High Court of KeralaSingle JudgeWrit petition allowed; Exts P12, P14, and P16 q...
Dr. S. Pradeep Kumar v. State of Kerala and Kannur University and Others
Case / Petition Number:WP(C) NO. 3704 OF 2021
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- AMIT RAWAL
- Judgment Date
- 2021-08-04
- Court Decision / Holding
- Writ petition allowed. Exts. P12, P14, and P16 are quashed. The respondents are directed to pay arrears of pensionary benefits including DCRG within two months from receipt of a certified copy of the judgment; if there is a default, interest at 10% per annum will apply.
- Final Disposition
- Writ petition allowed; Exts P12, P14, and P16 quashed; arrears in pensionary benefits including DCRG to be paid within two months with 10% interest if delayed.
Parties to the Case
Appellants / Petitioners
- Dr. S. Pradeep Kumar
Respondents
- State of Kerala represented through Secretary, Department of Higher Education
- Vice-Chancellor, Kannur University
- Registrar, Kannur University
- Kannur University
- Joint Director, Kerala State Audit Department
- Finance Officer, Kannur University
- Syndicate represented by Vice-Chancellor, Kannur University
Legal Representation & Advocates
Counsels for Petitioners
- • V. G. Arun
- • Smt. V. Jaya Ragi
- • Sri. R. Harikrishnan (Kambisseril)
- • Sri. Neeraj Narayan
Counsels for Respondents
- • Sri. M. Sasindran
Case Synopsis & Summary
Dr. S. Pradeep Kumar, who served nearly 23 years in Kerala’s university system, challenged a sequence of orders relating to pay increments, pay protection, and recovery of excess payments following an audit objection. The petitioner, who joined as Controller of Examinations in 2010 and whose probation was declared complete in 2011, had increments sanctioned for 1 July 2010 and 1 July 2011. After his retirement in March 2019, communications from the Kerala Audit Department and university officials asserted that those increments were irregular since the probation could not have been completed until 1 July 2011. The Syndicate’s minutes and subsequent orders (Exts. P5, P7, P11) led to a re-fixation and later, by Exts. P12 and P16, to recovery of excess payments and denial of re-fixation. The petitioner contends that the increments were protected by prior orders and that recovery cannot be effected without fault on the petitioner; he also argues that no hearing was provided and that Kannur University statutes do not empower retroactive review. The High Court relied on the Supreme Court’s guidance in State of Punjab and Others v. Rafiq Masih (White Washer) to quash the recovery orders Exts. P12, P14, and P16, and directed payment of arrears, including DCRG, within two months with interest if delayed.
Provisions of Law Cited
Kannur University First Statutes, 1998
Legal Doctrines & Maxims
- Recovery from employees belonging to Class-III and Class-IV service would be impermissible in certain circumstances.
- Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
- Recovery from employees when excess payment has been made for a period in excess of five years, before the order of recovery is issued.
- Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly.
- In any other case, where the Court arrives at the conclusion that recovery would be iniquitous or harsh or arbitrary to such an extent as to outweigh the employer’s right to recover.
Submissions & Arguments
Contentions of Appellants / Petitioners
The petitioner argues that the increments sanctioned for 1 July 2010 and 1 July 2011 were protected by pay-protection orders and the subsequent attempts to re-fix pay and recover excess payments were unauthorized. He contends that the Syndicate had already decided to protect the pay and that no hearing was afforded before recovery orders were issued. The alleged irregularity is linked to the date of probation declaration (1 July 2011). The petitioner asserts that there is no power of review vested in Kannur University Statutes, 1998 to revisit earlier, intact orders, and that recovery would be unjust, especially since pensionary benefits, including DCRG, were withheld improperly. Citing State of Punjab and Others v. Rafiq Masih (White Washer), he argues for limited recoveries and respect for earned benefits upon retirement.
Contentions of Respondents
Respondents maintain that the university acted on audit objections and implemented recovery via the Syndicate’s minutes (Extended P12 and subsequent orders). They contend there is no statutory bar on review under Kannur University First Statutes, 1998, and that protection of pay did not immunize erroneous disbursements from being corrected. They argue that Ext P5 granted increments subject to probation norms and that the 2019–2020 actions aimed to rectify overpayments after audit scrutiny. They claim the order of re-fixation (Ext P16) was a legitimate administrative step and that due process (including possible hearings) may need to be revisited in light of audit recommendations. They assert the recovery policy aligns with statutory and audit requirements and seeks to rectify financial irregularities.
Cited Precedents (1)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| State of Punjab and Others v. Rafiq Masih (White Washer) and Others | [(2015) 4 SCC 334] | Positive | The Supreme Court guidance cited in the judgment sets out circumstances under which recoveries of excess payments would be impermissible, and the bench applies this doctrine to quash the recovery orders. |
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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 WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943 WP(C) NO. 3704 OF 2021**
**PETITIONER/S:** DR. S.PRADEEP KUMAR AGED 58 YEARS S/O.LATE N.SREEDHARAN NAIR, THANAL G.V 98, GREEN VALLEY, MUTTADA P.O., THIRUVANANTHAPURAM-695025. BY ADVS. V.G.ARUN (K/795/2004) SMT.V.JAYA RAGI SRI.R.HARIKRISHNAN (KAMBISSERIL) SRI.NEERAJ NARAYAN **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED THROUGH SECRETARY, DEPARTMENT OF HIGHER EDUCATION, 4TH FLOOR ANNEX-II, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN695001. 2 VICE-CHANCELLOR, KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT670002. 3 THE REGISTRAR, KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT670002. 4 KANNUR UNIVERSITY, REPRESENTED BY ITS REGISTRAR, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT-670002. 5 JOINT DIRECTOR, KERALA STATE AUDIT DEPARTMENT, KANNUR UNIVERSITY AUDIT OFFICE, KANNUR-670002. 6 FINANCE OFFICER, KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT670002. 7 SYNDICATE REPRESENTED BY VICE-CHANCELLOR, KANNUR UNIVERSITY , THAVAKKARA, CIVIL STATION PO., KANNUR DISTRICT670002. BY ADV SRI.M.SASINDRAN
## **OTHER PRESENT:**
GP SRI JIMMY GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
**WP(C) NO. 3704 OF 2021**
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## **JUDGMENT**
Challenge has been laid to the orders dated 13.11.2019, Ext.P12, 27.8.2020, Ext.P14 and 3.11.2020, Ext.P16.
2. Petitioner, after having rendered almost 23 years of service as Associate Professor/Lecturer Selection Grade in different colleges in the State of Kerala, retired on 18.3.2019. The petitioner had joined the University service as Controller of Examination on 18.5.2010 and subsequently, 3[rd] respondent declared the probation of the petitioner vide order dated 6.8.2011. Accordingly, sanction was granted to authorize annual increments due on 1.7.2010 raising the pay to Rs.47,490/- + Grade pay of Rs. 10,000/- and to 49,220/- + Grade pay of 10,000/- with effect from 1.7.2011 in the pay band of Rs.37,400-
67,000/-, Ext.P5. The 3[rd] respondent/ Registrar Kannur University vide order dated 6.1.2012 confirmed the post of the Petitioner as the Controller of Examination, Ext.P6. Pursuant to Ext.P5 order, the 6[th] respondent issued annual increment to the petitioner due on 1.7.2010 and 1.7.2011, Ext.P7.
**WP(C) NO. 3704 OF 2021**
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Vide communication dated 26.7.2019, 5[th] respondent, Joint Director, Kerala State Audit Department issued a communication to the 3[rd] respondent that the increment sanctioned to the petitioner on 1.7.2010 and 1.7.2011 were irregular since his probation in the post of Controller of Examination was declared only on 1.7.2011, Ext.P9. Annual increments sanctioned pursuant to protection of pay was disbursed only after successful completion of probation in the post of Controller of Examination evidenced from the communication issued by the 3[rd] respondent to the 5[th] respondent, Ext.P10. There was a direction to the Finance Department of University to re-fix the subsequent annual increments after 1.7.2011. Accordingly, Ext.P5 order was amended by order dated 7.11.2019, Ext.P11. Subsequently, refixed the subsequent annual increments after 1.7.2011 and excess salary was ordered to be recovered vide communication dated 13.11.2019, Ext.P12. Pensionary benefits were granted to the petitioner but DCRG amount of Rs.14,00,000/- was withheld and Rs.23,717/- from commutation value.
**WP(C) NO. 3704 OF 2021**
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3. Syndicate vide item No.2020.056 dated 20.1.2020 resolved to issue notice for effecting the recovery. Accordingly, order dated 27.8.2020 was issued, for implementing the modified syndicate decision by Assistant Registrar on behalf of the 3[rd] respondent. The 3[rd] respondent vide communication dated 3.11.2020 denied the petitioner's request for re-fixation of annual increments, Ext.P16. It is contended that there is no power of review provided under the Kannur University First Statues, 1998. Moreover, the recovery cannot be effected, if there was no fault of the petitioner in view of the ratio decidendi culled out in the Supreme Court judgment in _**State of Punjab and Others v. Rafiq Masih (White Washer) and Others [(2015) 4 SCC 334]**_ . Once the salary of the petitioner was protected, there could not have been any dispute for denial of the increment and the objection of the audit for excess payment was wholly irrelevant and without jurisdiction.
4. On the contrary, learned counsel for the University contended that they acted only on the basis of the objection raised by the Audit department but do not dispute the order
**WP(C) NO. 3704 OF 2021**
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dated 1.10.2011, Ext.P5.
5. I have heard the learned counsel for the parties and appraised the paper book. It would be apt to reproduce the relevant portion of the order dated 1.10.2011, Ext.P5 whereby his increment due on 1.7.2010, the date on which petitionerdrew increment in his parent department was sanctioned by the Syndicate.
## _KANNUR UNIVERSITY_
_Establishment-Controller of Examinations - Dr.S.Pradeep Kumar, Protection of pay drawn during previous serviceSanctioned - Revised Orders issued. K.U.Campus,Dated 01-1020_
## _ADMINISTRATION BRANCH_
_Ad.A2.5576 /2010, K.U Campus, dated 1.10.2011_
_1. UO. of even No.(1) dated 06-08-2011_
_2. U.O of even No.(11) dated 06-08-2011_
_3. Submission dated 05-09-2011 from Dr.S.Pradeep Kumar, Controller of Examinations_
_4. Extract of the minutes of the Syndicate on item No.2011.624 dated 13-09-2011_
## _ORDER_
_Dr.S.Pradeep Kumar, the Controller of Examinations (joined University Service as such on 18.5.2010 FN) was granted protection of pay drawn during prior service vide U.O. read (1) and pay fixed accordingly at 45810/-+Grade pay.10,000/- in the pay band of Rs.37400-67000+Grade pay 10,000/- with effect from 18-05-2010 FN. It was further ordered that Dr.S.Pradeep Kumar, Controller of Examinations will be eligible for next increment with effect from 1-07-2011 in accordance with UGC_
**WP(C) NO. 3704 OF 2021**
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_norms and on declaration of satisfactorily completion of probation in the cadre of Controller of Examinations._
_Probation of Dr.S.Pradeepkumar was declared to have satisfactorily completed in the cadre of Controller of Examinations with effect from 18-05-2011 FN and formal orders issued vide U.O.read (2)_
_Dr.S.Pradeepkumar, Controller of Examinations vide paper read (3) requested to sanction the increment due on 01-07-2010, the date on which he drew increment in his parent department his pay has been protected and orders issued vide reference (1) above. The matter was placed before the Syndicate for consideration and Syndicate, vide resolution read at (4), resolved to grant increment due on 01-07-2010 since Syndicate had already resolved to protect the pay._
_Considering the matter in detail, sanction is accorded by the Vice Chancellor to fix the pay of Dr.S.Pradeep Kumar, Controller of Examinations at Rs.45810/- +Grade pay Rs.10,000 with effect from 18-05-2010 FN and to authorize annual increments due on 01-07-2010 raising the pay to Rs.47490Grade Pay Rs.10,000/- and to 49220/- +Grade pay 10,000/- with effect from 1.7.2011 in the pay band of Rs.37400-67000 Grade pay .10,000/- on implementing the Syndicate decision._
_Expenditure towards the above will be met from the Head of Account Part 1 Non-Plan MH-02-001 of the budget estimates._
_The University orders issued cartier read at (1) stands modified to this extent._
6. It is a matter of record that the petitioner retired on 18.3.2019. Syndicate could not have implemented the objection of the audit department regarding the excess payment of increment as it sans any reasons much less cogent reasons. Even otherwise, it is settled law that once the order by which
**WP(C) NO. 3704 OF 2021**
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the petitioner was granted the increments remains intact and in the absence of the revision, the recovery cannot be effected. No opportunity of hearing had also been granted to the petitioner.
The findings of the Supreme Court in the judgment (supra) reads thus:
_12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:_
_(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service)._
_(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery._
_(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued._
_(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post._
- _v. In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover._
I am of the view that the action of the respondents in
seeking the recovery and withholding of DCRG was wholly irrational and illegal. Exts.P12, P14 and P16 are quashed. Writ petition is allowed. Respondents are directed to pay
**WP(C) NO. 3704 OF 2021**
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the arrears of pensionary benefits including DCRG within a period of two months from the date of receipt of a certified copy of the judgment. In case of any default, the amount will carry interest @10%.
sab
sd/- **AMIT RAWAL JUDGE**
**WP(C) NO. 3704 OF 2021**
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## **APPENDIX OF WP(C) 3704/2021**
|PETITIONER EXHIBITS||
|---|---|
|EXHIBIT P1|A TRUE COPY OF THE OFFER LETTER FOR|
||APPOINTMENT ISSUED TO THE 3RD RESPONDENT|
||DATED 15.05.2010 BEARING|
||REF.NO.AD.A2.5576/2010.|
|EXHIBIT P2|A TRUE COPY OF THE APPOINTMENT ORDER DATED|
||05.06.2010 BEARING NO.A2/5576/2010(1)|
||ISSUED BY THE 3RD RESPONDENT TO THE|
||PETITIONER.|
|EXHIBIT P3|A TRUE COPY OF THE ORDER BEARING|
||NO.AD.A2/5576/2010(11) DATED 06.08.2011|
||ISSUED BY THE 3RD RESPONDENT TO THE|
||PETITIONER.|
|EXHIBIT P4|A TRUE COPY OF THE ORDER ISSUED BY THE 3RD|
||RESPONDENT BY NO.AD.A2/5576/2010(1) DATED|
||06.08.2011.|
|EXHIBIT P5|A TRUE COPY OF THE ORDER BEARING|
||NO.AD.A2.5576/2010 DATED 01.10.2011 ISSUED|
||BY THE 3RD RESPONDENT TO THE PETITIONER.|
|EXHIBIT P6|A TRUE COPY OF THE ORDER BEARING|
||NO.A2.5576/2010 DATED 06.01.2012 ISSUED BY|
||THE 3RD RESPONDENT TO THE PETITIONER.|
|EXHIBIT P7|A TRUE COPY OF THE ABSTRACT OF ORDER DATED|
||10.10.2011 BEARING NO.FIN/B2/INCRE/GO/11-12|
||DATED 10.10.2011 ISSUED BY DEPUTY|
||REGISTRAR(FINANCE)FOR 6TH RESPONDENT.|
|EXHIBIT P8|A TRUE COPY OF THE ORDER BEARING|
||NO.A2/5576/2010 DATED 08.03.2019.|
|EXHIBIT P9|A TRUE COPY OF THE COMMUNICATION DATED|
||26.07.2019 BEARING NO.KSA/K.N.U/U6/290/2019|
||ISSUED BY THE 5TH RESPONDENT TO THE 3RD|
||RESPONDENT.|
**10**
## **WP(C) NO. 3704 OF 2021**
|EXHIBIT P10|A TRUE COPY OF THE LETTER DATED 01.10.2019|
|---|---|
||ISSUED BY 3RD RESPONDENT TO THE 5TH|
||RESPONDENT.|
|EXHIBIT P11|A TRUE COPY OF THE ORDER DATED 07.11.2019|
||ISSUED BY THE 3RD RESPONDENT.|
|EXHIBIT P12|A TRUE PHOTOCOPY OF THE ORDER|
||NO.FIN.B2/11809/GER/2019 DATED 13.11.2019|
||ISSUED BY THE DEPUTY REGISTRAR(FINANCE) ON|
||BEHALF OF THE 6TH RESPONDENT.|
|EXHIBIT P13|A TRUE COPY OF THE ORDER BY NO.ADMIN/AD-|
||B3/16009/2019 DATED 28.01.2020 ISSUED BY|
||THE DEPUTY REGISTRAR (ADMINISTRATION) ON|
||BEHALF OF THE 3RD RESPONDENT.|
|EXHIBIT P14|A TRUE PHOTOCOPY OF THE ORDER NO.ADMIN/AD-|
||B3/16009/2019 DATED 27.08.2020 ISSUED BY|
||ASSISTANT REGISTRAR ON BEHALF OF 3RD|
||RESPONDENT.|
|EXHIBIT P15|A TRUE COPY OF THE REPRESENTATION DATED|
||14.07.2020 SUBMITTED BY THE PETITIONER|
||BEFORE THE 2ND RESPONDENT.|
|EXHIBIT P16|A TRUE COPY OF THE ORDER BEARING|
||NO.ADMIN/AD-A2/17573/2019 DATED 03.11.2020|
||ISSUED BY THE 3RD RESPONDENT.|