M.V. Jose v. State of Kerala and others

W.P.(C).No.16296 of 2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944 WP(C) NO. 16296 OF 2020** ## **PETITIONER:** M.V.JOSE, AGED 56 YEARS S/O.T.K. KUNJUVAREED, MAMMINISSERY THOKKADAM HOUSE, MOORKKANAD P.O. THRISSUR 680 711. BY ADVS. LINDONS C.DAVIS SMT.E.U.DHANYA SRI.V.N.HARIDAS ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY DEPARTMENT OF CULTURAL AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 KERALA SAHITYA AKADEMI, REPRESENTED BY ITS SECRETARY, TOWN HALL ROAD, THRISSUR 680 020. 3 SECRETARY, KERALA SAHITYA AKADEMI, TOWN HALL ROAD, THRISSUR 680 020. W.P.(C).No.16296 of 2020 2 4 JOINT DIRECTOR, KERALA STATE AUDIT DEPARTMENT, DISTRICT AUDIT OFFICE, THRISSUR 680 020. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY GOVERNMENT PLEADER SMT.N.SANTHA SRI.SAJU JOHN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA ## **OTHER PRESENT:** SUNIL KURIAKOSE-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.09.2022, THE COURT ON 20.10.2022 DELIVERED THE FOLLOWING: W.P.(C).No.16296 of 2020 3 ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** **W.P.(C).No.16296 of 2020** **= = = = = = = = = = = = = = = = Dated this the 20[th] day of October, 2022** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs:- “i) To issue a writ of certiorari or any other appropriate writ, order or direction quashing Exts.P3, P5, P6 and P7 orders as unjust, illegal and arbitary. ii) To issue a writ of mandamus or any other appropriate writ, order or direction to the respondents to disburse the pension along with its arrears, DCRG, Leave Surrender and Commuted amount of the pension in the retirement post of UD typist. iii)To issue a writ of mandamus or any other appropriate writ, order or direction to the respondents to not to recover any amount from the petitioner as his liability towards promotion to the post of U.D. Typist; iv)To declare that the promotion of the petitioner to the post of U.D. Typist is legal and therefore the petitioner is not liable to revert to the post of L.D. Clerk and also thereby not liable to refund any amount towards the reversion.” 2.Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned counsel appearing for respondents 2 and 3. W.P.(C).No.16296 of 2020 4 - 3.It is submitted that the petitioner retired from service of the 2[nd] respondent while working as Upper Division Typist. It is submitted that the petitioner had been appointed as L.D.Clerk in the Kerala Sahitya Academy. Later, by Exhibit P1 proceedings dated 27.5.2016, the petitioner was appointed as UD Typist considering the fact that the petitioner is duly qualified and competent to work as UD Typist. While so, the 4[th] respondent raised an objection that the promotion of the petitioner from the post of LD Clerk to UD Typist was irregular and that the petitioner did not have the prescribed qualification for appointment as UD Typist. It is submitted that no objection was taken by the 2[nd] respondent to the audit objection and a decision was taken by the Executive Committee to require the Government to consider the case of the petitioner on sympathetic grounds. - 4.It is submitted that Exhibit P4 representation was submitted before the Government, which was rejected by Exhibit P5 directing the refund of the amount paid to the petitioner on account of Exhibit P1 order of promotion. It is submitted that W.P.(C).No.16296 of 2020 5 pursuant to Exhibit P5, Exhibit P6 decision was taken by the Academy and Exhibit P7 notice was issued for recovery of an amount of Rs.1,23,,691/- from the petitioner. 5.It is submitted by the learned counsel for the petitioner that Exhibit P2 service regulations would make it clear that higher posts in the academy could be filled up by promoting qualified hands in the lower posts. It is submitted that since there were admittedly no L.D.Typists available in the academy, the appointment of the petitioner by Exhibit P1 was clearly legal and valid. It is submitted that the decision to promote the petitioner was taken after considering all relevant aspects and after due consideration by the academy. It is, therefore, contended that Exhibits P5 to P7 proceedings are vitiated and are liable to be set aside. - 6.The learned counsel for the petitioner places reliance on the decision of the Apex Court in **State of Punjab and others v. Rafiq Masih (White Washer)** [2014 KHC 4818]. W.P.(C).No.16296 of 2020 6 7. A counter affidavit has been placed on record by the 4[th] respondent contending that the Director of Kerala State Audit is the statutory auditor for the 2[nd] respondent Academy as per Section 4(1) of the Kerala Local Fund Audit Act, 1994. It is submitted that the 4[th] respondent is the delegate of the Director for making the audit. It is submitted that the Service Rules of the employees of the 2[nd] respondent has been approved by Government Order dated 19.1.2013 and Rule 4(a) thereof empowers the Executive Committee of the Academy to fix qualifications for the various posts. Rule 6(b) of the Service Rules empowers the academy to promote an officer from the lower posts to a higher posts, if there are duly qualified hands. It is submitted that the Executive Committee of the Academy has neither fixed qualifications for various posts nor defined the lower posts and corresponding higher posts for promotion. However, the petitioner was promoted to the post of UD.Typist. It is contended that the grant of promotion without fixing the qualification or the method of appointment is erroneous. It is contended that the pensionery claims of the petitioner were verified and authorised for the payment by Exhibit R4(a) proceedings dated 11.8.2020. W.P.(C).No.16296 of 2020 7 - 8.Respondents 2 and 3 have also placed a counter affidavit on record contending that it was only on account of the audit objection raised that the promotion of the petitioner was held to be irregular and Exhibits P5 and P6 communications were issued. - 9.I have considered the contentions advanced. It is an admitted case that the Executive Committee of the Academy has been authorised to prescribe the qualification and method of appointment to the post of UD Typist. The petitioner was promoted as UD Typist on the basis of a competent decision by the Executive Committee. The petitioner worked as such till his retirement. 10.The Apex Court in **State of Punjab and others v. Rafiq Masih (White Washer)** [2014 KHC 4818] has considered the question of recovery from salary of retired employees. In the instant case also, there is no allegation that there was any complicity on the part of the petitioner in the promotion as W.P.(C).No.16296 of 2020 8 U.D.Typist or the drawal of salary attached to the said post. Though it is contended in the counter affidavit filed by the Government as well as by the Academy that the petitioner lacked the qualification for appointment to the post of U.D.Typist, it is also the admitted fact that no qualification for the post of U.D.Typist had been prescribed by the Executive Committee as evidenced by Exhibit P2 Rules. It is, therefore, not clear as to what is the qualification that the petitioner lacks. Though it is contended by the learned counsel for the respondents that the petitioner did not have the qualifications provided in the rules applicable to Government servants, I notice that there is no decision by the Executive Committee to adopt the qualifications applicable in Government service for appointment to the corresponding posts in the Academy. 11.In any view of the matter, the employer of the petitioner, that is, the Academy, which itself had passed the order promoting the petitioner, cannot be heard to contend that the petitioner lacks qualifications to the post. I am, therefore, of the opinion that the direction contained in Exhibit P5 to recover the salary W.P.(C).No.16296 of 2020 9 already drawn by the petitioner is completely erroneous. Even otherwise, the counter affidavit filed by the respondents does not make out any specific case as to violation of the statutory rules with regard to the promotion of the petitioner. 12.In the above view of the matter, I am of the opinion that the recalling of the promotion already granted to the petitioner after due decisions by the Executive Committee of the Academy as well as the recovery from his salary after his retirement is completely unjustified in the facts and circumstances of the instant case. Exhibits P5 to P7 are, therefore, set aside. There will be a direction to the respondents to refix the pension and other retirement benefits due to the petitioner and to sanction and disburse the same within a period of three months from the date of receipt of a copy of this judgment. **==> picture [25 x 12] intentionally omitted <==** ## **Anu Sivaraman, Judge** sj W.P.(C).No.16296 of 2020 10 ## **APPENDIX OF WP(C) 16296/2020** PETITIONER EXHIBITS - EXHIBIT P1 A COPY OF THE PROCEEDINGS DATED 27.05.2016 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P2 A COPY OF THE KERALA SAHITYA AKADEMI EMPLOYEES APPOINTMENT AND CONDITIONS OF SERVICE RULES. - EXHIBIT P3 A COPY OF THE DECISION NO. 21 DATED 17.01.2020 OF AKADEMI EXECUTIVE COMMITTEE. - EXHIBIT P4 A COPY OF THE REPRESENTATION DATED 22.02.2020 SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT. - EXHIBIT P5 A COPY OF THE ORDER DATED 15.07.2020 OF THE 1ST RESPONDENT. - EXHIBIT P6 A COPY OF THE PROCEEDINGS DATED 28.07.2020 OF KERALA SAHITYA ACADEMY. - EXHIBIT P7 A COPY OF THE NOTICE DATED 30.07.2020 TO THE PETITIONER DIRECTING TO REFUND RS.1,23,691/- RESPONDENT EXHIBITS EXHIBIT R3(A) TRUE COPY OF THE LETTER DATED 29.04.2020 OF THE 4TH RESPONDENT. EXHIBIT R3(B) TRUE COPY OF THE LETTER NO.K.S.A.T.S.R. (MIS.II) 786/2020 DATED 11.08.2020 OF THE 4TH RESPONDENT. 11 W.P.(C).No.16296 of 2020 EXHIBIT R3(C) TRUE COPY OF THE LETTER DATED 10.08.2020 OF THE PETITIONER. EXHIBIT R3(D) TRUE COPY OF THE LETTER DATED 12.08.2020 OF THE 3RD RESPONDENT. EXHIBIT R4(A) TRUE COPY OF THE LETTER NO.KSA.TSR(MIS.2)786/2020 DATED 11.08.2020. True copy PS to Judge