Joseph Sebastian v. State of Kerala and Others; Valsala Milka.B. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, 1943** ## **WP(C) NO. 12996 OF 2019** **PETITIONER/S:** JOSEPH SEBASTIAN, AGED 58 YEARS S/O.M.S.DAVIS, RESIDING AT MUZHANGUTHARA HOUSE, VIA.SOUTH CHITTOOR, KOTHAD, ERNAKULAM - 682 027. BY ADV RAJESH P.NAIR **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695 001. 3 THE ACCOUNTANT GENERAL (H AND E), KERALA, OFFICE OF THE ACCOUNTANT GENERAL (A AND E), THIRUVANANTHAPURAM, PIN- 695 009. 4 THE DISTRICT TREASURY OFFICER, DISTRICT TREASURY, THIRUVANANTHAPURAM - 695 001. 5 THE ST.ALBERTS COLLEGE, ERNAKULAM - 682 018, REPRESENTED BY ITS MANAGER. 6 THE PRINCIPAL, THE ST.ALBERTS COLLEGE, ERNAKULAM - 682 018. BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2021, ALONG WITH WP(C).857/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 12996 OF 2019 and conctd. Case** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, 1943 WP(C) NO. 857 OF 2019** ## **PETITIONER/S:** VALSALA MILKA.B., AGED 63 YEARS W/O.CHANDRAMOHAN, RESIDING AT POURNAMI, TC 19/1981-1, POOJAPPURA, THIRUMALA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT- 695012. BY ADV RAJESH P.NAIR ## **RESPONDENT/S:** |1|STATE OF KERALA,| |---|---| ||REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION| ||DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-| ||695001.| |2|THE DIRECTOR OF COLLEGIATE EDUCATION,| ||VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN- 695001.| |3|THE ACCOUNTANT GENERAL (H AND E) KERALA,| ||OFFICE OF THE ACCOUNTANT GENERAL (A AND E), THIRUVANANTHAPURAM,| ||PIN- 695009.| |4|THE DISTRICT TREASURY OFFICER,| ||DISTRICT TREASURY, THIRUVANANTHAPURAM- 695001.| |5|CHRISTIAN COLLEGE,| ||KATTAKKADA, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS| ||MANAGER.| |6|THE PRINCIPAL,| ||CHRISTIAN COLLEGE, KATTAKKADA, THIRUVANANTHAPURAM DISTRICT.| ||BY ADV GOVERNMENT PLEADER, JIMMY GEORGE| THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2021, ALONG WITH WP(C).12996/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 12996 OF 2019 and conctd. Case** **3** ## **JUDGMENT** Challenge has been laid to the demand notices dated 12.2.2018 and 15.3.2019 of the 2[nd] respondent withholding the amount from the DCRG. 2. The petitioners have retired in 2011 and 2017 respectively. During the course of their employment as Selection Grade Lecturer had undertaken a Faculty improvement Programme sponsored by the Government of Kerala by entering into an agreement containing certain terms and conditions of reimbursement to the Government, in case of non submission of the thesis before or at the time of retirement. 3. In the first case (W.P.(C) No.857 of 2019), the petitioner had undertaken the course for a period of two years with effect from 27.3.2001 to 31.3.2002 and 18.6.2003 to 13.6.2004. It is contended that even though fulfilled all the conditions for submitting the thesis, failed to submit the same in time for the reasons beyond the control and as such could not secure the Ph.D within the stipulated time and on completion of the deputation, rejoined in service without any further delay as ## **WP(C) NO. 12996 OF 2019 and conctd. Case** **4** evident from the certificate. After the retirement, all the benefits were paid in time except the DCRG amount of Rs.7 lakhs. Respondent to the utter shock and dismay of the petitioner, vide demand demand dated 12.2.2018 informed the petitioner to refund the salary to the tune of Rs.5,75,258/together with an interest of 12.5%. Otherwise the amount of Rs.7 lakhs would be recovered by considering the liability of the petitioner. The contention of the counsel is that the aforementioned order is against the Rule 3 Part III of the Kerala Service Rules (KSR) which prescribes the time line of three years for effecting the recovery. 4. In W.P.(C) No. 12996 of 2019, petitioner had retired in 2017 and the demand for recovery was communicated in March 2019. But the fact of the matter is that there has not been any adherence and compliance of the provisions referred to above as no notice or hearing has been afforded to the petitioner. 5. Counsel for the petitioner further submitted that the applicability of the aforementioned rules has been already **WP(C) NO. 12996 OF 2019 and conctd. Case** **5** noticed by the Division Bench of this Court in _**State of Kerala and Others v. Ajitha C.K in O.P (KAT) No.418 of 2020**_ and held that the demand beyond the period of three years was held to be barred by law of limitation. The aforementioned judgment was assailed in Supreme Court and the same has been upheld. 6. On the contrary, learned Government Pleader supported the impugned demand as the terms and conditions of the bond are sacrosanct. The process was initiated before the three years ie., in July 2014. The conditions of the bond do not envisage payment of penalty but the entire amount. Thus failed to discharge the application as per the terms and conditions of the bond. Thesis was submitted after the retirement. Thus the primary object of the improvement of the course as sponsored by the Government was not achieved, as it caused the burden on the State Exchequer. In support of the aforementioned contentions, judgment Ext.R2(a) dated 11.6.2019 in W.P.(C) No.14152 of 2016 **(Premasukumar v. Secretary, Higher Education Department)** has been relied upon. 7. I have heard the learned counsel for the parties and **WP(C) NO. 12996 OF 2019 and conctd. Case** **6** appraised the paper book. The facts as noticed above, with regard to retirement of the petitioners and availment of the benefit of deputation for Faculty improvement Programme are not in dispute. The only thing to be considered by this Court is whether the demand of the respondent in February 2018 in the first case (W.P.(C) No.857 of 2019) and March 2019 in second case (W.P.(C) No.12996 of 2019) is in accordance with the provisions of Rule 3, Part III of the KSR or otherwise. It would be expedient to extract Rule 3 as well as Note 2 and 3 of the Part III of the KSR. _3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement_ ## _Note 1: xxx_ _Note 2: The word 'pension' used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee [or pensioner] can be recovered from the death-cumretirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the employee ¹ [or pensioner] concerned a reasonable opportunity to explain._ _Note 3.- The liabilities of an employee should be quantified_ **WP(C) NO. 12996 OF 2019 and conctd. Case** **7** _either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him.]_ 8. On perusal of Note 2 and 3 of Rule 3, it is evident that for a retired employee the recovery from the pensionary and other benefits can be only initiated within a period of three years from the date of the retirement. In the first writ petition, the petitioner retired on 31.3.2011 and the demand for the first time was raised only on 12.2.2018. Even if the arguments of the respondents are accepted, steps were initiated only in July 2014. But there was no acknowledgment of the liability on behalf of the petitioner extending the period of limitation as prescribed under Section 18 of the Limitation Act. The demand in my view is barred by law of limitation. Thus the impugned demand dated 12.2.2018 in W.P.(C) No.857 of 2019 is quashed. 9. As regards the petitioner in the second writ petition (W.P.(C) No.12996 of 2019) is concerned, concededly the petitioner retired on 31.3.2017 and the demand is dated 15.3.2019. The action of the respondents in initiating the recovery steps is strictly as per the terms and conditions of the **WP(C) NO. 12996 OF 2019 and conctd. Case** **8** bond which are sacrosanct but on close scrutiny of the provisions extracted herein above, before initiating the steps, it is sine qua non for the respondent to put notice to the effected parties and afford opportunity of hearing. However the reply on behalf of the respondent is bereft of such compliance. In this view of the matter, the impugned demand dated 15.3.2019 withholding the amount from the DCRG is not justified and is hereby quashed. However this will not preclude the respondents to take action in accordance with law ie., as per the provisions referred to herein above, by affording an opportunity to the petitioner. Writ petitions are allowed. Sd/- sab **AMIT RAWAL** **JUDGE** ## **WP(C) NO. 12996 OF 2019 and conctd. Case** ## **9** ## **APPENDIX OF WP(C) 857/2019** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE PHOTOCOPY OF THE SANCTIONING ORDER OF| ||DEPUTATION OF THE 1ST RESPONDENT G.O.| ||(RT)NO.1992/2001/H.EDN DATED 18.12.2001.| |EXHIBIT P2|TRUE PHOTOCOPY OF THE BOND DATED 04.01.2002| ||EXECUTED BY THE PETITIONER IN FAVOUR OF THE| ||GOVERNMENT.| |EXHIBIT P3|TRUE PHOTOCOPY OF THE EXTENSION ORDER DATED| ||26.02.2004 ISSUED BY THE 1ST RESPONDENT| ||EXTENDING THE PERIOD OF DEPUTATION.| |EXHIBIT P4|TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY| ||THE 6TH RESPONDENT TO THE APPLICANT DATED| ||27.10.2016.| |EXHIBIT P5|TRUE PHOTOCOPY OF THE GRATUITY PAYMENT| ||ORDER DATED 31.01.2012 ISSUED BY THE 3RD| ||RESPONDENT TO THE 4TH RESPONDENT.| |EXHIBIT P6|TRUE PHOTOCOPY OF THE LETTER NO.N| ||3/444467/2011/COLLEGIATE EDUCATION| ||DEPARTMENT DATED 12.02.2018 ISSUED BY 2ND| ||RESPONDENT TO THE PETITIONER.| |EXHIBIT P7|TRUE COPY OF THE JUDGMENT IN WP(C)| ||NO.883/2013 DATED 25.8.2014.| **WP(C) NO. 12996 OF 2019 and conctd. Case** **10** ## **APPENDIX OF WP(C) 12996/2019** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE PHOTOCOPY OF THE LETTER NO.F.110/FIP-X| ||PLAN/UGC/SWRO/KLMGOO7 DATED 28/6/2004 ISSUED BY THE| ||UNIVERSITY GRANTS COMMISSION TO THE 5TH RESPONDENT.| |EXHIBIT P2|TRUE PHOTOCOPY OF THE G.O.(RT) NO.595/2005/H.EDN.| ||DATED 6/4/2005.| |EXHIBIT P3|TRUE PHOTOCOPY OF THE BOND DATED 8/4/2005, EXECUTED| ||BY THE PETITIONER IN FAVOUR OF THE GOVERNMENT.| |EXHIBIT P4|TRUE PHOTOCOPY OF THE EXTENSION ORDER DATED| ||1/8/2006 ISSUED BY THE UNIVERSITY GRANTS COMMISSION| ||EXTENDING THE PERIOD OF DEPUTATION.| |EXHIBIT P5|TRUE PHOTOCOPY OF THE GRATUITY PAYMENT ORDER DATED| ||16/6/2017 ISSUED BY THE 3RD RESPONDENT TO THE 4TH| ||RESPONDENT.| |EXHIBIT P6|TRUE PHOTOCOPY OF THE LETTER| ||NO.M.1/12299/17/COLLEGIATE EDUCATION DEPARTMENT| ||DATED 15/3/2019 ISSUED BY THE 2ND RESPONDENT.| |EXHIBIT P7|TRUE PHOTOCOPY OF THE MARRIAGE INVITATION CARD OF| ||PETITIONER'S DAUGHTER.| |EXHIBIT P8|TRUE COPY OF THE PHD PROVISIONAL CERTIFICATE ISSUED| ||TO THE PETITIONER BY THE BHARATHIAR UNIVERSITY,| ||COIMBATORE DATED 31.5.2019.| |RESPONDENT EXHIBITS|| |EXHIBIT R2 A|TRUE COPY OF THE JUDGMENT DATED 11.06.2019 IN WPC| ||14152/2016.|