ORDER
Vishwanatha Shetty, J.
1. In this petition, the petitioner has prayed for quashing of the communication dated 10th April 2000, a copy of which has been produced as Annexure-N to the Writ Petition, and also for a further direction to the respondent to settle the pension and other retirement benefits of the petitioner along with interest at 12 percent per annum.
2. Facts in brief, which may be relevant for the disposal of the petition, may be stated as hereunder:
The petitioner was first appointed by the State Government in the year 1962 purely on temporary basis as a Research Assistant in the Department of Agriculture by means of Appointment order dated 25th July 1962, a copy of which has been produced as Annexure-A to the Writ Petition. However, when he was thus serving in the Department on temporary basis, the Ragi Research Scheme where the petitioner was working, was transferred from the State Government to the University of Agricultural Sciences (hereinafter referred to as ‘the University’) on 1st October, 1965. Consequent upon the transfer of the Ragi Research Scheme, the services of the petitioner also stood transferred to the University with effect from 1st October 1965 in terms of provisions contained in Sub-section (5) of Section 7 of the University of Agriculture Sciences Act, 1963 (hereinafter referred to as ‘the Act’). However, by means of Order dated 18th October 1965, a copy of which has been produced as Annexure-B to the Writ Petition, the petitioner was terminated from his services. Subsequently, he was taken back to duty on 28th October 1965 by means of Order dated 28th October 1965 issued by the Administrative Officer of the University and he was granted Earned Leave available to his credit for the period from the date of termination of his service i.e. 18th October 1965 to 27th October 1965 and his services were treated as continuous with effect from 31st July 1962 without any break. According to the petitioner, on the basis of selection made in terms of the provisions contained in Statute 30(1) of the Statutes of the University, the petitioner was appointed as Instructor (Agricultural Botany) in the University by means of order dated 23rd May 1966, a copy of which has been produced as Annexure-C to the Writ Petition; and pursuant to Appointment Order Annexure-C, he had reported to duty on 30th June 1966. It is the case of the petitioner that in view of the appointment of the petitioner made by the University as Instructor (Agriculture Botany) as per Order Annexure-C, the Petitioner ceased to be a transferred employee from the Government Service and he became an employee of the University by way of fresh recruitment; and the petitioner having opted for the University Provident Fund Account, the University admitted him for the said University Provident Fund Account and held him eligible to subscribe to the said fund in terms of Statute 34 of the Statutes, by means of communication dated 4th November 1968 issued by the University, a copy of which has been produced as Annexure-D to the Writ Petition. The University, by means of Notification dated 10th February 1982, published in the Karnataka Gazette dated 11th March 1982, amended the Statues providing for Pension, Gratuity, Family Pension Fund to its employees by adding the new Statute to the existing Statutes 62 to 82 and renumbering the old Statute 62 as Statute 90. Thereafter, Circular No. 106 dated 1st April 1982, a copy of which has been produced as Annexure-F to the Writ Petition, came to be issued calling upon the employees of the University to exercise their option in the prescribed pro-forma either opting for Provident Fund of the University or to the Pension Scheme, on or before 9th May 1982. According to the petitioner, pursuant to the Circular Annexure-F, the Petitioner opted for Pension Scheme and submitted his Form-l dated 28th April 1982, a copy of which has been produced as Annexure-G to the Writ Petition, opting for University Pension Scheme; and thereafter, the University by means of its communication dated 15th June 1985, a copy of which has been produced as Annexure-H to the Writ Petition informed the petitioner that since he had opted for the Pensionary benefits of the University, he was required to supply one blank book of Service Register in Form No. 18 to the Office of the University to enable the University to open the Service Register for settlement of his Pensionary claims at the time of his retirement. The petitioner retired from service of the University on 30th April 1999.
3. In this petition, as noticed by me earlier, it is grievance of the petitioner that his claim for settlement of pension in terms of the pension scheme introduced by the University was unjustifiably refused by the University.
4. However, it is the case of the university that the petitioner being a transferred employee of the State Government, he is entitled to receive the pensionary benefits payable to a government employee till the age of 58 years from the government, as the age of superannuation for a government servant is 58 years; and for the remaining two years of extended service in the University, he is entitled for payment of pensionary benefits from the University in terms of the University Pension Scheme. According to the case set out by the University in the Statement of objections, the petitioner had exercised his option to serve the University as a transferred employee in terms of the Government Order No. AF/19/AUE/71 and No. AF/209/AUM/71 dated 20th September 1973 and 29th/30th January 1976 respectively. It is further claimed by the University that the Pension contribution was regularly paid to the Government by the University till he retired from Government service since the petitioner had made a request with the University to make necessary entries to in his Service Register as a Transferred employee’ to the University from the ‘Department of Agriculture’ by means of his representation dated 30th July 1985. While it is admitted in the statement of objections that the petitioner was appointed as Instructor in the University on the basis of the selection made by the University against the post in the University with effect from 23rd May 1966, however, it is the case of the University that for the purpose of retirement benefits till he attained the age of 58 years, he is required to be treated as a transferred employee and on that basis his retirement benefits are required to be settled; and the pension scheme introduced by the University with effect from 1st July 1981 by amending the Statutes which was notified by means of Circular dated 1st April 1982, has no application so far as the transferred employees are concerned; and in respect of the transferred employees, the Government, by means of its order dated 6th February 1981 gave an option to them either to opt for the Pension Scheme of the Government as introduced by the University; and since the petitioner had opted for the pensionary benefits on attaining the age of 58 years itself from the State Government without waiting up to 60 years, on which day he would be attaining the age of superannuation in the service of the University, he was sanctioned and authorized to receive all pensionary benefits admissible on the date of his superannuation under the State Government. It is also stated in the statement of objections by the University that the pay of the petitioner was refixed in the University under Rule 313 of the Karnataka Civil Services Rules (hereinafter referred to as ‘the KCSR’) and he was deemed to be in Government service up to 58 years for the purpose of pensionary benefits, after which University continued his services up to the age of 60 years. It is further claimed in the Statement of objections that the petitioner had voluntarily submitted his pension papers to University to draw Government pension at the age of 58 years and did not make any representation against the Order dated 13th November 1997 a copy of which has been produced as Annexure-R1 along with statement of objections, retiring the petitioner from the services of the State Government; and pension papers were also sent to the Accountant General for authorization of pension with effect from 1st May 1997 and the Accountant General by means of his letter dated 30th June and 28th November 1997 had authorized the payment of pension to the petitioner. It is further claimed by the University that the pay of the petitioner was refixed during his service between the ages of 58 to 60 years as per the provisions of Rule 313(b) of KCSR with effect from 1st May 1997. According to the University, the service conditions of the petitioner are governed by Statute 63 of the Statutes. In this connection, it is useful to refer to the statement made in paragraphs 8, 9, 10 and 11 of the statement of objections, which read as hereunder:
“8. The petitioner is a “transferred employee” from the State Government to the service of this Respondent University. All such transferred personnel from a separate class in the University and their pensionary benefits are governed by the G.O. dated 29/30.1.1976 and G.O. dated 6.2.1981. This respondent has introduced a pension scheme for employees who were directly recruited to the University w.e.f. 1.7.1981 vide circular dated 1.4.1982. The said pension scheme is not applicable to the transferred employees.
9. The Government gave this category of employees, an option in the matter of availing their pensionary benefits vide G.O. dated 6.2.1981. They had the option;
(i) to postpone the drawal of pensionary benefits till they attain the age of 60 years, that being the date of retirement in the University;
(ii) to draw their pensionary benefits as per G.O. dated 29/30.1.1976 at the age of 58 years itself, that being the superannuation under the Government and subject themselves to the purview of Rule 313 of KSCR for fixation of pay for the service renewed beyond the date of retirement from Government Service at the age of 58 years.
10. Since the petitioner has opted not to wait till the age of 60 years but to draw his pensionary benefits from the age of 58 itself, due from the State Government, he was sanctioned and authorized all the pensionary benefits admissible on the date of superannuation under the State Government. Therefore, he comes under the purview of G.O. dated 29/30.1.1976. His pay has been refixed in the University under Rule 313 of KCSR, he was deemed to be in Government Service upto 58 years for the purpose of pensionary benefits after which the University continued his services upto the age of 60 years (i.e., the date of superannuation as per UAS statutes).
11. The petitioner has retired from the University Service on 30.4.1999. He voluntarily submitted his pension papers to the University to draw Government Pension at the age of 58 years and not represented against the retirement order No. AO/GEN-II/ Retirement/1997/96-97 dated 13.11.1997, a copy of which is produced herewith as ANNEXURE-R1. The pension paper have been sent to the Accountant General for authorization of pension w.e.f. 1.5.1997, his pension has been authorized by the Accountant General vide his letter No. PUG/R3/R-20572/344 dated 30.6.1997 and No. PV6/R3/R/20572/856 dated 28.11.1997 based on the pension papers submitted by him on 12.3.1997. Hence, the said pension is deemed to have been paid once it was authorised. Further, the pay of the official has been refixed during his service between the ages of 58 to 60 years as per the provision of Rule 313 (b) of the KCSR w.e.f 1.5.1997.”
5. The Respondents 1 and 2 also have stated in the statement of objections that the pensionary benefits were authorized to the petitioner initially by means of communication dated 9th July 1997 and subsequently the pensionary benefits payable to the petitioner came to be authorised by means of Order dated 8th December 1997 counting the services rendered from 24th December 1967 to 9th January 1974 which was earlier not reckoned for want of Service Register based on the communication dated 26th August 1987 received from the University.
6. Sri V.V. Joshi, learned Counsel appearing for the Petitioner submitted that since the petitioner was appointed as an Instructor (Agriculture Botany) in the University by means of Order Annexure-C dated 23rd May 1966 and pursuant to the said order of appointment he had reported to duty on 30th June 1966, the petitioner must be treated as an employee of the University, though his services were initially came to be transferred to the University along with the Ragi Research Scheme in which he was working in the Department of agriculture. According to the learned Counsel, since the appointment to the post of Instructor in the University was made by way of direct recruitment by following the procedure prescribed in the Statutes of the University and not by way of promotion, the petitioner on his reporting to duty on 30th June 1966, ceased to be a transferred employee of the State Government and became an employee of the University. In support of this pleas, he strongly relied upon the order of Appointment Annexure-C dated 23rd May 1966 issued by the University; the endorsement Annexure-D dated 4th November 1968 wherein the petitioner was informed that he was not enjoying pensionary benefits under the Government; letter dated 16th February 1970 a copy of which has been produced as Annexure-E to the Writ Petition, written by the Comptroller of University to the petitioner informing the petitioner that since he was directly appointed to the University service by means of Order Annexure-A, the petitioner is eligible for University Provident Fund benefit from July 1966; Annexure-G dated 28th April 1982 submitted by the petitioner expressing his option for University Pension Scheme; Letter Annexure-H dated 15th June 1985 written by the Administrative – Officer of the University informing the petitioner that since he had opted for the benefit of University Pension Scheme he was required to supply one blank book of Service Register in Form No. 18 to open his Service Register as per KCSR; Letter Annexure-J dated 13th January 1992 issued by the Comptroller of the University wherein it was communicated that the petitioner had opted for the University Pension Scheme; Letter Annexure-K dated 2nd June 1999 written by the Registrar of the University to the principle Secretary, Department of Agriculture and Horticulture, Government of Karnataka seeking clarification as to whether the petitioner could be considered as a University employee as he was appointed as an Instructor by the University with effect from 30th June 1966; Letter Annexure-L dated 3rd September 1999 written by the under Secretary to Government, Department of Agriculture and Horticulture to the Registrar of the University informing that the Petitioner should be treated as University Employee as he was directly recruited by the University as Instructor with effect from 30th June 1966. Sri Joshi further submitted that subsequent to the appointment of the petitioner as an Instructor in the University with effect from 30th June 1966 he was subsequently appointed as Assistant Professor by means of Order dated 15th September 1975 and Lab Scientist by means of Order dated 18th June 1983; and in view of the option exercised by the petitioner to the University Pension Scheme his Provident Fund Account up to 1981-82 was bifurcated from University Provident Fund by the Comptroller of the University by means of his Order dated 13th January 1992; and therefore, the pensionary benefits of the petitioner is required to be settled as an employee of the University on his attaining the age of superannuation. The learned Counsel further pointed out that once the petitioner had become an employee of the University, the petitioner cannot treated as a transferred employee.
7. However, Sri H.K. Vasudeva Reddy, learned Counsel appearing for the University submitted that though the petitioner had become an employee of the University since he was admittedly transferred to University along with the Ragi Research Scheme in which he was working, he did not lose the status of the transferred employee, merely because, he was subsequently appointed as Instructor, Assistant Professor and Lab Scientist in the University; and for the purpose of settling his retirement benefits, he should be treated only as a transferred employee. He further submitted that since the petitioner himself had made a request to treat him as a transferred employee and on that basis he having been treated as a transferred employee, the University had remitted the money towards his pensionary benefits to the State Government; and the authorization having already been made by the Government settling his pensionary benefits as a transferred employee on attainment of the age of 58 years, the petitioner cannot now be permitted to go back on his stand that his retirement benefits cannot be settled as a transferred employee from the Government. He pointed out that all the persons who came to be transferred to the University like the petitioner, who came to be subsequently appointed by way of selection to the higher positions in the University were treated as transferred employees in terms of Statute 63 of the Statutes and their retirement benefits till the age of 58 years were settled as transferred employees by the Government and from the age of 58 to 60, it was settled as University employees.
8. In the light of rival contentions advanced by the learned Counsel appearing for the Parties the only question that would arise for consideration in this petition is as to whether the petitioner is entitled for settlement of retirement benefits as an employee of the University?
9. Having elaborately heard the learned Counsel appearing for the parties, I am of the view that the petitioner would be entitled for the settlement of his retirement benefits as an employee of the University. No doubt, the petitioner who was working on temporary basis as a Research Assistant in the Department of Horticulture came to be transferred to the University by means of Order Annexure-A dated 25th July 1962. However, subsequently, by means of Order Annexure-C dated 23rd May 1966, the petitioner was appointed as Instructor in the University. The Order Annexure-C shows that the petitioner was appointed in terms of Statute 30 of the Statutes of the University. The Endorsement Annexure – D dated 4th November 1968 also shows that the petitioner was informed by the Comptroller of the University that he was eligible to subscribe to the University Provident Fund as he was not enjoining pensionary benefits under the Government. The letter Annexure – E dated 16th February 1970 written by the Comptroller of the University to the petitioner refers to the direct appointment of the petitioner in the University by means of Order Annexure-C and he was also notified that he would be eligible for the University Provident Fund from July 1966. He was also notified in the said Letter that the arrears of subscription due from July 1966 to January 1970 would be deducted in his Salary bills. The Circular Annexure-F dated 1st April 1982 issued by the Comptroller of the University states that the Pension, Gratuity and the Family Pension Scheme was introduced by means of Notification dated 10th February 1982 which was published in the Karnataka Gazette dated 11th March 1982 as addition to the existing Statutes 62 to 82 and renumbering of the old Statute 62 as 90 is applicable to all the whole-time employees of the University who are paid out of the University Funds and employed under the Statutes. The said Circular further required that all the employees of the University to send their option in quadruplicate in the prescribed Form-1 enclosed along with the Circular. It is useful to refer to the said Circular, which reads as hereunder:
“The pension, gratuity and family pension scheme introduced as per Notification No. S/IB/68/Pension/81-82 dated 10.2.82, which is published in Karnataka Gazette dated 11.3.1982, as addition to the existing Statutes 62 to 82 and renumbering of Old Statute 62 as 90, is applicable to all the whole time employees of the U.A.S. who are paid out of University funds and employed under the Statutes.
All the employees of U.A.S. may send their option forms in quadruplicate in the prescribed Form-l enclosed herewith. They can opt either for provident fund or to the pension scheme within 3 months from the date of promulgation of the Statute i.e., before 9.5.1982 and the option once exercised is final and irrevocable (vide Statute 68).
Persons appointed under the State on or after the date of introduction of the pension in the University will have to opt either for pension scheme or contributory provident fund scheme. They have to furnish their option in Form-l within one month from the date of their joining the University, failing which they will be deemed to have opted for UPF scheme. Further, those who opt for pension scheme, should necessarily contribute to G.P.F. with the University at not less than 10% of their basic pay in lieu of U.P.F., subscription.
The University pension scheme come to effect from 1st July 1981 as per Statute 62.”
10. In the said Circular, the Drawing Officer of the University was directed to circulate the said order among the employees of the University. In Communication Annexure-G dated 28th April 1982, the petitioner exercise his option for the University Pension Scheme. In Communication Annexure-H dated 15th June 1985 the petitioner was informed by the Administrative Officer of the University that he had opted for the pensionary benefits in the University, where the scheme came to be introduced with effect from 1st July 1981. In the said communication, the petitioner was further informed to supply one blank book of Service Register in Form-18 to the Administrative Officer of the University to enable the University to open the Service Register in terms of Karnataka Civil Service Rules with a view to settle the pensionary claims of the petitioner. The Communication Annexure-J dated 13th January 1992 sent by the Comptroller of the University to the petitioner shows that on verification it was noticed by the University that in the accounts slip of the Provident Fund issued for the year 1981 – 82, University contribution up to the year 1981 – 82 has also been shown. The said Annexure-J also affirms the claim of the petitioner that the petitioner had opted for University Pension and the bifurcation of the earlier Provident Fund Account was completed up to 31st March 1991 and Accounts slip under General Provident Fund account has been issued. It is useful to refer to the said letter, which reads as hereunder:
“On verification of your Provident Fund Account upto 1981 -82 it is seen that University contribution also has been shown in the UPF account slip that was issued to you for the year 1981-82. Hence the closing balance of Rs. 45,843.00 is not correct as you have opted for UAS Pension and since your subscription was not bifurcated. Now the bifurcations of your earlier UPF account No. 435 is completed upto 31.3.91 and account slip under GPF account No. 3258 has been issued.
Further, as per your letter under reference the amount of Rs. 23,043.00 that was remitted by you towards refund of loan has been now entered into your GPF ledger and revised account slip for the year 1990-91 will be issued to you early.”
11. The undisputed documents referred to above show that the petitioner had become an employee of the University and ceased to be the transferred employee. Further, there was also no material placed before me to substantiate the contention of the University that the petitioner, till he attained the age of 58 years, he had opted for treating him as a transferred employee for the purpose of settlement of his pensionary benefits. Now, the only question is, in the light of the statement made in Letter Annexure-K dated 2nd July 1999 written by the Registrar of the University to the Government wherein it is stated that the petitioner was treated as a transferred employee and on that basis he was retired from the Government Service on attaining the age of 58 years and continued in the service of the University till he attained the age of 60 years, and his application for sanction of pension was sent to Accountant General, and he has sanctioned the pensionary benefits eligible at the age of 58 years by treating him as a transferred employee by the University, whether it can be made as a basis to deny him the benefit payable to him as an employee of the University? In my view, the said letter cannot affect the rights of the petitioner in any manner and it cannot diverse him of his status as an employee of the University. The relationship of master and servant created between the petitioner and the University by virtue of his appointment as Instructor in the University in the year 1966, and his continuation in the University by securing higher positions in the University on the basis of selections made by the University on that behalf, cannot put an end to by an unilateral act on the part of the University by treating him as a transferred employee or on the ground that the Accountant General has authoirsed payment of pensionary benefits admissible to the petitioner at the age of 58 years by treating him as a transferred employee of the University. In this connection, it is useful to notice that in response to letter Annexure-K dated 2nd June 1999, the State Government by means of its letter Annexure-L dated 3rd September 1999 informed the Vice Chancellor of the University that since the petitioner was directly appointed as Instructor on 30th June 1966, he has to be treated as an University employee and the Government Order dated 20th September 1973 referred to the by the Registrar in his letter would apply only to the employees who are transferred from the Government. It is useful to refer to the said letter, which reads as hereunder:
12. In the light of what is stated above I am unable to accede to the submission of Sri H.K. Vasudev Reddy, that since the petitioner had sought for settlement of pension from the Government, and he was treated as a transferred employee, the petitioner is not entitled for settlement of his pension in terms of the pensionary scheme introduced by the University. The submission of Sri Reddy that the University had contributed to the Provident Fund amount even after the retirement of the petitioner on his attaining the age of 58 years and the University had deposited the pensionary contribution before the Government, in my view, is not a ground to deny the pensionary benefits payable to the petitioner in terms of the pension scheme introduced by the University. Ultimately, the question is, if on facts the petitioner is an employee of the University and through out he had asserted that he should be treated as an employee of the University for retirement benefits, the fact that the University had contributed to the government its share towards his pension, cannot be held against the petitioner.
13. Therefore, I am of the view that the petitioner is entitled for the settlement of his pensionary benefits by the University at 9 percent interest per annum, from the due date till the date of payment.
14. In the light of the discussion made above, I make the following:
ORDER
1.The Communication Annexure-N dated 10th April 2000 is hereby quashed.
2. The respondent – University is directed to settle the pension and other retirement benefits payable to the petitioner with effect from the date of his appointment as Instructor in the University, along with interest at 9 per cent per annum on the amount payable to the petitioner, from the due date till the date of payment.
3. The respondent-University is given three weeks’ time from the date of receipt of a copy of this Order to settle the amount payable to the petitioner as directed above.
4. In terms stated above this petition is allowed and disposed of. However, no order is made as to costs.
5. Sri L.K. Srinivasa Murthy, learned Additional Government Advocate is given four weeks’ time to file his memo of appearance.