IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 29314 of 2007(M) -------------------------- PETITIONER(S): --------------- P.V.VELSY, COACH (ATHLETICS), DEPARTMENT OF PHYSICAL EDUCATION, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.PRAMJI PAUL VAZHAPPILLY RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT,SECRETRIAT,THIRUVANANTHAPURAM. 2. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS,ATHIRAMPUZHA, KOTTAYAM. ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R2 GOVERNMENT PLEADER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: 29314/2007. ------------------------------------------------------ EXT.P1 TRUE COPY OF ORDER DT. 20-11-1992. EXT.P2 ORDER DT. 10-8-1998. EXT.P3 ORDER DT. 13-1-1999. EXT.P4 ORDER DT. 25-11-1998. EXT.P5 ORDER DT. 24-6-2006 EXT.P6 ORDER DT. 13-11-2006. EXT.P6(a) ORDER DT. 13-11-2006. EXT.P7 ORDER DT. 29-6-2006. EXT.P7(a) RELEVANT PORTION OF ANNEXURE-I TO EXT.P7 EXT.P8 OPTION SUBMITTED BY PETITIONER. EXT.P9 ORDER DT. 28-6-2007. EXT.P10 LETTER DT. 31-7-2007. EXT.P11 ORDER DT. 22-9-2007. EXT.P12 ORDER DT. 16-10-2007. EXT.P13 MEMO OF CHARGES DT. 18-10-2007. EXT.P14 REPLY DT. 27-10-2007. EXT.P15 JUDGMENT IN W.P.C.31907/07. EXT.P16 ORDER DT. 14-11-2007. EXT.P17 MEMO DT. 30-11-2007. EXT.P18 REPLY DT. 17-12-2007. EXT.P19 ORDER DT. 9-1-2008. RESPONDENTS' EXHIBITS: --------------------------------------- EXT.R2(a) COPY OF AUDIT REPORT. EXT.R2(b) ORDER DT. 13-11-2006. EXT.R2(c) LETTER DT. 31-7-2007. EXT.R2(d) LETTER DT. 13-8-2007. EXT.R2(e) LETTER DT. 27-9-2005. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 29314 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 14th August, 2009. J U D G M E N T The petitioner in this writ petition is a Coach (Athletics) in the Physical Education Department of the 2nd respondent University. On completion of 10 years of service in the entry cadre, he was granted the first higher grade on 24-9-1987. By University order dated 11-8- 1992, the scale of pay of Coaches, on completion of 10 years of service, was revised from Rs. 1590-3050 to Rs. 2070-3550, in accordance with resolution no. 38 of the meeting of the Syndicate of the University held on 6-6-1992. In accordance with the same, by Ext. P1 order dated 20-11-1992, sanction was accorded for granting Coaches (Higher Grade) option to come over to the revised scale of pay of Rs. 2070-3550. Corresponding to the 1993 pay revision of Government employees, the scales of pay of employees of the University were also revised from 1-3-1992. In that revision, the scales of pay of Coaches (10 year Grade) was revised from Rs. 2070- 3550 to Rs. 2650-4200, the benefit of which was granted to the petitioner also. In the same pay revision, the scales of pay of Coaches (20 year Grade) was revised to Rs. 3000-5000. On completion of 20 years of service on 24-9-1997, the petitioner became entitled to be inducted into the scale of pay of Rs. 3000-5000, by granting him the 20 year higher grade. Belatedly, the Syndicate granted the same to the petitioner in its meeting held on 12-6-1998. Accordingly, the petitioner was granted 20 year higher grade in the scale of pay of Rs. 3000-5000 with effect from 24-9-1997 by Ext. P2 order dated 10-8-1998. 2. While so, by Ext. P3 dated 13-1-1999, the scales of pay of the employees of the University were revised with effect from 1-3-1997, in tune with the pay revision order dated 25-11-1998 in respect of the Government employees. In the same, the scale of pay W.P.C. No. 29314/07 -: 2 :- of Coaches (10 year Higher Grade) was revised from Rs. 2650-4200 to Rs. 8250-13650. The scale of pay of Coaches (20 year Higher Grade) was revised from Rs. 3000-5000 to Rs. 1000-15150. The petitioner's pay was fixed in accordance with the revised scale of pay of Rs. 10000-15150.. Another similarly placed Coach, Sri. T.K. Ibrahimkutty, was also given l fixation of pay in the same scale. The audit party from the Accountant General's Office raised objections to the said fixation, on the ground that the petitioner and the other Coach are eligible for 1st and 2nd higher grades in the scales of pay of Rs. 7200- 11400 and Rs. 7800-12975 only. Acting on the basis of the audit objection, the Registrar of the University, by Ext. P5 order dated 24-6- 2006, directed review of the higher grades granted to the petitioner and the other Coach. The matter was placed before the Syndicate in its meeting held on 10-10-2006 and the Syndicate, considering the meritorious service rendered by the petitioner, resolved not to recover the monetary benefits already given to him and to continue the same, but not to give any additional benefits to the petitioner other than those given, until his retirement. Orders pursuant to that resolution of the Syndicate was communicated to the petitioner by Ext. P6 order dated 13-11-2006. In the meanwhile, by order dated 25-3-2006, the Government revised the scales of pay of their employees. The scales of pay of employees of the University were also revised by Ext. P7 order of the University dated 29-6-2006. In Ext. P7(a) appendix to that order, the schedule of posts and the pre-revised and revised scales of pay of various oposts were also given. In the same, the scale of pay of Coach H.G (20 years) was shown as revised from Rs. 7800- 12975 to Rs. 12930-20250. In the same, the scales of pay of posts having the existing scale of pay of Rs. 10000-15150 were revised to Rs. 16650-23200. Pursuant to the revision of scales of pay, the petitioner filed Ext. P8 option dated 20-12-2006 to continue in the W.P.C. No. 29314/07 -: 3 :- existing scale of pay of Rs.10000-15150 till 1-11-2004, and for corresponding higher scale from that date. In W.P(C) No. 11147/2007, by judgment dated 30-3-2007, this Court directed the University to take a decision in the matter of his option. The Syndicate in its meeting held on 29-5-2007 and 6-6-2007 considered the submission dated 22-9-2006 submitted by the petitioner to grant him permission to exercise option for revision of pay scales corresponding to the existing scales by maintaining status quo and resolved to stick on to the earlier decisions to grant 10 year and 20 year grade promotions to the petitioner. The Syndicate also resolved that future grade promotions of the petitioner will be considered only according to Government rules. This was communicated to the petitioner by Ext. P9. 3. While so, the Government by Ext. P10 letter dated 31-7-2007, directed the University to review the decision of the Syndicate and to review the scales of pay of Rs. 8250-13650 and Rs.10000-15150 granted to the petitioner for the 1st and 2nd time bound higher grade instead of Rs.7200-11400 and 7800-12975 in accordance with Table II of G.O.(P) 3000/98/Fin dated 25-11-1998 (which is produced as Ext. P4 in the writ petition) and to recover excess amount drawn by way of irregular fixation. The same was placed before the Syndicate Standing Committee. The Standing committee in its meeting held on 17-9-2007 resolved to recommend to effect revision of pay to Coaches including the petitioner for their 1st and 2nd time bound higher grade promotions (8th pay revision) at par with the following scales of pay for University Coaches included in Ext. P 7: W.P.C. No. 29314/07 -: 4 :- --------------------------------------------------------------------------------------------------------- No Post Pre-revised Revised scale scale -------------------------------------------------------------------------------------------------------- 1 Coach Higher Grade 7200-11400 11910-19350 (1st Time Bound) 2 Coach Higher Grade 7800-12975 12930-20250 (2nd Time Bound) -------------------------------------------------------------------------------------------------------- Accordingly, the Pro-Vice Chancellor-in-charge accorded sanction, subject to ratification of the Syndicate to approve the said recommendation of the Standing Committee, which was communicated to the petitioner by Ext. P11 dated 22-9-2007 which decision, according to the petitioner, was without notice to him or hearing him. The petitioner filed this writ petition, originally, seeking (i) correction of the entries under existing and revised scales against Sl. No. 13 in Ext. P7(a) as Rs.10000-15150 and Rs.16650-23200 instead of Rs. 7800-12975 and Rs. 12930-20250, (ii) direction to the 2nd respondent to grant the revised scale of Rs. 16650-23200 to the petitioner as per his option and consequential benefits and (iii) to quash/set aside Exts.P10 and P11. An interim relief was also sought for staying the operation and implementation of Exts.P10 and P11 and all further proceedings to reduce the pay of the petitioner and to make recoveries. The writ petition came up for admission on 4-10- 2007, on which date notice was ordered to the respondents and an interim order was passed to the effect that the petitioner's present pay shall not be reduced and that there shall not be any recovery also. 4. Thereafter, by Ext. P12 dated 16-10-2007, the petitioner was placed under suspension, pending enquiry, alleging that the petitioner has produced a fake document as Ext. P6 in this writ petition instead W.P.C. No. 29314/07 -: 5 :- of the original University Order to mislead this Court , which the Vice Chancellor considers as a grave and shameful act on the part of the petitioner. Ext. P13 memo of charges and statement of allegations dated 18-10-2007 were also issued to the petitioner. The petitioner filed Ext. P14 explanation stating that although there were some omissions and typographical errors in Ext. P6 in the opening sentence and number of the order, which occurred while typing out the order from the photocopy available with the petitioner, which was illegible and not readable and there is no discrepancy in the operative portion of the order produced as Ext. P6, which is not a fake document. It was explained therein that no contention was taken and no relief was claimed based on the wrongly typed words. He also pointed out therein that he had filed I.A.No. 14054 of 2007 in this writ petition for substituting the original Ext. P6 with a clear photocopy which was obtained by him in the meantime, which I.A was allowed on 24-10- 2007. The petitioner thereafter challenged the suspension by filing W.P(C) No. 31907/2007. When that writ petition came up for admission, the standing counsel for the University submitted that after considering the petitioner's explanation, it has been decided to reinstate the petitioner forthwith. In view of that submission, by Ext.P15 judgment dated 14-11-2007, I disposed of that writ petition, directing the University to permit the petitioner to join duty as and when he reports for duty and directing the University to take a final decision on the disciplinary proceedings within a period of two months from the date of receipt of a copy of the judgment. It appears that in the meanwhile an enquiry was conducted in the matter and a report was submitted. Pursuant thereto, Ext. P16 order dated 14-11- 2007 was passed reinstating the petitioner and directing the Registrar to propose the penalty to be imposed on the petitioner. By Ext. P17 dated 30-11-2007, annexing the enquiry report, the W.P.C. No. 29314/07 -: 6 :- petitioner was directed to show cause why the minor penalty of withholding of two increments permanently with cumulative effect should not be imposed on the petitioner. Despite Ext. P18 representation of the petitioner, by Ext. P19 order dated 9-1-2008, the penalty of withholding two increments permanently with cumulative effect for a period of two years was imposed on the petitioner. After receipt of the same, the petitioner got the writ petition amended incorporating a challenge against the disciplinary proceedings also. As per the amended writ petition, the petitioner seeks the following reliefs: “i. issue a writ of mandamus to the 2nd respondent to correct the entries under existing and revised scales against Sl. No.13 in Ext. P7(a) as Rs.10000-15150 and 16659-23200. ii. a writ of mandamus to the 2nd respondent to grant the revised scale of Rs.16650-23200 to the petitioner as per his option and to grant consequential benefits. iii. A writ of certiorari quashing/setting aside Exts.P 10 and P11. iv. Such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. v. a writ of certiorari quashing/setting aside Exts.P.17 and P19. vi. a writ of mandamus to the 2nd respondent to treat the period of suspension as duty and to disburse the salary due to the petitioner for the period from 1-10-2007 onwards.” 5. Both the State and the University have filed counter affidavits in support of the impugned orders to which they are concerned with. Regarding the revision of scale of pay, the contention of both is that for the time bound higher grade promotion, scale to scale revision is not contemplated. For each revised scale of pay in the entry post separate revised scales of pay are prescribed for W.P.C. No. 29314/07 -: 7 :- the 1st and 2nd time bound higher grade promotions in the Government Orders. University employees are also entitled to only revised scales of pay for the 1st and 2nd time bound higher grade prescribed for the revised scale of pay in the entry post and not the revised scale of pay corresponding to their pre-revised higher grade scale of pay. They are not entitled to have their pre-revised scale of pay for the 1st and 2nd higher grades revised to the revised scale of pay as applicable to posts carrying specific scales of pay, by a scale to scale revision is the contention raised. According to them, as per the 1998 pay revision, the revised scales of pay for the 1st and 2nd time bound higher grades of promotion for Coaches are Rs. 7200-11400 and Rs.7800- 12975, respectively, in which place the petitioner was given the revised scales of pay of Rs. 8250-13650 and Rs. 10000-15150 for the 1st and 2nd time bound higher grades, by giving scale to scale revision of the pre-revised scale of pay of Rs. 2650-4200 and Rs. 3000- 5000, which is against the Government Order, which was objected to by the audit party of the Accountant General, consequent to which the Government has directed the University to correct the same and recover the excess pay drawn by the petitioner. The University themselves, while revising the scales of pay of University employees in accordance with the 2006 pay revision order, revised the 20 year grade scale of pay of Coaches to Rs.12930-20250, which was the revised 20 year time bound higher grade scale of pay applicable to the entry post scale of pay of Rs.10790-18000 applicable to the post of Coache. Both would contend that as per Section 53 of the Mahatma Gandhi University Act, when the Government directs the University to correct such mistakes, the University is bound to correct the same forthwith, which only has been done by the Pro-Vice Chancellor invoking powers of the Vice Chancellor under Section 10(17) of the Mahatma Gandhi University Act, under which in case of an emergency W.P.C. No. 29314/07 -: 8 :- situation, the Vice-Chancellor can exercise powers of the Syndicate, which is subject to ratification by the Syndicate in its next meeting. The University answers the contention of lack of notice before issuing the impugned orders stating that since the University has not taken any decision to make any recovery from the salary and only assigned eligible scales of pay to Coaches as per Pay Revision Order of the Government for which no notice is contemplated under law. 6. The University seeks to justify the disciplinary proceedings contending that the petitioner has forged Ext. P6 order and produced the fake order as genuine, for which only a minor penalty has been imposed, which according to them, does not call for any interference by this Court . 7. The petitioner's reply is that the University is an autonomous body, who, as per Section 23 of the Mahatma Gandhi University Act, is competent to sanction scales of pay to its employees with prior sanction of the Government, which only has been done as per Ext. P3. The audit objection has been considered by the Syndicate and a final decision has been taken in the matter by the Syndicate itself by Ext. P6, which cannot be altered by the Government. According to the petitioner, the University is bound to correct mistakes as per directions of the Government based on audit objections and when a conscious decision is taken by the University, after considering the audit objection, the Government cannot direct the University to change that decision. The petitioner contends that in any event, the Pro-Vice Chancellor in-charge of the Vice Chancellor cannot review or annul Ext. P6 decision of the Syndicate, even by invoking emergency powers and therefore Ext. P11 order is clearly without jurisdiction. As far as the disciplinary proceedings are concerned, for a genuine mistake committed by the petitioner, which, in any event, is totally inconsequential to and does not affect any contention of either party W.P.C. No. 29314/07 -: 9 :- in the writ petition, the petitioner has been punished terming it as a forgery which is unsustainable. Relying on the decision of the Supreme Court in Kulwant Singh Gill v. State of Punjab, [1991 Supp. (1) SCC 504], the petitioner would contend that withholding of increments with cumulative effect is a major penalty which cannot be imposed without conducting a detailed enquiry. 8. I have considered the contentions of both parties in detail. 9. Elaborate arguments have been advanced on the question of jurisdiction of the Pro-Vice Chancellor to issue Ext. P11 order reviewing or annulling Ext. P6 decision of the Syndicate. But, on a reading of Ext. P11, I find that it has nothing to do with Ext. P6 at all. Ext. P6 decision of the Syndicate relates to Ext. P5 order of the Registrar based on audit enquiry no. 21 of the Accountant General's audit party. Ext. P5 itself was issued on 24-6-2006 prior to Ext. P7 order dated 29-6-2006 of the University revising the scales of pay of University employees in tune with Government Order dated 25-3- 2006. As is clear from Ext. R2(a), the audit objection is dated 31-3- 2006, even prior to that. Therefore, Ext. P6 is evidently dealing with the scale of pay of Rs.10000-15150 given to the petitioner in accordance with Ext. P3 revision of scales of pay effected by order dated 13-1-1999 pursuant to the 1999 pay revision. Ext. P11 does not in any way interfere with either Ext. P6 or the revision of pay pursuant to Ext. P3. Ext. P11, is expressly stated to deal with the assigning of scale of pay to Coaches including the petitioner, in accordance with the 8th pay revision, with reference to the request of the petitioner to grant him permission to exercise option for revision of pay scales corresponding to the existing pre-revised scales by maintaining status quo. That order has only the effect of holding that the revised scale of pay of the petitioner as per the 8th Pay Revision Order is Rs. 12930-20250. The same do not alter the scale of pay of W.P.C. No. 29314/07 -: 10 :- Rs.10000-15150 granted to the petitioner pursuant to Ext. P3, which scale of pay the Syndicate has allowed the petitioner to keep as per Ext. P6 decision. Ext. P11 does not even refer to Ext. P6, nor does it change the scale of pay of Rs.10000-15150 given to the petitioner. Therefore, I am of opinion that the dispute regarding lack of jurisdiction of Pro-Vice Chancellor to pass Ext. P11 order invoking powers of the Syndicate, cancelling or reviewing Ext. P6 decision of the Syndicate is much ado about nothing. 10. As such, I am of opinion that, as on today, there is no order of the University cancelling the second time bound higher grade scale of pay of Rs. 10000-15150 granted to the petitioner pursuant to Ext. P3. It could not have been legally or justly cancelled also after all these years, despite the audit objection. The audit objection is not a decision by itself. The sustainability of the audit objection has to be considered in the light of the explanation offered by the affected employee and the authority competent has to take a decision on the audit objection. On the competent authority taking a decision on the audit objection in favour of the employee, the audit objection ceases to be enforceable. In this case, the Chief Executive Authority of the University, namely, the Syndicate has spoken on the audit objection by Ext. P6 deciding to overrule the same in favour of the petitioner. As is evident from Ext. P9 order of the Registrar dated 28-6-2007, the very same issue was considered by the Syndicate again in its meeting held on 29-5-2007 and 5-6-2007 and resolved to stick on to the earlier decision. Thereafter, the same ceases to be a mistake and becomes the final decision on the subject deciding to grant the petitioner the revised scale of pay of Rs.10000-15150 corresponding to the pre- revised scale of pay of Rs.3000-5000 in accordance with Ext. P3. That decision of the University, which is an autonomous body, cannot be interfered with by the Government on the basis of Ext. P4 W.P.C. No. 29314/07 -: 11 :- Government Order or the audit objection based on the same. The power of the Government under Section 53 of the Mahatma Gandhi University Act is to direct the University to remedy any defect or irregularity pointed out by the auditors. Once on the audit objection the University takes a conscious decision to overrule the same, the same ceases to be a defect or irregularity. In any event, after more than 10 years of Ext. P3 order revising the scale of pay to Rs.10000- 15150 it would be totally inequitable to reduce the same and to direct the petitioner to refund the excess pay, that too, for no fault of the petitioner. 11. Further, it is relevant to note that the Syndicate has taken the decision evidenced by Ext. P6 considering the meritorious service rendered by the petitioner, that too, subject to the condition that the petitioner is not to be given any additional benefits other than those given until his retirement. Further, it is clear from Ext. P 9 order of the University issued on 28-6-2007, that the University had in its meeting held on 29-5-2007 and 6-6-2007 resolved to stick on to the earlier decision. In this connection, I further note that as per Ext. P4 Government Order, the 1st and 2nd higher grades are to be given after 10 years and 18 years of service, whereas in Ext. P3, the 2nd higher grade to Coaches of the University is given after 20 years of service. The petitioner entered service as a Coach, which post has no promotion avenues whatsoever and he would retire from service as a Coach itself. That is another reason why the decision taken by the Syndicate in favour of the petitioner should not be interfered with now. Therefore, I hold that the revised scales of pay of Rs.8250- 13650 and Rs.10000-15150 granted to the petitioner for his 1st and 2nd time bound higher grades would stand and no review of the same and recovery of excess pay is called for. Ext. P10 letter of the Government directing to do so would therefore stand quashed. W.P.C. No. 29314/07 -: 12 :- 12. But, that does not mean that automatically, Exts.P7(a) and P11 orders deserve to be interfered with. They only direct that the scale of pay of Coaches for the 2nd time bound higher grade would stand revised as Rs.12930-20250, pursuant to the 8th Pay Revision. It is not disputed before me that scale to scale revision of scale of pay is applicable in respect of scale of pay attached to entry posts and regular promotion posts. Of course, when a promotion post is available, then the next time bound higher grade would be sanctioned in the scale of pay applicable to the regular promotion post to which the employee can aspire for. But it is different in the case of time bound higher grade promotions to persons who have no regular promotion posts to