Premasukumar v. The Secretary, Higher Education Department, Director of Collegiate Education, NSS College Pandalam, Pathanamthitta District

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941 WP(C).No.14152 of 2016** ## **PETITIONER/S:** **PREMASUKUMAR, AGED 62, W/O. SASIKUMARAN NAIR G., PULLAMPLAVIL HOUSE, ALA P.O., CHENGANNUR, ALAPPUZHA-689 126, PRESENTLY RESIDING AT SF-4, NEELANJAN APARTMENTS,CHAMUNDESWARI ROAD, GURUVAYUR-680 101.** **BY ADV. SRI.R.S.SARAT** ## **RESPONDENT/S:** - **1 THE SECRETARY, HIGHER EDUCATION DEPARTMENT, 3RD FLOOR, SECRETARIAT ANNEX, STATUE, THIRUVANANTHAPURAM-695 001.** **2 DIRECTOR OF COLLEGIATE EDUCATION DIRECTORATE OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.** **3 THE PRINCIPAL, NSS COLLEGE PANDALAM, PATHANAMTHITTA DISTRICT-689 501.** **BY ADVS. SRI.P.GOPAL SRI.B.MURALEEDHARAN SRI.S.KRISHNAMOORTHY CGC** **OTHER PRESENT:** **GP RAJI.T.BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.14152 of 2016 2 ## **“CR”** ## **JUDGMENT** **V.G.ARUN, J.** **This writ petition has come up for consideration based on the reference order of a learned Single Judge, doubting the correctness of the judgment rendered by another learned Single Judge in W.P.(C) No.884 of 2013. The question that arises for consideration is regarding the liability of a Teacher in an aided College, who is granted Fellowship by the University Grants Commission for doing Ph.D, to refund the salary and other benefits received during the Fellowship, on the failure of the Teacher to acquire Ph.D Degree within the period of Fellowship.** **2. The petitioner, while working as Selection Grade Lecturer at the N.S.S. College, Pandalam was** W.P.(C) No.14152 of 2016 3 **awarded “Teacher Fellowship” under the Faculty Improvement Programme (FIP) of the UGC X[th] plan period. The period fixed for completing the Ph.D Course was from 1.6.2005 to 31.3.2007. The petitioner did not acquire Ph.D within the stipulated time or even within the extended time and in fact, acquired the qualification only on 31.12.2016, much after her retirement from service on 31.3.2010. Due to the failure on the part of the petitioner to acquire Ph.D degree within the fellowship period, proceedings were initiated for recovery of an amount of Rs.3,07,590/- from the petitioner, being the contingency plus substitute salary paid to her during fellowship period.** **3. In the writ petition, the petitioner has challenged this liability fixed as per Exts.P7, P8 and P9 and the consequential recovery proceedings. The petitioner has also sought a** W.P.(C) No.14152 of 2016 4 **direction to release the DCRG amount due to her without any deduction. In support of her contention, the petitioner relied on the judgment in W.P.(C) No.884 of 2013, wherein under similar circumstances, it was held that failure to acquire Ph.D within the stipulated period, would entail only a penalty of Rs.7,000/- with interest and not refund of the entire salary and emoluments received during the period of Fellowship. For arriving at such conclusion, the learned Single Judge had relied on the terms of the bond executed by the Lecturer, on his/her being selected for Fellowship. The relevant portion of the Bond, which was Ext.P3 in W.P.(C) No.884 of 2013 and is Ext.R3(f) in the instant case, is as follows:-** **“NOW THE ABOVE WRITTEN OBLIGATIONS IS THAT in the event of the Bounden failing to serve the N.S.S College, Pandalam for a period of three years immediately and** W.P.(C) No.14152 of 2016 5 **continuously after her return to duty on completion of her course the Bounden and Sureties shall forthwith pay to the Government on demand the amounts referred to above together with interest thereon at Government rates for the time being in force on Government loans and in case the Bounden fails to complete the course successfully within the grace period the Bounden and Sureties shall pay to the Government a penalty of Rs. 7000/- (Rupees Seven Thousand Only) together with interest at the rate mentioned above unless the Bounden successfully complete the course at her own expense within two years from the date of expiry of the period of deputation and upon payment of all such sums the above written obligation shall be void and of no effect otherwise this shall be and remain in full force and effect.”** ## **Interpreting the said Clause, it was held in W.P.** ## **(C) No.884 of 2013 as follows:-** **“8. What could be discerned from above is that the pay and other allowances given to** W.P.(C) No.14152 of 2016 6 **the petitioner could be recovered by the Government only if the petitioner fails to join duty within a period of 3 years from completion of the course. The respondents have no case that the petitioner has (not) rejoined duty within the aforesaid period. However, if the petitioner fails to complete the course successfully within the grace period, it shall be duty of the petitioner to pay a sum of 7,000/- (Rupees seven thousand only) together with interest at the rates specified therein. The respondents can quantify the liability only in tune with the agreed terms in Ext.P3, and the 2[nd] respondent cannot go beyond the agreed terms in the bond. Therefore, steps taken by the petitioner to recover salary and other allowances owned by the petitioner during the deputation period from the DCRG is unauthorised and illegal. The same cannot be deducted from the DCRG.”** **4. It is doubting the said reasoning that** **this reference is made. The relevant portion of the reference order dated 18.09.2018, reads as** W.P.(C) No.14152 of 2016 7 ## **follows:-** **“Having gone through the judgment of the learned Single Judge, I am of the view that the decision is not in tune with the spirit and purpose of the bond to be executed if penalty provision is read along with other stipulations in the bond. In such circumstances, I have no other option but to adjourn the matter to be heard by a Division Bench. Accordingly, the writ petition is adjourned for hearing by the Division Bench. However, the interim order already passed in this matter will continue.”** **5. For a proper understanding of the issue involved, it would be apposite to refer to the contextually relevant portions of the ‘X Plan Guidelines for Faculty Improvement Programme’, under which the petitioner was awarded “Teacher Fellowship” for doing Ph.D. The objective of the programme is stated in Clause (2) as follows:-** **“The objective of the “Teacher** W.P.(C) No.14152 of 2016 8 **Fellowship” under Faculty Improvement Programme is to provide an opportunity to the teachers of the Universities and Colleges to pursue their academic/research activities leading to the award of M.Phil/Ph.D Degree.”** **Clause 3.7 stipulates that the teacher will continue to receive full salary from the parent institution/college during the period of Teacher Fellowship. Clause 3.10 deals with tenure of Teacher Fellowship. The said clause stipulates that the Teacher Fellowship for the Ph.D Programme would be for a period of two years. Extension of one year could be granted based on the justification and merits of the case. As per Clause 4.3, the salary of the substitute teacher, appointed by the university/college in the place of a teacher selected for award of Teacher Fellowship, will be reimbursed by the UGC. Clause 8.3 stipulates that if a Teacher Fellow fails to** W.P.(C) No.14152 of 2016 9 **complete his/her Ph.D/M.Phil Programme and leaves it midway, he/she has to refund the entire amount paid to him by the UGC during his/her Teacher Fellowship.** **6. From a reading of the aforementioned Clauses, it is evident that a Fellowship is granted with the objective of providing an opportunity to the teacher to pursue academic studies or research and acquire further qualification, so that it would inure to the benefit of the students. Therefore, the teacher is bound to utilise the Fellowship and acquire the Ph.D/M.Phil Degree within the fellowship period. In this context, it would be appropriate to refer to the decision of the Honourable Supreme Court in Sant Longowal Institute of Engineering and Technology and another v. Suresh Chandra Verma [(2013) 10 SCC 411].** W.P.(C) No.14152 of 2016 10 **7. The facts of the cited case would show that the respondent, a Lecturer in the appellant institute, had availed study leave for three years for pursuing his Ph.D. Though the respondent executed necessary bond, undertaking to complete the course within the leave period, he failed to do so. The appellant institute demanded refund of the amount paid to the respondent during the period of his study for Ph.D, in terms of the bond executed by him. The respondent challenged the recovery proceedings initiated against him before the High Court successfully. Aggrieved, the institute filed appeal before the Supreme Court. After careful perusal of the terms of the bond executed by the respondent, the Apex Court found that there is no clear cut provision imposing the condition that if a candidate fails to complete the course of study during the period of** W.P.(C) No.14152 of 2016 11 **sanctioned leave, he will have to refund to the institute the total amount of leave salary and other benefits availed by him during the period. Even after noticing the absence of a specific clause in the bond, the Apex Court allowed the appeal, to the extent of allowing the institute to retain the amounts already recovered from the respondent. The reasoning of the Apex Court for arriving at such conclusion is contained in paragraph 11 of the judgment which is extracted hereunder:-** **“11. The abovementioned provision has a laudable object to achieve. A government servant or person like the respondent is given study leave with salary and allowances, etc. so as to enable him to complete the course of study and to furnish the certificate of his successful completion, so that the institute which has sanctioned the study leave would achieve the purpose and** W.P.(C) No.14152 of 2016 12 **object for granting such study leave. The purpose of granting study leave with salary and other benefits is for the interest of the institution and also the person concerned so that once he comes back and joins the institute the students will be benefited by the knowledge and expertise acquired by the person at the expense of the institute. A candidate who avails of leave but takes no interest to complete the course and does not furnish the certificate to that effect is doing a disservice to the institute as well as the students of the institute. In other words, such a person only enjoys the period of study leave without doing any work at the institute and, at the same, enjoys the salary and other benefits, which is evidentially not in public interest. Public money cannot be spent unless there is mutual benefit. Further, if the period of study leave was not extended or no decision was taken on his representation, he could have raised his grievances at the appropriate forum.”** **8. We are in respectful agreement with the said reasoning. The objective of awarding Teacher** W.P.(C) No.14152 of 2016 13 **Fellowship is to provide an opportunity to do research or pursue academic studies leading to the award of M.Phil/Ph.D degree. Failure to acquire the degree would indicate that the teacher has not utilised the opportunity properly. This recalcitrance on the part of the teacher is at the cost of public exchequer and the students. Therefore, necessarily, the teacher is bound to refund the salary and other benefits received by her during the course of the Fellowship which she failed to utilise properly.** **9. In this regard, Clause 4.3 of the Guidelines for FIP assumes importance. Clause 4.3 provides for reimbursement of the salary of the substitute teacher appointed by the College in place of the teacher selected for award of Teacher Fellowship by the UGC. As far as the instant case is concerned, there is evidence to effect that a** W.P.(C) No.14152 of 2016 14 **substitute teacher was appointed in the place of the respondent and that the UGC had reimbursed the salary of that substitute teacher. Under such circumstances, the bond cannot be interpreted or understood as restricting the amount payable by the teacher to a sum of Rs.7,000/-.** **10. According to us, even a literal interpretation of the bond would indicate otherwise. Under the bond, the Bounden undertakes to pay back the salary and allowances received by the teacher with interest thereon, in the event of the teacher failing to serve the college for a period of three years immediately and continuously after return to duty on completion of the course, and to pay a penalty of Rs.7,000/- together with interest, in the event of the teacher failing to complete the course successfully within the grace period and that upon payment of all such sums, the** W.P.(C) No.14152 of 2016 15 **written obligation shall be void and of no effect, and that otherwise, the bond shall remain in full force and effect. The Clause is specific to the effect that the teacher should serve the College for a period of three years after successful completion of the course. This Clause has two limbs; one is successful completion of the course and the other is serving the college for a continuous period of three years after such successful completion. Therefore, serving of the College without successful completion of the course will not absolve the Bounden from the liability under the bond. A Lecturer, who has successfully completed the course, but, fails to serve the College would be liable under the bond. The failure to successfully complete the course within the stipulated period would entail in an additional penalty of Rs.7,000/-. Hence, the** W.P.(C) No.14152 of 2016 16 **finding of the learned Single Judge in W.P.(C) No.884 of 2013 that a teacher, who failed to complete the course successfully within the period, need pay only Rs.7,000/- together with interest, is contrary to the objective of the Faculty Improvement Programme as also the terms of the bond and is hence found to be not good law. The reference is answered by holding that in the event of a teacher awarded Fellowship for Ph.D course, failing to complete the course and acquiring the degree within the Fellowship period, he/she would be liable to refund the salary and other benefits received during the fellowship period.** **11. The learned counsel for the third respondent brought to our notice Ext.R1(e) undertaking given by the petitioner, wherein she had affirmed that she would successfully complete** W.P.(C) No.14152 of 2016 17 **the course and get qualified within the stipulated time and would serve the College for not less than three years immediately and continuously after the course, failing which, she would pay the amount with penalty and interest as specified in the bond.** **In such circumstances, nothing survives for consideration on merits in the writ petition and consequently, the writ petition is dismissed. No order as to costs.** **Sd/K. VINOD CHANDRAN** **JUDGE** **Sd/V.G.ARUN JUDGE** **Scl/11.06** W.P.(C) No.14152 of 2016 18 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **P1 COPY OF PENSION PAYMENT ORDER IS PRODUCED HEREWITH AND THE SAME MAY BE MARKED AS.** - **P2 COPY OF ORDER NO.F.110/FIP X PLAN/UGC/SWRO/KLKE 018 DTD.2/2005 GRANTING FELLOW SHIP UNDER FACULTY IMPROVEMENT PROGRAM.** - **P3 COPY OF CORRESPONDENCE NO.AF(3)/33931/10/COLLEGIATE EDUCATION DTD.31.3.2011 FROM 3RD RESPONDENT TO 2ND RESPONDENT.** - **P4 COPY OF CORRESPONDENCE NO.AF3/33931/2011/COLLEGIATE EDUCATION DTD.28.11.2011.** - **P5 COPY OF HER REPRESENTATION DTD.21.4.2011.** - **P6 COPY OF THE RECEIPT DTD.1.8.2014.** - **P7 COPY OF COVERING LETTER NO.A1/UGC-X PLAN/2014 DTD.31.7.2014.** - **P8 COPY OF THE LIABILITY CERTIFICATE DTD.28.8.2014.** - **P9 COPY OF THE LETTER ISSUED BY THE UGC IMPOSING FINE OF RS.30,7590/- HAVING NO.F.110/FIP X- PLAN/UGC/SWRO/KLKEO18.** - **P10 COPY OF THE SAID REPRESENTATION ADDRESSED TO THE 2ND RESPONDENT.** - **P11 COPY OF THE LETTER OF GUIDE M.R.GOPINATHAN NAIR ADDRESSED TO THE 2ND RESPONDENT DTD.14.3.2011.** - **P12 TRUE COPY OF THE NOTIFICATION NO.EBX/PHD/224/2017 DATED 11.1.2017.** W.P.(C) No.14152 of 2016 19 - **P13 TRUE COPY OF THE JUDGMENT IN WP.(C) NO.884/2013 DATED 25.8.2014.** - **P14 TRUE COPY OF THE SAID COMMUNICATION BEARING NO.AF4/43739/2016/COL.EDU.DPT.DATED 18.3.2017.** - **RESPONDENT'S EXHIBITS:** **R3(A): TRUE COPY OF THE ORDER OF THE PRINCIPAL OF THE COLLEGE dated 31.5.2005.** **R3(B): TRUE COPY OF THE UNDERTAKING DATED 6.6.2005 GIVEN BY THE PETITIONER.** **R3(C): TRUE COPY OF THE UNDERTAKING GIVEN BY THE MANAGER AND THE PRINCIPAL OF THE COLLEGE DATED 27.7.2005.** **R3(D): TRUE COPY OF THE UNDERTAKING GIVEN BY THE MANAGER AND THE PRINCIPAL OF THE COLLEGE DATED 27.7.2006.** **R3(E): TRUE COPY OF TH ADDITIONAL UNDERTAKING SUBMITTED BY THE PETITIONER DATED 27.7.2005.** **R3(F): TRUE COPY OF THE BOND DATED 3.10.2005 GIVEN BY THE PETITIONER.** **R3(G): TRUE COPY OF THE ORDER OF THE GOVERNMENT DATED 3.10.2005.** **R3(H): TRUE COPY OF THE LETTER ISSUED FROM THE DIRECTOR OF COLLEGIATE EDUCATION DATED 26.12.2016.** **R3(I): TRUE COPY OF THE LETTER OF THE DIRECTOR OF COLLEGIATE EDUCATION DATED 1.2.2017.** **R3(J): TRUE COPY OF THE LETTER OF THE COLLEGE DATED 13.2.2017 ALONG WITH THE STATEMENT SHOWING THE SALARY DRAWN BY THE PETITIONER DURING THE DEPUTATION PERIOD, AND ARREARS OF UGC PAY RECEIVED BY HER FOR THE PERIOD FROM 1.1.2006 TO 30.6.2007.**