DR. G. SADASIVAN NAIRversusCOCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY REPRESENTED BY ITS REGISTRAR, & ORS.

752                       [2021]
               SUPREME COURT     9 S.C.R. 752
                              REPORTS                     [2021] 9 S.C.R.


A                         DR. G. SADASIVAN NAIR
                                       v.
        COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
            REPRESENTED BY ITS REGISTRAR, & ORS.
B                       (Civil Appeal No. 6994 of 2021)
                             DECEMBER 01, 2021
              [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
             Service Law – Kerala Service Rules – r. 25(a), Part-III –
      Benefit under – Appellant was appointed as a Lecturer at the
C
      respondent University with effect from 07.09.1984 – Prior to such
      appointment, he was a lawyer practised for eight years – The
      appellant made a representation before the Registrar of the
      respondent University, requesting to reckon his practice of eight
      years at the Bar for the purpose of determining his pensionary
D     benefits payable to him on his superannuation on the basis of Rule
      25 (a), Part III, Kerala Service Rules (KSR) – Registrar rejected his
      request and relied on the proviso to Rule 25 (a), Part III, KSR which
      provides that the benefit u/Rule 25 (a) would be available only to
      such employees who are recruited when practising at the Bar, to
      those posts requiring a qualification in law and experience at the
E
      Bar – The experience at the Bar was not essential for appointment
      in the instant case – The Chancellor also dismissed the appeal
      petition – Writ petition filed by the appellant before the High Court
      was dismissed – Before the Supreme Court, the appellant contended
      that in the case of one ‘Dr. PLK’, a Professor of Law who was
F     similarly situated as the appellant, the respondent University duly
      considered the period of practice at the Bar as a part of ‘Dr. PLK’
      qualifying service for the purpose of determining pension payable
      on his superannuation – Held: The appellant and Dr. PLK were in
      fact similarly situated – Both these individuals were appointed as
      teaching faculty at the respondent University after practicing as
G
      advocates in various Courts – They were both appointed before the
      proviso to Rule 25 (a) came into effect, i.e. before 12.02.1985 and
      retired after the said proviso came into force – There are no valid
      grounds to sustain the application of the proviso in relation to the
      appellant – The action of the respondent University of selectively
H
                                      752
  DR. G. SADASIVAN NAIR v. COCHIN UNIVERSITY OF SCIENCE AND                 753
              TECHNOLOGY REP. BY ITS REGISTRAR,


applying the proviso to Rule 25(a) in relation to the appellant, while      A
not applying the said proviso in relation to similarly situated persons,
is arbitrary and therefore illegal – Therefore, the appellant is entitled
to receive pension having regard to his total qualifying service,
inclusive of the period of his service at the respondent University
and the period of his practice as an Advocate in various Courts of
                                                                            B
the State.
      Allowing the appeal, the Court
      HELD: 1. The respondents have relied upon the proviso
to Rule 25 (a) of Part III, Kerala Service Rules in urging that the
respondent University rightly denied the claim of the appellant             C
for reckoning the period of practice at the Bar. Rule 25 (a) together
with the proviso inserted by way of an Amendment, with effect
from 12th February 1985. [Para 25][762-A-B]
      2. The proviso limits the benefit of the Rule by restricting
its application only to such employees as are recruited when                D
practicing at the Bar, to those posts requiring a qualification in
law and experience at the Bar. The respondent University has
contended that since the post of a lecturer to which the appellant
was appointed in 1984, did not require prior experience at the
Bar, the proviso would be attracted thereby disentitling the
appellant of the benefit under Rule 25(a). Although the proviso             E
was inserted by way of an amendment, with effect from 12th
February 1985 and was not in force at the time of appointment of
the appellant in 1984, the respondent University has contended
that the rule applicable in the matter of determination of pension
is that which exists at the time of retirement. That the appellant          F
superannuated on 30th April 2007, on which date the proviso to
Rule 25(a) was in force and therefore it would apply, limiting the
benefit of the Rule. [Para 26][762-F-H]
      3. The appellant brought to our attention that in the case of
one Dr. PLK, a Professor of Law who was similarly situated as               G
the appellant herein, the respondent University duly considered
the period of practice at the Bar as a part of Dr. PLK’s qualifying
service for the purpose of determining pension payable on his
superannuation. [Para 27][763-A-B]

                                                                            H
754            SUPREME COURT REPORTS                        [2021] 9 S.C.R.


A            4. This Court finds that the appellant and Dr. PLK were in
      fact similarly situated. Both these individuals were appointed as
      teaching faculty at the respondent University after practicing as
      advocates in various Courts of Kerala. They were both appointed
      before the proviso to Rule 25 (a) came into effect, i.e. before
      12th February 1985 and retired after the said proviso came into
B
      force. [Para 30][763-D-E]
             5. In the circumstances, This Court finds no valid ground
      to sustain the application of the proviso in relation to the appellant,
      thereby denying the benefit of Rule 25(a), when the same was
      not applied in the case of Dr. PLK, thereby allowing the benefit
C     of Rule 25(a). [Para 31][763-E-F]
             6. While we accept the settled position of law that the rule
      applicable in matters of determination of pension is that which
      exists at the time of retirement, we are unable to find any legal
      basis in the action of the respondent University of selectively
D     allowing the benefit of Rule 25 (a). However, the law does not
      allow the employer to apply the rules differently in relation to
      persons who are similarly situated. [Para 32][763-F-H]
             7. Therefore, the action of the respondent University of
      selectively applying the proviso to Rule 25(a) in relation to the
E     appellant, while not applying the said proviso in relation to similarly
      situated persons, is arbitrary and therefore illegal. Such
      discrimination, which is not based on any reasonable classification,
      is violative of all canons of equality which are enshrined in the
      Constitution of India. [Para 33][764-B-C]
F           8. Hence, in the instant case, the denial of the benefit under
      Rule 25 (a), KSR, to the appellant is arbitrary and not in
      accordance with law. Consequently, the appellant is entitled to
      receive pension having regard to his total qualifying service,
      inclusive of the period of his service at the respondent University
G     and the period of his practice as an Advocate in various Courts of
      Kerala. [Para 34][764-C-D]
            Deoki Nandan Prasad v. State of Bihar AIR 1971 SC
            1409 : [1971] (0) Suppl. SCR 634; Government of
            Andhra Pradesh & Ors. v. Syed Yousuddin Ahmed 1997
            (7) SCC 241 – referred to.
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  DR. G. SADASIVAN NAIR v. COCHIN UNIVERSITY OF SCIENCE AND                  755
               TECHNOLOGY REP. BY ITS REGISTRAR


                        Case Law Reference                                   A
[1971] (0) Suppl. SCR 634         referred to              Para 11 (a)
1997 (7) SCC 241                  referred to              Para 11 (a)
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.6994
of 2021.                                                                     B
      From the Judgment and Order dated 29.08.2019 of the High Court
of Kerala at Ernakulam in W. A. No.988 of 2012.
      Dr. K. P. Kylasanatha Pillay, Sr. Adv., Sajith P. Warrier, Advs. for
the Appellant.
                                                                             C
      Ms. Malini Poduval, Ms. Babita Sant, C. K. Sasi, Abdullah Naseeh,
Ms. Meena K. P., G. Prakash, Ms. Priyanka Prakash, Ms. Beena
Prakash, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      NAGARATHNA, J.                                                         D
       1. This appeal is directed against the judgment and order dated
29th August 2019, passed by the Division Bench of the High Court of
Kerala at Ernakulam in Writ Appeal No. 988/2012, wherein the aforesaid
writ appeal was dismissed.
       2. Succinctly stated, the facts in the instant appeal are that the    E
appellant herein was appointed as a Lecturer in the School of Legal
Studies of the respondent No. 1 University, namely, Cochin University
of Science and Technology, Kochi, with effect from 7 th September 1984.
Prior to such appointment, the appellant was a lawyer practising in the
District Court and Subordinate Courts at North Parur, Ernakulam, Kerala      F
for the period between 11th March 1972 and 2nd February 1980. During
the period between March 1980 and February 1984, the appellant was
pursuing his PhD programme on availing a University Grants Commission
Fellowship. The appellant resumed practice as an advocate in the Kerala
High Court and Subordinate Courts after obtaining his PhD, upto the
date of his appointment as a lecturer in the respondent University.          G

       3. On 10th November 2004, the appellant made a representation
before the Registrar of the respondent University, requesting to reckon
his practice of eight years at the Bar for the purpose of determining his
pensionary benefits payable to him on his superannuation. In making
                                                                             H
756             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     such a representation seeking consideration of his practice at the Bar,
      the appellant relied on Rule 25 (a), Part III, Kerala Service Rules
      (hereinafter referred to as “KSR” for brevity) which provides that
      experience at the Bar could be reckoned as qualifying service for the
      purpose of determining superannuation pension, subject to a condition
      that only a person who was recruited into service after attaining the age
B
      of 25 years could avail such benefit. In such a situation, the Rule allows
      addition of as many years by which a person exceeds the age of 25
      years. The benefit of additional service shall also be limited to the actual
      number of years of practice at the Bar, subject to a maximum of ten
      years.
C            4. The appellant received a letter on 7th January 2006, from the
      Registrar of the respondent University declining appellant’s request to
      reckon his tenure of practice at the Bar for the purpose of determining
      appellant’s superannuation pension. In rejecting the representation made
      by the appellant, the Registrar relied on the proviso to Rule 25 (a), Part
D     III, KSR which provides that the benefit under Rule 25 (a) would be
      available only to such employees who are recruited when practising at
      the Bar, to those posts requiring a qualification in law and experience at
      the Bar. Having regard to the aforestated proviso, the Registrar in his
      letter dated 7th January 2006, stated that experience at the Bar was not
      essential for appointment to teaching posts at the University and therefore,
E     the question of reckoning previous experience at the Bar would not arise
      in relation to the appellant.
             5. The appellant preferred an appeal petition against the decision
      of the Registrar of the respondent University dated 7th January 2006,
      before respondent No. 3 herein, namely, the Chancellor of Cochin
F     University of Science and Technology, contending that the Registrar
      had rejected his request for reckoning his tenure of practice at the Bar
      for the purpose of determining his superannuation pension, without
      following the relevant rules in their proper perspective. The appellant
      stated in his appeal petition before the Chancellor – respondent no.3 that
G     the proviso to Rule 25 (a), Part III, KSR was inserted in said Rule with
      effect from 12th February 1985. The appellant contended that the proviso
      could not be made applicable to him as the same was not in force as on
      the date on which he joined service at the respondent University, i.e., 7 th
      September 1984. The appellant also stated in his representation that one
      Dr. Leela Krishnan, who was similarly situated as the appellant, was
H     granted the benefits prescribed under Rule 25 (a), Part III, KSR.
  DR. G. SADASIVAN NAIR v. COCHIN UNIVERSITY OF SCIENCE AND                      757
   TECHNOLOGY REP. BY ITS REGISTRAR [B. V. NAGARATHNA, J. ]


       6. As there was no response to his representation, the appellant          A
on the same grounds as those urged in the appeal petition preferred
before respondent No. 3, also preferred a writ petition before the High
Court of Kerala at Ernakulam being W.P. (C) No. 10057/2006. The
High Court in its judgment dated 3rd April 2006 directed respondent No.
3 to decide, within a period of four months from the date of receipt of
                                                                                 B
the judgment of the High Court, the question, as to, whether the appellant
was entitled to get the benefit under Rule 25(a), Part III, KSR.
       7. In accordance with the High Court’s judgment dated 3rd April
2006, respondent No. 3 afforded an opportunity of hearing to the appellant
on 12th July 2006 and subsequently dismissed the appeal petition preferred
by the appellant on 7th October, 2006 by holding that the Government or          C
any other statutory body has the right to modify the service conditions,
even retrospectively. Respondent No. 3 further held that since the proviso
was introduced in Rule 25 (a) while the appellant herein was still in
service of the respondent University, the proviso would apply to him,
thereby limiting the benefit of Rule 25 (a), Part III, KSR.                      D
       8. Aggrieved by the dismissal of the appeal petition by respondent
No. 3, the appellant preferred a writ petition before the High Court of
Kerala at Ernakulam, being W.P. (C) No. 28410/2006. The Single Judge
of the High Court by judgment dated 25th January 2012 dismissed the
writ petition preferred on the ground that it was open to the Government         E
to unilaterally alter the service conditions of employees during their service
and therefore, what was applicable was the rule prevailing as on the
date of retirement and not that which existed as on the date of entering
service.
       9. During the pendency of the writ petition, the appellant was to         F
superannuate from service of the respondent University on 19th October
2006. But by virtue of Rule 60 (C), Part I, KSR, the appellant was
entitled to continue in service till the last day of the month in which the
academic year ends i.e. until 30th April 2007. The appellant retired on
30th April 2007 from the post of Professor and Director, School of Legal
Studies, Cochin University of Science and Technology.                            G
       10. Aggrieved by the judgment of the Single Judge of the High
Court of Kerala, dated 25th January 2012 in W.P. (C) No. 28410/2006,
the appellant herein preferred an intra-court writ appeal being W.A. No.
988/2012. The Division Bench of the High Court, in its judgment dated
29th August 2019, confirmed the findings of the Single Judge and dismissed       H
758               SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A     the writ appeal preferred by the appellant. Being aggrieved, a special
      leave petition was filed by the appellant before this Court in which leave
      was granted on 22nd November 2021.
             11. Before proceeding further, it would be useful to encapsulate
      the reasoning of the High Court of Kerala in dismissing the writ appeal
B     filed by the appellant herein, as under:
            (a)     The High Court relied on the decision of this Court in Deoki
                    Nandan Prasad v. State of Bihar - AIR 1971 SC 1409,
                    wherein it was held that the rule applicable in matters of
                    determination of pension is that which is existing at the time
C                   of retirement. Similarly, in Government of Andhra Pradesh
                    & Ors. v. Syed Yousuddin Ahmed - 1997 (7) SCC 241, it
                    was held that the emoluments forming a part of the pension
                    payable to an employee shall be determined on the basis of
                    the rule existing as on the date of retirement.

D                   In light of the above citations of this Court, the High Court
                    stated that the right to receive pension arises and crystallises
                    into a vested right only on the date of superannuation. The
                    High Court held that the appellant was entitled to obtain
                    pension in accordance with the rules existing as on the date
                    of superannuation.
E
            (b)     The High Court found that the argument advanced on behalf
                    of the appellant herein, that other Universities require
                    candidates to possess Bar experience for appointment as
                    teaching faculty, was irrelevant and inconsequential.

F           (c)     The High Court held that the Government was authorised
                    under Article 309 of the Constitution of India, to make laws
                    determining service conditions of Government employees
                    and to amend such laws, even retrospectively.
            12. The writ appeal preferred by the appellant herein was
      dismissed by the High Court on making the aforestated observations.
G
            13. We have heard Dr. K.P. Kylasanatha Pillay, learned Senior
      Counsel along with Mr. Sajith P. Warrier, learned counsel for the appellant,
      Ms. Malini Poduval, learned counsel for respondent nos.1 and 2, and
      Mr. G. Prakash, learned counsel for respondent-State and perused the
      material on record.
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  DR. G. SADASIVAN NAIR v. COCHIN UNIVERSITY OF SCIENCE AND                     759
   TECHNOLOGY REP. BY ITS REGISTRAR [B. V. NAGARATHNA, J. ]


       14. Dr. Pillay, learned Senior Counsel for the appellant, submitted      A
that the Rule 25 (a), Part III, KSR as it stood at the time of appointment
of the appellant to the post of lecturer in the School of Legal Studies of
the respondent University, allowed experience at the Bar to be reckoned
as qualifying service for the purpose of determining superannuation
pension. The said Rule prescribed a condition that only a person who
                                                                                B
was recruited into service after attaining the age of 25 years could claim
such benefit of additional service. The Rule allowed for addition of as
many years by which a person exceeds the age of 25 years. The benefit
of additional service was limited to the actual number of years of practice
at the Bar, subject to a maximum of ten years.
       15. Learned Senior Counsel for the appellant contended that the          C
proviso to Rule 25 (a), Part III, KSR, which limited the scope of the
benefit conferred under Rule 25(a) by stating that such benefit would
only be available to such employees as are recruited to those posts
requiring a qualification in law and experience at the Bar, was introduced
with effect from 12th February 1985. That the said proviso could not            D
have been made applicable to the appellant as it was not in force at the
time of his appointment, i.e., on 7th September 1984. That the benefit of
the Rule could not be denied by applying the proviso retrospectively, in
the absence of express direction to that effect in the Amendment to the
Rule by which the proviso was inserted in Rule 25(a). It was submitted
that the intention of inserting the proviso in Rule 25 (a) was not to exclude   E
previously appointed law teachers from the purview of the said Rule,
but to streamline the condition regarding pension for future appointees.
It was stated that the appellant had acquired a vested right to his pension
when he joined service which could not have been taken away at the
time of his retirement.                                                         F
       16. Learned Senior Counsel for the appellant highlighted that Dr.
P. Leela Krishnan, former Head of the Department of Law and Dean,
Faculty of Law, Cochin University of Science and Technology who
superannuated from service of the respondent University with effect
from 30th April 1996, was granted the benefit of additional service as          G
provided for under Rule 25 (a), Part III, KSR; that Dr. P. Leela Krishnan
had practiced as an advocate at the Kerala Bar during the period between
29th March 1962 and 24th June 1969, i.e. for a period of 7 years, 2
months and 26 days. Dr. P. Leela Krishnan served in the Law Faculty of
the respondent University from 24th June 1969 to 30th April 1996. His
                                                                                H
760             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     retirement benefits were granted, having regard to the period of service
      rendered at the University as well as the period of practice at the Bar.
      The respondent University found his length of qualifying service for the
      purpose of grant of pension to be 33 years, 7 months and 4 days, which
      included 26 years, 9 months and 2 days of service at the respondent
      University and 7 years, 2 months and 26 days of practice at the Bar.
B
             17. In that context, learned counsel for the appellant contended
      that the appellant is similarly situated as Dr. P. Leela Krishnan as they
      both were appointed from the Bar before the proviso to Rule 25 (a)
      came into effect, i.e. before 12th February 1985; and that they both
      superannuated after the proviso was brought into force. However, while
C     the proviso to Rule 25(a) was applied in relation to the appellant, thereby
      denying him the benefit of Rule 25(a), but the said proviso was not applied
      in the case of Dr. P. Leela Krishnan. That the respondent University has
      singled out the appellant without any legal basis and has arbitrarily denied
      to him the benefit of Rule 25(a), Part III, KSR, which is discriminatory
D     and in violation of Article 14 of the Constitution of India.
             18. As opposed to the aforesaid arguments, Ms. Poduval, learned
      counsel for respondent no.1 and 2, relied on the proviso to Rule 25(a),
      Part III, KSR and contended that the benefit under the said Rule was
      rightly withheld by the respondent University in light of the proviso. That
E     the proviso would be applicable in relation to the appellant as it is trite
      law that the rule applicable in the matter of determination of pension is
      that which exists at the time of retirement. In the case of the appellant,
      the date of superannuation was 30th April 2007, on which date the proviso
      to Rule 25(a) was in force and therefore it would apply, limiting the
      benefit of the Rule.
F
              19. In relation to the appellant’s contention that other employees
      of the respondent University who were similarly situated as the appellant,
      had been granted the benefit under Rule 25(a), it was submitted that the
      appellant cannot claim such relief relying on an earlier illegal order. That
      such a claim based on negative equality in favour of the appellant was
G     untenable.
            20. It was further submitted on behalf of the respondents that the
      appellant made a representation before the Registrar of the respondent
      University after an inordinate delay and had not adhered to the time limit
      prescribed under Rule 22C, Part I, KSR, for making such claim. Rule
H     22C, Part I, KSR stipulates that an officer who wishes to get his prior
  DR. G. SADASIVAN NAIR v. COCHIN UNIVERSITY OF SCIENCE AND                    761
   TECHNOLOGY REP. BY ITS REGISTRAR [B. V. NAGARATHNA, J. ]


service counted shall apply for the same within a period of five years         A
from the date of his entry into service. Rule 22C also provides that an
order reckoning previous service shall not be issued by the Competent
Authority within a period of less than five years before the date of
retirement on superannuation.
       21. The respondents relied on the aforestated rule and submitted        B
that the appellant made a representation before the Registrar of the
respondent University requesting him to reckon appellant’s practice of
eight years at the Bar, only on 10th November 2004, i.e. over 20 years
after his appointment as a lecturer at the respondent University. That
the claim of the appellant was rightly not entertained by the authorities
of the respondent University after such an inordinate delay.                   C

      22. Learned counsel for respondents urged that the case of the
appellant has been rightly appreciated in its true perspective, having due
regard to the relevant law, by the High Court in its judgment while
dismissing the appeal preferred by the appellant herein, which judgment
would not call for any interference in this appeal.                            D

      Points for consideration:
       23. Having regard to the submissions of the learned Senior Counsel
and learned counsel for the respective sides, the following points would
arise for our consideration:                                                   E
      (i)     Whether the appellant herein is entitled to the benefit of
              Rule 25(a), Part III, Kerala Service Rules?
      (ii)    Whether the High Court was justified in dismissing the
              appeal preferred by the appellant herein?
                                                                               F
      (iii)   What Order?
       24. The fact that the appellant was appointed to the post of lecturer
in the School of Legal Studies of the respondent University with effect
from 7th September 1984, is not in dispute. The appellant practised as an
Advocate at the District Court and Subordinate Courts at North Parur,
Ernakulam, Kerala for the period between 11th March 1972 and 2nd               G
February 1980. The appellant sought for reckoning of his experience at
the Bar as qualifying service for the purpose of determination of
superannuation pension, as provided under Rule 25 (a), Part III, KSR.
The same was denied by the authorities of the respondent University.
During the pendency of litigation in this regard before the High Court,        H
762             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     the appellant retired from service of the respondent University on attaining
      the age of superannuation with effect from 30th April 2007.
              25. Learned counsel for the respondents have relied upon the
      proviso to Rule 25 (a) of Part III, KSR in urging that the respondent
      University rightly denied the claim of the appellant for reckoning the
B     period of practice at the Bar. Rule 25 (a) together with the proviso inserted
      by way of an Amendment, with effect from 12th February 1985, is
      reproduced hereunder:
              “25 (a) Persons recruited from the Bar after the age of 25 years
              to appointments in Government service may add to their service
              qualifying for superannuation pension (but not for any other kind
C             of pension) the actual period (not exceeding ten years) by which
              their age at the time of recruitment exceeded 25 years provided
              that no employee can claim the benefit of this rule unless his actual
              qualifying service at the time he becomes eligible for superannuation
              pension is not less than eight years. This concession is also subject
D             to the condition that the period that may be so added shall not at
              any time exceed the actual period of the employee’s practice at
              the Bar. No application will be entertained for pension on the
              ground that the appointee did not get an opportunity for service
              for the qualifying period.
E             Provided that the benefit under this sub-rule shall be available
              only to employees who are recruited when practicing at the Bar
              to posts requiring law qualification and experience at the Bar.”
              26. The proviso limits the benefit of the Rule by restricting its
      application only to such employees as are recruited when practicing at
      the Bar, to those posts requiring a qualification in law and experience at
F     the Bar. The respondent University has contended that since the post of
      a lecturer to which the appellant was appointed in 1984, did not require
      prior experience at the Bar, the proviso would be attracted thereby
      disentitling the appellant of the benefit under Rule 25(a). Although the
      proviso was inserted by way of an amendment, with effect from 12th
G     February 1985 and was not in force at the time of appointment of the
      appellant in 1984, the respondent University has contended that the rule
      applicable in the matter of determination of pension is that which exists
      at the time of retirement. That the appellant superannuated on 30th April
      2007, on which date the proviso to Rule 25(a) was in force and therefore
      it would apply, limiting the benefit of the Rule.
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  DR. G. SADASIVAN NAIR v. COCHIN UNIVERSITY OF SCIENCE AND                     763
   TECHNOLOGY REP. BY ITS REGISTRAR [B. V. NAGARATHNA, J. ]


        27. The appellant brought to our attention that in the case of one      A
Dr. P. Leela Krishnan, a Professor of Law who was similarly situated
as the appellant herein, the respondent University duly considered the
period of practice at the Bar as a part of Dr. P. Leela Krishnan’s qualifying
service for the purpose of determining pension payable on his
superannuation.
                                                                                B
        28. Perusal of extracts from the pension book of Dr. P. Leela
Krishnan, reveals that his experience of practice at the Bar, of 7 years,
2 months and 26 days was added to the period of his service at the
University, being 26 years, 9 months and 2 days. The respondent
University in determining his superannuation pension, considered 33 years,
7 months and 4 days as the qualifying period of service.                        C
        29. No argument has been advanced on behalf of the respondents
as to the manner in which the case of the appellant is different from that
of Dr. P. Leela Krishnan and on what basis the benefit of Rule 25 (a)
was granted to Dr. P. Leela Krishnan but was withheld in relation to the
appellant.                                                                      D
        30. We find that the appellant and Dr. P. Leela Krishnan were in
fact similarly situated. Both these individuals were appointed as teaching
faculty at the respondent University after practicing as advocates in
various Courts of Kerala. They were both appointed before the proviso
to Rule 25 (a) came into effect, i.e. before 12th February 1985 and retired     E
after the said proviso came into force.
        31. In the circumstances, we find no valid ground to sustain the
application of the proviso in relation to the appellant, thereby denying the
benefit of Rule 25(a), when the same was not applied in the case of Dr.
P. Leela Krishnan, thereby allowing the benefit of Rule 25(a).
                                                                                F
        32. While we accept the settled position of law that the rule
applicable in matters of determination of pension is that which exists at
the time of retirement, we are unable to find any legal basis in the action
of the respondent University of selectively allowing the benefit of Rule
25 (a). The law, as recognized by this Court in Deoki Nandan Prasad
and Syed Yousuddin Ahmed(supra) unequivocally states that the pension           G
payable to an employee on retirement shall be determined on the rules
existing at the time of retirement. However, the law does not allow the
employer to apply the rules differently in relation to persons who are
similarly situated.
                                                                                H
764                SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A             33. Therefore, we are of the view that if the respondent University
      sought to deny the benefit of Rule 25 (a), in light of the proviso which
      was subsequently inserted thereby limiting the benefit of the Rule, it
      ought to have done so uniformly. The proviso could have been made
      applicable in relation to all employees who retired from service of the
      respondent University following the introduction of the proviso, i.e. after
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      12th February 1985. However, the action of the respondent University
      of selectively applying the proviso to Rule 25(a) in relation to the appellant,
      while not applying the said proviso in relation to similarly situated persons,
      is arbitrary and therefore illegal. Such discrimination, which is not based
      on any reasonable classification, is violative of all canons of equality
C     which are enshrined in the Constitution of India.
              34. Hence, in the instant case, the denial of the benefit under Rule
      25 (a), KSR, to the appellant is arbitrary and not in accordance with law.
      Consequently, the appellant is entitled to receive pension having regard
      to his total qualifying service, inclusive of the period of his service at the
D     respondent University and the period of his practice as an Advocate in
      various Courts of Kerala.
              35. In view of the aforesaid discussion, we set aside the judgment
      of the Division Bench as well as that of the learned Single Judge of the
      High Court dated 29th August 2019 and 3rd April, 2006 respectively and
      allow the instant appeal.
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              36. The respondent University is directed to calculate the amount
      of pension short paid to the appellant from the date of his superannuation
      i.e. 30th April 2007, till date and disburse such amount together with
      interest at the rate 5% p.a. till date of payment in favour of the appellant
      within a period of two months from the date of receipt of a copy of this
F     judgment. It is needless to observe that such calculation shall be carried
      out after considering the period of practice of the appellant as an advocate
      at the Bar and the service rendered at the respondent University.
              37. Parties to bear their respective costs.

G     Ankit Gyan                                                       Appeal allowed.




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