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

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 11TH DAY OF APRIL 2019 / 21ST CHAITHRA, 1941** ## **WP(C).No. 3309 of 2015** ## **PETITIONER:** **DR.M.ABDUL SALAM AGED 62 YEARS** **VICE CHANCELLOR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO, PIN-673635** ## **BY ADVS. SRI.ADARSH KUMAR SRI.BIJU VARGHESE ABRAHAM** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS PRINCIPAL SECRETARY TO**| ||**GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM**| |**2**|**THE HONBLE CHANCELLOR OF THE UNIVERSITY OF**| ||**CALICUT**| ||**KERALA RAJ BHAVAN, KARALA GOVERNORS CAMP, SO**| ||**POST OFFICE THIRUVANANTHAPURAM 695001**| |**3**|**ADDL. R3 THE REGISTRAR**| ||**UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO.,**| ||**PIN - 673 635.**| ||**IS IMPLEADED AS PER ORDER IN I.A. 4285/15 DATED**| ||**24.05.2015.**| |**4***|**ADDL. R4 PROF DR. T.K.NARAYANAN**| ||**FORMER REGISTRAR, UNIVERSITY OF CALICUT,**| ||**THARAYIL HOUSE, VELIMUKKU PO., MALAPPURAM - 676**| ||**317.**| W.P.(C).No.3309/15 2 **5* ADDL. R5 DR. D.K.BABU ASSOCIATE PROFESSOR, PRAKRITI, GURUVAYURAPPAN COLLEGE PO., PIN - 673 014.** **ADDL. R4 AND R5 IMPLEADED AS PER ORDER DTAED 17.06. 2015 IN I.A. 5235/2015** **6* ADDL. R6 C.R. MURUKAN BABU MEMBER, SYNDICATE, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY PO., PIN - 673 655. IS IMPLEADED AS PER ORDER DATED 17.06.15 IN I.A. 6679/15** **BY ADVS.** **GOVERNMENT PLEADER SRI.GEORGE POONTHOTTAM (SR.) SMT.M.H.BINDU SMT.NISHA GEORGE SRI.K.K.RAVINDRANATH, ADDL.ADVOCATE GENERAL SRI.M.P.SREEKRISHNAN SRI.SANTHOSH MATHEW SC CALICUT UNIVERS** ## **OTHER PRESENT:** **ADDL, AG. K.K. RAVINDRANATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.03.2019, THE COURT ON 11.04.2019 DELIVERED THE FOLLOWING:** W.P.(C).No.3309/15 3 ## **JUDGMENT** - 1.This writ petition is filed challenging Exhibits P11 and P14 orders and seeking a declaration that the petitioner's appointment as Vice Chancellor under Section 10 of the Calicut University Act does not amount to re-employment of the pensioner governed by Chapter VII of Part III, Kerala Service Rules, (KSR for short) and is hence not governed by Rule 100 of Part III KSR. - 2.The petitioner submits that he was appointed by Exhibit P1 notification as Vice Chancellor of the University of Calicut, while he was working as Professor and Head of the Department of Agronomy, College of Agriculture, Vellayani. It is contended that the appointment was absolute in all respects and was not a re-engagement or re-employment. The petitioner applied for voluntary retirement from the Kerala Agricultural University and assumed office as Vice Chancellor on 12.8.2011. By Exhibit P2 order dated 16.5.2012, the terms and conditions of service of the petitioner were fixed. Exhibit P2 states that the petitioner will be on re-employment from W.P.(C).No.3309/15 4 12.8.2011 subject to the sanctioning of voluntary retirement from the Kerala Agricultural University w.e.f.11.8.2011. It also specifies that the petitioner will be entitled to salary as per UGC Scheme. Clause (xii) of Exhibit P2 provides that the conditions of the service of the Vice Chancellor will be in accordance with Chapter 2 of the Calicut University First Statutes, 1977 in general. Clause (xiii) provides that in respect of any other matter, the provisions of Kerala Service Rules shall apply. 3.The learned counsel for the petitioner submits that since the word 're-employment' had been incorporated in Exhibit P2, the petitioner had sought clarifications whether he was entitled to draw salary as provided in Exhibit P2 as well as the pensionary benefits he was entitled to as a retired employee of Kerala Agricultural University. Exhibit P3 legal opinion was provided by the standing counsel of the University of Calicut stating that the petitioner was entitled to salary as well as pension but advised the petitioner to get a clarification from the Chancellor. The petitioner sought such clarification by W.P.(C).No.3309/15 5 Exhibits P4 and P9 and the University took up the matter with the Chancellor by Exhibits P5 to P8. In the meanwhile, by Exhibit P10 proceedings dated 26.11.2012, the petitioner's voluntary retirement was sanctioned and pensionary benefits were fixed. Thereafter, by Exhibit P11 proceedings dated 26.9.2014 the petitioner was informed by the Secretary to the Governor that his salary is to be fixed as per Rule 100, Part III, KSR considering his appointment as re-employment with effect from the date of his assumption of charge as Vice Chancellor. The petitioner, thereafter preferred Exhibit P12 representation styled as an appeal and sought consideration of the same by the Chancellor. It is contended that the Government had submitted an affidavit before the Lok Ayukta in an earlier case stating that appointment to the post of Vice Chancellor is not re-employment as per Rule 99 of Part III KSR and Exhibit P13(A) communication had been issued by the University interdicting recovery of any amounts paid to Dr.M.K.Ramachandran Nair, Vice Chancellor in identical circumstances. However, by Exhibit P14 proceedings, request made by the petitioner in Exhibit P12 had been rejected W.P.(C).No.3309/15 6 stating that the petitioner's appointment as Vice Chancellor can be treated only as a re-employment, since he is a pensioner in receipt of pension under the provisions of the KSR for services rendered by him under the Kerala Agricultural University. It was stated that as such, he would be governed by the provisions of Chapter VII, Part III KSR. The said decisions are under challenge. Pursuant to interim orders of this Court, the petitioner had been drawing salary in the UGC scheme. However, it was clarified that there could be no simultaneous payment of salary and pension and drawing of pension was therefore interdicted. Though the said order was taken up in writ appeal by the petitioner, the appeal was dismissed. - 4.The learned counsel for the petitioner submits that his appointment as Vice Chancellor in terms of Section 10 of the Calicut University Act by Exhibit P1 notification cannot be termed to be a re-employment, since Exhibit P1 contains no such provision. It is contended that his appointment is an appointment _per se_ and the provisions of Rule 92 and Rule 100 W.P.(C).No.3309/15 7 can have no application thereto. The learned counsel would contend that a reading of Rule 92 would make it clear that the provisions of Chapter VII apply only when the subsequent appointment is under the State Government Service and that the petitioner would be entitled to draw his salary as fixed in Exhibit P2 as well as pension for his earlier service. Relying on a decision of the Apex Court in **Union of India v. K.B.Khare and others** [1994 Supp (3) SCC 502], the learned counsel would contend that the Apex Court has held that the service as Member in the Central Administrative Tribunal is not “re-employment in connection with affairs of Union” and is an independent Judicial Service on a tenure basis. It was, therefore, held that the resignation of a District Judge from judicial service to be appointed as a Member of the CAT is not liable to be viewed as a re-employment to deny the benefits of pension and emoluments in the post of Member, CAT. 5.Relying on the decision of the Delhi High Court in **E Sreedharan v. Union of India** in W.P.(C).No. 2356/2002, it is contended that where the order of appointment only spoke of W.P.(C).No.3309/15 8 approval for the proposal of appointment and does not use the word re-employment, the provisions similar to Rule 100 of Part III KSR could not be pressed into operation to deny the benefits due. Relying on a decision of the Gujarat High Court in **Ranchhodbhai S.Dalwadi v. Gujarat Agricultural University** [(1987) GLR 297], it is contended that where a selection process is carried out for the post in question, the appointment of an incumbent after competing in such selection process would indicate that such appointment cannot be a re-employment as understood in service parlance. It is stated that the Gujarat High Court has held in the case of reemployment as understood in the service parlance, there would be no question of the incumbent competing with others for the post but his services would be requisitioned having regard to his qualifications and experience as a stop gap arrangement till a candidate suitable to the man the post was available. 6.A decision of the Andhra High Court in **Indian Hume Pipe Co.Ltd. v. The Presiding Officer, Labour** [AIR 1964 AP 56] W.P.(C).No.3309/15 9 is also relied on to contend that the word 're-employment' connotes employment on the same terms as before. The decision of the Apex Court in **M.S.Chawla and others v. State of Punjab and others** [(2001) 5 SCC 358] is also relied on to contend that the re-employment has specific connotations under Service Law and the appointment of a District Judge, after his superannuation, as the President of the District Consumer Forum under the Consumer Protection Act cannot be held to be a case of re-employment of a pensioner inasmuch as the District Judge is in receipt of a pension for the services rendered by him as such. 7.A detailed counter affidavit has been placed on record by the 2[nd] respondent contending that a reading of Exhibit P2 settles the entire issue. It is stated that Exhibit P1 only notifies the appointment of the Vice Chancellor, as provided under Section 10 of the Calicut University Act. The conditions of service, which are to be specified by the Chancellor in terms of Section 10, are set out in Exhibit P2. Ext P2 specifies that the petitioner's appointment as Vice Chancellor is on re- W.P.(C).No.3309/15 10 employment on his being sanctioned voluntary retirement from 11.8.2011. It is also specified in the order that in all residual matters, other than those specified in the said order, the petitioner would be governed by the provisions of KSR. It is, therefore, contended that the petitioner, admittedly, being a pensioner under KSR, would be squarely covered by the provisions of Chapter VII of Part III KSR and his pay has to be fixed taking note of Rule 100 of the said rules. It is stated that the issue has been considered in several decisions of the Apex Court as well as this Court and all aspects of the matter had been considered by the Chancellor while passing Exhibits P11 and P14 order. It is stated that the petitioner, being admittedly a pensioner governed by provisions of Part III KSR, would be entitled only to emoluments as specified in Rule 100 thereof. 8.Respondents 4, 5 and 6, who have been impleaded as additional respondents in this writ petition, have also placed detailed statements on record contending that the petitioner being a re-employed pensioner would be entitled to draw his W.P.(C).No.3309/15 11 salary only as provided under Rule 100 of Part III KSR and the withdrawal of any further amounts would have to be regularized by the refund of the same. 9.The learned Additional Advocate General appearing for respondents 1 and 2 has made available a decision of this Court dated 26.9.2018 in W.P.(C).Nos.28226/2007 and connected cases with regard to retired/serving members of the Kerala Public Service Commission and their challenge as against amendment of Clause (2) of Regulation 4 of the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations 1957. The learned Additional Advocate General would contend all the contentions raised by the petitioner in this writ petition have been dealt with by this Court in detail and it has been found that the persons who are admittedly pensioners drawing pension in accordance with the provisions of the KSR are squarely covered by the provisions of Chapter VII thereof and the nature of the later appointment would make absolutely no difference to the fact that they are re-employed pensioners W.P.(C).No.3309/15 12 governed by the provisions of Rule 100. In the said case also, some of the petitioners were employees of Universities, who had been appointed as members of the Public Service Commission. Their contention was that the appointment as members of the Commission, that is, a constitutional office, would enable them to go out of the purview of Chapter VII of Part III KSR and that they are not liable to be treated as reemployed pensioners. After considering the contentions advanced on all sides, this Court has found as follows:- “23. Article 318 confers power on Governor to regulate the pay and allowances and conditions of service of the members. No restriction is imposed for exercising this power. The Regulations 1957 including the amendment carried out to it as per Ext.P3 are issued with due authority. While laying down the conditions of service provisions are made on par with rule 100 of Part III KSR, in such a way that the total amount of pension along with the pay does not exceed the pay admissible to the members of PSC, by deducting the pension from the pay admissible under clause (1) of Regulation 4. When persons drawing pension are appointed as members there is nothing wrong in regulating their pay, as per regulation issued on par with Rule 100 of part III KSR. Moreover Rule 92 as well as Rule 100 mandates that the authority appointing a pensioner on reemployment or the audit officer shall alert such persons of the rules regarding the pay admissible to them . W.P.(C).No.3309/15 13 24. When Article 316 provides for appointment of half of the members of the Commission from among those who had 10 years service in State Government or Central Government, nothing is stated regarding the eligibility for pay or pension to such 50% of the members. Therefore as long as there is no dispute as to the authority to frame regulations there is nothing illegal or unconstitutional in regulating the pay of those drawing pension, by way of Regulations incorporating the principles underlying Rule 100 of Part III KSR limiting their total emoluments including pay and pension to a sum not less than the pay fixed under Regulation 4(1). Such a provision is necessary to see that there is parity in pay in the case of all the members appointed from different sources and to avoid the possible disparity between those appointed from those with 10 years drawing pension and full pay and those appointed directly without pension but full pay only.” 10. The learned Additional Advocate General would also place reliance on the decision of the Apex Court in **M.S.Chawla and others v. State of Punjab and others [(2001) 5 SCC 358] .** It is stated that the Apex Court had clearly held in the said decision that the authority competent to fix the pay and allowances of the post in which the pensioner is re-employed has the discretion to determine whether his pension shall be held wholly or partly in abeyance. It is stated that in view of the fact that the petitioner was a re-employed pensioner and W.P.(C).No.3309/15 14 had been treated as such by the appointing authority in Exhibit P2 order, there would be no question of paying any further amounts to him than what is provided under Rule 100. It is stated that it is only on a finding that the appointment of the petitioner in that case was not a re-employment as provided in the Punjab Civil Services Rules that the decision had been rendered. A decision of this Court in **Gopinatha Pillai v. State of Kerala** [2004(3) KLT 290] is also relied on. It is stated that even after considering the judgment in **MS Chawla's case** (supra), the Division Bench held that the provisions of the Kerala Service Rules would prevail over the provisions of the Consumer Protection Rules governing any later appointment and that in view of the clear provisions of Chapter VII Part III KSR, a person appointed as President of the Consumer Disputes Redressal Forum could not claim salary in excess thereof. 11.I have considered the contentions advanced on all sides at considerable length. Exhibit P1 is a notification as provided under Section 10 of the Calicut University Act. Section 10 W.P.(C).No.3309/15 15 provides for appointment of the Vice Chancellor It is specifically stated that the conditions of service are to be fixed by the Chancellor. Exhibit P2 is an order dated 16.5.2012 which fixes the conditions of service of the petitioner. It is specifically stated in Exhibit P2 that the petitioner would be on re-employment from the forenoon of 12.8.2011 subject to sanctioning of voluntary retirement from his parent institution, that is the Kerala Agricultural University with effect from the afternoon of 11.8.2011. It is also held that he would be entitled to salary as per the UGC Scheme. Clause (xiii) provides that in respect of any other matter, the provisions of KSR shall apply. Exhibit P11 communication from the office of the Chancellor also specifies that the salary of the petitioner shall be fixed as per Rule 100 KSR, Part III, considering his appointment as re-employment with effect from the date of his assumption of charge as Vice Chancellor as specified in clause (i) of the terms and conditions of appointment, that is, Exhibit P2. The contentions urged by the petitioner are with regard to his appointment as Vice Chancellor. He contends that provisions of Chapter VII are not applicable to him since Rule W.P.(C).No.3309/15 16 92 speaks of appointments in the Government and since the petitioner is not appointed in the Government by Exhibit P1, the clause would not be applicable. The petitioner further contends that since Exhibit P1 does not speak of a reemployment, the clause in Exhibit P2 cannot act to his detriment. I am of the opinion of that the arguments raised by the petitioner are completely misconceived. The petitioner is, admittedly, a pensioner under the KSR. This aspect was not disputed by him. Exhibit P10 would go to show that he has been sanctioned pension for his service under the Kerala Agricultural University in terms of Part III, KSR. In such a situation, the decisions of the Apex Court and this Court would clearly indicate that where a pensioner under the Kerala Service Rules is re-employed, he would be governed by the provisions of Chapter VII as well. Exhibit P2 specifically states that the petitioner is re-employed w.e.f. 12.8.2011. The order also states that he will be governed by the provisions of the KSR. Even sans the condition in clause (xiii), in view of fact that clause (i) of Exhibit P2 order states that the petitioner is re-employed, I am of the opinion that the inescapable W.P.(C).No.3309/15 17 conclusion is that he would be governed by the provisions of Chapter VII of Part III KSR. This is the reason stated by the Division Bench of this Court in **Gopinatha Pillai v. State of Kerala** [2004(3) KLT 290]. A learned single Judge of this Court in W.P.(C).No.28226/2007 and connected cases has also considered an identical issue and has 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. In the above view of the matter, I am of the opinion that the prayers raised by the petitioner in the writ petition are bound to fail. Exts. P11 and P14 are correctly decided. The writ petition fails and is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.3309/15 18 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE NOTIFICAION ISSUED BY**| |---|---| ||**THE 2ND RESPONDENT DATED 11.8.2011**| |**EXHIBIT P2**|**TRUE COPY OF THE LETTER ISSUED BY THE**| ||**2ND RESPONDENT DATED 16.5.2012**| |**EXHIBIT P3**|**TRUE COPY OF THE LEGAL OPINION**| ||**PROFFERED DATED 22.1.2013**| |**EXHIBIT P4**|**TRUE COPY OF THE LETTER BY YHE**| ||**PETITIONER TO THE 2ND RESPONDENT DATDD**| ||**4.2.2013**| |**EXHIBIT P5**|**TRUE COPY OF THE LETTER BY THE**| ||**PETITIONER TO THE 2ND RESPONDENT DATED**| ||**5.2.2013**| |**EXHIBIT P6**|**TRUE COPY OF THE REMINDER TO THE 2ND**| ||**RESPONDENT REQUESTING FOR A**| ||**CLARIFICATIOIN FROM THE HON'BLE**| ||**CHANCELLOR, AS TO WHETHER THE**| ||**APPOINTMENT OF THE PETITIONER IS**| ||**GOVERNED BY RULE 100 PART 111 KERALA**| ||**SERVICE RULES, DATED 16.4.2013**| |**EXHIBIT P7**|**TRUE COPY OF THE REMINDER TO THE 2ND**| ||**RESPONDENT REQUESTING FOR A**| ||**CLARIFICATIOIN FROM THE HON'BLE**| ||**CHANCELLOR, AS TO WHETHER THE**| ||**APPOINTMENT OF THE PETITIONER IS**| ||**GOVERNED BY RULE 100 PART 111 KERALA**| ||**SERVICE RULES, DATED 8.11.2013**| |**EXHIBIT P8**|**TRUE COPY OF THE REMINDER TO THE 2ND**| ||**RESPONDENT REQUESTING FOR A**| ||**CLARIFICATIOIN FROM THE HON'BLE**| ||**CHANCELLOR, AS TO WHETHER THE**| ||**APPOINTMENT OF THE PETITIONER IS**| ||**GOVERNED BY RULE 100 PART 111 KERALA**| ||**SERVICE RULES, DATED 19.5.2014**| W.P.(C).No.3309/15 19 - **EXHIBIT P9** - **TRUE COPY OF THE REPRESENTATION TO THE 2ND RESPONDENT DATED 27.8.2014** - **EXHIBIT P10** - **TRUE COPY OF THE ORDER ISSUED BY THE KLERALA AGRICULTURAL UNIVERSITY DATED 26.11.2012** - **EXHIBIT P11 TRUE COPY OF THE COMMUNICATION BY THE 2ND RESPONDENT TO THE PETITIONER DATED 26.9.2014** - **EXHIBIT P12 TRUE COPY OF THE APPEAL PREFERRED BY THE PETITINER TO THE 2ND RESPONDENT DATED 30.9.2014** - **EXHIBIT P13 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE HIGHER EDUCATIION DEPARTMENT (GOVERNMENT OF KERALA) TO THE LOKAYUIKTHA ION THE CASE NO.881/08** - **EXHIBIT P13 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED, 29.05.2013.** - **EXHIBIT P14 TRUE COPY OF THE COMMUNICATION DATED 29.12.2014.** - **EXHIBIT P15** - **TRUE COPY OF THE COMMUNICATION CAUSED BY THE REGISTRAR, UNIVERSITY OF CALICUT TO THE SECRETARY TO THE 2ND RESPONDENT, DATED 03.03.2015.** **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R4(1)** A TRUE COPY OF THE ORDER, DATED 23.05.2012, IS PRODUCED HEREWITH AND MARKED FOR REFERENCE AS EXT. R4(1). **EXHIBIT R4(2)** A TRUE COPY OF THE RELEVANT PAGES FILE NOTES LEADING TO R4(1) DATED NIL IS PRODUCED HEREWITH AND MARKED FOR REFERENCE AS EXT. R4(2). W.P.(C).No.3309/15 20 **EXHIBIT R4(3)** A TRUE COPY OF THE REPRESENTATION , DATED 12.06.2014, IS PRODUCED HEREWITH AND MARKED FOR REFERENCE AS EXT. R4(3) **EXHIBIT R4(4)** A TRUE COPY OF REPRESENTATION , DATED 16.06.2014, IS PRODUCED HEREWITH AND MARKED FOR REFERENCE AS EXT. R4(4) **EXHIBIT R4(5)** A TRUE COPY OF THE REPORT DATED 7.7.2014 IS PRODUCED HEREWITH AND MARKED FRO REFERENCE AS EXT R4(5). **EXHIBIT R4(6)** A TRUE COPY OF THE NOTE DATED 27.9.2014 IS PRODUCED HEREWITH AND MARKED FOR REFERENCE AS EXT. R4(6). **EXHIBIT R4(7)** A TRUE COPY OF THE APPEAL DATED 05.01.2015 IS PRODUCED HEREWITH AND MARKED FOR REFERENCE AS EXT. R4(7). **EXHIBIT R4(8)** A TRUE COPY OF THE SAID NOTE, DATED 08.01.2015 IS PRODUCED HEREWITH AND MARKED FOR REFERENCE AS EXHIBIT R4(8).. **EXHIBIT R4(9)** A TRUE COPY OF THE RELEVANT PAGES OF AUDIT REPORT FOR THE PERIOD 2012-13 DATED 25.03.2015 IS PRODUCED HEREWITH AND MARKED FOR REFERENCE AS EXHIBIT R4(9). - **EXHIBIT R4(A)** TRUE COPY OF THE NOTICE ISSUED BY THE WRIT PETITIONER TO THE FINANCE OFFICER OF CALICUT UNIVERSITY. - **EXHIBIT R4(B)** TRUE COPY OF THE DETAILS OF THE PENSION ENTITLEMENT OF THE WRIT PETITIONER FROM THE KERALA AGRICULTURAL UNIVERSITY. **EXHIBIT R4(B)** TRUE COPY OF THE DETAILS OF THE PENSION ENTITLEMENT OF THE WRIT PETITIONER FROM THE KERALA AGRICULTURAL UNIVERSITY. W.P.(C).No.3309/15 21 **EXHIBIT R4(C)** TRUE COPY OF THE DETAILS OF THE SALARY DRAWN BY THE WRIT PETITIONER AS INTIMATED BY THE UNIVERSITY PURSUANT TO THE APPLICATION UNDER THE RIGHT TO INFORMATION ACT. **EXHIBIT R4(D)** TRUE COPY OF THE AUDIT REPORT CONDUCTED BY THE CALICUT UNIVERSITY FOR THE ACADEMIC YEAR 2012-13. True copy PS to Judge