SARAJUDDIN Vs. JAI NARAIN VYAS UNIVERSITY

JUDGEMENT

(1.) The bizarre tale of a poor employee Helper, who has rendered services of more than three decades with the respondent University without getting his retiral benefit in the form of gratuity, as demonstrated in the present petition, is heartening and utmost distressing. Stated in succinct, the factual matrix as depicted in the writ petition is that at the threshold of his service career, the petitioner was appointed as Helper under the respondent University w.e.f. 23rd of July 1963 and confirmed in the said capacity vide order dated 11th of August 1973 with effect from 23.07.1964. As per the petitioner, he was appointed in the regular establishment and served his employer for more than three decades making him entitled for all the three selection grades on completion of 9, 18 & 27 years of services. For substantiating this positive assertion, the petitioner has placed on record document Annex.2 dated 12 th of April 1993, whereby his pay was ordered to be fixed on conferment of third selection grade by considering his uninterrupted services of more than 28 years. The petitioner has also asserted in the writ petition that while serving the respondent University, he was in regular receipt of annual grade increments until March 1995. With effect from 13th March 1995, the respondent University has abruptly deputed the petitioner as Pump Driver on temporary basis in the workcharged establishment for three months or till regularly selected incumbent is available. The petitioner has served his employer in the said capacity uptil the age of superannuation w.e.f. 31st of May 2004 and according to the petitioner he has served the University for 40 years. The petitioner has further averred in the writ petition that since his retirement he is regularly receiving his pension but the respondent University has not paid him his legitimate amount of gratuity. Although requisite bill for the said amount was prepared by the Building Cell of the University at the time of his retirement but same has not been processed. While confining his claim for gratuity for the interregnum period of 1963 to 1995, the petitioner has mentioned in the writ petition with clarity and precision that despite many representations for payment of the amount of gratuity, the same has not been paid to him. Taking shelter of Statute 35 of the Handbook of Jai Narain Vyas University, Jodhpur, the petitioner has averred in the writ petition that under the said Statute the University has framed the Jai Narain Vyas University, Jodhpur Payment of Gratuity to Employees Rules 1970 for applying those Rules to all the employees joining services in the University on or after the date of coming into force of these Rules. Referring to Statute 35(3)(ii) the petitioner has pleaded in the writ petition that all the employees of the University, who are in service since 1 st of April 1969 are eligible to opt for gratuity scheme under the Rules making them entitled for gratuity. Emphasizing the fact that petitioner has also submitted his option for gratuity, it is averred in the writ petition that for creating fund for gratuity, regular deductions were made from his monthly salary by the University. Relying on subclause (4) of Statute 35, the petitioner has also stated in the writ petition that there is a deeming provision making an incumbent employee entitled for gratuity even in want of submission of option for gratuity scheme. The petitioner has craved for the relief of gratuity in the writ petition by narrating the facts that for his said legitimate retiral benefits, he has approached from pillar to post but all in vain. The petitioner has also averred in the writ petition that for redressal of his grievances, he has called upon the University by way of serving a notice for demand of justice but the said notice, according to him, was also not paid any heed by the employer.

(2.) The respondent in its reply has repudiated the claim of the petitioner and submitted that at the time of his superannuation the petitioner was not a regular employee of the University and was working in the workcharged cadre and as such he is not entitled for grant of gratuity in terms of Statute 35(3)(e) of the University Statutes. Taking a dig on the mode of appointment of the petitioner under the University, the respondent has pleaded in the reply that initial appointment of the petitioner was made by the Superintending Engineer of the Building Cell whereas under the University only Registrar is authorized to make a regular appointment. Categorizing the appointment of the petitioner as an interim measure of the Building Cell, the respondent has opposed the prayer of the petitioner for grant of gratuity amount. The fact pertaining to petitioner's more than three decades services in the regular establishment as a regular employee of the University was also denied in the return. Reiterating its stand, the University has denounced the claim of the petitioner for gratuity by taking shelter of Statute 35(3)(e) of the Statutes of the University.

(3.) Learned counsel for the petitioner has urged that action of the respondent University in not allowing the petitioner his legitimate benefit of gratuity is absolutely arbitrary and unreasonable. Taking shelter of Statute 35 (3)(ii), learned counsel for the petitioner has argued that the respondent University having accepted his option for gratuity scheme and deducted the requisite amount from the monthly salary, cannot be allowed to deprive him from his legitimate right to receive gratuity after his superannuation. Mr. Bhandari, the learned counsel for the petitioner, has very candidly conceded that the petitioner is claiming amount of gratuity for the period he has rendered services in the regular establishment i.e. from 1963 to 1995 and he is not pressing his claim for the subsequent period i.e. from March 1995 when he was deputed on workcharged cadre and continued to remain in the said cadre uptil his superannuation. Contention of Mr. Bhandari is that interregnum period between 1963 to 1995 is more than three decades and for this period the petitioner is entitled for gratuity under the Jai Narain Vyas University, Jodhpur Payment of Gratuity to Employees Rules 1970. Per contra, Ms. Kusum Rao, learned counsel for the respondent University has argued that the petitioner has of his own volition opted for appointment as Pump Driver on workcharged establishment from 13.03.1995, cannot be allowed the claim of gratuity by virtue of Statute 35(3)(e) of the University Statutes. That apart, the learned counsel for the University has also urged that at the threshold of his service career, the petitioner was not regularly appointed and therefore he is not entitled for the benefit of gratuity.