IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 36249 of 2007(M) -------------------------------------- PETITIONER: ------------------- S.UNNIKRISHNAN NAIR, STOREKEEPER (RTD), RESIDING AT NANDANAM, KANDIYOOR, MAVELIKARA-690103. BY ADVS. MR.R.RAJASEKHARAN PILLAI, SMT.SABINA JAYAN. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN-22, REPRESENTED BY ITS REGISTRAR. R1 BY GOVT. PLEADER MR. V.T.K. MOHANAN, R2 BY MR.S.P.ARAVINDAKSHAN PILLAI,S.C,COCHIN UNIVERSITY. ADV. MR. A.A. ABUL HASSAN, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36249/2007-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. AD. A3/22175/85. DTD. 28/01/97 OF THE R.2. EXT.P.2: COPY OF THE ORDER NO. FIN.II/F/906/94 DTD. 02/05/97 OF THE R.2. EXT.P.3: COPY OF THE ORDER NO. FIN.II/F/906/99 DT. 29/12/2000 OF THE R.2. EXT.P.4: COPY OF THE ORDER NO.FIN.IV/P/320/2006 DTD. 19/04/2007 ISSUED BY THE R.2. WITH PAY FIXATION STATEMENT. EXT.P.5: COPY OF THE REPRESENTATION DTD. 06/08/2007 FROM THE PETITIONER TO THE VICE-CHANCELLOR OF THE R.2. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE AUDIT OBJECTION IN PARA NO.50 OF AUDIT REPORT OF LOCAL FUND AUDIT FOR THE YEAR 1999-2000. EXT.R2.B: COPY OF THE AUDIT OBJECTION IN PARA NO.111 OF AUDIT REPORT OF LOCAL FUND AUDIT FOR THE YEAR 2000-2001. EXT.R2.C: COPY OF THE AUDIT OBJECTION IN PART IIB – PARA XI OF INSPECTION REPORT OF ACCOUNTANT GENERAL'S AUDIT FOR THE YEAR 1993-94 TECHNICAL CADRE. EXT.R2.D: COPY OF THE DETAILS OF PAY ACTUALLY DRAWN BY THE PETITIONER. EXT.R2.E: COPY OF THE LIABILITY CERTIFICATE NO.AD.A5/175/NLC/2000 DTD. 11/07/2007. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.36249 of 2007-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of October, 2009. JUDGMENT The issue that is raised herein is regarding the sustainability of audit objections resulting in the refixation of pensionary benefits of the petitioner which is less compared to the pay drawn by him at the time of retirement. 2. The petitioner retired from the service of the second respondent University on 31.1.2007 as Storekeeper, after completion of 26 years of service. He was initially appointed as Assistant Grade II in the Department of Physics on 29.9.1980. He was inducted into technical grade on completion of eight years and accordingly he was appointed as Storekeeper Grade II in the scale of pay of Rs.1000-1710. The above pay scale was revised into the scale of Rs.1350-2200 in 1992. On completion of a total service of 15 years the second time bound higher grade was given to him with effect from 29.9.1995 in the scale of pay of Rs.1640-2900. Ext.P1 is the proceedings granting 15 years time bound higher grade to him. This was based on a decision of the Syndicate dated 8.11.1996. Ext.P2 is the pay fixation ordered in his favour. On completion of 20 years of service, the third time bound higher grade was given to the petitioner with effect wpc 36249/2007 2 from 29.9.2000. Ext.P3 shows that sanction was accorded by the Finance Officer to fix the pay of the petitioner at Rs.6500/- on a scale of pay of Rs.6500-10550 with effect from 29.9.2000. After the retirement, the University issued proceedings as per Ext.P4 sanctioning the superannuation pension, DCRG, Commuted Value of Pension and Family Pension. It is the case of the petitioner that the eligible amounts have not been sanctioned by Ext.P4. Apart from that, the petitioner was met with the proposal to recover a huge sum as excess pay drawn by him. Even though a representation was filed, that was not answered and at that stage, this writ petition was filed. The main prayer in this writ petition is to quash Ext.P4 to the extent of which the petitioner's pay was reckoned only in the scale 5500-9075 and not in the scale sanctioned by Ext.P3 order (6500-10550). There is a further prayer to sanction 25 years higher grade also. 3. In the counter affidavit filed by the University, it is pointed out that the time bound higher grades granted by the University were objected by the auditors on the ground that they are not in conformity with the grades granted in the Government service. Considering the objections, the Syndicate had decided not to grant time bound higher grade with effect from 27.12.2003 onwards, which were sanctioned earlier. Exts.R2(a) to R2(c) are the audit objections. Ext.R2(D) is the statement showing the actual pay wpc 36249/2007 3 drawn by the petitioner and the scale of pay eligible in terms of the audit objection. An excess pay of Rs.1,15,877/- was sought to be adjusted, going by Ext.R2(E). 4. It is submitted by the learned Standing Counsel appearing for the University that based on a University Order dated 27.11.2008, the amount of Rs.1,15,877/- which was shown as liability, has also been released to the petitioner on 23.12.2008 by cheque. 5. The above pleadings show that the University itself has decided to recognise the time bound higher grades granted to the petitioner prior to 27.12.2003. The question is whether the petitioner can be denied the benefit of third higher grade which was sanctioned as per Ext.P3 on completion of 20 years. The petitioner is relying upon the judgment of a learned Single Judge of this court in W.P.(C) No.5908/2005 to contend that the stand taken by the audit cannot be accepted. Therein, in para 5, it was held thus: “From the above facts, it is clear that petitioner was given the benefits based on a Syndicate decision as evidenced by Ext.P1 dated 13.5.2002. The Syndicate is the competent authority as empowered under the Statute and its decision is well within its jurisdiction. As per the counter affidavit also, the University took up the matter with the Government to waive the Audit objection. The only reason for wpc 36249/2007 4 issuing Ext.P6 is based on an audit objection and the Government did not agree with the view of the Syndicate. But the fact remains that the decision in Ext.P1 is not yet revoked or cancelled by any subsequent decision of the Syndicate. No materials whatsoever is also placed cancelling such decision. So long as Ext.P1 stands and payment having been effected based on the Syndicate decision, the question arises as to how any recovery could be made and any liability could be fastened based on a mere audit objection. If the Syndicate decision was in any way wrong, then necessarily, the University ought to have corrected its decision, in which case, such later decision of the Syndicate could be the basis for fastening any liability or recovery thereafter. True even in that event, a question may arise as to whether a subsequent decision could have any retrospective effect of recovering such excess pay drawn by the petitioner based on the decision and benefits conferred thereunder. But in the present situation, such question do not arise directly. In Sreedharan v. Union of India (2002 (1) KLT 444) a Bench decision of this Court held as follows: “There may be power to correct the mistake and regulate the pension prospectively in accordance therewith. But the exercise of power after several years of retirement of a Government servant cannot stand scrutiny in the light of the mandate to act fairly and reasonably, radiating from Art.14 of the Constitution of India. But, in this case, this aspect need not be decided by us because the Tribunal has already given a declaration in Ext.P1 that the reduction of the salary of the applicant with retrospective effect is illegal. The said declaration has become final. The Tribunal in its discretion did not give liberty to the respondents to e-fix the salary after affording an opportunity of hearing to the petitioner. Since wpc 36249/2007 5 the declaration made by the Tribunal has become final, the respondents are bound to implement it even in the absence of a consequential direction. So, the consequential direction sought by the petitioner herein is unnecessary. Even without any direction, the respondents being public authorities are bound to respect the declaration of law.” It was further held in para 6 that “in the absence of any decision cancelling Ext.P1, it is too late for the respondents to contend that the petitioner is liable to refund the excess amount or that there is any liability to be cleared in this behalf.” In a later decision of this court in W.P.(C) No.30649/2007, another learned Single Judge has followed the judgment in W.P.(C) NO.5908/2005 and held that withholding of pensionary benefits cannot be sustained. 7. Herein, it is evident from Ext.R2(D) that the petitioner was drawing the scale of pay of Rs.6500-10550 as on 29.9.2000 also. The decision of the Syndicate as revealed from the counter affidavit, also supports the case of the petitioner. Therefore, the benefits of third time bound higher grade cannot be denied to the petitioner. 8. In that view of the matter, Ext.P4, to the extent to which the said benefit is denied to the petitioner, is set aside. There will be a direction to the second respondent to refix the pensionary benefits of the petitioner in terms of Ext.P3 and further amounts eligible to be paid to the petitioner will wpc 36249/2007 6 be disbursed within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/