# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
## **&**
**THE HONOURABLE MR.JUSTICE V.G.ARUN**
**THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941 W.A.No.2234 of 2018**
**AGAINST THE JUDGMENT IN WP(C).31720/2009 DATED 03.07.2017 OF HIGH COURT.**
## **APPELLANT/RESPONDENT:**
**MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM - 686 560.**
**BY ADV. SRI.SURIN GEORGE IPE, STANDING COUNSEL.**
## **RESPONDENT/PETITIONER:**
**N.C. SANTHA KUMARI, AGED 60/2009, W/O.DR.V.N.SIVASANKARA PILLAI, SANTHI, 43/2205A, S R M ROAD, COCHIN - 682 018.**
**BY ADV. SRI.K.JAGADEESCHANDRAN NAIR**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **JUDGMENT**
## **Vinod Chandran, J.**
**The University is in appeal against the judgment of the learned Single Judge. The 1[st] respondent was the petitioner in the writ petition, who claimed regular scale of pay in the post of Regional Director of Regional Centre, Edappally of the School of Technology and Applied Sciences [for short “STAS”], under the Mahatma Gandhi University [for brevity “University”]. The appointment was on contract, after retirement of the 1[st] respondent-writ petitioner, who continued in the said post while she was receiving pension by virtue of her earlier employment in an aided college affiliated to the University of Kerala. It is also an admitted fact that she retired as Principal from one of the affiliated Colleges. The claim necessarily was that two other Regional Directors appointed to other Regional Centres were granted regular scales of pay while the 1[st] respondent was initially paid a consolidated sum of Rs.8,000/-, which was increased to Rs.12,000/- and later to Rs.15,000/-.**
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**2. The 1[st] respondent claimed parity of remuneration with the other two Regional Directors appointed to the other Regional Centres in regular scales of pay. The University took a stand before the learned Single Judge that the 1[st] respondent-writ petitioner was appointed after retirement, while the two other Regional Directors were already working in the University on a regular scale of pay and they were entitled to protection of pay when they were selected for occupying the post of Regional Directors. The learned Single Judge found that the claim of the writ petitioner is based on the principle of ‘equal pay for equal work’. The University having not set forth any case that the work discharged by the writ petitioner was different from the work attached to the other Regional Centres, there was found an arbitrary discrimination insofar as fixing a consolidated remuneration for the petitioner alone. The University then submitted that if the pay of the writ petitioner is fixed at par with other Regional Directors, pensionary benefits would have to be set off, which, however, the learned Single Judge refused to consider on the ground that the writ petition itself was on**
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**denial of parity. The question as to set off of pension was, however, left open and it was directed that the University could adopt a course in accordance with law.**
**3. The learned Standing Counsel for the University Sri.Surin George Ipe would assert that there can be no claim for parity in pay especially since the 1[st] respondent-writ petitioner was a person appointed after retirement, that too on contract basis. The 1[st] respondent had also executed agreements as produced at Exhibits P7 and P8, by which she agreed to the remuneration of Rs.15,000/- on a monthly consolidated basis. The period of appointment was for one year, which stood extended subsequently, is the contention. The 1[st] respondent was appointed in 2005 and continued upto 2009. The agreement was entered into, in 2009, only on account of a challenge against the selection conducted to the post of Regional Directors, which was eventually negatived as per Exhibit P13 judgment in W.P.(C) No.6880 of 2005. It is submitted, that in the writ petition there was a stay insofar as finalizing the terms of appointment for reason of which alone the agreement was executed far later in 2009, after the dismissal of the writ petition. The learned Standing**
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**Counsel also specifically pointed to paragraphs 6 and 7 of the counter affidavit to buttress their contention that the impugned judgment is not sustainable.**
**4. Sri.K.Jagadeeschandran Nair, learned Counsel appearing for the 1[st] respondent-writ petitioner, however, would submit that the claim raised was not on the basis of the status of the 1[st] respondent prior to her appointment as a Regional Director. The parity of pay claimed is on account of similar functions being discharged by all the Regional Directors and there was no cause for discriminating the 1[st] respondent with a consolidated pay. The notification itself provided for appointment of persons upto 62 years, which took in even retired persons.**
**5. We first look at Exhibit P1, which was a notification calling for appointment to the post of Regional Directors in the various Regional Centres of STAS. As rightly pointed out by Sri.Jagadeeschandran Nair, the maximum age prescribed is 62, which is above the retirement age as available in the State which is 56 insofar as the teachers of affiliated Colleges and 60 with respect to the teachers working in the Universities. As per Exhibit P1 notification retired**
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**personnel also could apply for the post. It is also indicated that the appointments would be on contract or deputation. What comes forth from the notification is the stipulation that if persons outside the University or personnel who are retired are appointed, they would be appointed on contract. It goes without saying that when persons in the service of the University or affiliated Colleges are appointed, they could only be continued, with protection of their pay. There is no stipulation that the remuneration insofar as a particular category would be different. It is also pertinent that there was no such distinction made or a definite stipulation that if not employed within the University, the appointment would be only on a consolidated pay. We have to understand the notification having called for applications to the post of Regional Directors with no distinction insofar as the remuneration payable.**
**6. We also see that all the three persons applied and were selected under the identical notification at Exhibit P1. They were issued with similar appointment orders, produced at Exhibit P3 series; where the appointments were on contract.**
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**Obviously the other two persons appointed being persons continuing in the University itself, was given regular scales of pay, which definitely the 1[st] respondent-writ petitioner is also entitled to. We have looked at paragraphs 6 and 7 of the counter affidavit, which only seeks to draw a distinction with respect to the other Regional Directors, on grounds only of they being in service as Senior Lecturer in STAS, drawing a regular scale of pay. We cannot but observe that it is not the prior status of the Regional Directors that determine the remuneration in that post, but the duties enjoined upon the said post. The two Regional Directors who were already in service, discharge the very same duties and functions as the 1[st] respondent also. The 1[st] respondent, hence, is entitled to parity insofar as the remuneration is concerned. Obviously the State could have provided for a different remuneration with respect to retired personnel, but that ought to have been prescribed in the notification. Even on appointment there were no specific terms agreed to as the remuneration. We hence, do not find any reason to interfere with the directions issued by the learned Single Judge to grant the petitioner regular scale of**
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**pay during the time in which she was continued as Regional Director on contract basis. The agreement executed in 2009 also is inconsequential since it cannot be said that the petitioner was made aware of the terms, before her appointment.**
**7. One other contention raised by the University is with respect to the set off of the pension received by the 1[st] respondent-writ petitioner from the regular scales of pay. We feel that the same is in accordance with the applicable Service Rules. In such circumstances, it is only proper that we direct that set off be permitted to the University, since the ultimate liability of both salary and pension is on the State.**
**8. Learned Counsel for the 1[st] respondent would then argue that a Division Bench has in** _**Kerala Trading Corporation v**_ **.** _**State of Kerala**_ **[** _**1989 (1) KLT 353**_ **] laid down the scope of interference in an appeal; from an exercise of discretion by a Single Judge. There is no allegation of perversity or arbitrariness which can be leveled against the impugned judgment, argues learned Counsel. We agree that in exercise of power under Article 226 when directing parity in pay the learned**
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**Single Judge has not erred; hence we confirmed the same. But on the question of set-off of pension received by the petitioner, the learned Single Judge refused to pass any order on the ground that the dispute here was only on parity. True; but the question of set-off arose only on parity being found. Especially noticing that the liability for pension and pay are on the State, we are perfectly justified in taking note of the alternate submission made by the appellant; which the learned Single Judge itself ought to have considered.**
**The Writ Appeal is partly allowed as above. Parties are left to suffer their respective costs.**
**Sd/K.VINOD CHANDRAN JUDGE**
**Sd/V.G.ARUN JUDGE**
Vku/-
[ true copy ]
