Registrar, Kerala Agricultural University, Vellanikkara, Thrissur; The Comptroller, Kerala Agricultural University, Vellanikkara, Thrissur; The Deputy Comptroller, College of Agriculture, Vellayani v. Dr. Elizabeth K. Syriac

**RP.No.116 OF 2021** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943** **RP.No.116 OF 2021 IN WP(C). 26611/2011** **AGAINST THE JUDGMENT DT.18.9.2020 IN WP(C) 26611/2011(B) OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/RESPONDENTS 1 TO 3:** **1 THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY VELLANIKKARA, THRISSUR-680 654.** **2 THE COMPTROLLER, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR-680 654.** **3 THE DEPUTY COMPTROLLER, COLLEGE OF AGRICULTURE, VELLAYANI, THIRUVANANTHAPURAM-695 522.** **BY ADV. SHRI.AJITH KRISHNAN** ## **RESPONDENT/PETITIONER:** **DR.ELIZABETH K.SYRIAC PROFESSOR, DEPARTMENT OF AGRONOMY, COLLEGE OF AGRICULTURE, VELLAYANI, RESIDING AT TC 7/1069(6), ARATTUCHIRAYIL, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM-695 013.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 29.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RP.No.116 OF 2021** **2** ## **ORDER** **Dated this the 29[th] day of March 2021** This petition has been filed seeking a review of the judgment dated 18.9.2020, in W.P.(C)No.26611 of 2011. The above Writ petition had been filed by the petitioner seeking re-fixation of the salary by stepping it up to the level of the salary that was being drawn by her immediate junior, since there was an anomaly. The question involved was whether a senior can be paid a lesser salary than a junior. When the writ petition was taken up for hearing, the counsel for the petitioner had submitted that the issue involved is covered in favour of the petitioner by the judgement of the Hon'ble Supreme Court in **Gurucharan Singh Grewal & others vs. Punjab State Electricity Board & others** reported in [2009(3) SCC 94], which had been followed by a Division Bench of this Court in the judgment in **Director NIIT,** **Calicut and others vs. Dr. Muraleedharan C. and others** reported in _[_ 2020 SCC OnLine Ker 1755]. During the **RP.No.116 OF 2021** **3** hearing, the learned counsel for the review petitioners had also submitted that the issue is covered in favour of the respondent. However, the review petitioners have now preferred this petition on the ground that the principles laid down in the above said judgments will not apply in the case of the respondent since the higher pay that was being drawn by the junior was due to the fact that the junior happened to get 3 advance increments on acquiring Ph.D. on 1.9.2008 and on subsequent promotion, while the respondent got only two advance increments. 2. Heard Sri Ajith Krishnan, learned Additional Standing Counsel for the review petitioners and Sri P.V.Jayachandran, learned counsel for the respondent. 3. It is contended by the learned counsel for the review petitioners that that Rule 28A of Part 1 KSR cannot be applied in the case of the respondent. Along with the review application, the review petitioners have produced Annexure A which is the UGC Regulations of 2010, Annexure B, which is the payslip dated 18.7.2011 of the respondent, Annexure C, which is the Government Order dated 29.3.2001, Annexure **RP.No.116 OF 2021** **4** D which is a circular dated 17.5.2017, Annexure E, which is an office memorandum dated 26.10.2018 issued by the Government of India and Annexure F, which is a Government order dated 6.6.1963. Annexures D and E are issued on 17.5.2017 and 26.10.2018, respectively, and will not in any way apply to the facts of this case, which relates to an anomaly of 2011. Annexure A regulation does not deal with the manner in which the anomaly of the senior drawing less pay than the junior should be set right. It only deals with grant of advance increments for possessing Ph.D. Annexure B would go to show that the respondent had been granted two advance increments while fixing her pay. Annexure C is an order dated 29.3.2001, whereby the Government had in answer to certain clarifications sought by the Accountant General regarding the incentives for Ph.D/M.Phil., ordered that teachers who have got the benefit of advance increments for having Ph.D., will not be eligible for advance increments at the time of their placement in selection grade, that teachers who got Ph.D. subsequently will be eligible for advance increments when they moved to the selection grade, **RP.No.116 OF 2021** **5** that the date of effect of the benefit will be from 1.1.1996, that those persons who have acquired/will acquire Ph.D. on or after 1.1.1996 will become eligible for advance increment from the date of award of Ph.D. degree and that teachers who get advance increments will not be eligible for fixation as per Rule 28A, Part I KSR. Rule 28A was introduced in Part I KSR as per G.O.(P)No.222/Fin. dated 1.6.1962, following the principles adopted by the Government of India in the matter of fixation of pay on promotion to higher post. Annexure F is an order dated 6.6.1963, whereby Rule 28A was amended so as to exclude the fixation of pay on the basis of a notional change of pay in the lower post, in the case of those who hold the higher post substantively. In ruling No.4/1963 below Rule 28A it is stated that where the application of the rule gives rise to anomalies inasmuch as an officer officiating in a higher post could get is Pay re-fixed 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 re-fixing the pay of the senior officer at the stage equal to that fixed for the junior officer in **RP.No.116 OF 2021** **6** the higher post subject to certain conditions. One of the conditions is that the anomaly should be as a result of the application of Rule 28A and that in a case where a junior officer draws from time to time a higher rate of pay than the senior on account 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. The review petitioners seek to place reliance on the above condition to contend that, since the respondent's junior was enjoying a higher pay due to the advance increment which had been granted to her, the pay of the respondent cannot be stepped up. 4. The scope of interference in a review application is very limited, as has been held by the Hon'ble Supreme Court in the decision in **N.Anantha Reddy v. Anshu Kathuria** reported in **[(2013) 15 SCC 534]** . In paragraph 6 of the judgment the Apex Court held as follows: "6. A careful look at the impugned order would show that the High Court had a fresh look at the question whether the appellant could be impleaded in the suit filed by respondent 1 and, in the light of the view which it took, it recalled its earlier order dated 8-6-2011. The course followed by the High Court is clearly flawed. The **RP.No.116 OF 2021** **7** High Court exceeded its review jurisdiction by reconsidering the merits of the order dated 8-6-2011. The review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is selfevident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits." 5. The judgment of the Hon'ble Supreme Court has later been followed in several cases. A Division Bench of this Court in **T.C.Jose vs. State of Kerala** reported in _[_ 2018 SCC OnLine Ker 15205], has followed the said decision and held that the review petition cannot be treated as an appeal warranting a rehearing of the entire matter afresh. All that is intended is to correct mistakes which are apparent on the face of the record. A review can also be sought for on discovery of new and important matter of evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time of the hearing. In the case on hand, the materials which have been produced along with the review petitions are not materials which were not within the knowledge of the review petitioner. So also, nothing is brought out either in the **RP.No.116 OF 2021** **8** grounds for review or during the arguments, which warrant a conclusion that the judgment of the Hon'ble Supreme Court, which had been relied on in the judgment sought to be reviewed, does not apply to the fact situation. As a matter of fact, the review petitioners have accepted the principles laid down in the decision of the Hon'ble Supreme Court, as can be seen from the judgment dated 26.5.2015 in W.P. (C)No.16252 of 2012 filed by one Dr.Sosamma Cherian against the review petitioners, claiming similar reliefs as in the Writ petition, which led to the impugned judgment. The learned single Judge had in the said judgment followed the judgment in **Gurucharan Singh** (supra) and held that the senior cannot be paid lesser salary than the junior. In the result, the review petition is devoid of any merit and is dismissed. The parties will bear their respective costs. Sd/- ## **T.R.RAVI, JUDGE** dsn **RP.No.116 OF 2021** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **ANNEXURE A** **TRUE COPY OF THE RELEVANT PAGES OF THE UGC REGULATIONS NOTIFICATION NO.F.31/2009 DATED 30 JUNE, 2010.** **ANNEXURE B TRUE COPY OF THE REVISED PAY SLIP NO.ACV(1) 303/86 DATED 18.07.2011. ANNEXURE C TRUE COPY OF THE GO(P) NO.44/2001/H.EDN. DATED 29.03.2001. ANNEXURE D TRUE COPY OF THE CIRCULAR NO.35/2017/ (54)/FIN DATED 17.05.2017 OF THE FINANCE DEPARTMENT OF KERALA.** **ANNEXURE E TRUE COPY OF THE OFFICE MEMORANDUM NO.4/3/2017-ESTT(PAY I) DATED 26.10.2018 OF THE MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS DEPARTMENT OF PERSONNEL AND TRAINING, GOVERNMENT OF INDIA.** **ANNEXURE F TRUE COPY OF GOVERNMENT ORDER NO.GO(P)339/63/FIN. DATED 6.6.1963**