Chandrika Devi Amma v. Secretary to Government Higher Education Department, Government Secretariat, Thiruvananthapuram and others

W.P(c).No.21588/2019-W 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** ## **WP(C).No.21588 OF 2019(W)** ## **PETITIONER:** **CHANDRIKA DEVI AMMA I AGED 64 YEARS** **RETIRED PRINCIPAL, MOUNT TABOR TRAINING COLLEGE, PATHANAPURAM RESIDING AT PODIKKALA PADINJATTATHIL, KURAMPALA, PANDALAM P.O, PATHANAMTHITTA DISTRICT, PIN 689 501** **BY ADVS.** **SRI.K.SASIKUMAR SRI.P.S.RAGHUKUMAR SRI.S.ARAVIND SMT.PRIYA CAROL** ## **RESPONDENTS:** - **1 SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM 695 033** - **3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, SOUTH ZONE, KOLLAM 691 001** - **4 ACCOUNTANT GENERAL, KERALA, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM 695 001** - **5 PRINCIPAL,** **MOUNT TABOR TRAINING COLLEGE, PATHANAPURAM, KOLLAM DISTRICT, PIN 689 695** - **6 SUB TREASURY OFFICER, SUB TREASURY, PANDALAM, PATHANAMTHITTA DISTRICT, PIN 689 501.** ## **SRI.B.UNNIKRISHNA KAIMAL, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(c).No.21588/2019-W 2 ## _**P.V.ASHA, J.**_ **--------------------------** W.P(C).No.21588 of 2019-W ------------------------------------------- _Dated this the 22[nd] day of August, 2019_ ## _**JUDGMENT**_ The petitioner who retired from service on 31.03.2010 as a Principal of an aided Training College is aggrieved by the denial of disbursement of DCRG. 2. It is stated that the petitioner received all other terminal benefits including commuted value of pension in June, 2010. Even though a sum of Rs.7 lakhs was authorised for payment towards DCRG, it was not paid. It is stated that though the 3[rd] respondent forwarded the non-liability certificate along with Ext.P1 letter dated 22.10.2010, the 2[nd] respondent did not countersign it. 3. While working as Selection Grade Lecturer, the petitioner was sent on deputation to undergo Ph.D course under the Quality Improvement Program (QIP) of the UGC during the period from 25.2.2005 to 24.2.2007. As per rules, a teacher fellow would be relieved on deputation only if he executes an agreement in the prescribed form in respect of successful completion of the course, pay and allowances, her liability to serve, etc. Accordingly the petitioner executed Ext.P3 agreement. She re-joined duty on 25.02.2007. She was thereafter promoted as Principal on 01.07.2008 and retired from service on 31.03.2010. 4. The petitioner submits that the 2[nd] respondent had, as per Ext.P2 letter dated 29.09.2010, directed the Principal of the College to furnish the certificates of W.P(c).No.21588/2019-W 3 Ph.D and M.Phil acquired by the petitioner immediately or else to ask her to remit the amount including penalty and interest in the Treasury, in accordance with the terms of the bond executed by her and to produce the receipt. It was stated that the petitioner was sent on deputation during the period from 1.7.1999 to 30.06.2000 and from 25.2.2005 to 24.2.2007 respectively for undergoing M.Phil and Ph.D respectively. According to the petitioner, she is liable to remit only the penalty and interest. Her contention is that due to her workload consequent to her promotion as Principal on 01.07.2008 as well as due to the change in the research guide after rejoining, she was able to submit the thesis only on 30.05.2012, after her retirement on 31.03.2010. It is stated that the 2[nd] respondent did not raise any objection against the delay in submitting the thesis and did not inform her about her obligation by way of the bond while she was in service and till Ext.P2 letter was issued. It is further stated that the respondents did not take any further action till Ext.P4 letter dated 25.07.2018 was issued after 8 years, directing the 2[nd] respondent to recover the pay and allowance the petitioner had drawn during the period of deputation. It was followed by Ext.P5 letter of the 2[nd] respondent directing the petitioner to remit the amount as directed in Ext P4. Though the petitioner submitted Ext.P6 representation explaining the delay in the submission and disputing the liability to pay the amount as directed, the 2[nd] respondent issued Ext.P7 letter on 26.02.2019 informing her that a sum of Rs. 5,86,270/- towards pay and allowances for the deputation period from 25.05.2005 to 24.02.2007 along with interest at the rate of 12.5% and a sum of Rs.2,72,772/- towards the pay and W.P(c).No.21588/2019-W 4 allowances of the substitute teacher would be deducted from her DCRG. It is stated that the 2[nd] respondent thereafter issued Ext.P8 letter on 01.07.2019 directing the 3[rd] respondent to forward the departmental NLC for the last 3 years prior to her retirement. According to the petitioner, the letters Exts.P2, P7 and P8 are illegal and the non-payment of DCRG even after 9 years of retirement is arbitrary. Relying on Ext.P9 judgment in W.P.(C) No.884 of 2013, the petitioner submits that her liability is confined to payment of penalty of Rs.7,000/- and interest and therefore she is entitled to get the DCRG sanctioned to her after deducting the penalty alone. 5. The learned Government Pleader points out that the bond Ext.P3 executed by the petitioner itself is sufficient for denying payment of DCRG as she has agreed to refund the pay and allowances drawn by her and her substitute in the event she does not complete the program successfully. It is also pointed out that the petitioner herself has stated that the NLC forwarded along with Ext.P1 was not countersigned by the 2[nd] respondent. 6. Having heard the learned Counsel for the petitioner and the learned Government Pleader, it is clear that the petitioner has executed Ext.P3 bond before proceeding with deputation on FIP. It is necessary to examine the provisions contained in the bond. The agreement commences stating as follows: _“KNOW ALL MEN BY THESE PRESENTS THAT WE Smt.Chandrika Devi Amma. I resident of Podickala Padinjattethil, Kurampala, Pandalam P.O., Pathanamthitta District, at present employed as Seletion Grade Lecturer in Natural Science in Mount Tabor Training College, Pathanapuram (hereinafter called the Bounden) and Sri Sunny Skariah, aged 45 years, Son of Sri Philipose Skariah, Pizhakkilathu, Keerukuzhy P.O. Via Thumpamon, Pathanamthitta District at present employed as Reader in Education in Mount Tabor Training College Pathanapuram and Sri Jacob George, aged 44 years, Son of Sri. M.C.George, Mamoottil, Erezha_ W.P(c).No.21588/2019-W 5 _North, Chettikulangara P.O, Mavelikkara, Alleppey District at present employed as selection Grade Lecturer in Physical Education Mount Tabor Training College, Pathanapuram (hereinafter called the Sureties)_ _**do hereby jointly and severally bind ourselves and respective heirs, executors and administrators to pay to the Governor of Kerala (hereinafter called the Government) on demand the entire amount drawn by the Bounden by way of pay and allowances for the period of her deputation to undergo Ph.D Course in the Department of Education, University of Kerala, Thiruvananthapuram together with penalty of Rs.10,000/-** (Rupees Ten thousand only) with interest thereon from the date of demand at Government rate for the time being in force on Government loans or if payment is made in a country other than India.”_ _(emphasis supplied)_ Thus as per the bond, the petitioner as well as the sureties have undertaken that the pay and allowances drawn for the period on deputation to undergo Ph.D course in the Department of Education University of Kerala together with penalty of Rs.10,000/- along with interest thereon would be paid on demand by the Government. It is after agreeing for the same, the agreement proceeds further and the Government undertakes as follows: _“WHEREAS the Government have in GO (Rt) No.1398/2006/H.Edn. dated Thiruvananthapuram 19-09-2006 (hereinafter called the said Order which shall form part of this Deed as if incorporated herein) agreed to treat the Bounden as government sponsored candidate for undergoing the course under the Faculty improvement Programme of the University Grants Commission during the period specified above in the Department of Education, University of Kerala, Thiruvananthapuram._ _WHEREAS the Government agreed to pay the Bounden during the period of the said deputation her full pay and allowances subject to the terms and conditions contained in the said order and those hereinafter appearing to which the Bounden and sureties have also agreed.”_ Therefore, the pay and allowance for the deputation period were paid on conditions stipulated in the Government order, which has formed part of the bond. ## In the paragraph preceding the date of Ext.P3 agreement, it is stated as follows: _“xxxx xxxx in the event of the Bounden failing to serve the Mount Tabor Training College, Pathanapuram for a period of three years immediately and continuously after her return to duty on completion of her course the Bounden and Sureties shall forthwith pay to the Government on demand the amounts referred to above together with interest thereon at Government rates for the time being in force on Government loans and in case the Bounden fails to complete the course successfully within the grace period the Bounden and sureties shall pay to the Government a penalty of Rs.7,000/- (Rupees Seven_ W.P(c).No.21588/2019-W 6 _thousand only) together with interest at the rate mentioned above unless the Bounden successfully complete the course at her own expense within two years from the date of expiry f the period of deputation and upon payment of all such sums the above written obligation shall be void and of no effect otherwise this shall be and remain in full force and effect.”_ Therefore, going by the provisions in the bond it is seen that the petitioner as well as the sureties have agreed to refund the amount in case she does not successfully complete the course within the prescribed period. But the petitioner relies on Ext.P9 judgment of this Court in W.P(c).No.884 of 2013, according to which, the liability of a person who underwent Ph.D under the faculty improvement programme is only to pay the penalty which was found to be Rs.7,000/-. But according to the bond executed by the petitioner, what is agreed to is to remit the entire amount of pay and allowances along with penalty and interest. Therefore, the judgment relied on by the petitioner will not be applicable in the present case. Moreover, the learned Government Pleader points out that the said judgment is held not good law by the judgment of a Division Bench of this Court in _**Premasukumar v. Secretary, Higher Education Department**_ [2019 (3) KLT 912]. 7. I have also rendered the judgment in _**Sam K Suresh v. Director, Institute of Human Resource Development**_ [2019(3) KHC 1043] upholding the demand for payment of allowances drawn by a teacher who failed to successfully complete the course he undergone under FIP, on deputation along with penalty and interest and the liability of the teacher to make the payment. 8. The 1[st] respondent had in Ext.P5 letter informed the petitioner that she should have submitted the thesis before 24.02.2009, in tune with the orders issued by the UGC. The petitioner was informed that the pay and allowances to W.P(c).No.21588/2019-W 7 teachers on FIP as well as to their substitutes are paid by the UGC during the deputation period and therefore the teacher who went on FIP is bound to refund the benefits in case she did not submit the thesis. From the letters Ext.P5, it is seen that correspondence with respect to the liability towards FIP period has been going on for the last several years. 9. Though the learned counsel for the petitioner submits that Ext.P2 non liability certificate was forwarded, in para.3 of the Writ Petition the petitioner herself has stated that the 2nd respondent did not countersign the non liability certificate which was forwarded to the 4th respondent. 10. When the petitioner had executed the bond and the provisions therein are not observed, a further fixation of liability is not necessary for realisation of the amount which arose on the date on which Ext.P3 bond was executed in 2006 and thereafter when she failed to complete the course successfully, when the petitioner was in service. Therefore, the contention of the petitioner that liability was not fixed within a period of three years of retirement is absolutely unsustainable. The petitioner is therefore liable to pay the entire amount as agreed to in Ext.P3. 11. However respondents would not be entitled to payment of interest for the period from 01.04.2010 because the DCRG due to petitioner is retained by the respondents. Therefore in case there is any balance amount after adjusting the sum of Rs. 586270/ and Rs. 2,72,772/ mentioned in Ext P7 order, it shall be disbursed to the petitioner within one month of the date of receipt of a copy of the judgment. W.P(c).No.21588/2019-W 8 In the above circumstances, the Writ Petition is dismissed. _Sd/-_ _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P(c).No.21588/2019-W 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE LETTER NO. C2/10794/09 DATED 22-10-2010 ISSUED BY THE 3RD RESPONDENT TO THE 2ND AND 6TH RESPONDENTS EXHIBIT P2 A TRUE COPY OF THE LETTER NO. F3/30725/10/CED DATED 29-09-2010 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 A TRUE COPY OF THE AGREEMENT DATED 22-092006 EXECUTED BY THE PETITIONER FOR UNDERGOING THE PH.D COURSE ON DEPUTATION UNDER FIP EXHIBIT P4 A TRUE COPY OF THE LETTER NO. K1/143/18/HED DATED 25-07-2018 OF THE 1ST RESPONDENT ADDRESSED TO THE 2ND RESPONDENT EXHIBIT P5 A TRUE COPY OF LETTER NO. F3/30725/2010/CED DATED 14-09-2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 21-01-2019 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT EXHIBIT P7 A TRUE COPY OF LETTER NO. N2/24718/2010/CED DATED 26-02-2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P8 A TRUE COPY OF LETTER N2/24718/2010/CED DATED 01-07-2019 ISSUED BY THE 2ND RESPONDENT EXHIBIT P9 A TRUE COPY OF THE JUDGMENT DATED 25-082014 OF THIS HON'BLE COURT IN WPC NO. 884 OF 2013**