Kerala Agricultural University, Vellanikkara, Thrissur vs Dr. Elizabeth W/o O.K. Paul and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** **WA.No.2274 OF 2017** **AGAINST THE JUDGMENT IN WPC 28512/2007 DATED 09-11-2016 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS:** - **1 KERALA AGRICULTURAL UNIVERSITY VELLANIKKARA, THRISSUR 680 654, REPRESENTED BY ITS REGISTRAR.** **2 THE COMPTROLLER KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR-680 654.. BY ADVS. SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY SRI.SURYA BINOY, SC, KERALA AGRICULTURAL UNIVERSITY** ## **RESPONDENTS/PETITIONER:** - **1 DR. ELIZABETH W/O. O.K. PAUL, RETIRED ASSOCIATE PROFESSOR, VETERINARY COLLEGE, KERALA AGRICULTURAL UNIVERSITY, MANNUTHY, TRICHUR, 680 651.** - **2 THE JOINT DIRECTOR LOCAL FUND AUDIT, KERALA AGRICULTURE UNIVERSITY, TRICHUR-680 654.** - **3 KERALA VETENARY ANIMAL SCIENCES UNIVERSITY POOKODE, LAKKIDI P.O, WAYANADU-673 576. R1 BY ADV. SRI.PHILIP J.VETTICKATTU R1 BY ADV. SRI.VINEETH KURIAKOSE R2 BY ADV. SRI.K.A.SREEJITH R3 BY ADV. SMT.AYSHA YOUSEFF, SC, KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2020, THE COURT ON 09-03-2020 DELIVERED THE FOLLOWING:** WA No.2274/17 -:2:- ## **J U D G M E N T** Dated this the 9[th ] day of March, 2020 ## _**Shaffique, J.**_ This appeal is filed by respondents 1 and 2 _viz.,_ the Kerala Agricultural University and its officer challenging judgment dated 9/11/2016 in WP(C) No. 28512/2007. The learned Single Judge allowed the writ petition filed by the first respondent herein and directed the first appellant to release to the first respondent all amounts due to her within a period of three months failing which it was ordered that the said amount shall carry interest @9% till the payment is effected. 2. The short facts of the case are as under and the parties are described as shown in the writ petition. Petitioner joined the Kerala Agricultural University as Assistant Professor on 10/1/1978 and she was promoted as Associate Professor on 15/1/1990. She availed study leave for undertaking Ph.D from 24/8/1990 to 23/8/1993. She could not complete the course and thereafter she availed long leave and rejoined the University on WA No.2274/17 -:3:- 31/3/1995. The writ petition was filed challenging Exts.P11 and P12. She availed of voluntary retirement in the year 2007. In Ext.P11 order dated 20/3/2007, it was mentioned that as per the remarks of the Assistant Comptroller IAC (CR), the petitioner has drawn an excess amount of `2,44,814/- on account of the UGC anomalies. This has been reiterated in Ext.P12. Petitioner contended that she had discontinued Ph.D programme on medical grounds and there is no condition in the KSR or KS & SSR that the service benefits will be denied if the course is not completed. Petitioner submitted a representation to the 1[st] respondent on 20/5/2005 as Ext.P13. However various amounts were deducted from her retirement benefits without any basis and therefore, petitioner sought for quashing Exts.P11 and P12 and for a direction to the respondents to reckon the period of study leave undertaken by her for the purpose of promotion, seniority and increment and also to restrain the respondents from recovering the payments made to her during the period of study. 3. The learned Single Judge after evaluating the respective contentions of the parties that there is no appearance WA No.2274/17 -:4:- on behalf of the first appellant while the case was being argued, observed that, in so far as the petitioner has resumed duty on 1/04/1995 and she retired under the VRS scheme only on 31/1/2007, no recovery should be effected as contemplated under Exts.P11 and P12. It was found that she was entitled for all benefits including pension without reckoning the said amount as liability. 4. Learned counsel for the appellant would argue that though as per Rule 91A of Part I KSR, leave without allowance for Post-Graduate courses for the benefit of the department is permissible only for a maximum period of 3 years, petitioner had exceeded the leave period beyond 3 years for one year and 7 months. Further, she did not complete the programme of Ph.D on the ground of ill health and therefore, when an objection has been raised by the Comptroller, the University has to recover such amounts from her pensionary benefits. 5. We heard the learned counsel appearing on either side. 6. Rule 91A of Part I KSR reads as under:- WA No.2274/17 ## -:5:- _“91.A Officers with a continuous officiating or temporary service of 5 years or more may be granted in addition to any leave to which they are eligible for, leave for undergoing Postgraduate Courses in the sphere of their duties which are primarily of benefit to the State, such as Post-graduate Courses for teachers, Engineers and Doctors. The leave shall be granted only with due regard to the usefulness of the higher studies to the public service._ 7. The note was incorporated with effect from ## 26.12.2015, which reads as under:- _Note .- Leave Without Allowance under this rule may be granted to an officer for a maximum period of 3 years on condition that he shall execute a Bond in Form No 12 A binding himself to serve Government immediately on return from leave for the continuous period specified hereunder, in the post from which he proceeds leave or in another post to which he is appointed subsequently by promotion or by transfer from the former where the higher qualification acquired can be utilized for the benefit of the Public or the State, and to pay liquidated damages to Government at the rates specified hereunder and 18% interest thereon in the event of the officers failure to discharge obligatory service excluding periods spent on ordinary and special leave._ _Period of leave Period of Amount of Obligatory Service Liquidated Damages 1 Exceeding 6 months 3 years_ `25,000/- _but not exceeding One year_ WA No.2274/17 ## -:6:- |_2_|_Exceeding One year_|_5 years_|`50,000/-| |---|---|---|---| ||_but not exceeding Two_||| ||_years_||| |_3_|_Exceeding Two years_|_7 years_|`75,000/-| ||_but not exceeding_||| ||_Three years_||| Note 1 was incorporated into the statute only as per Government Order dated 26/12/2015 based on a judgment of this Court in _**State of Kerala v. Mahesh**_ (2012 (3) KLT 675). Rule 91A permits officers with a continuous officiating or temporary service of five years or more to be granted leave for undergoing post graduate courses in the sphere of their duties which are primarily for the benefit of the State. 8. In fact, as per the averments in the writ petition, petitioner contended that she was initially granted study leave from 24/8/1990 to 23/8/1992. She completed 3 semesters and qualified in the examination as well. Thereafter, she fell ill and could not continue the programme. Hence, she applied for extension of study leave for a period of one year from 24/8/1992 to 23/8/1993 under Rule 99 r/w Appendix VI of Part I KSR for completing the Ph.D programme. Ext.P1 is the said order dated WA No.2274/17 -:7:- 9/4/1992. Since leave expired on 23/8/1993, she requested for leave without allowance for 130 days. The same was sanctioned as per Ext.P4 order. By yet another proceedings dated 20/9/1995, it is seen that she again requested for extension of leave without allowance on medical certificate for a period from 1/1/1994 to 31/3/1995. Subsequently, she was reposted pending sanction of leave up to 31/3/1995 as per University order dated 30/3/1995. Accordingly, the following order has been passed:- _“”The Assistant Comptroller, Internal Audit Circle (CR) has certified the eligibility of the Leave applied for by Dr.V.K.Elizabeth, Associate Professor (NC) under rule 88 Part I K.S.R._ _Under the circumstances, Dr.V.K.Elizabeth, Associate Professor (NC) is granted Leave for the period from 24.8.90 to 23.8.1993 and Leave Without Allowances on Medical Certificate from 24.8.1993 to 31.12.1993 sanctioned to her under Rule 88 Part I KSR. The period of her overstayal beyond 31.12.1993 is regularized accordingly.”_ 9. Ext.P8 is the bond executed by the petitioner undertaking to pay liquidated damages in the event of resigning from service without returning to duty after the expiry of termination of the period of study leave or at any time within a WA No.2274/17 -:8:- period of one year after her return to duty. In Ext.P8(a) bond, the period which she had undertaken to work after returning to duty was fixed as 2 years. She submitted an application for voluntary retirement with effect from 31/1/2007 after joining back in service of the University on 1/04/1995, which was permitted by the University as per Ext.P10 order dated 31/1/2007. Under these circumstances, the question is whether petitioner should be mulcted with the liabilities as specified in Exts.P11 and P12. In Ext.P11, it is mentioned that as per her GPF account, the balance of credit with interest up to the end of 28/2/2006 is `19,88,621/-. The Assistant Comptroller has reported that the petitioner had drawn an excess amount of `2,44,814/- on account of UGC anomalies. She had credited an excess amount of `1,95,693/- to GPF account and the interest accrued is `1,08,282/-. The said amount has to be recovered from her GPF closure account. Accordingly, the intention was to recover `1,08,282/- from her GPF balance. Ext.P12 is yet another proceedings dated 18/7/2007 wherein pension of the petitioner had been fixed as recommended by the statutory auditor wherein also it is stated WA No.2274/17 -:9:- that `2,44,814/- has to be withheld from DCRG being the liabilities reported against her and net DCRG of `85,136/- will be paid. Apparently, no details are forthcoming as to how the calculations were effected. When a claim is made challenging Exts.P11 and P12, it is for the respective Universities, who had issued the proceedings, to substantiate their contentions. No such attempt had been made by the University. In Annexure A1 produced by the appellant along with the memorandum of appeal, which is a communication from Deputy Director of Local Fund Audit to the Registrar of the University, it was _inter alia_ stated that, on verification of the personal file of the petitioner, she could not qualify for the course of study for which study leave was granted till she retired voluntarily on 31/1/2007. The contention raised is that since she did not complete the course, she is not eligible for the leave salary which she had collected during the relevant time. But it is relevant to note that in Exts.P11 and P12, what is referred to is that she had drawn excess amount on account of UGC anomalies. No contention has been raised by the petitioner with reference to the same. The contention urged WA No.2274/17 -:10:- by the petitioner is that as per Rule 99 of KSR, r/w Appendix VI, there is no provision to recover any payments made to her during the period of her study leave on the ground that she did not acquire the degree for which study leave was taken. But it is relevant to note that initially she was granted study leave for two years under Rule 99 r/w Appendix VI of Part I KSR, which was extended by another year. Subsequently leave was granted under Rule 88 of Part I KSR which was extended up to 31/3/1995. University is therefore not justified in placing reliance on Rule 91A of Part I KSR. 10. It is for the competent authorities to verify whether she is eligible for the various benefits she had received when she had gone for attending the aforesaid course and when the leave was extended under Rules 99 and 88 of Part I KSR. This is a case in which the audit department had raised an objection regarding the overdrawal of the amount for which no objection had been raised by the petitioner. No representation is seen submitted to clarify the objection. Under such circumstances, learned Single Judge was not justified in directing that the audit objection should WA No.2274/17 ## -:11:- be ignored and that amounts have to be paid without reference to Exts.P11 and P12. In so far as there is no clarity in the matter, it is only appropriate that the matter requires a fresh consideration and interest of justice would be served, if a representation is submitted by the petitioner to the University challenging Exts.P11 and P12 and the University shall give a proper reply along with the reasons for recovery of the amount from her retiral benefits and if she has any objection to the same, it shall be open for her to challenge the same in appropriate proceedings. Writ appeal is disposed of modifying the judgment of the learned Single Judge to the aforesaid extent. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** **MARY JOSEPH** Rp True Copy PS to Judge **JUDGE**