Full Judgment Text
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PETITIONER:
RAJASTHAN AGRICULTURAL UNIVERSITY
Vs.
RESPONDENT:
RAM KRISHNA VYAS
DATE OF JUDGMENT: 03/04/1999
BENCH:
Syed Shah Mohammed Quadri S.N.Phukan
JUDGMENT:
S.N.PHUKAN,J
This appeal is directed against the judgment and order
of the Division Bench of the Rajasthan High Court at Jodhpur
dated 12.09.95 passed in Special Appeal No. 572 of 1995.
By the impugned judgment the Division Bench dismissed the
special appeal filed by the present appellant namely
Rajasthan Agricultural University constituted by Rajasthan
Agricultural University, Bikaner Act, 1987. Initially by an
Act Udaipur University was constituted which was renamed as
Mohanlal Sudhadia University. Later Mohanlal Sukhadia
University was bifurcated and present appellant university
was founded by an Act of Legislature.
The respondent herein was an employee of the appellant
university and retired from service on superannuation on 9th
December, 1992. He was granted provisional pension which
was subsequently reduced. Another grievance of the
respondent was that the gratuity was calculated only on the
basic pay instead of calculating on the pay last drawn
including the dearness allowance and adhoc dearness
allowance in accordance with the provisions of relevant
rules. The respondent, therefore, prayed that an
appropriate writ/direction be issued directing the appellant
- university to finalise the retiral benefits such as
pension, gratuity and other retiral dues on the basis of
actual last pay drawn, dearness and ad hoc dearness
allowances. In the counter filed before the High Court by
the present appellant - university the actual date of
retirement was disputed and according to the appellant, the
respondent herein actually retired on 30th November, 1992.
Regarding provisional pension it was urged before the High
Court that provisional pension was granted on the basis of
undertaking given by the respondent that excess benefits, if
any, would be refunded. It was also urged that provisional
pension was found to be more than what was due. Regarding
rules of the university the plea taken before the High Court
was that rules stood amended as per rules of the State
Government and as the Government rules define the emoluments
as basic pay for the purpose of payment of gratuity, no
payment of gratuity on dearness allowance can be allowed.
Various other pleas had been taken and it is not necessary
to state at this stage and we shall deal with those
submissions at the appropriate stage, if necessary.
The learned Single Judge in Writ Petition No. 3242 of
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1993 by order dated 09.03.1995 inter alia was of the view
that the rules regarding the calculation of basic pay in
respect of Government employee would not be applicable in
case of employee working under the university and therefore,
for the purpose of calculation of gratuity of the respondent
who was an employee of university, rules of the university
shall have to be taken into consideration. It was directed
that in terms of the rules of the university while working
out gratuity of the respondent apart from the basic pay,
amount of dearness allowance and ad- hoc dearness allowance
should be counted. Being aggrieved appeal was filed before
the Division Bench which was dismissed as stated above.
We have heard Mr. Altaf Ahmed, learned Addl.
Solicitor General for the appellant and Mr. Pallav
Shishodia, learned counsel for the respondent. We may state
here that after the argument was over written submissions
were filed on behalf of both the parties.
To appreciate the contentions raised before us, we may
quote below relevant portions of rules etc. The notes 1 and
2 of rule 11 of the University of Udaipur (Sukhadia
University) Payment Of Gratuity to Employees Rules, 1979 run
as follows:-
"1. In the case of an University employee retiring on
or after 31.3.1986. the term emolument wherever it occurs
under these rules shall mean the emoluments which he was
drawing immediately before retirement or on death from the
service and include the following for purpose of
calculation:-
a/ Pay as defined in Rule 7(24) of RSR b/ the amount
of dearness allowance, and c/ the amount of ad hoc dearness
allowance as amended from time to time.
2. For the persons retiring prior to 31.03.1986, the
word ’emoluments’ wherever it occurs means emoluments which
an employee was receiving immediately before the date of his
release from University service on superannuation or
retirement after extension in service or termination or
death and includes:-
a/ Basic pay in the time scale; b/ Personal Pay which
is granted in lieu of loss of substantive pay; c/ Special
pay attached to a post; and d/ Dearness pay, if any."
We extract Annexure-C to the writ petition:-
"Minuts of the fourth meeting of the Boards of
Management of the Rajasthan Agricultural University, Bikaner
held on May 20, 1980 at 11.30 A.M. at the Krishi Vigan
Kendra Peschwal Farm, Bikaner. xxx xxx xxx
RAJAU/BOM-4/88-2/47
Considered adoption of Statutes of Sukhadia
University, Udaipur for RAJAU till new Statutes of the
Sukhadia University, Udaipur be adopted till the Statutes
for RAJAU are framed and......"
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We extract Annexure-B to the writ petition:
"Sukhadia University: Udaipur
No.F/Rules/PPS-87/87-II/430 dated 5.3.87.
ORDER In pursuance of Board of Management Resolution
No.15 dated 21.2.87 the Vice Chancellor is pleased to revise
the existing Pay Scales of University employees in
accordance with Rajasthan Civil Services(Revised Pay Scale)
Rules,1987 published in Rajasthan Raj-Patra, Spl. Bulletin,
Part-IV Sub-div. I dated 2.2.87. These revised pay scales
would be applicable to the employees from 1.9.86. The
revised pay scales would not applicable to the employees
getting U.G.C. pay scales......"
We extract Annexure-A to the writ petition:
"Finance 9Gr.2) Department Notification: No.F1(68)
FD(Gr.2)/86 Jaipur dt.2.2.87 Sub: Rajasthan Service Rules:
(Amendment) Rules,1987.
They shall be deemed to have come into force with
effect from 1.9.86.
In the said rules-
7(24). Pay - means the amount drawn monthly by a
Government servant as - (i) the pay other than special pay
or pay granted in view of his personal qualifications, which
has been sanctioned for a post held by him substantively or
in an officiating capacity, or to which he is entitled by
reason of his position in a cadre, and (ii) special pay and
personal pay, and (iii) any other emoluments which may be
specially classed as pay by the Governor."
We extract Annexure-G to the writ petition:
"Rajasthan Agriculture University: Bikaner.
No.FII(3)/RAJAU/C/88/31/39-78 dt.16.06.88
Office Order Sub: Payment of Gratuity to employees
rules, 1970. In pursuance of the Finance Committee
resolution No. 4 dated 20.5.88 and duly approved by the
Board of Management on 20.5.88 , the Vice Chancellor is
pleased to order that the Government of Rajasthan Finance
(Gr.2) Department Notification No.F. 1 (29) FD (Gr.2) 87-I
dated 20.10.87 regarding raising the maximum limit of
death-cum-retirement it Gratuity from Rs. 50,000/- to
Rs.75,000/- may be made applicable to University employees
from 1.9.1986 as per Govt. order referred above."
There is no dispute at the bar regarding position of
the rules and the resolution etc. extracted above. The
short question to be decided in the present appeal is
whether while calculating the total emoluments of the
respondent for the purpose of gratuity in addition to pay as
defined in Rule 7(24) of the Rajasthan Service Rules,
dearness allowance and ad hoc dearness allowance which the
respondent was drawing at the time of the retirement, have
to be added or not? The University being a body corporate
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having perpetual succession has got a separate legal entity
and as such rules framed by the government shall not be
applicable unless specifically adopted by the University in
accordance with the provisions of the Act by which the
University was constituted. From the resolution of the
meeting of the Board of Management of the
appellant-university dated 20th May, 1980 we find that the
appellant-university adopted the statutes of the Sukhadia
University therefore, the University of Udaipur(Sukhadia
University) Payment of Gratuity to Employees Rules, 1979 are
applicable to employees of the appellant-university. As
respondent retired from service after 31.3.1986, note (1) to
the rule 11 is applicable. Therefore, while calculating the
emoluments for the purpose of payment of gratuity the three
clauses namely: (a), (b) and (c) of the said note (1) have
to be applied. Thus, the total emoluments for the purpose
of gratuity of the respondent would include (1) pay as
defined in rule 7(24) of the Rajasthan Services Rules, (2)
amount of dearness allowance and (3) amount of ad hoc
dearness allowance as amended from time to time. According
to Mr. Ahmed, learned Addl. Solicitor General for the
appellant-university, as the Board of Management of the
appellant-university by Resolution No. 31 dated 12.5.1988
had adopted increase in the payment of gratuity to the
employees and the respondent is not entitled to get the
benefit of dearness allowance and adhoc dearness allowance
while calculating total emoluments for the purpose of
granting gratuity. This resolution was formally notified by
the order dated 16.6.88 which was extracted above. On basis
of the above order dated 16.6.88 we have no hesitation to
hold that only maximum limit of the amount of gratuity was
raised from Rs. 50,000/- to Rs. 75,000/- w.e.f 01.09.1986.
Though along with the order of the appellant- university
dated 16.6.88 a copy of the Rajasthan Services (second
amendment) Rules, 1987 was also extracted, by no stress of
imagination it can be said that by the above order, the
University of Udaipur(Sukhadia University) Payment of
Gratuity to Employees Rules, 1979, as adopted by the
appellant-university, were also amended in respect of other
provisions. By that order only limit of gratuity was
increased. Mr. Ahmed has further contended that as the
pay-scales of the appellant-university were revised in terms
of Rajasthan Services (revised pay-scales) Rules, 1987 by an
order dated 05.03.1987 as extracted above, Rajasthan Civil
Services Rules shall apply to all employees of the
appellant-university. Reading of the above order dated
05.03.87 makes it clear that the Board of Management by
Resolution dated 21.02.1987 only revised the pay-scales of
the university employees and did not adopt the Rajasthan
Civil Services(revised pay-scales) Rules, 1987 in toto. As
stated above after the conclusions of oral arguments,
written submissions on behalf of both the parties were
filed. Along with written submissions explanatory note and
resolution of the Board of Management dated 4.12.87 have
been annexed. By this resolution of the Board of Management
it was resolved by the Board that the gratuity rules of
Rajasthan State Government Services (second amendment)
Rules, 1987 with effect from 1.1.86 and modified from time
to time will be followed by the university till separate
service rules are framed. We quote below a paragraph from
the explanatory note submitted to the Board:
"The Rajasthan Agricultural University has also
adopted the Revised Pay Scales, 1987 effective from 1.9.86
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for its employees and also adopted the revised gratuity
Rules in which the amendment has been raised from Rs.
50,000/- to 75,000/- vide order dated 16.6.88, and the
payment of gratuity is also being made accordingly to the
amended rules. But one retired employees Sh. R.K. Vyas,
Lab Assistant has challenged these rules in High Court. The
Hon’ble High Court in its judgment dated 9.3.95 held that
RAU has not adopted GOR Gratuity Rules in its entity in
replacement of M.L.S. University, Udaipur gratuity rules-
70. In view of this, calculation for the purpose of
gratuity shall be governed by notes contained in Rule 11 of
M.L.S. University Gratuity Rules. Thus gratuity shall be
calculated on the basis of Pay+D.A.+Adhoc D.A."
In the written argument, it has been stated that in
view of the above resolution of the Board, the respondent is
not entitled to get the relief claimed. This point was
neither urged before us at the time of arguments and nor
taken as a ground in the special leave petition. Therefore,
we are not inclined to consider the effect of resolution as
it was proposed to take away the vested right of respondent
which was affirmed by the High Court. For the reasons
stated above, we hold that the High Court rightly held that
under rules of the University while calculating total
emoluments of the respondent for the purpose of gratuity not
only the basic pay but also the dearness allowance and ad
hoc dearness allowance have to be taken into consideration.
The present appeal has no merit and accordingly it is
dismissed. Consdering the facts and circumstances of the
case parties are directed to bear their own costs.