C. J. Sarasamma v. Deputy Director of Collegiate Education, NSS College, Pandalam, Pathanamthitta district, and Secretary, NSS Colleges Central Committee

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 4[TH] DAY OF JULY 2022 / 13TH ASHADHA, 1944 ``` ## **`WP(C) NO. 33888 OF 2018`** ## **`PETITIONER:`** ``` C.J.SARASAMMA, AGED 59 YEARS, W/O. KARTHIKEYAN PILLA C., RETD. LAB ASSISTANT, N.S.S.COLLEGE, PANDALAM, RESIDING AT KRISHNALAYAM, PUNNAMOODU P.O., MAVELIKARA, ALAPPUZHA - 690 101. ``` ``` BY ADVS. P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR ``` ## **`RESPONDENTS:`** ``` 1DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, VAYASKARAKUNNU, PALACE ROAD, KOTTAYAM - 686 001. ``` - `2 N.S.S. COLLEGE, PANDALAM, PATHANAMTHITTA DISTRICT, PIN-689501, REPRESENTED BY ITS PRINCIPAL.` ``` 3THE SECRETARY, NSS COLLEGES CENTRAL COMMITTEE, PERUNNA.P.O., CHANGANACHERRY, KOTTAYAM-686102. ``` ``` BY ADVS. SRI.P.GOPAL SRI.B.MURALEEDHARAN SMT PARVATHY K-GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 33888/18 2 ## **`JUDGMENT`** The petitioner says that she retired from the services of the 2nd respondent – N.S.S College, Pathanamthitta – which is an aided one, affiliated to the Kerala University – on attaining the age of superannuation, on 31.03.2015. She says that she entered service as a Last Grade Servant on 19.01.1987, which was approved through an order of the 1st respondent – Deputy Director of Collegiate Education on 05.06.1987; consequent to which, she was given promotion as Lab Assistant. She says that, thereafter, when she completed 22 years of total service, she was granted the 22 year Time-Bound-Higher Grade on 18.01.2009, followed by the 27 year Time-Bound-Higher Grade on 18.01.2014, both of which were validly sanctioned by the 1 st respondent. 2. The petitioner says that, however, nearly three years after she superannuated, she has been issued with Ext.P4 order by the 1st respondent raising objections against the grant of 27 year Time-Bound-Higher Grade benefit citing the reason that her WPC 33888/18 3 prior service in the Last Grade could not have reckoned for such purpose. She says that consequent thereto, Ext.P6 was issued by the College, informing that even her 22 year Time-Bound-Higher Grade was impermissible for the same reason. 3. The petitioner, through her learned counsel – Sri.T.S.Harikumar, impugns Exts.P4 and P6 as being illegal and unlawful and in egregious conflict with the declaration of law by the Honourable Supreme Court in State of Punjab v. Rafiq Masih (White Washer) [(2015) 4 SCC 334]. 4. Pertinently, Sri.P.Gopal – learned Standing Counsel for the College, affirmed that the petitioner was appointed as a Last Grade Servant on 19.01.1987, which was approved through Ext.R2(a); consequent to which, she was granted promotion as Lab Assistant with effect from 05.06.1998. He added that, as correctly stated by the petitioner, she was granted the 22 year Time-Bound-Higher Grade on 18.01.2009, which was approved by the 1st respondent vide Ext.R2(c); while, she was granted her 27 year Time-Bound-Higher Grade with effect from 18.01.2014, which was also approved by the same Authority through WPC 33888/18 4 Ext.R2(d). He submitted that, therefore, Ext.P4 ought not to have been issued by the said Authority; but that once it was done, his client had no other option but to issue Ext.P6 and seek recovery of the excess amounts. 5. Smt.Parvathy K. - learned Government Pleader, submitted that Ext.P4 order was issued by the 1st respondent because, by then, a judgment was delivered by the Honourable Supreme Court rendering it luculent that the provisional Last Grade Service of an employee could not have been used for reckoning the Time-Bound-Higher Grade benefit. She, therefore, prayed that this Writ Petition be dismissed. 6. In reply, Sri.T.S.Harikumar submitted that, not merely is the 1st respondent attempting to illegally recover amounts from his client, but that her salary, based on higher grades, were not fixed nor she been granted pension based on the same. He, therefore, reiteratingly prayed that this Writ Petition be allowed, granting every relief sought for. nd 7. Upfront, I must say that the action of the 2 respondent in issuing Ext.P4 cannot find approval of this Court WPC 33888/18 5 for various reasons. This is because, it is virtually admitted that the petitioner’s Time-Bound-Higher Grade benefits were granted validly and without any reason that can be attributed to her, which is evident from Exts.R2(c) and R2(d). These orders, concededly, have not been set aside and the petitioner has already obtained benefits under the same. Therefore, one fails to understand how the 1st respondent could have issued Ext.P4 cancelling the 27 year Time-Bound-Higher Grade benefit, but without assigning any reason except that her services in the Last Grade could not have reckoned for such purpose. If there was any such case, the 1st respondent certainly ought to have taken action as was permissible in law to cancel Exts.R2(c) and R2(d) which, without dispute, has not been done until today. Therefore, as matters now stand, Exts.R2(c) and R2(d) orders of the 1st respondent hold the field, based on which, the petitioner is certainly entitled to all benefits under the Time-Bound-Higher Grade system. 8. That being said, the additional grievance of the petitioner that, in spite of Exts.R2(c) and R2(d), she has not been WPC 33888/18 6 favoured with fixation of salary or payment of pension consequent thereto, thus causing her acute distress, deserves the attention of this Court. It is needless to say that as long as Exts.R2(c) and R2(d) remain in force, the petitioner’s plea cannot be found to be unjustified. Unfortunately, this has been lost sight off by the 1st respondent, while issuing Ext.P4 and that too, nearly three years after she retired from service. 9. In this context, one must certainly bear in mind that the Honourable Supreme Court, in Rafiq Masih (supra), has declared the law affirmatively that no recovery is possible from a retired employee with respect to payments made to him/her at the time when he/she was in service, especially in the lower categories of posts. Without dispute, the petitioner retired in the year 2015 and was given the Time-Bound-Higher Grades much earlier in the years 2009 and 2014, based on valid authorisation and sanction by the 1st respondent himself, without any blame having been attributed to her in that regard. Therefore, even if there was any reason for the 1st respondent to find that his action was wrong, he could not have ordered recovery or denied WPC 33888/18 7 the benefits under the orders, in view of the unmistakable rigour of law declared by the Honourable Supreme Court in Rafiq Masih (supra). It is limpid that Ext.P4 has been issued without any such consideration and hence, it cannot obtain imprimatur. Resultantly, I order this Writ Petition and set aside Ext.P4, as also the consequential Ext.P6 order of the 2nd respondent – College; with a consequential direction to respondents 1 and 2 to re-fix the salary and pension of the petitioner, including family pension, adverting to Exts.R2(c) and R2(d); thus culminating in disbursement of all eligible amounts to her as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ``` WPC 33888/18 8 ## **`APPENDIX OF WP(C) 33888/2018`** |`PETITIONER EXHIBITS`|| |---|---| |`EXHIBIT P1`|`TRUE PHOTOSTAT COPY OF THE SERVICE`| ||`DETAILS AS CERTIFIED BY THE 2ND`| ||`RESPONDENT.`| |`EXHIBIT P2`|`TRUE PHOTOSTAT COPY OF THE RELEVANT`| ||`PAGES IN G.O.(P)NO.7/2016/FIN. DATED`| ||`20.1.2016 WITH REGARD TO THE 4TH TIME`| ||`BOUND GRADE PROMOTION ON COMPLETION OF`| ||`THE 27 YEARS IN THE SERVICE.`| |`EXHIBIT P3`|`TRUE PHOTOSTAT COPY OF THE`| ||`REPRESENTATION SUBMITTED BY THE`| ||`PETITIONER BEFORE THE 1ST RESPONDENT,`| ||`DATED 29.1.2018.`| |`EXHIBIT P4`|`TRUE PHOTOSTAT COPY OF THE INTIMATION`| ||`GIVEN TO THE PETITIONER BY THE 1ST`| ||`RESPONDENT, DATED -03-2018.`| |`EXHIBIT P5`|`TRUE PHOTOSTAT COPY OF THE REPLY`| ||`SUBMITTED BY THE PETITIONER BEFORE THE`| ||`1ST RESPONDENT, DATED 17.4.2018.`| |`EXHIBIT P6`|`TRUE PHOTOSTAT COPY OF THE INTIMATION`| ||`GIVEN TO THE PETITIONER BY THE 2ND`| ||`RESPONDENT, DATED 14.5.2018.`| |`RESPONDENTS’ EXTS:`|| |`EXT.R2(A)`|`TRUE COPY OF THE ORDER OF THE DIRECTOR`| ||`OF COLLEGIATE EDUCATION DATED 13.3.1987`| |`EXT.R2(B)`|`TRUE COPY OF THE ORDER OF THE DEPUTY`| ||`DIRECTOR OF COLLEGIATE EDUCATION DATED`| ||`3.2.2001`| |`EXT.R2(C)`|`TRUE COPY OF THE ORDER OF THE DEPUTY`| ||`DIRECTOR OF COLLEGIATE EDUCATION DATED`| ||`13.1.2014`| |`EXT.R2(D)`|`TRUE COPY OF THE ORDER OF THE DEPUTY`| ||`DIRECTOR OF COLLEGIATE EDUCATION DATED`| ||`10.11.2014`|