High Court of KeralaSingle Judge2021-12-07Writ Petition allowed; Ext.P1 and Ext.P4 quashe...

PRADEEP P.J. v. UNIVERSITY OF CALICUT and THE JOINT DIRECTOR LOCAL FUND AUDIT

Case / Petition Number:WP(C) No.14299/2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2021-12-07
Court Decision / Holding: The impugned Ext.P1 order dated 23-02-2015 and paragraph 2 of Ext.P4 dated 31-12-2014 are quashed. The petition is allowed. The respondents are directed to release the pensionary benefits and all other entitlements to the petitioner within 45 days from the receipt of a certified copy of the judgment, with 5.5% interest if the amount is not paid within that period.
Final Disposition: Writ Petition allowed; Ext.P1 and Ext.P4 quashed; pensionary benefits to be released within 45 days with interest if delayed.

Parties to the Case

Appellants / Petitioners

PRADEEP P.J., Retired Assistant Registrar, University of Calicut

Respondents

University of Calicut represented by its Registrar, Calicut University
The Joint Director Local Fund Audit, Calicut University Office

Legal Representation & Advocates

Counsels for Petitioners

• Sri S.P. Aravindakshan Pillay
• Sri S.A Anand
• SMT L Appa
• Sri K.A Balan
• Sri Peter Jose Christo
• Sri Saju John
• SMT N. Santha
• Sri V. Varghese

Counsels for Respondents

• Sri. S.anthosh Mathew, SC, Calicut University
• Sri. Jimmy George, Government Pleader

Case Synopsis & Summary

The petitioner, Pradeep P.J., a retired Assistant Registrar of the University of Calicut, challenges Ext.P1 (dated 23-02-2015) and para 2 of Ext.P4 (dated 31-12-2014) which withheld his retirement benefits on the ground of a pay fixation error in 2006, where he was allegedly placed in the pay scale of Rs. 14,750 instead of Rs. 12,930. The factual sequence shows his promotion to Section Officer in 2006/2007, followed by promotion to Assistant Registrar before retirement on 30-04-2015. A Local Fund Audit objection, raised in 2014, directed correction of pay fixation to Rs. 12,930 from 12-09-2006 and ordered recovery of the excess amount. The petitioner contends that, under Rule 28A (Ruling 1) of Part I Kerala Service Rules, his lien on deputation was retained and he could not be placed in a lower pay scale than a junior officer in the same cadre; Rule 33 and the anomaly principle are invoked to argue that the proper pay fixation should be made to prevent pay anomalies. He submits that the objection was time-barred and that period of deputation/contract work cannot be used to justify lower fixation. The respondents contend the University acted within authority to address a genuine objection raised by Audit and that deputation/contract periods are not exempt from the rules. The High Court ultimately quashed Ext.P1 and Ext.P4 and ordered release of pensionary benefits, with 5.5% interest if unpaid, within 45 days.

Provisions of Law Cited

Rule 28A, Part I Kerala Service Rules (Ruling 1)Rule 33, Part I Kerala Service RulesRules 139 to 159, Chapter XI, Part I Kerala Service RulesRule 34, Part I Kerala Service RulesKerala Local Fund Audit Act

Legal Doctrines & Maxims

Rule 28A anomaly relief doctrine: remove pay anomalies by refixing senior officer's pay to that of the junior officer in the higher post, subject to conditions.
Law of Limitation: belated recovery of excess payments can be barred by the period of limitation.
Senior officer cannot be placed in a lower scale than a junior in the same cadre; anomalies arising from fixation are to be resolved by proper refixation.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that, under Rule 28A (Ruling 1) of Part I Kerala Service Rules, his lien on deputation was retained and therefore he could not be placed in a lower pay scale than the junior officer in the same cadre. He argues that the period during which he was relaxed from active duty and the subsequent fixation as Section Officer on 12-09-2006, and the retention of lien through Exts. P5-P6, were not proper grounds for reducing his pay. He asserts that the objection, raised by the Local Fund Audit in 2014 and communicated in 2015, is time-barred and that Rules 139-159 cover deputation limitations that would not apply to his case given the period was under five years and that the university cannot override the audit objection. He relies on the principle that if there is no fault on his part in receiving the benefit, pay anomalies should be corrected by proper refixation rather than recovery.

Contentions of Respondents

The respondents assert that the University had no authority to bypass the Local Fund Audit objection; during the relevant period the petitioner was on contract/relieved service and thus not strictly covered by deputation rules, and the fixation of pay and the subsequent recovery was within their statutory authority. They contend that the period of relief from duty due to deputation or contract assignments was not immunized by Rule 28A, Rule 139-159, or other Kerala Service Rules, and that the Local Fund Audit objection had to be addressed, which justified the 2014-2015 action and withholding of retirement benefits until the fixation could be corrected.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab and others v. Rafiq Masih (White Washer) and others	2015 (1) KLT 429	Mentioned Only	Cited in support of an argument; the judgment does not discuss the case in detail or overrule/distinguish it within the text.

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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 AMIT RAWAL** **TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, 1943** ## **WP(C) NO. 14299 OF 2015** ## **PETITIONER:** PRADEEP P.J. RETIRED ASSISTANT REGISTRAR, UNIVERSITY OF CALICUT, RESIDING AT POYYATHARA HOUSE, THRIKKUMARAKUDAM, AYYANTHOL PO, THRISSUR-680 003. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.SAJU JOHN SMT.N.SANTHA SRI.V.VARGHESE ## **RESPONDENTS:** 1 UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY PO, THENJIPPALAM, MALAPPURAM DISTRICT, PIN-673 635. 2 THE JOINT DIRECTOR LOCAL FUND AUDIT, CALICUT UNIVERSITY OFFICE, CALICUT UNIVERSITY PO, THENJIPPALAM, MALAPPURAM DISTRICT, PIN-673 635. BY ADVS. SRI.SANTHOSH MATHEW,SC, CALICUTY UNIVERS SRI.JIMMY GEORGE, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.14299/2015 2 ## **JUDGMENT** The petitioner, who retired as Assistant Registrar from the University of Calicut, has approached this Court seeking quashing of Ext.P1 order dated 23.2.2015 and paragraph 2 of Ext.P4 letter dated 31.12.2014 withholding the retirement benefits of the petitioner on the ground that in the year 2006, his pay was incorrectly fixed in the scale of Rs.14,750/- as that of Section Officer. 2. The facts in brief are vide order No.Fin.E2/1919/05(2) dated 24.3.2007 the petitioner along with other similarly situated persons were promoted as Section Officer in the pay scale of Rs.10790 - 18000 with effect from the date of assumption of charges. Aforementioned promotion was after verification of all the facts. Thereafter, the petitioner was promoted as Assistant Registrar and retired on 30.4.2015. Before retirement, received Ext.P1 order dated 23.2.2015 on 27.4.2015 from the Deputy Registrar of University of Calicut. The Joint Director of Local Audit Fund vide Ext.P4 letter dated 31.12.2014 raised objection that the petitioner was eligible only for a pay of Rs.12,930/- with effect from 12.9.2006 instead of Rs.14,750/- and direction has been issued to the Finance Officer, W.P.(C) No.14299/2015 3 Calicut University to regulate the pay sanctioned to the petitioner with effect from 12.9.2006. In this view of the matter, the petitioner was informed that the excess payment drawn with effect from 12.9.2006 would be recovered under intimation to the section. 3. Sri.Peter Jose Christo, learned counsel appearing on behalf of the petitioner, submitted that as per Ruling 1 of Rule 28A of Part I Kerala Service Rules, the petitioner had been on deputation retaining lien in the University. In the instant case, lien was accorded by Ext.P5 order dated 29.1.1999 which was extended by Ext.P6 order dated 31.8.2000. The petitioner could not have been placed in a lesser pay scale which the junior who would have drawn belonging to the same cadre and drawn higher pay scale whereas Rule 33 prescribes certain provisions in which service can be counted for increments in a time scale if a person had been on deputation or other works. The objection in Ext.P1 order, as per Ext.P4 communication was of 2014 whereas the petitioner was placed in the cadre of Section Officer only in 2007 with effect from 12.9.2006 i.e., after 8 years. The alleged demand is also time barred. In support of the aforementioned contention relied upon the judgment of the Supreme Court in **State** W.P.(C) No.14299/2015 4 ## **of Punjab and others v. Rafiq Masih (White Washer) and** **others** _[2015 (1) KLT 429]_ . 4. On the other hand, Sri.Jimmy George, learned Government Pleader and Smt.Jency Paul, learned Standing Counsel for the University of Calicut, supported the demand on the premise that the University had no authority to bypass the objection raised by the department of Local Fund Audit as for a certain period i.e., 29.1.1999 to 29.1.2002, the petitioner was relieved from the University to take up the employment as Regional Manager in Kerala State Women's Development Corporation Ltd., Kozhikode on contract basis. Though the lien was retained, this period would not come under the purview of the deputation as per the provisions of Rules 139 to 159 of Chapter XI Part I KSR. Before the promotion as Section Officer, his pay was fixed at Rs.12,250/-. But, while entering the pay on the promoted post of Section Officer on 12.9.2006, there was a mistake by recording it as Rs.13,990/-. It is a matter of fact the petitioner had not drawn Rs.13,990/- prior to the promotion. Service Rules will not override the provisions of Kerala Local Fund Audit Act. Since the contract employment would not fall within the ambit of deputation W.P.(C) No.14299/2015 5 during the aforementioned period, the petitioner lost two increments and as a necessary corollary, his juniors would have drawn more pay than him. 5. In rebuttal, Sri.Peter Jose Christo submitted that Rules 139 to 159 only bars the period of deputation for more than five years whereas in this case, it was less than that and the said period cannot be taken out from the ambit of deputation as the lien vide Exts.P5 and P6 was permitted to be retained. 6. I have heard the counsel for the parties and appraised the paper book. 7. The fact that the petitioner had retired on 30.4.2015 as Assistant Registrar is not in dispute. It would be highly improbable to accept that the department was not aware of the promotion of the petitioner as Section Officer with effect from 2006 by an order of 2007 as the objection came for the first time in 2014 and intimated to the petitioner vide communication dated 23.2.2015, received only on 27.4.2015. In this process, there had been a delay of almost more than eight years. It is also not the case of the respondents that the petitioner had at any point of time mislead or misrepresented for W.P.(C) No.14299/2015 6 securing the aforementioned post. It is settled law that when there is no fault of the person of having given the benefit as in the instant case, which in my view was strictly as per Ruling 1 of Rule 28A which is extracted herein below that the senior person cannot be placed in a lower scale than the junior who also belongs to the same cadre. _“In cases where the application of the rule would give rise to anomalies inasmuch as an officer officiating in a higher post could get his pay refixed at a stage higher than the pay drawn by another who stands confirmed in the higher post on the same scale of pay, the anomaly will be removed by refixing the pay of the senior officer at the stage equal to that fixed for the junior officer in the higher post, the orders of refixation being issued by the Competent Authority under Rule 34, Part I, Kerala Service Rules. The refixation of pay in such cases will be made subject to the following conditions :-_ _(a) Both the junior and senior officers should belong to the same cadre and the post in which they have been promoted or confirmed, as the case may be, should be identical and in the same cadre._ _(b) The scale of pay of the lower post in which they would have drawn their pay but for their promotion or confirmation should be identical._ _(c) The anomaly should be directly as a result of the application of Rule 28A. For example, if the junior officer draws from time to time a higher rate of pay than the senior by virtue of fixation of pay under the normal rules or any advance increment granted to him, the provision contained in this ruling should not be invoked to step up the pay of the senior officer._ _(d) The refixation of pay of the senior officer should be done with effect from the date of refixation of pay of the junior officer. The next increment of the senior officer will however be drawn on the date on which it would have fallen due but for this refixation of pay.”_ 8. Provisions of Rules 139 to 159 would not be applicable as it only prescribes the limitation for securing deputation which is W.P.(C) No.14299/2015 7 permissible of five years whereas in the instant case it was less than that. The respondents would not have recovered the amount belatedly after the lapse of eight years as it is barred by Law of Limitation. It is a matter of record that during the pendency of the Writ Petition on an application preferred by the petitioner respondents were directed to disburse the undisputed amount which has actually been disbursed. For the reasons aforementioned, the impugned Ext.P1 order dated 23.2.2015 and paragraph 2 of Ext.P4 communication dated 31.12.2014 are quashed. The Writ Petition is allowed. The respondents are directed to release the pensionary benefits and all other benefits the petitioner is entitled to, within a period of 45 days from the date of receipt of a certified copy of the judgment. In case the aforementioned amount is not paid, it will entail interest @ 5½% to be recovered from the officer responsible in not disbursing the amounts in time. **AMIT RAWAL JUDGE** csl W.P.(C) No.14299/2015 8 ## **APPENDIX OF WP(C) 14299/2015** PETITIONER'S EXHIBITS |EXT.P1|TRUE COPY OF THE ORDER NO.141/2015/FIN| |---|---| ||DATED 23-2-2015 OF THE DEPUTY REGISTRAR OF| ||THE UNIVERSITY.| |EXT.P2|TRUE COPY OF THE ORDER NO.AD.E3/118/05| ||DATED 12-9-2006 OF THE DEPUTY REGISTRAR| ||(ADMN) OF THE UNIVERSITY.| |EXT.P3|TRUE COPY OF THE UNIVERSITY ISSUED ORDER| ||NO.FIN.E2/1919/05(2) DATED 24-3-2007.| |EXT.P4|TRUE COPY OF THE LETTER NO.LFCUP.919/2014| ||DATED 31-12-2014 OF THE 2ND RESPONDENT.| |EXT.P5|TRUE COPY OF THE ORDER NO.AD/A2/15850/95| ||DATED 29-1-1999 OF THE REGISTRAR OF THE| ||UNIVERSITY.| |EXT.P6|TRUE COPY OF THE ORDER NO.AD.A1/15850/95| ||DATED 31-8-2000 OF THE UNIVERSITY.| |EXT.P7|TRUE COPY OF THE UNIVERSITY ORDER| ||NO.AD.A1/15850/95 DATED 30-1-2002.| |EXT.P8|TRUE COPY OF THE U.O.NO.6389/2015/ADMN.| ||DATED 20.6.2015 OF THE UNIVERSITY| |EXT.P9|TRUE COPY OF THE U.O.NO.141/2015/FIN. DATED| ||23.2.2015 OF THE UNIVERSITY| |EXT.P10|TRUE COPY OF THE REPRESENTATION DATED| ||12.10.2015 SUBMITTED BY THE PETITIONER| ||BEFORE THE VICE CHANCELLOR.| W.P.(C) No.14299/2015 9 RESPONDENTS' DOCUMENTS : EXT.R2(a) TRUE COPY OF THE CORRESPONDING PAGES OF SERVICE BOOK OF THE PETITIONER SHOWING THAT ON 1.9.2006 WAS RS.12250/EXT.R2(b) TRUE COPY OF THE GAZETTED ENTITLEMENT REGISTER (GER)