# Prof. Devi Singh v. I.I.M. Lucknow & Ors

- **Citation:** (2021) 3 ILRA 188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-04
- **Case number:** Service Single No. 18754 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prof-devi-singh-v-i-i-m-lucknow-ors-46913
- **Pages:** 14

## Headnote

A. Constitution of India - Article 14 -
Pension - Payment stopped - Principle
of natural justice - Applicability -
Request of retirement approved with
payment of regular pension - After three
years, payment of pension provisionally
stopped - No opportunity of hearing
afforded - Effect - Held, staying the
pension provisionally after more than
three years since the petitioner was
getting regular pension, without having
any colour of authority to that effect and
even without affording an opportunity of
hearing to the petitioner is patently
illegal, arbitrary and uncalled for. (Para
41 and 43)

B. Civil Law - Central Civil Services
(Pension) Rules, 1972 - Rule 27 and 28
- Worked both on post of Professor and
Director at IIM - Counting of service
tenure for pension - Pre-interrupted
service - Interruption between the two
spells of civil service - Its counting as
qualifying service - Held, in the absence
of indication to the contrary in the
service record, interruption between the
two spells of service shall be treated as
automatically
condoned
and
preinterrupted services to be treated as
qualifying service - Two spells of service
of the petitioner shall be counted for the
pension
-
Madhukar's
case
of
the
Supreme Court followed. (Para 46)

C. Interpretation of Statute - Beneficial
legislation - Liberal interpretation -
Since
the
pension
Rules
are
the
beneficial
legislation,
therefore,
the
interpretation of such rules should be
made liberally, if two interpretations of
said rules are possible. (Para 47)

Writ Petition allowed. (E-1)

Cases relied on :-

## Text

_Characters 0–39,396 of 48,304. This is a partial read: ask again with offset=39396 for what follows._

188 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)03ILR A188
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.03.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 18754 of 2019

Prof. Devi Singh ...Petitioner
Versus
I.I.M. Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Shireesh Kumar

Counsel for the Respondents:
A.S.G., C.S.C.

A. Constitution of India - Article 14 -
Pension - Payment stopped - Principle
of natural justice - Applicability -
Request of retirement approved with
payment of regular pension - After three
years, payment of pension provisionally
stopped - No opportunity of hearing
afforded - Effect - Held, staying the
pension provisionally after more than
three years since the petitioner was
getting regular pension, without having
any colour of authority to that effect and
even without affording an opportunity of
hearing to the petitioner is patently
illegal, arbitrary and uncalled for. (Para
41 and 43)

B. Civil Law - Central Civil Services
(Pension) Rules, 1972 - Rule 27 and 28
- Worked both on post of Professor and
Director at IIM - Counting of service
tenure for pension - Pre-interrupted
service - Interruption between the two
spells of civil service - Its counting as
qualifying service - Held, in the absence
of indication to the contrary in the
service record, interruption between the
two spells of service shall be treated as
automatically
condoned
and
preinterrupted services to be treated as
qualifying service - Two spells of service
of the petitioner shall be counted for the
pension
-
Madhukar's
case
of
the
Supreme Court followed. (Para 46)

C. Interpretation of Statute - Beneficial
legislation - Liberal interpretation -
Since
the
pension
Rules
are
the
beneficial
legislation,
therefore,
the
interpretation of such rules should be
made liberally, if two interpretations of
said rules are possible. (Para 47)

Writ Petition allowed. (E-1)

Cases relied on :-

1. Madhukar Vs St. of Mah., (2014) 15 SCC
565

2. DTC Vs Balvan Singh, AIR 2017, SC 396

3. U.O.I. & ors. Vs Vijay Kumar No. 3989606
P.Ex. Naik reported in (2015) 10 SCC 460

4. P. Venugopal Vs U.O.I. (2008) 5 SCC 1

5. Frome United Breweries Company Ltd. &
anr. Vs Keepers of the Peace and Justice for
Country Borough to Bath; 1926 AC 586

6. St. of Orissa Vs Dr. (Miss) Binapani Dei &
ors. reported in AIR 1967 SC 1269

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Shireesh Kumar, learned
counsel for the petitioner, Sri J.N. Mathur,
learned Senior Advocate assisted by Sri
Anant Tewari, learned counsel for the Indian
Institute
of
Management,
Lucknow
(hereinafter referred to as IIM, Lucknow) and
Sri Sudhanshu Chauhan, learned counsel for
the Union of India.

2. Under challenge is order dated
25.6.2019 passed by the Board of Governors
of IIM, Lucknow as contained in Annexure
no. 19 to this writ petition whereby the
payment of pension of the petitioner has been
3 All. Prof. Devi Singh Vs. I.I.M. Lucknow & Ors.
189
stopped holding him disqualified for the
pension and its arrears.

3. The brief facts of the case are that
IIM, Lucknow invited applications for
appointment to the post of Director, IIM,
Lucknow and after the search by the
competent authorities and with detailed
selection procedure the petitioner was
found suitable for the appointment to the
post of Director, IIM, Lucknow and
accordingly a High Level Committee
recommended
his
name
for
such
appointment with approval from the cabinet
committee
of
the
appointments.
Accordingly, the appointment letter was
issued
on
28.7.2003
appointing
the
petitioner as Director, IIM, Lucknow for
the period of five years. The petitioner
submitted his joining on 25.8.2003.

4. Learned counsel for the petitioner
has submitted that IIM, Lucknow is an
autonomous body which is a registered
society under Societies Registration Act,
1960 and such society has its own
Memorandum of Association and Bye
Laws.

5. On 03.09.2003, the petitioner
submitted an application (Annexure no. 5
to the writ petition) before the Board of
Governors to consider his candidature for
simultaneous appointment as Professor in
the Indian Institute of Management, in line
with the practice prevailing in other
institutes of management. Vide order dated
22.10.2003 (Annexure no. 6 to the writ
petition) Board of Governors of Indian
Institute
of
Management,
Lucknow
approved simultaneous appointment of the
petitioner as Professor IIM, Lucknow.

6. On 24.8.2008, the petitioner
completed the tenure of five years as
Director, IIM, Lucknow and on 31.8.2008
submitted an application (Annexure no. 7
to the writ petition) to the Board of
Governors seeking it's concurrence for his
posting as Professor in IIM, Lucknow,
Noida Campus, as already approved by the
Board of Governors. The petitioner also
exercised his option for Government of
India pension prevailing in IIM at the time
of his joining the institute on 25.8.2003. On
14.10.2003 (Annexure no. 8 to the writ
petition), petitioner was conveyed the
approval of the Board of Governors
acknowledging
the
fact
that
after
relinquishing the charge of Director, IIM,
Lucknow, the petitioner has assumed the
charge of the Professor.

7. On 22.9.2008, petitioner resumed
the charge as Professor in the pay scale of
Rs. 18400-500-22400/- at IIM, Lucknow
Noida Campus, Noida. Notably, the order
dated 14.10.2008 also stated that prior to
resuming the charge, the matter was
referred to the Chairman, Board of
Governors and approval was accorded by
him to the petitioner to resume charge as
Professor at IIM, Lucknow, Noida Campus,
Noida. The order dated 14.10.2008, also
stated that the basic pay of the petitioner as
Professor may be fixed as Rs. 22400/- per
month with effect from 25.8.2008 and the
period from the day he relinquished the
charge as Director and until he resumed
charge as Professor at IIM, Lucknow,
Noida Campus i.e. 25.8.2008 to 21.9.2008
may be treated as grant of earned leave as
per the requisition made by the petitioner
vide his letter dated 22.9.2008 as at the
time of relinquishing the charge as
Director, 150 days earned leave was due at
his credit. No dues certificate obtained
from different departments on relinquishing
charge as Director IIM, Lucknow was also
enclosed.
190 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Sri Shireesh Kumar has, therefore,
submitted that in view of the aforesaid
developments the petitioner continued in the
service of IIM, Lucknow as Professor in
continuation to his initial appointment as
Director w.e.f. 25.8.2003.

9. Further, while the petitioner was
continuing as Professor at IIM, Lucknow, vide
order dated 5.3.2009 (Annexure no. 9 to the
writ petition) he was again appointed as
Director, IIM, Lucknow for a further tenure of
five years, as per the approval granted by the
Government of India and in compliance of the
order dated 5.3.2009, the petitioner resumed the
charge of the post of Director on 9.3.2009.

10. As per Sri Shireesh Kumar before
completion of second term as Director, IIM,
Lucknow
on
18.2.2014,
the
petitioner
submitted an application (Annexure no. CA-2
of the counter affidavit) to the Chairman, Board
of Governors, IIM, Lucknow stating that he had
already attained the age of 61.5 years and as per
the government rules on superannuation he was
eligible to seek retirement from the service with
pensionary benefits on expiry of his present
tenure. The petitioner, therefore, requested for
seeking retirement on superannuation effective
from the date on the relinquishing the charge of
the office of Director.

11. On the application dated 18.2.2014,
approval was granted by the Board of Director
and on relinquishing the charge of the post of
Director,
IIM,
Lucknow
on
15.9.2014,
petitioner was allowed to retire as Professor,
IIM, Lucknow as well, accordingly the
petitioner had completed 11 years and 15 days
of service in the IIM, Lucknow commutatively,
as Director as well as Professor.

12. Sri Shireesh Kumar has further
submitted with vehemence that minimum
qualifying service for pension was 10 years
and since the petitioner had completed 11
years and 15 days as such he was regularly
being paid the monthly pension since his
completion of the term / superannuation
with effect from 16.9.2014.

13. Further, on 3.10.2017 (Annexure
no. 10 to the writ petition), the opposite
party no. 1 passed an order whereby the
pension of the petitioner was provisionally
stayed for the reason that an ongoing AG
Audit had made some adverse observations
on the "process of grant of pension" to the
petitioner. The order dated 3.10.2017 had
been passed without opportunity of hearing
to the petitioner as well as without approval
by the Board of Governors, moreover, on
3.10.2017, there was no report of the audit
team, as the only report of audit team relied
upon by the opposite party no. 1 against the
petitioner is dated 18.12.2017 (Annexure
no. 13 to the writ petition).

14. Sri Shireesh Kumar has submitted
that opposite party no. 1 and 2 in para-4 of
the counter affidavit have admitted that
IIM, Lucknow has not framed any Rules of
its own and adopted the Government of
India Rules. The Central Civil Services
(Pension) Rules, 1972 (hereinafter referred
to as CCS Rules, 1972) do not contain any
provision for provisionally stoppage of
pension.

15. Further, against the order dated
3.10.2017, the petitioner submitted a
representation on 11.10.2017 (Annexure
no. 12 to the writ petition). When no
decision
on
the
representation
was
communicated to the petitioner then he
instituted a Writ Petition No. 27361(SS) of
2017, in this Court which was disposed of
by this Court vide order dated 9.1.2019
(Annexure no. 15 to the writ petition) with
a direction to the opposite party no. 2 to
3 All. Prof. Devi Singh Vs. I.I.M. Lucknow & Ors.
191
take a decision on the representation in the
meeting of the Board of Governors
scheduled on 16.01.2019 and communicate
the decision to the petitioner forthwith.

16. On 28.3.2019 (Annexure no. 17 to
the writ petition), the opposite party no. 1
passed an order whereby the representation
submitted by the petitioner was rejected.
Against the orders dated 03.10.2017 and
28.3.2019, the petitioner instituted another
writ petition no. 12595(SS) of 2019 and
vide order dated 2.5.2019 (Annexure no. 17
to the writ petition), the writ petition no.
12595(SS) of 2019 was disposed off and
the orders dated 3.10.2017 and 28.3.2019
were set aside.

17. Through the order dated 2.5.2019,
this Hon'ble Court had directed the
respondents to pass orders with regard to
grant of pensionary benefits and arrears
thereof in the light of the CCS Rules, 1972.
The petitioner immediately communicated
the order dated 2.5.2019 upon the opposite
parties no. 1 and 2 but instead of taking a
decision as per the CCS Rules, 1972, on
25.6.2019 (Annexure no. 19 to the writ
petition), an order was passed reiterating
the earlier decision dated 3.10.2017 and
28.3.2019 and pension along with its
arrears was denied to the petitioner.

18.

Sri
Shireesh
Kumar
has
strenuously submitted that the order dated
25.6.2019 was based upon a letter dated
22.5.2019 issued by the Government of
India addressed to the opposite party no. 1.
The order dated 25.6.2019 was passed
without application of mind by the Board
of Governors of IIM, Lucknow and pension
along with its arrears was denied to the
petitioner, holding that there was a break of
28 days in the two spell of tenures of the
petitioner as Director. Whereas in absence
of specific indication to the contrary in the
service
book of
the petitioner,
any
interruption cannot be allowed in the
service of the petitioner.

19. Sri Shireesh Kumar has submitted
that the impugned order dated 25.6.2019
has been passed in violation of principles of
natural justice inasmuch as no opportunity
of hearing of any kind whatsoever has been
afforded to the petitioner before passing the
order
dated
25.6.2019.
Besides,
the
impugned order has been passed in
violation of Rule 27 and 28 of the CCS
Rules, 1972. He has also submitted that the
impugned order has been passed violating
the directions being issued by this Court on
2.5.2019. The impugned order is absolutely
non-speaking and unreasoned order. By
means of impugned order the extraneous
material has been taken into account
without application of mind by the
competent authority of IIM, Lucknow.
Further, the impugned order is nothing but
communication of earlier order dated
3.10.2017 and 28.3.2019 which had already
been set aside by this Court vide order
dated 2.5.2019. At last, the impugned order
has been passed despite the fact that CCS
Rules, 1972 do not provide provisional
stoppage of pension.

20. In support of his contention that
the impugned order dated 25.6.2019 has
been passed ignoring Rule 27 and 28 of
CCS Rules, 1972 Sri Shireesh Kumar has
submitted with vehemence that Rule 27 of
the CCS Rules, 1972 provides for effect of
interruption in service and Rule 27(a)
provides that an interruption in the service
of a government servant entails forfeiture
of his past services, except in case of
authorized leave of absence. Further, since
vide order dated 14.10.2003 the period of
service of the petitioner from 25.8.2008 to
192 INDIAN LAW REPORTS ALLAHABAD SERIES
21.9.2008 was regularized, treating this
period to have been spent on leave and this
period was adjusted from 150 days of
earned leave available in the account of the
petitioner as such there was no interruption
in the continued service of the petitioner.

21. Rule 28 of the Rules of 1972
provides for continuation of interruption in
service and Rule 28(a) provides that in
absence of a specific indication to the
contrary in the service book an interruption
between two spells of civil service rendered
by a government servant under Government
shall be treated as automatically condoned
and the pre-interruption service be treated as
qualifying service. Rule 28(b) provides
nothing in clause (a) shall apply to
interruption caused by the resignation,
dismissal or removal from service or for
participation in strike ( not applicable in the
case of the petitioner). Rule 28(c) provides
that the period of interruption referred to in
clause (a) shall not count as qualifying
service meaning thereby that the period of 28
days from 25.08.2008 to 21.9.2008 would not
have been counted as qualifying service for
the petitioner but on a reading of Rule 28(c)
with Rule 27(1)(a) shows that on sanction of
leave for this period even this period of 28
days was to be counted as qualifying service
for the petitioner.

22. As per Sri Shireesh Kumar even if it
is presumed that there is an interruption of 28
days between two spells of the services of the
petitioner still the petitioner has a service of
10 years 11 months and 18 days which is
more than 10 years, therefore, he is qualified
for pension. This statutory provision is not
considered in the order dated 25.6.2019.

23. The period from 25.8.2008 to
21.9.2008 is being treated interruption in
service by the opposite parties despite the fact
that there is no specific indication to the
contrary in the service book of the petitioner
as such as per the law laid down by the
Hon'ble Supreme Court in the case of
Madhukar vs. State of Maharashtra,
2014(15) SCC 565 and DTC vs. Balvan
Singh, AIR 2017, SC 396, this period should
be treated as automatically condoned and the
pre-interruption service to be treated as
qualifying service. Para 11 to 15 of the
aforesaid judgment is as under :

11. Rule 46 of the Rules, 1982
relates to forfeiture of service on resignation.
Under Rule 46(1) "resignation from a service
or a post entails forfeiture of past services".
Sub rule (4) of Rule 46 deals with the cases
where the resignation shall not entail forfeiture
of past services. But the said Rule 46 is not
applicable to the appellant as he neither
claimed the benefit of pension under the said
Rules nor he was paid pension in terms of the
said Rules.

12. As per paragraph 3 of
Resolution dated 11.03.1992 the benefit of
previous service by condoning break in service
can be granted only if there is compliance of
conditions contained in Rule 48(1) of the
Rules, 1982, which reads as follows:-

"48. Condonation of interruption in
service.-(1)The appointing authority may, by
order, condone interruptions in the service of a
Government servant:

Provided that-

a) -

b) the interruptions have been
caused by reasons beyond the control of the
Government servant;

c) the total service pensionary
benefit in respect of which will be lost, is not
less than five years duration, excluding one or
two interruptions, if any; and

d) the interruption including two or
more interruptions, if any, does not exceed one
year.
3 All. Prof. Devi Singh Vs. I.I.M. Lucknow & Ors.
193

(2) The period of interruption
condoned under sub-rule (1) shall not count as
qualifying service.

(3) In the absence of a specific
indication to the contrary in the service record,
an interruption between two spells of civil
service rendered by a Government servant
under Government, shall be treated as
automatically
condoned
and
the
preinterruption service treated as qualifying
service.

(4) Nothing in sub-rule (3) shall
apply to interruption caused by resignation,
dismissal or removal from service or for
participation in a strike.

(5) The period of interruption
referred to in sub-rule (3) shall not count as
qualifying service."

As per Rule 48 (3) in the absence
of a specific indication to the contrary in
the service record, an interruption between
two spells of civil service rendered by a
Government servant under Government,
shall be treated as automatically condoned
and the pre-interruption services to be
treated as qualifying service.

13. In the case of the appellant,
there is notional break in service. He
resigned from the Government service on
18.07.1960 and joined the post of Lecturer
in Hislop College, Nagpur on the same day
i.e. 18.07.1960. Further, higher authorities
have recommended to add the earlier
period of service for determination of
pensionary benefit. Being so, in absence of
a specific direction to the contrary in the
service record, the interruption between
two spells of service rendered by the
appellant under the Government shall be
treated as automatically condoned; the
earlier service rendered by appellant is to
be counted towards qualifying service.

14. In view of the provisions of
Rule 48 read with Government Resolution
dated 11.3.1992, we hold that the appellant
is entitled for counting the service earlier
rendered between 21.06.1950 to 17.07.1960
for determination of pension. The High
Court
failed
to
notice
the
relevant
provisions and wrongly held that the
appellant is not entitled to get the benefits
of his past services in view of Rule 46(1) of
the Rules, 1982, which is not applicable in
the case of the appellant. The High Court
also erred in rejecting the claim on the
ground of delay and failed to notice that the
cause of action for grant of pension arises
every month. In the present case what we
find
is
that
the
appellant
made
representation at an appropriate stage and
such request was accepted by respondent
No.4, the Administrative Officer, Higher
Education, Nagpur who recommended
respondent No.5, the Senior Accounts
Officer,
Accountant
General-II,
Maharashtra to count the period and to
take into consideration the fact that the
appellant has rendered more than 33 years
of service. Even the Joint Director by his
letter dated 30.12.2005 recommended to
respondent No.2, Director, Higher and
Technical Education, Pune to count the
period from 21.06.1950 to 18.07.1960.
Thereby, the appellant also explained the
delay in moving the High Court.

15. For the reasons aforesaid, we
set aside the impugned judgment and order
dated 23.04.2012 passed by the Division
Bench of High Court of Judicature at
Bombay, Nagpur Bench, Nagpur and direct
the respondents to count the period of
service rendered by the appellant from
21.06.1950 to 18.07.1960 for the purpose
of computation of pension and pay the
consequential benefits including arrears of
pension within three months from the date
of
this
judgment.
On
failure,
the
respondents shall be liable to pay interest
@ of 8% from the date of filing of the writ
petition till the amount is paid."
194 INDIAN LAW REPORTS ALLAHABAD SERIES

[Emphasis Supplied]

24. As per Sri Shireesh Kumar similar
provisions have been dealt with by the
Hon'ble Apex Court in re: Madhukar
(supra), therefore, the controversy in
question may be decided in terms of the
aforesaid dictum of Hon'ble Apex Court.

25. In support of his further
contention to the effect that the impugned
order has been passed in violation of
principles
of
natural
justice
as
no
opportunity of defense has been provided
to the petitioner, Sri Shireesh Kumar has
cited the dictum of Hon'ble Supreme Court
in re: DTC vs. Balvan Singh, AIR 2017,
SC 396 referring para 5 thereof as under :

"5. Prima facie, we are of the
view that no adverse effect can be
permitted upon the right of the employee to
receive pension unless he was given notice
by appropriate entry in the service book or
through other notice that his absence will
be treated as unauthorised absence and
will not be counted towards qualifying
service for pension. In absence of such
notice, after the respondent-employee has
taken voluntary retirement under VRS and
that too on the ground that he has
completed ten years of service, it may be
unjust and very harsh to inflict him with
such adverse consequences. No doubt in
sub-rule (2) of Rule 28 of the Pension Rules
which
relates
to
condonation
of
interruption of service, an opportunity of
representation is required to be given to the
employee before making entry in service
book regarding forfeiture of past service
only, but there appears to be some
substance in the submission that Rules of
Natural Justice may be attracted even in
other similar situation where the entry is
regarding unauthorised absence, if it is to
have the effect of break in service adversely
affecting the length of qualifying service for
pension."

[Emphasis Supplied]

26. Sri Shireesh Kumar has further
submitted that this Court on 2.5.2019 disposed
off the Writ Petition no. 12595 (SS) of 2019
setting aside the order dated 3.10.2007 and
28.3.2019 and directed the Board of Governors
of IIM, Lucknow to reconsider the matter of the
petitioner and to pass order with regard to grant
of pensionary benefits and arrears thereof in the
light of the CCS Rules, 1972 but the order dated
25.6.2019 has not been passed for grant of
pension and its arrears to the petitioner as the
CCS Rules have been totally ignored
accordingly the order dated 25.6.2019 is not
legally sustainable.

27. Sri Shireesh Kumar has submitted
with vehemence that since the CCS (Pension)
Rules, 1972 are beneficial legislation, therefore,
those have to be interpreted liberally in view of
the dictum of Hon'ble Apex Court in re : Union
of India and others vs. Vijay Kumar No.
3989606 P.Ex. Naik reported in (2015) 10
Supreme Court Cases 460. Para 14 of the
judgment is referred herein below:

"14. The Entitlement Rules for
Casualty Pensionary Awards, 1982 are
beneficial in nature and ought to be liberally
construed. In terms of Rule 12, the disability
sustained during the course of an accident
which occurs when the personnel of the
armed forces is not strictly on duty may also
be attributable to service on fulfilling of
certain conditions enumerated therein. But
there has to be a reasonable casual
connection between the injuries resulting in
disability and the military service."
 [Emphasis Supplied]

28. Per contra, Sri J.N. Mathur,
learned Senior Advocate appearing for IIM,
3 All. Prof. Devi Singh Vs. I.I.M. Lucknow & Ors.
195
Lucknow
orally
raised
preliminary
objection against the maintainability of the
writ petition by submitting that the order
dated 22.5.2019 issued by the Government
of India as contained in Annexure no. 2 to
the writ petition has not been challenged
whereas the order dated 25.6.2019 which
has been passed pursuant to the aforesaid
order of Government of India dated
22.5.2019.

29. However, Sri Shireesh Kumar has
disputed this oral preliminary objection and
submitted that the letter dated 22.5.2019 is
not an order but an internal correspondence
between the Government of India and the
Directors, IIM, Lucknow and the copy
thereof has not been endorsed to the
petitioner. Even such letter dated 22.5.2019
itself indicates that it is a 'letter'. He has
further submitted that every material or
document which was part of the decision
making process
of
the
order
dated
25.6.2019 got merged in the ultimate order
dated
25.6.2019,
therefore,
the
correspondence letter dated 22.5.2019
which is not even an order, need not to be
challenged,
hence,
the
preliminary
objection
deserves
to
be
summarily
rejected.

30. Sri Mathur has submitted that
petitioner had two separate tenures as
Director. First tenure was from 25.8.2003
to 24.08.2008 (five years). During the first
tenure as Director the petitioner made an
application on 3.9.2003 for simultaneous
appointment
as
Professor.
Petitioner's
appointment as Professor while remaining
Director
was
co-terminus.
Upon
completion of his first tenure as Director
the petitioner submitted an application to
join at IIM Noida Campus on 31.8.2008.
There was a gap of 28 days upon
completion of first tenure as Director and
taking up the assignment to teach as
Professor in IIM Noida with effect from
22.9.2008. The petitioner taught at IIM,
Noida Campus for five months 16 days.
Second tenure as Director was from
9.3.2009-8.3.2014 (five years). Six months'
extension was granted by the Central
Government from 9.3.2014-8.9.2014 (six
months). There was a gap of six months
and 15 days between the two tenures. A
month before expiry of his second tenure
the petitioner on 18.2.2014 (Annexure no. 2
to counter affidavit) applied for voluntary
retirement which was allowed on 15.3.2014
by the Board.

31. The present case is not of
withholding or withdrawal of pension, but
is one where issue involved is the
admissibility of pension. Pension was
inadmissible to the petitioner as he was not
eligible or entitled to receive the same.
Thus, Rule 9 of the CCS (Pension) Rules,
1972 has no application in the instant case.

32. Rule 49(2) of the CCS Rules,
1972 provides for ten years of qualifying
service for grant of pension in an
establishment. There was a 28 day break in
service in the case of the petitioner upon
completion of first tenure as Director and
taking up the assignment of teaching in
IIM, Noida with effect from 22.9.2008.
There was gap of 6 months and 15 days
between the petitioner's two tenures as
Director. Rule 27 of the CCS Rules, 1972
provides that an interruption in the service
of a Government servant entails forfeiture
of his past service. In the instant case the
break in service was not caused due to any
penalty or disciplinary proceedings but was
due to a tenure appointment coming to an
end. The petitioner thus did not have 10
years of minimum qualifying service for
retirement pension.
196 INDIAN LAW REPORTS ALLAHABAD SERIES

33. The 28 days break in service
between 24.8.2008 to 22.9.2008 (28 days)
was sought to be made good by seeking
post facto sanction of Earned Leave which
was irregularly allowed since the petitioner
ceased to be in service after 24.8.2008 and
was hence not entitled for availing earned
leave in any manner other than encashment.
A perusal of the CCS Rules, 1972 reveals
that the procedure adopted in the case of
petitioner for granting him earned leave
post facto even when he was not in
employment is alien and no such provision
exists in the CCS Rules. Earned leave
accumulated at the end of service can only
be encashed. The earned leave standing to
the petitioner's credit at the end of his first
tenure as Director could only have been
encashed. It is reiterated that earned leave
cannot be granted to a person who is not on
the rolls of IIM. Person has to be in service
to be eligible for leave.

34. Sri Mathur has further submitted
that Rule 28 of the CCS Rules, 1972
provide for condonation of interruption in
service. It has been argued on behalf of the
petitioner that the 28 day break in service
stood automatically condoned in terms of
Rule 28(a). This argument is fallacious and
misconceived. The interruption in the
petitioner's case was caused due to two
distinct and separate and fresh orders of
tenure appointment. The petitioner was
permitted to take up his assignment to teach
in IIM, Noida with effect from 22.9.2008.
This is not a situation where a Professor of
the Institute was appointed as Director and
he had two spells of service, one as
Director and the other as Professor and he
rejoined his post as Professor upon
competition of the tenure. In the instant
case upon completion of the tenure the
service of the petitioner as Director came to
an end. The petitioner sought to join in IIM,
Noida to teach as Professor and was
permitted to do so with effect from
22.9.2008 and not from 25.8.2008. The
fresh tenure of the petitioner was after a
fresh selection for the post was made by the
Central Government. The petitioner was
appointed afresh as Director on 5.3.2009
and his second fresh term as Director was
not in continuation with his earlier term.
The gap cannot be automatically condoned
as the gap was not as a result of some
artificial
break
like
suspension,
or
punishment which was later set aside.
Importantly Rule 28(c) of the CCS Rules,
1972 clearly provides that the period of
interruption referred to in clause (a) shall
not count as qualifying service.

35. The petitioner could not have
been given voluntary retirement. The
qualifying service for voluntary retirement
is 20 years as pewr Rule 48A of the CCS
Rules, 1972. The petitioner did not have
twenty years of service to enable him to
retire
voluntarily.
Importantly,
the
petitioner was given a tenure appointment
and even the Memorandum of Association
& Rules of the IIM society do not visualize
superannuation for the Director. The
petitioner has been given pension for the
post of Director which in his case was
patently erroneous. The service conditions
of the petitioner did not visualize the
prospect of superannuation. The principle
of superannuation does not apply to a
tenure post. This has been held by the Apex
Court in the case of P. Venugopal V. Union
of India (2008) 5 SCC 1. The relevant
portion is being quoted herein under :

"32. From the above quotation,
as made in para 16 of the said decision of
this Court, it is evident that this has laid
down that the term of 5 years for a Director
of AIIMS is a permanent term. Service
3 All. Prof. Devi Singh Vs. I.I.M. Lucknow & Ors.
197
conditions make the post of Director a
tenure post and as such the question of
superannuating or prematurely retiring the
incumbent of the said post and as such the
question of superannuating or prematurely
retiring the incumbent of the said post does
not arise at all. Even an outsider (not an
existing employee of AIIMS) can be
selected and appointed to the post of
Director. The appointment is for a tenure to
which principle of superannuation does not
apply. "Tenure" means a term during which
the office is held. It is a condition of
holding the office. Once a person is
appointed to a tenure post, his appointment
to the said post begins when he joins and it
comes to an end on the completion of
tenure unless curtailed on justifiable
grounds.
Such
a
person
does
not
superannuate, he only goes out of the office
on completion of his tenure."

 [Emphasis Supplied]

36. As per Sri Mathur, petitioner's
appointment on the post of Professor was
coterminous and it ended with the end of
tenure as Director. Petitioner's appointment
on the post of Professor was not on a
substantive post. The procedure prescribed
for appointment of Regular Faculty was
never
followed.
There
was
no
advertisement, no selection, no interview.
Post of Regular faculty cannot be filled
without
advertisement,
interview
and
selection by a selection committee.

37. In the instant case the Board while
reconsidering the petitioner's case with
regard to pensionary benefits had his
representation dated 11.10.2017 before
them. Thus, full opportunity of hearing has
been
given
by
considering
his
representation. As such it cannot be argued
that no opportunity of hearing was granted
to the petitioner. The Board was deciding
admissibility of pensionary benefits to the
petitioner. The order dated 3.10.2017
having
been
set
aside
the
Board
reconsidered
the
entire
matter
and
considered each and every aspect raised by
the petitioner in his representation.

38. Having heard learned counsel for
the parties and having perused the material
available on record, I am of the considered
opinion that the present writ petition is
maintainable inasmuch as the contents of
letter dated 22.5.2019 issued by the
Government of India which is part of
decision making process of the impugned
order dated 25.6.2019 got merged in the
said order. Besides, the letter dated
22.5.2019 is a correspondence letter
between the Government of India and IIM,
Lucknow, even the copy thereof has not
been endorsed to the petitioner, therefore,
not challenging letter dated 22.5.2019
would not be fatal for the petitioner for
maintaining this writ petition challenging
the order dated 25.6.2019.

39. Further, no proper opportunity to
submit the defense has been provided to the
petitioner before passing the impugned
order dated 25.6.2019. Hon'ble Apex Court
in re: D.T.C. vs. Balwan Singh (supra)
while interpreting Rule 27 and 28 of CCS
Rules, 1972 has categorically held that an
opportunity of representation would be
required to be given to the employee before
making entry in service book regarding
forfeiture of past services and if it is not
provided, the said inaction would be
violative of principles of natural justice. In
the present case vide impugned order dated
25.6.2019 all 29 paras of aforesaid
impugned order are narration of facts
relating to the petitioner and his grievances
and no explanation or show cause notice
has been issued against the petitioner
198 INDIAN LAW REPORTS ALLAHABAD SERIES
before passing the impugned order which
has civil consequences. This letter only
says that the matter of the petitioner was
placed in the Board of Governors, IIM,
Lucknow meeting held on 14.6.2019 and
Board has extensively deliberated the
matter and found that pension and arrears
thereof are not admissible to the petitioner
as per CCS Rules, 1972, therefore, this
order has been passed in utter violation of
principles of natural justice.

40. The impugned order dated
25.6.2019 has been passed in continuation of
earlier order dated 3.10.2017 and 28.3.2019
whereas those orders have been set aside by
this Court vide order dated 2.5.2019 in Writ
Service Single No. 12595 of 2019. The IIM
has not assailed the order dated 2.5.2019 and
said order has attained finality. Therefore, the
concerning opposite party should have not
taken recourse of the order dated 3.10.2017
and 28.3.2019 and even if those orders were
to be relied on, an opportunity of hearing
must have been provided to the petitioner
apprising that those orders are being relied on
and specific explanation to that effect should
be called from the petitioner but no
opportunity of hearing was provided to the
petitioner. The manner under which the
impugned order dated 25.6.2019 has been
passed may not be appreciated and since the
impugned
order
involves
the
civil
consequences as it is causing serious
prejudice to the petitioner, therefore, the
principles of fairness should be followed
strictly. The law is settled from the very
beginning as at the House of Lords in re:
Frome United Breweries Company Ltd. and
another vs. Keepers of the Peace and Justice
for Country Borough to Bath reported in
1926 AC 586 as observed as under :

"...This rule has been asserted,
not only in the case of Courts of justice and
other judicial tribunals, but in the case of
authorities which, though in no sense to be
called Courts, have to act as judges of the
rights of others..."

Further, the Hon'ble Apex Court
in re: State of Orissa vs. Dr. (Miss)
Binapani Dei and others reported in AIR
1967 SC 1269 has held as under :

"... It is true that the order is
administrative in character, but even an
administrative order which involves civil
consequences, as already stated, must be
made consistently with the rules of natural
justice after informing the first respondent
of the case of the State, the evidence in
support thereof and after giving an
opportunity to the first respondent of being
heard and meeting or explaining the
evidence. No such steps were admittedly
taken, the High Court was, in our
judgment, right in setting aside the order of
the State."

41. I have also noted that vide first
order dated 3.10.2017 (Annexure no. 10 to
the writ petition) passed by the Director,
IIM the pension of the petitioner was
provisionally stayed without affording an
opportunity of hearing. However, there was
no statutory prescription to that effect under
CCS Pension Rules, 1972. Such stay of
pension of the petitioner provisionally was
based on ongoing A.G. Audit whereas such
audit report is dated 18.12.2017 (Annexure
no. 17 to the writ petition), therefore, it is
beyond any comprehension as to how the
subsequent report has been taken into
account
staying
the
pension of
the
petitioner provisionally.

42. It has also been noted that the
request of the petitioner regarding his
simultaneous appointment as Professor
provisionally in the IIM, Lucknow besides
Director has been approved by the Board of
3 All. Prof. Devi Singh Vs. I.I.M. Lucknow & Ors.
199
Governors / Directors,as the case may be.
Further, his request seeking concurrence for
his posting as Professor, IIM at Noida
Campus was also approved by the Board of
Governors / Directors. Further, the Board
of Governors / Directors has approved that
the period from the date the petitioner
would relinquish the charge as Director and
until he would resume charge as Professor
at IIM, Lucknow Noida Campus from
25.8.2008 to 21.9.2008 shall be treated as
grant of earned leave. All requisite
formalities, e.g. No Dues Certificate etc.
obtained from different departments were
also adheared to. The further appointment
of the petitioner as Director, IIM, Lucknow
for five years was approved by the Board
of Governors / Directors and also by the
Government of India. Not only the above
the application of the petitioner dated
18.2.2014 whereby he sought retirement
from service with pensionary benefits was
duly approved by the Board of Governors /
Directors and on relinquishing charge of
the post of Director, IIM, Lucknow on
15.9.2014 the petitioner was allowed to
retire as Professor of IIM, Lucknow as
well. Admittedly, the petitioner was getting
monthly pension w.e.f. 16.9.2004.

43.