordinance Administrative General) of the JMI on which reliance has been placed by Mr. Chandra Shekhar which states that EOL shall not count for increment except in a case where leave was granted to accept an invitation to a teaching post or fellowship or research cum teaching or an assignment for technical or academic work of importance. There is no dispute that on all the occasions the petitioner has availed EOL for holding a teaching position in Saudi Arabia New Delhi. It is important to state here that in the office order issued to the petitioner while granting the EOL both on August 09 2007 and on April 22 2010 a stipulation was incorporated that he has to give his willingness to remit leave salary pension and CPF contribution GPF subscription himself or through his employer if any during the period of the leave to JMI i.e. the University at the rates to be communicated by the Accounts W.P10222 2021 Page 11 Officer JMI if he wants to get counted his period of leave for pensionary benefits before proceeding on EOL. There is no averment in the writ petition that such a directive was implemented by the petitioner and he or his foreign employer has remitted leave salary pension and CPF contribution GPF subscription to the JMI. In any case I do not think it is necessary to go into the issue of whether the EOL deputation period need to be regularized in the facts. The issue of grant of retiring pension on retirement under FR 56(k) is governed by Rule 36(a) of the pension rules. The same is reproduced as under: “36. Retiring pension A retiring pension shall be granted to a Government servant who retires or is retired in advance of the age of compulsory retirement in accordance with the provisions of[or 48 A] of these rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations and” On the issue of retiring pension this Court in its judgment in the case of K. Lalithaon which reliance has been placed by Mr. Sabharwal by referring to the judgment of the Supreme Court in the case of C. Jacob v. Director of Geology and Mining and Anr. 10 SCC 115 has held even in case of Rule 56(k) of FR a government servant need to have 20 years of qualifying service for availing the benefit of retiring pension. The relevant paras are reproduced as under: “12. The submission of Mr.Trivedi that since there is no requirement under FR 56(k) of FRSR Part I General Rules of a Government servant putting 20 years of service the petitioner is entitled to the benefits of pension is liable to be rejected in view of the judgment W.P10222 2021 Page 12 later of the Supreme Court in C. Jacob s case wherein the Supreme Court was considering the case wherein facts were the petitioner joined service as a Drill Helper in June 1967 in the Regional Mining Cell Trichy in the erstwhile State Geology branch of Department of Industries and Commerce State of Tamil Nadu. His services were terminated in the year 1982. the petitioner gave Nearly eighteen years representations dated May 5 2000 and July 21 2000 to the first respondent requesting that he may be taken back into service. As the enclosure to the said representation was incomplete the first respondent called upon him to send the complete document. Instead of complying with the said request the petitioner approached the Tamil Nadu Administrative Tribunal seeking a direction the first respondent to dispose of his representation. The Administrative Tribunal disposed of the said application without notice to the respondents with a direction to the Director of Geology and Mining first respondent) to consider petitioner s representation and pass an order thereon within four months. The representation was disposed of vide order dated April 9 2002. The matter did not rest there. Further litigation was filed by the petitioner in which the termination of the petitioner was held to be illegal by declaring that the petitioner was deemed to have retired from service on July 18 1982 and directed that the pension be sanctioned from that date and that the entire arrears should be calculated and paid in eight weeks. In the Intra Court appeal the Division Bench held that the petitioner has not completed 20 years of qualifying service on July 18 1982 and therefore he was not entitled to pension. The said order was challenged before the Supreme Court. Two issues were framed by the Supreme Court which included the issue with regard to the common error in assuming that 10 years service entitles a Government Servant of pension under the Pension Rules. The Supreme Court in para 16 has held as under: 16. Rule 33 of TNP Rules provides that a to a retiring pension shall be granted W.P10222 2021 Page 13 government servant who retires or is retired in accordance with the provisions of Rule 42 of the said Rules. Rule 42 of TNP Rules provides that a government servant who under fundamental Rule 56(d) retires voluntarily or is required by the appointing authority to retire in public interest shall be entitled to a retiring pension. corresponding Rule 36 of CCSP Rules which provides that a retiring pension shall be granted to a Government servant who retires or is retired in advance of the age of compulsory retirement in accordance with the provisions of Rules 48 or 48 A of those Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regulations and to a Government servant who on being declared surplus opts for voluntary retirement in accordance with Rule 29 of those Rules). The provision relating to retiring pension makes it clear that a minimum of 20 years qualifying service is required for retiring pension. It does not entitle a government servant to retiring pension on completion of ten years service. Therefore the petitioner is not entitled to retiring pension". 13. From the perusal of the aforesaid conclusion of the Supreme Court wherein the Supreme Court had also referred to Rule 56 of the Fundamental Rules as applicable to the Central Government employees which also includes Rule 56(k) of FRSR Part I on which reliance was placed by Mr. Trivedi and held that the provision relating to retiring pension makes it clear that a minimum of 20 years of qualifying service is required for retiring pension. The said conclusion of the Supreme Court is also based on the reading of the Rule 56 of the Fundamental Rules the submission of Mr.Trivedi needs to be rejected.” In view of my above discussion it must be held even if the petitioner has 15 years of service that would only enable him to apply for voluntary retirement but he shall not be entitled to retiring W.P10222 2021 Page 14 pension for which he must have 20 years of qualifying service which he does not have as it is the own case of the petitioner that he has only put in 17 years 7 months and 26 days. In view of my discussion above I do not see any merit in the petition. The same is dismissed. CM No. 31509 2021 Dismissed as infructuous. SEPTEMBER 27 2021 ak V. KAMESWAR RAO J W.P10222 2021 Page 15 

Summary: A government servant is not entitled to retiring pension on completion of less than 20 years of service. This was held in the judgment passed by a single judge bench comprising HON’BLE MR. JUSTICE V. KAMESWAR RAO, in the matter DR. MUHAMMAD ABULAISH v. JAMIA MILIA ISLAMIA UNIVERSITY [W.P.(C) 10222/2021 &amp; CM No. 31509/2021], dealt with an issue where the petitioner filed a petition challenging the rejection of his application / notice for voluntary retirement, with a consequential prayer that he be granted the retiral benefits. Counsel on behalf of the petitioner is that the petitioner joined the respondent University on January 06, 2004 pursuant to an appointment letter issued on December 26, 2003. At the time of joining, the age of the petitioner was 32 years, 5 months and 2 days as his date of birth is August 04, 1971. The petitioner served a notice of three months seeking voluntary retirement on the respondent University. According to Mr. Chandra Shekhar, on the said date, the petitioner had, in all, put in 17 years, 7 months and 26 days of service. The said request of the petitioner was turned down by the respondent University vide the impugned communication dated June 21, 2021 on the ground that the request of the petitioner was examined under Rule 48(A) of CCS Pension Rules 1972. The petitioner did not fulfil the criteria of having qualifying service. It is stated by Mr. Chandra Shekhar that on June 28, 2021, the petitioner gave a representation adverting to the fact that the petitioner did not seek voluntary retirement under Rule 48(A) of the Pension Rules, as, the contents of the petitioner’s letter dated June clearly discloses that he sought voluntary retirement under Rule 56(k) of the Fundamental Rules and on that basis, he sought reconsideration of the respondent’s decision. Counsel for the respondent that the proviso appended to Rule 56(k) of the FR that the petitioner having served South Asian University, New Delhi, his request could not have been considered till such time, he does not serve for a period of one year, is also unsustainable as the South Asian University is not a Foreign Government for this stipulation to be made applicable. It is not the case of the University that the petitioner was under suspension or departmental proceedings are pending against the petitioner for refusal to accept the request of the petitioner for voluntary retirement. Rather the case of the respondent University is that, he has not completed 15 years of qualifying service for being granted the voluntary retirement. Suffice to state there is no requirement in FR 56(k) for a government servant to have 15 years of qualifying service for getting voluntary retirement. After hearing both the parties The Hon’ble Delhi High Court dismissed the petition even if the petitioner has 15 years of service, that would only enable him to apply for voluntary retirement but he shall not be entitled to retiring pension for which he must have 20 years of qualifying service, which he does not have, as it is the own case of the petitioner that he has only put in 17 years, 7 months and 26 days. Click here to view judgement Judgement reviewed by – Vaishnavi Raman