Kerala High Court
A.J.Anto vs Kerala Agricultural University on 30 July, 1976
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 5TH DAY OF OCTOBER 2017/13TH ASWINA, 1939
WP(C).No. 14757 of 2015 (T)
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PETITIONER:
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A.J.ANTO
(RETIRED ASSISTANT EXECUTIVE ENGINEER,
KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA,
THRISSUR),. AKKARA HOUSE,
COCHIN UNIVERSITY POST, SOUTH KALAMASSERY,
ERNAKULAM, KOCHI-682022.
BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.K.A.BALAN
SRI.V.VARGHESE
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
SMT.L.ANNAPOORNA
SRI.SAJU JOHN
RESPONDENTS:
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1. KERALA AGRICULTURAL UNIVERSITY
REPRESENTED BY ITS REGISTRAR,
MAIN CAMPUS, VELLANIKKARA, THRISSUR, PIN-680656.
2. DEPUTY DIRECTOR OF LOCAL FUND AUDIT
KERALA AGRICULTURAL UNIVERSITY,
MAIN CAMPUS, VELLANIKKARA, THRISSUR, PIN-680656.
R1,R2 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KERALA
AGRICULTURAL UNIVERSI
R1&2 BY ADV. SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL
UNIVERSITY
R2 BY SENIOR GOVERNMENT PLEADER SRI.P.M.MANOJ
R BY SRI.BABU JOSEPH KURUVATHAZHA,SC,KERALA AGRICULTURA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 14757 of 2015 (T)
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APPENDIX
PETITIONER'S EXHIBITS
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EXT. P1 : TRUE COPY OF THE ORDER NO.GA(4)
21465/75/D.DIS DT.30-7-1976 OF THE UNIVERSITY.
EXT. P2 : TRUE COPY OF THE ORDER NO.GA/69737/21/80
DT.17-3-1981 OF THE UNIVERSITY.
EXT. P3 : TRUE COPY OF THE ORDER NO.GA/15948/A3/88(II)
DT.15-3-1990 OF THE UNIVERSITY.
EXT. P4 : TRUE COPY OF THE ORDER NO.GA/A3/8727/92
DT.6-3-1995 OF THE UNIVERSITY.
EXT. P5 : TRUE COPY OF THE ORDER NO.GA/A3/40762/97
DT.28-10-1997 OF THE UNIVERSITY.
EXT. P6 : TRUE COPY OF THE NO.ES A5/3309/2004(II)
DT.31-1-2004 OF THE ASSISTANT COMPTROLLER OF THE UNIVERSITY.
EXT. P7 : TRUE COPY OF THE ORDER NO.PEN B1/14702/03
DT.18-3-2004 OF THE DEPUTY COMPTROLLER OF THE UNIVERSITY.
EXT. P8 : TRUE COPY OF THE ORDER NO.BG/A2/24600/97/FAW
DT.28-1-1999 OF THE UNIVERSITY.
EXT. P9 : TRUE COPY OF THE LETTER NO.GA/A3/13976/2004
DT.6-11-2004 OF THE UNIVERSITY.
EXT. P10 : TRUE COPY OF THE STATEMENT DT.13-12-2011 IN
WPC 24689/2005 FILED BY R1 OF THIS HON'BLE COURT.
EXT. P11 : TRUE COPY OF THE INTERIM ORDER DT.15-12-
2011 IN WPC 24689/2005 L OF THIS HON'BLE COURT.
EXT. P12 : TRUE COPY OF THE ADDITIONAL AFFIDAVIT
DT.11-1-2012 FILED BY THE UNIVERSITY IN WPC 24689/2005 L OF THIS
HON'BLE COURT.
EXT. P13 : TRUE COPY OF THE JUDGMENT DT.10-10-2014 IN
WPC 24689/05 L OF THIS HON'BLE COURT.
EXT.P14 : TURE COPY OF THE ORDER NO.GA/A3/13976/04
DT.4-2-15 OF THE UNIVERSITY.
RESPONDENTS' EXHIBITS
R2A: TRUE COPY OF THE PROCEEDINGS NO.GA(4)21465/75/DIS DATED
30.07.1976.
R2B: TRUE COPY OF THE PROCEEDINGS NO.GA/69737/21/80 DATED
17.03.1981.
R2C: TRUE COPY OF THE PROCEEDINGS NO.GA/15948/A3/88(ii)DATED
15.03.1990
R2D: TRUE COPY OF THE PROCEEDINGS NO.GA/A3/8727/92 DATED 06.3.95.
R2E: TRUE COPY OF THE PROCEEDINGS NO.GA/A3/40762/97 DATED
28.10.1997.
R2F: TRUE COPY OF THE LETTER NO.GA/A3/13976/2004 DATED 6.11.2004.
R2G: TRUE COPY OF THE LETTER NO.LF (KAU) P1-1358/04 DATED 7.10.2004.
R2H: TRUE COPY OF THE PROCEEDINGS NO.BG/A2/24600/97/FAW DATED
28.1.99
R2I: TRUE COPY OF THE LETTER NO.LF(KAU) P1-857/03 DATED 27.11.2003.
/TRUE COPY/-
PA TO JUDGE
ANU SIVARAMAN, J.
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W.P.(C).No.14757 of 2015
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Dated this the 5th day of October, 2017
JUDGMENT
1.The prayers in this writ petition are as follows:-
i. call for the records leading to Ext.P14 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction.
ii. Declare that the petitioner is entitled to the scale of pay of Rs.10000-15150 w.e.f.12.07.1999, on completion of 23 years of total service with all consequential benefits including arrears of pay and revised retirement benefits and that the University is bound to grant the petitioner all the benefits on the above line. iii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to grant the petitioner the scale of pay of Rs.10000-15150 w.e.f.12.07.1999 on completion of 23 years of total service with all consequential benefits including arrears of pay and revised retirement benefits forthwith.
iv. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to return to the petitioner Rs.42,824/- recovered from his DCRG pursuant to and as per Exts.P6 and P7 and to restore the fixation benefit given to him on being placed in the scale of pay of Rs.2375-3500 w.e.f.01.11.1997 with all consequential benefits forthwith." W.P.(C).No.14757/15 2
2.Heard the learned counsel for the petitioner, learned Standing Counsel appearing for the 1st respondent-University and the learned Government Pleader appearing for the 2nd respondent.
3.It is submitted that the petitioner had retired from service on 30.04.2003, while holding the post of Assistant Executive Engineer in the 1st respondent University. He was appointed as Overseer Grade-I in the University on 30.07.1976. He was promoted as Assistant Engineer on 17.03.1981. Thereafter, by Exhibit P3, he was granted a ratio promotion in the post of Assistant Engineer. He was granted the second time bound higher grade in the post of Assistant Executive Engineer w.e.f. 21.03.1991 on completing the 10 years service in the first promoted post of Assistant Engineer. As second time bound higher grade he was granted only the scale of pay of Rs.2200- 3500/-. The petitioner contends that he was fully qualified for promotion to the post of Assistant Executive Engineer and therefore he should have been granted the scale of pay of Rs.2375-3500/-. The petitioner was granted the cadre promotion as Assistant Executive Engineer on 01.11.1997 by W.P.(C).No.14757/15 3 Exhibit P5 proceedings. His pay was fixed in the scale of pay of Assistant Executive Engineer on cadre promotion w.e.f. 01.11.1997. The pay was fixed at Rs.2900/-. The petitioner contends that he would have been entitled to the benefit of the third time bound higher grade on completion of 23 years of service w.e.f. 12.07.1999. However, this benefit has been denied to him by the University on account of an objection raised by the Local Fund Audit. Exhibit P14 is the order of the University rejecting the claim raised by the petitioner for grant of third time bound higher grade and for re-fixation of his pay and pension.
4.It is seen from Exhibit P14 that the reasons stated for refusal to grant the third time bound higher grade as sought for by the petitioner was that the Local Fund Audit had stated that the petitioner had already got two ratio promotions and one time bound higher grade while working as Assistant Engineer and he was therefore not eligible for time bound higher grade on completion of 23 years of service.
W.P.(C).No.14757/15 4
5.The claim made by the petitioner for cancellation of recovery of Rs.42,824/-, which, according to the Local Fund Audit, was as a result of wrong fixation of pay on promotion to the post of Assistant Executive Engineer, was also rejected by Exhibit P14 proceedings of the University. Challenging these actions, the writ petition is filed.
6. The learned counsel for the petitioner would contend that the reasons stated in Exhibit P15 and the stand of the 2nd respondent to the effect that the petitioner was not entitled to the third time bound higher grade for the reason that he had availed two ratio promotions and one time bound higher grade promotion while working as Assistant Engineer is erroneous. The petitioner relies on Exhibit P8 order by which the pay revision was implemented in the Kerala Agricultural University. It is stated that the pay revision order specifically provides for the grant of the first time bound higher grade on completion of ten years of service in the entry post, the second time bound higher grade on completion of either 8 years of service in the first promoted post or a total W.P.(C).No.14757/15 5 service of 18 years in the entry post and the first regular promotion post/time bound higher grade taken together whichever is earlier and the third higher grade on completion of 23 years of total service in the entry post and the regular promotion posts/time bound higher grade taken together. It is clear that the petitioner who was appointed as Overseer on 30.07.1976 and was promoted as Assistant Engineer from 17.03.1981 had been granted only the second time bound higher grade on completion of 10 years of service as was required then in the promoted post w.e.f 21.03.1991. Thereafter, he was granted a cadre promotion as Assistant Executive Engineer. No further promotions to the post of Executive Engineer were granted to the petitioner during the 23 years of total service as contemplated in Exhibit P8. It is therefore contended that the petitioner was clearly entitled to the third time bound higher grade promotion in the scale of pay of Executive Engineer since he was appointed in terms of Exhibit P8. This benefit has been denied.
7.With regard to the recovery of Rs.42,824/-, it is contended by W.P.(C).No.14757/15 6 the learned counsel for the petitioner that the reason for the recovery was never made known to the petitioner. It is stated that soon after his retirement, Exhibit P6 proceedings were issued to him. Exhibit P6 only states that the fixation of pay consequent to the petitioner's promotion as Assistant Executive Engineer was erroneous and the Local Fund Audit has directed the recovery of the excess drawn. The recovery has been confirmed in Exhibit P7 proceedings dated 18.03.2004. The petitioner was never told the reason for the recovery or served with any copy of the audit objection raised by the Local Fund Audit. It is only in paragraph 10 of the counter affidavit now filed on behalf of the 2nd respondent that the gist of the audit objection has been extracted and made known to the petitioner for the first time. It is stated therein as follows:-
"On promotion as Assistant Executive Engineer his pay was fixed at Rs.2900/- in the scale of pay of Rs.2375-3500 with effect from 01.11.1997 by giving 28A fixation from the Time Bound Higher Grade scale of Rs.2200-3500. As per G.O.(P) 542/96/(104)/fin. Dated 21.08.1996, on promotion from Time Bound Higher Grade to the regular promotion on higher time scale, pay will be fixed based on the basic pay notionally arrived at in the lower post. In W.P.(C).No.14757/15 7 cases where such fixation is not beneficial, pay drawn in the higher grade scale may be fixed in the stage of pay scale of regular promotion post and if it is not a stage, the pay will be fixed at the lower stage, difference being protected as personal pay not to be absorbed in future increases of pay. Here stage fixation is beneficial."
8.It is submitted by the learned counsel for the petitioner that had the petitioner been put on notice of the reason for the objection raised by the Local Fund Audit, the petitioner would have been able to explain that he was entitled to be placed in the scale of pay of Rs.2375-3500/- which is the scale applicable to the post of Assistant Executive Engineer as the second time bound higher grade and that the objection regarding the grant of the lower scale of pay of Rs.2200-3500 as the time bound higher grade and the later fixation of pay under Rule 28A Part I KSR w.e.f. 01.11.1997 would not have arisen had it not been for the error committed in the grant of his second time bound higher grade. This aspect apparently has never been made known to the petitioner, which according to him, is the reason for the recovery now effected.
W.P.(C).No.14757/15 8
9.It is further contended by the learned counsel for the petitioner that in an earlier round of litigation, this Court by Exhibit P13 judgment has specifically found that the petitioner had not been put on notice or afforded with any opportunity of hearing before the liability was fixed on him and was proposed to be deducted from his DCRG. This Court therefore directed the reconsideration of the issue of fixation of liability and a fresh decision with opportunity afforded to the petitioner. Exhibit P17 which is Exhibit P7 in this writ petition therein was set aside and the reconsideration of the issue was ordered.
10.A counter affidavit has been filed on behalf of the 1st respondent supporting the recovery. It is stated therein that the Local Fund Audit had stated that there was erroneous fixation and that was the reason for the recovery effected as against the petitioner. No details are provided in the counter affidavit filed by the 1st respondent. With regard to the third time bound higher grade also, it is stated that the 2nd respondent had objected to the grant of third time bound W.P.(C).No.14757/15 9 higher grade on the reasoning that the petitioner had already availed of two ratio promotions and one grade promotion and therefore he would not be entitled to the third time bound higher grade.
11.The 2nd respondent has filed a counter affidavit where it i contended that Exhibit P8 pay revision order specifically provided as follows:-
"those who get regular promotion or appointment to higher posts within the period specified for each Time Bound Higher Grade will not be granted further Time Bound Higher Grade during that period."
This according to the 2nd respondent would mean that since the petitioner had availed two ratio promotions in the post of Assistant Engineer and one cadre promotion w.e.f. 01.11.1997 he would not be entitled to the third time bound higher grade.
12.I have considered the contentions advanced. Exhibit P8 provides for the grant of second higher grade on completion of either 8 years of service in the first promoted post ("10 years of service at the relevant time") or a total service of 18 years in W.P.(C).No.14757/15 10 the entry post and the first regular promotion post/time bound higher grade taken together whichever is earlier.
13.The petitioner was granted his second time bound higher grade in the post of Assistant Engineer w.e.f. 21.03.1991 after he completed 10 years of service in the post of Assistant Engineer. He was also granted a ratio promotion in the post of Assistant Engineer and a cadre promotion as Assistant Executive Engineer w.e.f. 01.11.1997. Going by Exhibit P8 the petitioner would be entitled to the third Higher Grade on completion of 23 years of total service in the entry post and the regular promotion post/time bound higher grades taken together. The only question to be considered in view of the pleadings and the contentions raised in this case would be whether the petitioner would be disentitled to claim the 23 years time bound higher grade due to him as per the provision contained in Exhibit P8 that persons who get regular promotion or appointment to higher posts within the period specified for each time bound higher grade will not be granted further time bound higher grade during that period. The W.P.(C).No.14757/15 11 petitioner admittedly would be entitled to be granted the 23 years time bound higher grade if he had 23 years of service in the entry post and the regular promotion post/time bound higher grades together. It is not in dispute that the petitioner completed 23 years of service on 12.07.1999. The question therefore would be whether the ratio promotions and cadre promotions earlier granted to him in the post of Assistant Engineer would disentitle him for the grant of such claim. It is not in dispute that the grant of time bound higher grades cannot disentitle the petitioner for the grant of further grades if he completes the requisite period of service. The petitioner had not been granted the cadre promotion to the post of Executive Engineer within the 23 years of service. Having completed 23 years of service on 12.07.1999 and his promotion as Assistant Executive Engineer having effect only from 1.11.1997, i.e., after the date of entitlement to the 2nd time bound higher grade, I do not see how the provision contained in Exhibit P8 can be relied upon to contend that the petitioner would not be entitled to the third time bound higher grade since he had admittedly completed 23 years of W.P.(C).No.14757/15 12 service on 12.07.1999. The ratio promotion granted to him in the post of Assistant Engineer cannot, according to me, disentitle him for 3rd time bound higher grade in the light of the specific provisions for grant of the 3rd time bound higher grade on completion of 23 years of total service in the entry post and the regular promotion post/time bound higher grades taken together. The contention raised by the 2nd respondent is to the effect that the cadre promotion as Assistant Engineer on 17.03.1981 and the ratio promotion by Exhibit P3 in 1985, as also the cadre promotion as Assistant Executive Engineer on 01.11.1997 would disentitle the petitioner from claiming third time bound higher grade in accordance with Exhibit P8. I am of the view that the contentions taken by the 2nd respondent cannot be countenanced.
14.With regard to recovery of Rs.42,824/- from the petitioner's DCRG, which has been found by this Court in Exhibit P13 judgment that such recovery was effected without notice to the petitioner, Exhibit P7 order had been set aside by this Court and a reconsideration had been ordered. The fixation of W.P.(C).No.14757/15 13 liability on a retired employee, without doubt, can be only after informing him of the reasons for such recovery and giving him an opportunity to place his contentions as regards such reasons before the competent authority. In the instant case even after Exhibit P13 judgment was rendered the petitioner had not been told the reason why an amount of Rs.42,824/- has been recovered from him. Copy of the audit objection raised in this regard had also not been served on the petitioner. In Exhibit P14 also, apart from stating that the recovery was as a result of wrong fixation of pay, no details had been stated and there is nothing on record to show that the letter dated 03.02.2015 of the Joint Director, Local Fund Audit had ever been made available to the petitioner. As stated earlier, it is only through the counter affidavit filed by the 2nd respondent that the reason for fixing liability has been pointed out for the first time. Had the petitioner been put on notice of the reason for the recovery, he could very well have pointed out that grant of second time bound higher grade to him w.e.f. 21.03.1991 in the lower scale of pay itself was erroneous and that he would be entitled to the scale of Assistant Executive W.P.(C).No.14757/15 14 Engineer being a qualified hand from 21.03.1991 itself. In such a situation, he probably could have shown that no recovery would also be necessary.
15.In any view of the matter, the petitioner had retired from service on 30.04.2003. The 2nd respondent has no case that the liability had been quantified and intimated to the petitioner with notice on any date within three years from the date of his retirement. Exhibit P13 judgment had been rendered on 10.10.2014. It was found therein that there was no opportunity afforded to the petitioner before fixing such liability. The reconsideration, therefore, with notice to the petitioner would have only been in terms of the legal provisions which includes Note 3 to Rule 3, Part III KSR. The said provision specifically provides that the fixation of liability has to be within three years from the date of retirement. If no liability is fixed with proper notice to the petitioner within the said time limit, such recovery from the DCRG will be incompetent.
W.P.(C).No.14757/15 15
16.In the light of the foregoing discussions, I am of the opinion that the prayers made by the petitioner are liable to be granted. Exhibit P14 order is quashed. There will be a direction to the respondents to re-fix the pay and retirement benefits due to the petitioner, granting him the third time bound higher grade on completion of 23 years of total service w.e.f. 12.07.1999. The amount of Rs.42,824/- recovered from the petitioner pursuant to Exhibits P6 and P7 shall be repaid to him. Consequential orders shall be passed by the respondents within a period of two months from the date of receipt of a copy of this judgment. All consequential benefits shall be calculated and disbursed to the petitioner within one month thereafter.
The writ petition is ordered accordingly.
Sd/-
Anu Sivaraman, Judge sj/9/10/17