IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 23285 of 2008(V) -------------------------------- PETITIONER: -------------- T.K.SUGASTHAN (ASSISTANT EXECUTIVE ENGINEER, (RETD) THRIPPAKKAL HOUSE, MANNUTHY P.O.,THRISSUR. BY MS.SREEDEVI KYLASANATH, ADVOCATE. MR.S.SANJITH, ADVOCATE. MS.V.J.SAFEENA, ADVOCATE. MR.K.JITHIN, ADVOCATE. RESPONDENTS: ------------------ 1. KERALA AGRICULTURE UNIVERSITY REPRESENTED BY REGISTRAR, VELLANIKKARA THRISSUR - 680 656. 2. THE ASSISTANT CONTROLLER, IAC (CR),VELLANIKKARA, THRISSUR - 680 656. BY MR.RENJIT THAMPAN, SC FOR KAU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.23285/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF PROCEEDINGS DTD. 4.8.1976 OF R1. EXT. P1(a) : COPY OF ORDER DTD. 17.4.1995 OF EXECUTIVE COMMITTEE ISSUED BY KERALA AGRICULTURAL UNIVERSITY. EXT. P2 : COPY OF PROCEEDINGS No.PEN-B1-4408/2003(1) DTD. VELLANIKKARA 23.8.03 OF THE -DO- EXT. P3 : COPY OF LETTER DTD. 15.6.04 OF DEPUTY DIRECTOR, LOCAL FUND AUDIT. EXT. P4 : COPY OF ORDER DTD. 25.10.04 OF DEPUTY COMPTROLLER, KERALA AGRICULTURAL UNIVERSITY. EXT. P5 : COPY OF PROTEST PETITION DTD. 10.11.2004 FILED BY THE PETITIONER BEFORE THE COMPTROLLER, KERALA AGRICULTURAL UNIVERSITY. EXT. P6 : COPY OF ORDER DTD. 11.2.2005 OF REGISTRAR, KERALA AGRICULTURAL UNIVERSITY. EXT. P6(a) : COPY OF ORDER DTD. 30.5.08 OF R1. EXT. P7 : COPY OF JUDGMENT DTD. 30.7.07 IN W.P.(C) No.1510/2007. EXT. P8 : COPY OF REPRESENTATION DTD. 25.6.08 SUBMITTED BY PETITIONER BEFORE R1. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.23285 OF 2008 --------------------------------------- Dated this the 2nd day of June, 2009. J U D G M E N T The petitioner herein retired from service as Assistant Executive Engineer from the service of the 1st respondent- University. The challenge is against the recovery of an amount of Rs.40,178/- from the D.C.R.G. 2. Heard the learned counsel for the petitioner and learned standing counsel for the University. 3. The petitioner was initially appointed as Engineering Assistant on 02.05.1973. By Exhibit P1, he was posted as Draftsmen/Overseer Grade-I under the Architectural Wing of the Directorate of Physical Plant. Thereafter he was promoted as Assistant Engineer on 12.07.1983 and Assistant Executive Engineer on 13.04.1987. 4. In accordance with the recommendation of the Vth Pay Commission, Higher Grade at the scale of pay of Rs.2070-3550 for 1/3 posts of Assistant Executive Engineers was extended to W.P.(C) No.23285/2008 2 the Assistant Executive Engineers of the University. Exhibit P1(a) is the said decision of the Executive Committee dated 17.04.1995. Accordingly, the petitioner was granted the benefit of higher scale of pay of Rs.2070-3550 with effect from 01.07.1988 based on the common seniority list of Assistant Executive Engineers. 5. The petitioner retired from service on 31.03.2003. It appears that the Local Fund Audit raised objection as per Exhibit P3, against the higher scale of pay sanctioned to the petitioner. Thereafter, the University, by Exhibit P4, sanctioned an amount of Rs.2,13,719/- towards D.C.R.G from which an amount of Rs.40,178/- was withheld being the liabilities towards excess amount drawn. 6. After adjusting the amount of Rs.40,178/-, a cheque for Rs.1,73,541/- was issued to him. The petitioner has filed Exhibit P5 representation, which was rejected by Exhibit P6. Even though a further representation was submitted, that was also rejected by Exhibit P6(a). W.P.(C) No.23285/2008 3 7. Learned counsel for the petitioner submitted that the higher scale was granted way back in the year 1988. It is only 16 years after that, the audit has raised an objection that too after the retirement. It is pointed out that at the relevant point of time, no objection was raised. It is also submitted that even if it can be taken that there is a mistake in payment as the petitioner was granted the benefit based on the decision of the Executive Committee, the audit cannot be allowed to unsettle the same. It is pointed out that in Exhibit P6, no independent reasons have been shown by the University to cancel the same and they have only referred to the audit objection. 8. It is clear from Exhibit P1(a) that the entitlement of the petitioner for placement in the higher scale was based on the decision of the Establishment Committee held on 05.03.1994. The University at no point of time prior to retirement had gone back on the same and has not withdrawn the benefit also. Only after pension papers were forwarded, the audit has raised objection as per Exhibit P3. It cannot be said that there was a fraud or mistake on the part of the authorities in granting the W.P.(C) No.23285/2008 4 benefit since it was sanctioned based on a resolution taken by the Establishment Committee. 9. In that view of the matter, the action of the University in merely cancelling the same based on the audit objection, in Exhibit P6, cannot be sustained. No detailed reasons have been shown in Exhibit P6 as to why the petitioner was not entitled for sanction of higher scale from 01.07.1988. 10. Learned counsel for the petitioner relied upon the decision of the Apex Court in Aleyamma Varghese vs. Secretary, General Education Department (2007(3) KLT 700(SC) to contend that the recovery from D.C.R.G after a long period is not proper. Therein, in paragraph 6, their Lordship held thus: “A mistake apparent on the face of the record may be rectified, but in a matter of this nature, we would expect the State to react more magnanimously and not resort to recovery proceedings after a period of 17 years. We, therefore, in the peculiar facts and circumstances of this case, are of the opinion that with a view to do complete justice to the parties, the amount sought to be recovered may not be recovered from the appellant and we direct accordingly”. W.P.(C) No.23285/2008 5 11. In the recent decision of the Apex Court in State of Bihar and others vs. Pandey Jagdishwar Prasad (2009(1) KHC 512 (SC) (SN)) it was held that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee. In that view of the matter, Exhibits P3 and P6 are quashed. There will be a direction to the first respondent to disburse the withheld amount of Rs.40,178/- within a period of two months from the date of receipt of a copy of this judgment. The pensionary benefits will be accordingly refixed and eligible benefits will be disbursed along with the withheld amount of Rs.40,178/-. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp