High Court of KeralaSingle Judge2016-02-25The writ petition is partly allowed. No Costs.

P.J. Varghese v. Coch University of Science and Technology

Case / Petition Number:WP(C).No. 7592 of 2014 (Y)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-02-25
Court Decision / Holding: The writ petition is partly allowed. No Costs. The 1989 higher grade benefit is to be restored de hors the audit objection; 1999 and 2004 higher grade denials are not granted in monetary terms, but pension fixation is recalibrated under the settled rule that pension arrears can be computed for a period of three years prior to the filing of the writ petition. The petitioner’s pension and arrears are adjusted in line with the revised last pay drawn; arrears are payable from March 2011 onwards.
Final Disposition: The writ petition is partly allowed. No Costs.

Parties to the Case

Appellants / Petitioners

P.J. Varghese

Respondents

Cochin University of Science and Technology, represented by its Registrar
Deputy Registrar (Finance)
Finance Officer
Deputy Director (HG), Local Fund Audit
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Antony Mukkath
• Sri O.F. Justin

Counsels for Respondents

• Sri V.A. Muhammed
• Sri Millu Dandapani
• Sri M.J. Rajasree

Case Synopsis & Summary

This writ petition challenges the withdrawal of higher grade pay of the petitioner, a plumber employed with the Cochin University of Science and Technology, on audit objections. The petitioner joined service on 8 October 1984 and retired on 28 February 2006. He was granted a higher grade after five years under a corresponding scheme (Ext. P1) which, according to the petitioner, brought him within the zone of consideration for further higher grades on completion of 15 and 20 years (1999 and 2004 respectively). However, the audit objection led to withdrawal of the higher grade that had been granted in 1989. The petitioner made repeated representations but approached the court only after retirement, eight years later. The court reviews arguments about delay and discretion, noting precedents: Maria Padma v. State of Kerala (2009) which discussed exercise of discretionary relief where third-party rights are not affected; State of Bihar v. Kameshwar Prasad Singh (2000) on pragmatic, merits-based assessment and the limited role of delay when explanations are unsatisfactory; and Shiv Dass v. Union of India (2007) holding pension/arrears as a recurring remedy. The court restores the 1989 benefit de hors the audit objection, deems 1999 and 2004 arrears not payable monetarily, and awards pension arrears from three years prior to filing, with relief largely granted in a modified, notional sense. The petition is partly allowed with no costs.

Legal Doctrines & Maxims

Pension as a recurring cause of action (Shiv Dass v. Union of India)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that once a higher grade is granted, reversal due to audit objections cannot annul an already conferred benefit, and the State’s audit objections cannot erase relief sanctioned by a Syndicate decision. The delay in challenging the 1999 and 2004 denials is urged to be excusable on merits in light of precedents allowing consideration where the core merits are strong; the 1989 grant should be protected, and the subsequent denials should be subject to timely challenge. Reliance is placed on Maria Padma for discretionary relief, and on Shiv Dass for treating pension and arrears as a recurring liability, with e.g. arrears from three years before filing.",

Contentions of Respondents

The respondents rely on the audit objection and the procedural lapse of delayed challenge as justification for revoking the higher grades; they argue that the petitioner slept over his rights, and the subsequent denials (1999 and 2004) were validly issued and not subject to payment or restoration. They emphasize that the delay cannot be condoned in the absence of an acceptable explanation, citing strict adherence to delay principles, and contend that the State’s audit objections were valid and that there is no basis to grant monetary relief for the earlier years beyond permissible limitations.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Maria Padma v. State of Kerala	2009 (1) KLT 1036	Distinguished	Court distinguishes this Division Bench decision on facts; no applicable third-party rights scenario and delay excuse are not present here.
State of Bihar v. Kameshwar Prasad Singh and others	(2000) 9 SCC 94	Distinguished	Cited for the principle of pragmatic merit-based consideration of delay, but found inapplicable here due to lack of an acceptable delay explanation and the petitioner sleeping on rights.
Shiv Dass v. Union of India and others	(2007) 9 SCC 274	Positive	Used to justify treating pension as a recurring cause of action with arrears for three years prior to filing; supports restoration and arrears framework.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937** ## **WP(C).No. 7592 of 2014 (Y) ---------------------------** ## **PETITIONER:** **-------------------** **P.J. VARGHESE, AGED 63 YEARS S/O.THE LATE ULAHANNAN PLUMBER HIGHER GRADE (RETIRED) OFFICE OF THE UNIVEIRSITY ENGINEER DEPARTMENT OF ENGINEERING COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY RESIDING AT POOTHURUTHIL HOUSE, CHETHICODE P.O. KANJIRAMATTOM-682 315.** **BY ADVS.SRI.ANTONY MUKKATH SRI.O.F.JUSTIN** ## **RESPONDENTS:** **----------------------------** **1. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY KOCHI, REPRESENTED BY ITS REGISTRAR COCHIN UNIVIERSITY 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. DEPUTY DIRIECTOR (HG)** **LOCAL FUND AUDIT COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY COCHIN UNIVERSITY P.O, PIN-682 022.** ## **5. STATE OF KERALA** **REPRESENTED BY ITS CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **R1-R4 BY ADV. SRI.V.A.MUHAMMED BY SRI.MILLU DANDAPANI R5 BY SR.GOVERNMENT PLEADER SMT. M.J.RAJASREE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 7592 of 2014 (Y)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **-------------------------------------** - **EXHIBIT P1. PHOTOCOPY OF THE MEMO DATED 8/10/1984 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER** - **EXHIBIT P2. PHOTOCOPY OF THE ORDER NO.AD.A3/35/87 DATED 8/2/1988 OF THE 1ST RESPONDENT** - **EXHIBIT P3. PHOTOCOPY OF THE ORDER NO.AD.A3/5361/76 DATED 29/1/1989 POF THE 1ST RESPONDENT** - **EXHIBIT P4. PHOTOCOPY OF THE ORDER NO.AD.A3/35/87/ DATED 28/10/1999 OF THE 1ST RESPONDENT** - **EXHIBIT P5. PHOTOCOPY OF THE ORDER NO.AD.G2/2866/04 DATED 20/3/2009 OF THE 1ST RESPONDENT** - **EXHIBIT P6. PHOTOCOPY OF THE ORDER NO.FIN.TV/290/F/2005-06 DATED 26/4/2006 OF THE 1ST RESPONDENT** - **EXHIBIT P7. PHOTOCOPY OF THE LIABILITY CERTIFICATE NO.AD.G1/16397/94 VOL.II DATED 25/5/2007 OF THE 1ST RESPONDENT** - **EXHIBIT P8. PHOTOCOPY OF THE ORDER NO.AD.A1/20843/93 DATED 27/8/2008 OF THE 1ST RESPSONDENT** - **EXHIBIT P9. PHOTOCOPY OF THE ORDER NO.AD.G2/NLC/2006 DATED 20/11/2008 OF THE 1ST RESPONDENT** - **EXHIBIT P10. PHOTOCOPY OF THE REPRESENTATION DATED 19/7/2006 OF THE PETITIONER TO THE 1ST RESPONDENT** - **EXHIBIT P11. PHOTOCOPY OF THE REPRESENTATION DATED 2/7/2012 OF THE PETITIONER TO THE 1ST RESPONDENT** - **EXHIBIT P12. PHOTOCOPY OF THE REPLY NO.FIN.IV/209/P/2005-06 DATED 3/8/2012 OF THE 1ST RESPONDENT** - **EXHIBIT P13. PHOTOCOPY OF THE REPLY NO.FIN.IV/209/P/2005-06 DATED 29/10/2013 OF THE PUBLIC INFORMATION OFFICER.** - **EXHIBIT P14. PHOTOCOPY OF THE JUDGMENT DATED 1/2/2007 IN WPC NO.5908/2005 OF THIS HONOURABLE COURT.** **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 7592 of 2014 (Y) -----------------------------------------Dated this the 25[th] day of February, 2016 ## **J U D G M E N T** The petitioner entered the service of the respondent University as a Plumber on 08.10.1984 and retired on 28.02.2006. The petitioner was granted higher grade as per a scheme produced at Ext.P1 after completion of five years. In fact, as per Ext.P2 scheme, a Plumber was entitled to higher grade only on completion of seven years. But, however, as per Ext.P1 scheme, on the basis of the ratio, the petitioner came within the zone of consideration and was granted higher grade on completion of five years. 2. Subsequently, the petitioner was entitled to further higher grade on completion of 15 and 20 years, which respectively fell on 12.10.1999 and 12.10.2004. ## **W.P.(C) No. 7592/2014** **-2-** The same was not granted to the petitioner for reason of an audit objection, which is evidenced as Exts.P12 and P13. The petitioners higher grade granted on completion of 5 years also stood withdrawn on the basis of the audit objection. 3. The petitioner, having retired in the year 2006, contends that the petitioner has been making representations for resolution of the dispute. In fact, the petitioner should have approached this Court at the appropriate time. The higher grades sought is of the 1999 and 2004 and the retirement of the years petitioner was also effected in the year 2006. 4. The specific contention of the petitioner is that in the year 1999, on the basis of the audit objection, the petitioner was denied higher grade. Then, at least in 2004, when the next higher grade was denied, he should have approached this Court. The petitioner also ## **W.P.(C) No. 7592/2014** **-3-** did not approach this Court at the time of his retirement and approached this Court after about eight years. The aspect of delay stands against the petitioner. 5. The petitioner relies on three decisions to get over the objection of delay. One decision relied on is of a Division Bench of this Court in **Maria Padma v. State of Kerala - 2009 (1) KLT 1036** to argue that, since no third party rights are effected, the petitioner's claim cannot be rejected. Therein, the learned Single Judge had declined relief for reason of the petitioner having slept over her rights and refused to exercise the discretionary jurisdiction. The Division Bench noticed that the appellant's claim therein was supported by the Deputy Director and Director of Collegiate Education and that the Government also upheld the claim to get ## **W.P.(C) No. 7592/2014** **-4-** UGC scale of pay from 4.6.1998. The dispute was only regarding the arrears payable up to that date and the petitioner had been before various authorities, all of whom agreed to the appellant's claim. The delay pointed out by the learned Single Judge to deny exercise of discretion was also the delay prior to the appellants claim having been favourably found by the authorities. The writ petition was against an order of the Government, allowing the claim only from a subsequent date. It was on such finding that the appellant's claim was directed to be considered despite the delay caused. 6. Herein there can be no such facts found, since the petitioner admittedly was granted the first higher grade in 1989, which was also taken back when the audit party raised the objection. The petitioner failed to ## **W.P.(C) No. 7592/2014** **-5-** challenge the same and the subsequent denial of higher grades in 1999 and 2004 were also not challenged. Going by the above binding precedent, the grant of higher grade in 1989 has to be upheld since the audit objection could not have taken away the benefit already granted; which was sanctioned by the Syndicate of the University. However, insofar as the rejection of the benefits of higher grades in the years 1999 and 2004, no monetary benefits can be ordered for reason of the delay. 7. The petitioner relies on **State of Bihar v. Kameshwar Prasad Singh and others - (2000) 9 SCC 94** to contend that Courts should take a pragmatic approach and consider the case on merits, if it is meritorious and not give over emphasis to the aspect of delay. It is to be noticed that the aspect of delay was ## **W.P.(C) No. 7592/2014** **-6-** discussed in the said case only in the context of the State who was the appellant having filed the SLP with a delay of 679 days, seeking condonation. The thrust was also on the explanation offered for the delay which was held to be the reigning consideration, and not the length of the delay. It was also noticed that a short delay would also be not condonable if the explanation is not satisfactory. In the present case, no such explanation is offered nor can there be any explanation since the successive adverse orders were never challenged by the petitioner. The petitioner clearly slept over his rights and woke up to it only when others challenged such orders passed against them and succeeded before this Court. The principles stated in the aforesaid decision has no application here. ## **W.P.(C) No. 7592/2014** **-7-** 8. The Hon'ble Supreme Court in **Shiv Dass v. Union of India and others - (2007) 9 SCC 274** found pension to be a recurring cause of action and even if there is delay, it has been held that the arrears can be computed for a period of three years prior to the date of filing of the writ petition. In such circumstance, the petitioner's higher grade granted already in the year 1989 is to be restored de hors the audit objection and the petitioner be paid all arrears of pay and allowances from 1989 onwards granting the higher grade. The petitioner's higher grades falling on 1999 and 2004 shall also be granted, however, notionally and the petitioner's last pay drawn fixed in accordance with that. The petitioner's pension shall also be computed in accordance with such fixation of last pay drawn and the petitioner shall be entitled to payment of arrears from three years, prior to the filing of the writ petition. The ## **W.P.(C) No. 7592/2014** **-8-** writ petition is seen filed on 17.03.2014. The petitioner shall be entitled to the arrears of pension from March, 2011 onwards. The writ petition is partly allowed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 25/2/16