IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 WP(C).No. 11730 of 2010(M) ---------------------------------------- PETITIONER(S): ------------------------ 1. M.B.MUHAMMED KOYA, LD DRIVER (RTD) SCHOOL OF ENGINEERING, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCNIN, RESIDING AT LADEPPADY, KOUSALYA NAGAR, ELAMAKKARA.P.O. COCHIN-682026. 2. DINESAN.K., BOATMAN(RETD), SCHOOL OF OCEAN SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN, RESIDING AT MANALPARAMBU, CHERIYAPALLANTHURUTHU, NORTH PARAVUR. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH RESPONDENT(S): ------------------------ 1. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN-682022, REPRESENTED BY ITS REGISTRAR. 2. STATE OF KERALA, REPRESENTED BY SECRETRY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 3. THE ACCOUNTANT GENERAL(A&E) KERALA, TRIVANDRUM. tss W.P.(C) NO.11730/2010 *ADDL. R4 IMPLEADED 4. THE DEPUTY DIRECTOR (HG) LOCAL FUND AUDIT, UNIVERSITY AUDIT WING, COCHIN UNIVERSITY CAMPUS, OFFICE OF THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY KOCHI 682 022 *ADDL. R4 IS IMPLEADED AS PER ORDER DTD. 17.1.2011 IN IA. 823/2011 IN WPC. 11730/2010. R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI,SC,COCHIN UNIVERSITY R2 & R3 BY GOVERNMENT PLEADER SMT.M.R.SREELATHA GOVERNMENT PLEADER FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.11730/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SALARY CERTIFICATE DTD. 25.5.07 OF THE IST PETITIONER, ISSUED BY THE IST RESPONDENT. P2:- COPY OF THE SALARY CERTIFICATE DTD. 28.11.2007 OF THE 2ND PETITIONER ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE ORDER NO.FIN. IV/354/P/2007 -08 DT. 9.10.07 ISSUED BY THE IST RESPONDENT. P4:- COPY OF THE ORDER NO.FIN. IV/371/P/2007-08 DTD. 3.11.07 ISSUED BY THE IST RESPONDENT. P5:- COPY OF THE STATEMENT SHOWING THE PENSIONARY BENEFITS LEGITIMATELY DUE TO THE IST PETITIONER. P6:- COPY OF THE STATEMENT SHOWING THE PENSIONARY BENEFITS LEGITIMATELY DUE TO THE 2ND PETITIONER. P7:- COPY OF THE REQUEST SUBMITTED BY THE IST PETITINER BEFORE THE IST RESPONDENT DTD. 18.10.07. P8:- COPY OF THE ORDER NO.AD.A3/214/72 DTD. 12.1.99 ISSUED BY THE IST RESPONDENT. P9:- COPY OF THE ORDER NO.FIN. IV/203/P/2003-04 DTD. 10.10.03 ISSUED BY THE IST RESPONDENT. P10:- COPY OF THE ORDER NO.FIN.IV/222/0/2004-05 DTD. 7.5.04 ISSUED BY THE IST RESPONDENT. P11:- COPY OF THE ORDER NO.FIN.IV/PEN-R-2004-05 DTD. 21.2.2007 ISSUED BY THE IST RESPONDENT. P12:- COPY OF THE ORDER NO.FIN.IV/PEN.R-2004/388 DTD. 21.2.2007 ISSUED BY THE IST RESPONDENT. P13:- COPY OF THE ORDER NO.AD.A1/20843/93 DTD. 27.8.08 ISSUED BY THE IST RESPONDENT. P14:- COPY OF THE ORDER NO.AD.A5/175/NLC/2000 DTD. 26.12.2009 ISSUED BY THE IST RESPONDENT. P15:- COPY OF THE JUDGMENT DTD. 2.7.08 IN WP.30649/07 OF THIS HONOURABLE COURT. W.P.(C) NO.11730/2010 RESPONDENT'S EXHIBITS R1(a):- COPY OF THE SYNDICATE RESOLUTION DTD. 18.12.2004. R1(b):- COPY OF THE DECISION OF THE SYNDICATE. R4(a):- GOVT.LR.NO.26982/B2/2000/H.EDN. DTD. 5.8.2004. R4(b):- GOVT. LR. NO.35043/B1/08/H.EDN. DTD. 10.2.09. R4(c):- GOVT. LR. NO.6397/B2/2002/H.EDN. DTD. 5.11.02. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 11730 of 2010-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February, 2011. JUDGMENT The relief sought for in this writ petition is for a direction to the second respondent to disburse the full pensionary benefits due to the petitioners in terms of Exts.P5 and P6. 2. The petitioners retired from service as LD Driver and Boatman from the service of the first respondent University. The pension and other benefits were sanctioned, according to the petitioners, on a lesser rate, in the light of an audit objection. They were sanctioned as per Exts.P3 and P4 proceedings. The eligible benefits have been quantified by the petitioners and Exts.P5 and P6 are the corresponding statements. The first petitioner submitted a request accordingly, as per Ext.P7. A similar request was made by the second petitioner also. 3. It is stated that the first petitioner was inducted to technical cadre as per Ext.P8 order dated 12.1.1999. Two other persons, viz. M/s. P.A. Abubaker and P.P. Raman who were inducted similarly to the technical cadre, were given full pensionary benefits as per Exts.P9 and P10 orders. They were also given the revised pensionary benefits as per Exts.P11 and wpc 11730/2010 2 P12. 4. It is pointed out that the Syndicate as per Ext.P13, decided to release the withheld DCRG and thereafter, as per Ext.P14 the Syndicate resolved to regularise the time bound higher grades, against which there was audit objection, and to fix the pension. It is pointed out that even thereafter, the eligible benefits have not been disbursed. Reliance is placed on Ext.P15 judgment of this Court and along with I.A. No.16484/2010 the petitioners have produced Ext.P16 judgment in W.P.(C) No.18276/2005 wherein, under similar circumstances directions were given by this Court to release the eligible amount as pensionary benefits. 5. The stand of the University as evident from the counter affidavit is that audit objections were raised by the Local Fund Audit Wing of the Government and they were with regard to the time bound higher grade sanctioned to the petitioners and accordingly they have directed to recover the excess amount. It is stated in para 11 that as per Ext.P13 order, the decision of the Syndicate to release the withheld amount was conveyed. Accordingly, the DCRG of all the employees who have retired from the University service having audit objections relating to the sanctioning of the time bound higher grades have been released. Ext.P14 proceedings is also admitted. It is further explained that the Deputy Director of Local Fund wpc 11730/2010 3 Audit has not admitted the revised calculations pointing out that the Syndicate decision conveyed through Ext.P4 order needs concurrence/ratification from the Government. It is further reiterated in para 13 that the Syndicate has resolved to regularise the time bound higher grade sanctioned to the pensioners. The fourth respondent has also filed a counter affidavit supporting the audit objections. 6. Similar issues were considered by this Court in Exts.P15 and P16 judgments. Therein, reliance was placed on the judgment in W.P.(C) No.5908/2005. This Court therein took the view that Syndicate is the competent authority to take a decision as per the Statutes with regard to the grant of time bound higher grade and as long as the decision stands, the University cannot go back on it. Para 5 of the said judgment is extracted below: “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 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 wpc 11730/2010 4 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 of fastening any liability or recovery thereafter.” In the judgment in W.P.(C) No.5908/2005, the decision of a Division Bench of this Court in Sreedharan v. Union of India (2002 (1) KLT 444) was relied upon. The judgment in W.P.(C) No.5908/2005 was followed in Ext.P16 judgment also. Therein, in para 4 reference was made to the judgments in W.P.(C) Nos.6406/2005 and 6809/2005 and other similar decisions of this Court. 7. In the light of the above and in the light of the decision of the Syndicate reflected in Ext.P14, the petitioners are entitled to succeed in this writ petition. Therefore, the writ petition is allowed. There will be a direction to the University to refix the pensionary benefits of the petitioners in terms of the pay fixation from time to time after sanctioning the time bound higher grades and arrears in that regard will be quantified and the balance amount wpc 11730/2010 5 less the amount already paid, will be disbursed within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/