K. Ashokachakran v. Cochin University of Science and Technology and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 26TH DAY OF NOVEMBER 2014/5TH AGRAHAYANA, 1936** ## **WP(C).No. 21324 of 2012 (M)** **--------------------------------------** ## **PETITIONER(S):** **-----------------------** **K.ASHOKACHAKRAN, AGED 53 YEARS, S/O. LATE KUNHIRAMAN, TECHNICAL ASSISTANT GRADE 11, DEPARTMENT OF ELECTRONICS, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, RESIDING AT ETTUNGAPPADY HOUSE, THIRUNILATH ROAD, COCHIN UNIVERSITY P.O., KOCHI - 682 022.** ## **BY ADV. SRI.ANTONY MUKKATH** ## **RESPONDENT(S):** **-------------------------** **1. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI, REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY P.O., PIN - 682 022.** **2. DEPUTY REGISTRAR (FINANCE),** - **COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., PIN - 682 022.** **3. FINANCE OFFICER, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., PIN - 682 022.** **4. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** ## **R1 TO R3 BY ADVS. SRI.P.M.A.KALAM,SC SRI.MILLU DANDAPANI, SC R4 BY GOVERNMENT PLEADER SRI.P.FAZIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 21324 of 2012 (M)** ## **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** - **--------------------------------------** - **EXHIBIT P1. TRUE COPY OF THE MEMO Ad.A3/4812/87 DATED 24.05.1989 OF THE IST RESPONDENT.** - **EXHIBIT P2. TRUE COPY OF THE ORDER NO.Ad.A3/35/87 DATED 8.2.1988 OF THE IST RESPONDENT.** - **EXHIBIT P3. TRUE COPY OF THE ORDER NO.Ad.A3/5361/76 DATED 29.1.1989 OF THE IST RESPONDENT.** - **EXHIBIT P4. TRUE COPY OF THE ORDER Ad.A3/244/90 DATED 16.02.1993 OF THE SECOND RESPONDENT.** - **EXHIBIT P5. TRUE COPY OF THE ORDER NO.AD.A3/244/9 DATED 24.11.1994 OF THE IST RESPONDENT.** - **EXHIBIT P6. TRUE COPY OF THE REPRESENTATION DATED 07.08.1995 OF THE PETITIONER TO THE IST RESPONDENT.** - **EXHIBIT P7. TRUE COPY OF THE ORDER NO.Ad.Ae/4812/87 DATED 11.06.1996 OF THE 2ND RESPONDENT.** - **EXHIBIT P8. TRUE COPY OF THE ORDER Ad.Ae/4812/87 DATED 07.02.2001 OF THE 2ND RESPONDENT.** - **EXHIBIT P9. TRUE COPY OF THE ORDER NO.Ad.Ad.4812/87 DATED 20.04.2006 OF THE 2ND RESPONDENT.** - **EXHIBIT P10. TRUE COPY OF THE ORDER Ad.G2/4812/87 DATED 14.07.2011 OF THE 2ND RESPONDENT.** - **EXHIBIT P11. TRUE COPY OF THE ORDER NO.Ad.A3/204/90/ (VOL.11) DATED 3/2/1997 OF THE 2ND RESPONDENT.** - **EXHIBIT P12. TRUE COPY OF THE ORDER NO.Ad.A3/244/90 DATED 28.07.1998 OF THE 2ND RESPONDENT.** - **EXHIBIT P13. TRUE EXTRACT COPY OF THE MINUTES OF THE SYNDICATE MEETING HELD ON 20.10.2001.** - **EXHIBIT P14. TRUE COPY OF THE ORDER NO.Ad.A3/A.obj./99 DATED 13.05.2002 OF THE 2ND RESPONDENT.** - **EXHIBIT P15. TRUE COPY OF THE ORDER Ad.Ae/A.obj/99 DATED 19.06.2002 OF THE 2ND RESPONDENT.** - **EXHIBIT P16. TRUE COPY OF THE ORDER NO. Ad.Ae/4812/87 DATED 18.12.2002 OF THE 2ND RESPONDENT.** **-2-** **EXHIBIT P17. TRUE COPY OF THE ORDER NO.Ad.Ae/3940/90 DATED 18.09.2002 OF THE 2ND RESPONDENT.** **Msv/** **-2-** **WP(C).No. 21324 of 2012 (M)** **----------------------------------------** - **EXHIBIT P18. TRUE COPY OF THE LETTER NO.35964/B2/07/H.EDN DATED 04.01.2008 OF THE 4TH RESPONDENT.** - **EXHIBIT P19. TRUE EXTRACT COPY OF THE ORDER NO. Ad.A1/G.C/2008 DATED 01.11.2008 ALONG WITH THE RELEVANT PORTION OF THE REPORT OF THE COMMITTEE.** - **EXHIBIT P20. TRUE COPY OF THE CIRCULAR NO.Ad.G2/6135/2006 DATED 17.11.2008 OF THE 2ND RESPONDENT.** - **EXHIBIT P21. TRUE EXTRACT COPY OF THE ORDER NO. Ad.G2/6135/2006 DATED 20.06.2009 OF THE IST RESPONDENT.** - **EXHIBIT P22. TRUE COPY OF THE REPRESENTATION DATED 25.11.2011 OF THE PETITIONER TO THE IST RESPONDENT.** - **EXHIBIT P23. TRUE COPY OF THE REMINDER NO.EL.4/2011-12/1104 DATED 14.02.2012 OF THE PETITIONER TO THE IST RESPONDENT.** - **EXHIBIT P24. TRUE COPY OF THE REMINDER DATED 02.06.2012 OF THE PETITIONER TO THE VICE CHANCELOOR, COCHIN UNIVERSITY.** - **EXHIBIT P25. TRUE COPY OF THE MEMO NO.Ad.G2/4812/87 DATED 17.07.2012 OF THE IST RESPONDENT.** - **EXHIBIT P26. TRUE COPY OF THE JUDGMENT DATED 01.02.2007 IN WPC NO.5908 OF 2005 OF THIS HONOURABLE COURT.** - **EXHIBIT P27. TRUE COPY OF THE ORDER NO. Ad.A1/20843/93 DATED 27.8.2008 OF THE IST RESPONDENT.** - **EXHIBIT P28. TRUE COPY OF THE ORDER NO.Ad.G2/NLC/2006 DATED 20.11.2008 OF THE IST RESPONDENT.** - **EXHIBIT P29: PHOTOCOPY OF THE LETTER NO.A3/25338/89 (VOL.II) DATED 9.9.2002 OF THE DEPUTY REGISTRAR (ADMN. II).** - **EXHIBIT P30: PHOTOCOPY OF THE LETTER NO.A3/25338/89 (VO;.3) DATED 18.2.2003 OF THE DEPUTY REGISTRAR (ADMN. II).** - **EXHIBIT P31: PHOTOCOPY OF THE JUDGMENT DATED 20.8.2013 IN WP(C) NO.25909 OF 2013 OF THIS HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P32: PHOTOCOPY OF THE GO(P) NO.536/2012/(116)/FIN DATED 29.9.2012 WITH ANNEXURE OF THE 4TH RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** **NIL** **//TRUE COPY//** ## **P.S.TO JUDGE** Ms **v/** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.21324 of 2012** ## **-----------------------------------------------** ## **Dated 26[th] November, 2014.** ## **J U D G M E N T** Petitioner was appointed as Technical Assistant Grade II in the service of the Cochin University of Science and Technology ('the University', for short), on 17.5.1989. As per Ext.P4, the University introduced a Career Advancement Promotion Scheme for the technical staff of the University. As per Ext.P4 Scheme, those who have completed five years of actual service in the University as Technical Assistant Grade II is entitled to be considered for promotion to the post of Technical Assistant Grade III, based on a qualifying interview. When the petitioner became eligible to be considered for promotion to the post of Technical Assistant Grade III in accordance with Ext.P4 Scheme, he preferred Ext.P6 representation to the Registrar of the University requesting him to take appropriate action in the matter. The petitioner could not pursue further action on Ext.P6 as he had to avail leave without allowance for taking up employment abroad. The petitioner joined duty after the leave only on 30.5.2011. In the meanwhile, as per Ext.P16 order, one C.B.Muraleedharan, who 2 W.P.(C) No.21324 of 2012 was appointed along with the petitioner as Technical Assistant Grade II in the service of the University was granted the benefits of Ext.P4 Scheme and he was promoted accordingly as Technical Assistant grade III with effect from 25.7.2002. After rejoining duty, though the petitioner preferred various representations, his claim was not considered by the University. Exts.P22, P23 and P24 were some of the representations preferred by the petitioner before the University. Later, as per Ext.P25, the petitioner was informed by the University that the Syndicate, in its meeting held on 15.3.2012 considered the case of the petitioner and resolved that concurrence of the Government has to be obtained in the matter and on the basis of the decision of the Syndicate, the matter has been sent to the Government and reply is awaited. As per Ext.P25, the petitioner was further informed that the representations of the petitioner are kept pending until a reply in the matter is received from the Government, for appropriate action. Ext.P25 decision of the University is under challenge in this writ petition. The petitioner also seeks directions to the University to extend the benefit of Ext.P4 Scheme. 2. A counter affidavit and an additional counter 3 W.P.(C) No.21324 of 2012 affidavit have been filed by the University. In the counter affidavits filed by the University, it is conceded that the petitioner was eligible to be considered for promotion to the post of Technical Assistant Grade III with effect from the date of completion of five years service in the post, i.e., 17.5.1994. However, it is stated in the counter affidavit that the benefits of Ext.P4 Scheme could not be extended to the petitioner on account of the audit objections and the matter was taken up by the University with the Government and a decision is awaited. In the additional counter affidavit filed by the University, it is stated that since the petitioner is claiming the benefits of the Career Advancement Promotion Scheme formulated by the Syndicate of the University, the same can be extended only with the concurrence of the Government. 3. The Government has not chosen to file any counter affidavit in this matter. 4. As indicated above, the petitioner is claiming the benefits of the Career Advancement Promotion Scheme formulated by the University. Statute 73(v) of the Cochin University First Statutes, 1980 confers power on the Syndicate of the University to formulate such Career Advancement 4 W.P.(C) No.21324 of 2012 Schemes for the benefit of the employees of the University. It is not disputed that the benefits of the said Scheme have been extended to similarly placed employees of the University. As per Ext.P16 order, the benefits of the Scheme have been extended even to persons appointed along with the petitioner. In the counter affidavit, as also in the additional counter affidavit filed by the University, the University has no case that the extension of the benefits of the Scheme to C.B.Muraleedharan who was appointed along with the petitioner is unauthorised or irregular. The counter affidavit indicates that it is on account of the audit objection, the benefits have not been extended to the petitioner. In an identical case, this Court held that when the Syndicate of the University decides to extend the benefits of this nature to the employees of the University, the same cannot be withheld on account of audit objections. Ext.P26 is the decision of this Court. Paragraphs 5 and 6 of the said judgment read thus : “5. From the above facts, it is clear that petitioner was given the benefits based on a Syndicate decision as evidenced by Ext.P1 dated 13.5.2002. The Syndicate is the competent authority as empowered under the Statute and its decision is well within its jurisdiction. As per the counter affidavit also, the University took up the matter with the W.P.(C) No.21324 of 2012 5 Government to waive the Audit objection. The only reason for issuing Ext.P6 is based on an audit objection and the Government did not agree with the view of the Syndicate. But the fact remains that the decision in Ext.P1 is not yet revoked or cancelled by any subsequent decision of the Syndicate. No materials whatsoever is also placed cancelling such decision. So long as Ext.P1 stands and payment having been effected based on the Syndicate decision, the question arises as to how any recovery could be made and any liability could be fastened based on a mere audit objection. If the Syndicate decision was in any way wrong, then necessarily, the University ought to have corrected its decision, in which case, such later decision of the Syndicate could be the basis for fastening any liability or recovery thereafter. True even in that event, a question may arise as to whether a subsequent decision could have any retrospective effect of recovering such excess pay drawn by the petitioner based on the decision and benefits conferred thereunder. But in the present situation, such question do not arise directly. In **Sreedharan v. Union of India** (2002(1) KLT 444) a Bench decision of this court held as follows : “There may be power to correct the mistake and regulate the pension prospectively in accordance therewith. But the exercise of power after several years of retirement of a Government servant cannot stand scrutiny in the light of the mandate to act fairly and reasonably radiating from Art.14 of the Constitution of India. But, in this case, this aspect need not be decided by us because the Tribunal has already given a declaration in Ext.P1 that the reduction of the salary of the applicant with retrospective effect is illegal. The said declaration 6 W.P.(C) No.21324 of 2012 has become final. The Tribunal in its discretion did not give liberty to the respondents to re-fix the salary after affording an opportunity of hearing to the petitioner. Since the declaration made by the Tribunal has become final, the respondents are bound to implement it even in the absence of a consequential direction. So the consequential direction sought by the petitioner herein is unnecessary. Even without any direction, the respondents being public authorities are bound to respect the declaration of law.” 6. In this case, petitioner retired as early as on 30.9.2004. Ext.P1 decision based on which emoluments were paid is dated 13.5.2002. In the absence of any decision cancelling Ext.P1, it is too late for the respondents to contend that the petitioner is liable to refund the excess amount or that there is any liability to be cleared in this behalf.” In the light of Ext.P26 decision, and having regard to the fact that even the person who was appointed along with the petitioner has been given the benefit claimed by the petitioner, I am of the view that the petitioner shall also be given the benefits of Ext.P4 Scheme claimed by him. 5. In the result, the writ petition is allowed and the respondents are directed to promote the petitioner as Technical Assistant Grade III with effect from 16.5.1994 as W.P.(C) No.21324 of 2012 7 provided for in Ext.P4 order of the University and disburse the consequential monetary benefits, within three months from the date of receipt of a copy of this judgment. ## **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** tgs (true coy)