High Court of KeralaSingle Judge2021-11-22Writ petition allowed; impugned orders set asid...

Dr. C. Rajendran, Dr. K. P. Velayudhan, Dr. K. V. Lazar and Dr. T. C. Ayishabi v. University of Calicut and ors.

Case / Petition Number:WP(C) No. 9391 of 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2021-11-22
Court Decision / Holding: The impugned orders withholding salary and DCRG were set aside. The writ petition is allowed. Respondents are directed to disburse the salary due up to 31.03.2013 and the DCRG within one month from the date of receipt of a copy of this judgment, with interest at 6.5% if delayed beyond that period.
Final Disposition: Writ petition allowed; impugned orders set aside; salary up to 31.03.2013 and DCRG to be paid within one month, with 6.5% interest if delayed.

Parties to the Case

Appellants / Petitioners

Dr. C. Rajendran
Dr. K. P. Velayudhan
Dr. K. V. Lazar
Dr. T. C. Ayishabi

Respondents

The University of Calicut represented by the Registrar
The Registrar, University of Calicut
The Vice Chancellor, University of Calicut

Legal Representation & Advocates

Counsels for Petitioners

• K. M. George
• K. Chithra P. George

Counsels for Respondents

• P. C. Sasidharan, Senior Counsel, Calicut University (adv)

Case Synopsis & Summary

This writ petition under WP(C) No. 9391 of 2021 has four retired senior professors challenging the university’s withholding of part of their March 2013 salary and portions of DCRG and pension commutation after they were relieved on attaining the age of 60. The petitioners allege that though retirement was fixed at 60 under the Calicut University First Statute, 1977 (Chapter 3) and Rule 60(c) of Part I Kerala Service Rules, they were allowed to continue teaching till 31 March 2013 to conclude the academic year. The university relief orders (Exts. P2, P3, P5) and communications show the decision to relieve them, while RTI information indicates the petitioners continued to perform duties beyond the nominal retirement age. The petitioners rely on the practice and precedents that permitted continuation and on the Supreme Court principle in Rafiq Masih that monetary benefits paid in excess of entitlement cannot be recovered, arguing there was no financial loss to the government and no misrepresentation by the petitioners. Respondents rely on statutory provisions and a Division Bench ruling (W.A. 617/2010) that statutes override Kerala Service Rules for retirement age. The High Court ultimately holds that the petitioners were permitted to serve through 31 March 2013 and that withholding salary and DCRG was improper, directing payment with interest if delayed.

Provisions of Law Cited

Calicut University First Statute, 1977 – Chapter 3 (retirement age)Kerala Service Rules, Part I, Rule 60(c)Act and Statutes (subject to provisions of the Act and the Statutes)Statute 9 relating to applicability of the Kerala Service Rules

Legal Doctrines & Maxims

Monetary benefits paid in excess of entitlement cannot be recovered (Rafiq Masih White Washer)
Supremacy of statute over rules: provisions of the Act and the Statutes prevail over Kerala Service Rules (subject to the Act and Statutes)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that although retirement age is 60 under the statute and KSR Rule 60(c), they were permitted to continue till the end of the 2012–13 academic year (31 March 2013). Exts. P2, P3, P5 show the relieving order; RTI materials confirm ongoing duties until the end of the year. They submitted there was no misrepresentation and no financial loss to the State; Supreme Court precedent in Rafiq Masih supports restitution of entitlements not to be recovered, and the act of the employer in allowing continuation warrants payment of due salary and terminal benefits.

Contentions of Respondents

The respondents contended that the 60-year retirement age fixed by statute and the Calicut University Statutes override KSR Rule 60(c). They relied on the Division Bench decision in W.A. 617/2010 and argued that statutory provisions govern terminal benefits; Rule 60(c) is subordinate to the Act and Statutes and can justify withholding benefits where overspending occurred. They asserted the petitioners’ spending exceeded the entitlement and thus justified retention of payments until post-retirement settlement.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Punjab & Ors. v. Rafiq Masih White Washer	2015 (4) SCC 334	Positive	The court applies the Rafiq Masih principle that monetary benefits paid in excess of entitlement cannot be recovered, guiding the payment order to compensate the petitioners and discourage withholding legitimate entitlements.
University of Calicut v. Dr. M. P. Kannan (W.A. No. 617/2010)	W.A. No. 617/2010	Distinguished	The court acknowledges the ratio but distinguishes it on the facts (continuation till 31.03.2013) and resolves the matter with reliance on Rafiq Masih rather than the Kannan ratio.
Judgment in W.P(C) 26685/2018	W.P(C) 26685/2018	Mentioned Only	Exhibit P11 refers to this judgment; cited for completeness but not as a controlling authority in the reasoning.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943** **WP(C) NO. 9391 OF 2021** ## **PETITIONERS:** 1 DR.C.RAJENDRAN AGED 68 YEARS,S/O.VASUDEVA MENON, PROFESSOR (RETD), HOUSE NO.28/1097, RAJADHANI,CHEVAYUR, CALICUT, PIN 673 017 2 K.P.VELAYUDHAN AGED 68 YEARS, ASSOCIATE PROFESSOR (RETD), AMBADI HOME, KAKKENCHERY, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT, PIN 673 635 3 DR. K.V. LAZAR AGED 68 YEARS, ASSOCIATE PROFESSOR (RETD), TP6-785, CHENAKKAL, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT, PIN 673 635 4 DR. T.C. AYISHABI AGED 68 YEARS, PROFESSOR (RETD), MENICHEDATH PARAMBA, PUTHIYARA P.O., CALICUT, PIN 673 004 BY ADVS. K.M.GEORGE KUM.CHITHRA P.GEORGE ## **RESPONDENTS:** 1 THE UNIVERSITY OF CALICUT REP.BY THE REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., PIN 673 635 2 THE REGISTRAR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., PIN 673 635 3 THE VICE CHANCELLOR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., PIN 673 635 BY ADV SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.10.2021, THE COURT ON 22.11.2021 DELIVERED THE FOLLOWING: **WP(C) NO.9391 OF 2021** **2** ## **JUDGMENT** Petitioners 4 in number are senior citizens and renowned professors (retired) of the University of Calicut. All the petitioners were appointed as teachers by the syndicate, the Chief Executive Body of the 1[st] respondent University and they were relieved from their duties on 31.03.2013. Petitioners had attained the age of 60 years on 12.11.2012, 1.12.2012, 1.10.2012 and 4.10.2012 respectively but as per the practice, were allowed to discharge the duties and rendered the services till 31.03.2013 and have approached this Court challenging series of Ext.P6 whereby part of their salary for the month of March and part/total of DCRG and pension commutation were impounded by the 2[nd] respondent as per the orders issued by the 3[rd] respondent. 2. Learned counsel appearing on behalf of the petitioners submitted that no doubt the provisions of the Statute of the University provided the retirement age as 60 but they were allowed to continue and discharge their duties upto 31.03.2013 ie., the end of the academic year. This fact is **WP(C) NO.9391 OF 2021** **3** evident from series of documents Exts.P2, P3 & P5. Vide order dated 31.03.2013 (Ext.P2) Vice Chancellor accorded sanction for relieving from their duty with effect from 31.03.2013. It is the conceded position on record that all the petitioners were allowed to discharge their duties upto 31.03.2013. The Joint Director, Local Fund Audit, Calicut University vide communication dated 30.03.2013 informed the Registrar of the Calicut University that as per Chapter 3 of the Calicut University First Statute, 1977, the retirement age of the university teachers though is 60, but Kerala Service Rules are made applicable and therefore, the teachers should be continued to service upto the end of the month in which they attained the age of 60. Thus it would not be proper to raise the objection at this juncture and pensionary benefits due to them be released. 3. It was next contended that there was no fault on behalf of the petitioners much less any misrepresentation of having continued till the end of the academic year ie., beyond the date of their actual superannuation and thus in view of the law laid down by the Supreme Court in _**State Punjab & Ors.**_ **WP(C) NO.9391 OF 2021** **4** V. _**Rafiq Masih White Washer**_ [2015 (4) SCC 334], the monitory benefits if paid in excess of their entitlement cannot be recovered or withheld. There was no financial loss to the Government. In the absence of any extra creation of the posts they continued to discharge their duty on the existing substantive posts. All the petitioners were employed in fullfledged University service and discharged their duties to the satisfaction of the superiors. 4. On the other hand, learned counsel for the respondent oppose the aforementioned prayer by relying upon the judgment of the Division Bench of this Court in W.A.No.617/2010 dated 02.09.2015 whereby referring to the Rules of 60(c) of Part-I of the Kerala Service Rules vis-à-vis the provisions of the Statute of the University it was held that the provisions of the statute would be binding and not of the KSR as it pertains to retirement age of 55 and at the best employee could be retired at the end of the year instead of achieving the date of retirement before the end of the month. Petitioners overspent in the department and therefore, the objection raised by the impugned decision is perfectly justified **WP(C) NO.9391 OF 2021** **5** and do not call for any interference. The provisions of Kerala Service Rules is only applicable in the matter of payment of terminal benefits to the teachers of the University. Even on plain and simple reading of Rule 60(c) of Part-I of Kerala Service Rules and statute 9 relating to the applicability of the Kerala Service Rules is “subject to the provisions of the Act and the Statutes”. Thus the provisions of the statute would override the provision of Rule 60(c) of Kerala Service Rules and urge this court for dismissal of this writ petition. 5. I have heard the learned counsel for the parties and appraised the paper book. 6. The documents annexed with the writ petition ie., Ext.P2 relieving order dated 30.03.2013 is required to be extracted. The relevant portion of the same is as under: “The following teachers are to retire from University Service on 31/03/2013 AN, on attaining the age of superannuation: 1.Dr.Lazar K.V., Associate Professor, Department of Zoology. 2.Dr.Ayishabi T.C., Professor, Department of Education. 3.Dr.Rajendran C., Department of Sanskrit. 4.Dr.Sivarajan K., Professor Department of Lifelong **WP(C) NO.9391 OF 2021** **6** Learning and Extension. 5.Sri.Velayudhan K.P., Associate Professor, Department of History. Sanction has therefore been accorded by the Vice Chancellor for reliving the above teachers from University Service with effect from 31/03/2013 AN, on attaining the age of superannuation. Orders are issued accordingly. ABDUL KAREEM M.T Assistant Registrar” 7. It is a conceded position on record as per the information received under the RTI Ext.P1 and series thereof all the petitioners beyond the date of attaining the age of 60 years continued to discharge their duties like teaching assignments as per the time table, guiding M.Phil students for preparation of M.Phil dissertation, guiding research scholars (Ph.D), invigilation and valuation duties, actively involved in all national and international seminars organized by the department etc. There is no dispute to the ratio decidendi culled out in the judgment in _**University of Calicut**_ v. _**Dr.M.P.Kannan**_ (W.A.No.617/2010) cited by the respondents that the provision of Rule 60(c) Part-I of Kerala Service Rules **WP(C) NO.9391 OF 2021** **7** envisage a provision 'subject to the provisions of the Act and the statutes' meaning thereby the provisions of the statues prescribing age of retirement as 60 years would have been applicable. However, in the instant case as per the practice and precedent petitioners were allowed to continue till the end of the academic year ie., 31.03.2013. The difference between the actual attainment age of 60 years in the academic year is almost five months, three months and four months respectively. Petitioners did not misrepresent or submitted any document compelling the respondents to allow them to discharge their duties till 31.03.2013. Thus in my view the ratio decidendi culled out in _**State Punjab & Ors.**_ V. _**Rafiq Masih White Washer**_ would be directly applicable to the aforementioned case. On account of the act of the employer petitioners were allowed to continue till 31.03.2013. Thus the action of the respondents withholding the part of the salary for the month of March, 2013 and part of DCRG is wholly uncalled for, fallacious and arbitrary. Accordingly, the impugned orders are set aside. The writ petition is allowed. Respondents are directed to make **WP(C) NO.9391 OF 2021** **8** disbursement of the salary claimed for ie., till 31.03.2013 and DCRG, within a period of one month from the date of receipt of copy of this judgment, failing which it will entail interest at the rate of 6.5%. **Sd/-** **AMIT RAWAL JUDGE** nak **WP(C) NO.9391 OF 2021** **9** ## **APPENDIX OF WP(C) 9391/2021** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE PHOTOCOPY OF THE UNIVERSITY ORDER| ||U.O.NO.GAII/F2/948/97 DATED 27.9.1997| |EXHIBIT P2|TRUE PHOTOCOPY OF THE RELIEVING ORDER| ||U.O.NO.990/2013/CU DATED 30.3.2013| ||ISSUED BY 2ND RESPONDENT TO THE 3RD| ||PETITIONER.| |EXHIBIT P3|TRUE PHOTOCOPY OF THE RELIEVING ORDER UO| ||NO.1024/2013/CU DATED 1/4/2013 ISSUED BY| ||THE 2ND RESPONDENT TO THE 3RD| ||PETITIONER.| |EXHIBIT P4|TRUE PHOTOCOPY OF THE MEMO| ||NO.AD.H/SO/PEN-RET/2011-12 DATED| ||10.9.2012 ISSUED TO THE 1ST PETITIONER| ||BY THE 2ND RESPONDENT.| |EXHIBIT P5|TRUE PHOTOCOPY OF THE ORDER OF DUTIES| ||ASSIGNED TO THE 1ST PETITIONER DURING| ||HIS SUPERANNUATION PERIOD DATED| ||22.2.2018.| |EXHIBIT P5 (A)|TRUE PHOTOCOPY OF LETTER NO.HIS/RTI/2018| ||DATED 31/3/2018 ISSUED TO THE 2ND| ||PETITIONER REGARDING HIS DUTIES.| |EXHIBIT P5 (B)|TRUE PHOTOCOPY OF LETTER NO.83965/EDU-| ||ASST-2/2017 DATED 9.5.2018 OF THE HOD,| ||DEPT. OF EDUCATION.| |EXHIBIT P6|TRUE PHOTOCOPY OF THE ORDER UO| ||NO.1730/2013/CU DATED 22.5.2013 ISSUED| ||BY THE 2ND RESPONDENT TO THE 1ST| ||PETITIONER.| |EXHIBIT P6 (A)|TRUE PHOTOCOPY OF THE ORDER UO| ||NO.1839/2013/CU DATED 30.5.2013 ISSUED| ||BY THE 2ND RESPONDENT TO THE 2ND| ||PETITIONER.| **10** ## **WP(C) NO.9391 OF 2021** - EXHIBIT P6 (B) TRUE PHOTOCOPY OF THE ORDER UO NO.2923/2014/CU DATED 22.3.2014 ISSUED BY THE 2ND RESPONDENT TO THE 3RD PETITIONER. - EXHIBIT P6 (C) TRUE PHOTOCOPY OF THE ORDER UO NO.1675/2013/CU DATED 17.5.2013 ISSUED BY THE 2ND RESPONDENT TO THE 4TH PETITIONER. - EXHIBIT P7 TRUE PHOTOCOPY OF THE LETTER NO.LFCU/A1/349/2013 DATED 30/3/2013 OF THE JDLFA ADDRESSED TO THE 2ND RESPONDENT. - EXHIBIT P8 TRUE PHOTOCOPY OF THE UO NOTE NO.FIN.AUDIT-1/MISC./2149/2013 DATED 24.4.2013 OF THE FINANCE OFFICER OF THE 1ST RESPONDENT. - EXHIBIT P9 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 12.8.2013 OF THE 1ST PETITIONER ADDRESSED TO THE 2ND RESPONDENT. - EXHIBIT P9 (A) TRUE PHOTOCOPY OF THE REPRESENTATION DATED 24.4.2013 OF THE 2ND PETITIONER ADDRESSED TO THE 2ND RESPONDENT. - EXHIBIT P9 (B) TRUE PHOTOCOPY OF THE REPRESENTATION DATED 28.11.2013 OF THE 3RD PETITIONER ADDRESSED TO THE 2ND RESPONDENT. - EXHIBIT P9 (C) TRUE PHOTOCOPY OF THE REPRESENTATION DATED 26.2.2018 OF THE 3RD PETITIONER ADDRESSED TO THE 2ND RESPONDENT. - EXHIBIT P9 (D) TRUE PHOTOCOPY OF THE REPRESENTATION DATED 27.4.2013 OF THE 4TH PETITIONER ADDRESSED TO THE 2ND RESPONDENT. - EXHIBIT P9 (E) TRUE PHOTOCOPY OF THE REPRESENTATION DATED 26.2.2018 OF THE 4TH PETITIONER ADDRESSED TO THE 2ND RESPONDENT. **WP(C) NO.9391 OF 2021** **11** EXHIBIT P10 TRUE PHOTOCOPY OF THE LETTER NO.1445/ADH-ASST-1/2013/CU DATED 2/9/2013 OF THE 2ND RESPONDENT TO THE 1ST PETITIONER. Exhibit P11 TRUE COPY OF THE JUDGMENT IN W.P(C) 26685/2018 DATED 11/02/2021