Dr. M. Abdul Salam v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 29TH DAY OF JANUARY 2020/9TH MAGHA, 1941** ## **WA.No.1459 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 3309/2015(K) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER IN WP:** **DR.M.ABDUL SALAM, AGED 66 YEARS** **FORMER VICE CHANCELLOR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., PIN-673 635, CURRENTLY RESIDING AT TC 66/116(4) CASHLIN, VANDITHADAM, PACHALLORE P.O., TRIVANDRUM, PIN-695 027.** **BY ADVS. SRI.ADARSH KUMAR SRI.BIJU VARGHESE ABRAHAM** ## **RESPONDENTS/RESPONDENTS IN WP/ADDITIONAL RESPONDENTS IN WP:** **1 THE STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE HONOURABLE CHANCELLOR OF THE UNIVERSITY OF CALICUT KERALA RAJ BHAVAN, KERALA GOVERNORS CAMP, SO POST OFIFCE, THIRUVANANTHAPURAM-695001.** WA No.1459/2019 -:2:- - **3 THE REGISTRAR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO-673 635.** - **4 PROF DR.T.K.NARAYANAN FORMER REGISTRAR, UNIVERSITY OF CALICUT, THARAYIL HOSUE, VELIMUKKU PO, MALAPPURAM-676 317.** - **5 DR.D.K.BABU ASSOCIATE PROFESSOR, PRAKRITI, GURUVAYURAPPAN COLLEGE PO, PIN-673 014.** - **6 C.R.MURUKAN BABU MEMBER, SYNDICATE, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO., PIN-673655.** - **7 ADDL. R7. THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY (KAU), P.O. VELLANIKKARA, N.H. 47, THRISSUR, KERALA-680656.** **(THE ADDITIONAL 7TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 13/08/2019 IN IA NO.1/2019)** **R1-R2 BY SRI.K.K.RAVINDRANATH, ADDL.ADVOCATE GENERAL** **R3 BY SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY R4 BY ADV. M.P.SREEKRISHNAN R6 BY ADV. SRI.GEORGE POONTHOTTAM (SR.) R6 BY ADV. SMT.NISHA GEORGE R7 BY SRI.AJITH KRISHNAN, SC, KERALA AGRICULTURAL UNIVERSITY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14.01.2020, THE COURT ON 29.01.2020 DELIVERED THE FOLLOWING:** WA No.1459/2019 ## -:3:- ## **J U D G M E N T** Dated this the 29[th] day of January, 2020 ## _**Shaffique, J.**_ The appeal is filed by the petitioner in WP(C) No. 3309/2015. By the impugned judgment, the claim of the petitioner for the salary and allowances as per UGC Scheme without affecting his pension came to be rejected by the learned Single Judge. 2. The short facts of the case are as under and the parties are described as shown in the writ petition:- Petitioner while working as Professor and Head of Department of Agronomy, College of Agriculture, Vellayani applied for voluntary retirement 9 months prior to attaining the age of superannuation. By Ext.P1 notification dated 11/8/2011, the Chancellor of University appointed the petitioner as Vice Chancellor of the University of Calicut for a period of four years from the date of assumption of office. The terms and conditions of service had been specifically stated in a letter dated 16/5/2012 (Ext.P2). In the said letter, it was specifically mentioned that the WA No.1459/2019 -:4:- petitioner will be on re-employment from F.N of 12/8/2011 subject to sanctioning of voluntary retirement from his parent institution and that he will be entitled for salary as per UGC Scheme. Clause (xiii) of the terms and conditions further indicated that in respect of any other matter, provisions of Kerala Service Rules shall apply. According to the petitioner, he was not on re-employment whereas it was an appointment made to the post of Vice Chancellor and therefore, Chapter VII of Part III KSR which deals with re-employment of pensioners has no application. In other words, the amount of pension he receives should not be deducted from the salary he is entitled to as per the UGC Scheme. By a letter dated 4/2/2013, the petitioner addressed a letter to the Secretary to the Governor pointing out the infirmity in the order of appointment dated 16/5/2012 which was followed by reminders dated 5/2/2013, 16/4/2013, 8/11/2013, 19/5/2014 and 27/8/2014. But no reply was received. Later by letter dated 26/9/2014, petitioner was informed by the Chancellor's office that his salary shall be fixed as per Rule 100 of Part III KSR considering his appointment as re-employment with effect from the date he assumes office. Learned Single Judge after evaluating the WA No.1459/2019 ## -:5:- respective contentions placed reliance on the judgment of the Apex Court in _**M.S.Chawla and others v. State of Punjab and others**_ [(2001) 5 SCC 358] and also Division Bench judgment of this court in _**Gopinatha Pillai v. State of Kerala**_ (2004 (3) KLT 290) and held that any appointment of a pensioner who draws pension in terms of Part III KSR would be governed by the provisions of Chapter VII as well. 3. The learned counsel for appellant Sri.Adarsh Kumar while impugning the aforesaid judgment tried to draw a distinction in the matter with reference to the judgment in _**M.S. Chawla's case**_ (supra) and _**Gopinatha Pillai's case**_ (supra). He placed reliance on the following judgments of various other High Courts:- (i) _**Indian Hume Pipe Co. Ltd v. The Presiding Officer, Labour**_ (AIR 1964 AP 56) (ii) _**Ranchhodbhai S. Dalwadi v. Gujarat Agricultural University**_ [(1987) 1 GLR 297] (iii) _**Jayasree v. State of Kerala**_ (2002 (3) KLT 803) (iv) _**Sri.E.Sreedharan v. Union of India and Others**_ (WP(C) No.2356/2002 dated 5/12/2008) WA No.1459/2019 -:6:- 4. On the other hand, learned Additional Advocate General Sri.K.K.Ravindranath submitted that _**Gopinatha Pillai's case**_ (supra) holds the field and there cannot be any contention beyond the said judgment. In so far as _**Gopinatha Pillai's case**_ (supra) had placed reliance on the judgment of the Apex Court in _**M.S.Chawla's case**_ (supra), no further issue arises for consideration in the case. He placed reliance on a judgment of the learned Single Judge in WP(C) No. 28226/2007 which is already referred to by the learned Single Judge in which according to him, the entire case law on the subject had been considered. 5. Though in Ext.P1 notification the Chancellor has used the word 'appointment', in the letter dated 16/5/2012 (Ext.P2), while specifying the terms and conditions of service, the appointment is specifically referred as 're-employment'. Chapter VII of Part III KSR deals with re-employment. Rule 92 specifies that no person discharged on pension or gratuity shall be re-employed either temporarily or permanently without the sanction of the Government. When such a re-employment is made, the order shall specifically state whether any deduction is to be made from pension or salary as required by the rules. It is pointed out that WA No.1459/2019 -:7:- Rule 92 did not contemplate an appointment made by the Chancellor of University to the post of Vice Chancellor. Rule 100 of Chapter VII further indicates that the pay of re-employed State Government employee who retired from a post with pay scales currently in force will be the pay drawn at the time of retirement minus basic pension. In _**M.S.Chawla's case**_ (supra), the Apex Court was considering the appointment made to the post of President of the District Consumer Forum. A District Judge after his superannuation was appointed as the President of the Consumer Forum under the Consumer Protection Act. An identical question has arisen for consideration in the said case. The Apex Court held that when sub-section (3) of Sec.10 of the Consumer Protection Act, 1986 provided that the salary or honorarium and allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be as such as may be prescribed by the State Government and the State of Punjab has framed rules with reference to the same, the President of a District Forum if appointed on a whole-time basis is entitled to the scale of pay of a District Judge of a District Court. However, there was no provision in the Consumer Protection Act WA No.1459/2019 -:8:- or the Rules framed thereunder that, on being appointed as President of the District Consumer Forum after superannuation, the pension receivable is to be deducted. The Apex Court observed that pension of such superannuated District Judges is governed by Punjab Civil Services (Pension) Rules which unequivocally stipulates that in determining the pay of a reemployed pensioner, the pay must not exceed the substantive pay drawn immediately before retirement or the maximum of the scale applicable to the post in which the Government employee is re-employed, whichever is less and the pension which is noneffective pay, shall not ordinarily be allowed in addition to it. Taking into consideration the aforesaid rules, it was held that the Pension Rules applies to the fact situation. In _**Gopinatha Pillai's case**_ (supra) also, a similar issue had arisen for consideration and after evaluating Rule 92 and Rule 100 of Part III KSR, it was held that “ _pension of a District Judge on superannuation is admittedly governed by the provisions of Kerala Service Rules, just like any other superannuated Government employee. On retirement, even if a person is holding the post of President of the Consumer Disputes Redressal Forum, it would be treated to_ WA No.1459/2019 -:9:- _be a case of re-appointment of a pensioner and would be governed by the provisions of Rule 100 Part III KSR_ .” The learned counsel for the appellant would however place reliance on the judgment of the Apex Court in _**Union of India v. K.B. Khare and Others**_ [1994 Supp (3) SCC 502]. That was a case in which a question arose whether appointment of a Senior District Judge in the Madhya Pradesh Judicial Service while being appointed as a member of the Central Administrative Tribunal (CAT) was entitled to combine the two services to get one consolidated pension as a member of the CAT or in the alternative, to add to his qualifying service up to the age of 62 years as a member of M.P. Judicial service. While considering the respective rules relating to the appointment and the additional service, it was held that the appointment of the petitioner in CAT was not a re-employment in connection with the affairs of the Union, whereas it is an independent judicial service and the appointment in the Tribunal is on a tenure basis. The aforesaid judgment may not have application to the present case as the petitioner was employed in an Agricultural University and was drawing salary from the Government. On getting voluntary retirement, he automatically WA No.1459/2019 ## -:10:- became a pensioner of the State Government. Vice Chancellor's salary is also paid by the State Government in which event Part III KSR squarely applies and it is not open for the petitioner to contend otherwise. The other judgments relied upon by the learned counsel for the appellant may not have any relevance since _**M.S. Chawla's case**_ (supra) and _**Gopinatha Pillai's case**_ (supra) hold the field. 6. Under such circumstances, we do not find any ground to interfere with the aforesaid judgment. Writ appeal is dismissed. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/MARY JOSEPH** Rp True Copy **JUDGE** PS to Judge WA No.1459/2019 -:11:- ## **APPENDIX** **APPELLANTS' EXHIBITS: NIL** **RESPONDENTS' EXHIBITS:** **EXHIBIT R7(a) TRUE COPY OF LETTER O.VC/2015/LR/024 DATED 6.2.2015 OF DR.M.ABDUL SALAM. EXHIBIT R7(b) TRUE COPY OF THE UNIVERSITY ORDER NO.PEN.13/18565/2019 DATED 2.11.2019** True Copy PS to Judge Rp