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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.