IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 OP.No. 38911 of 2002(G) ----------------------- PETITIONER: ------------ 1. G.K.SUCHINDAN, SCIENTIST F, CENTRE FOR EARTH SCIENCE STUDIES, THIRUVANANTHAPURAM - 695 031. 2. DR.N.P.KURIAN, SCIENTIS E2, -DO- 3. DR.T.N.PRAKASH, SCIENTIST E2, -DO- 4. V.VASUDEVAN,SCIENTIST E1, -DO- 5. G.BALASUBRAMANIAN, SCIENTIST E2, -DO- 6. V.N.NEELAKANDAN, SCIENTIST E2, -DO- 7. DR.T.RADHAKRISHNAN, SCIENTIST F, -DO- 8. DR.K.V.THOMAS, SCIENTIST E2, -DO- 9. DR.G.R.RAVINDRAKUMAR, SCIENTISTE2, -DO- 10. JOHN MATHAI, SCIENTIST E2, -DO- 11. DR.S.SAMPATH, SCIENTIST F, -DO- 12. DR.NARAYANASWAMY, SCIENTIST E2, -DO- 13. DR.H.N.SINGH, SCIENTIST E1, -DO- 14. DR.C.P.RAJENDRAN, SCIENTIST E2, CENTRE FOR EARTH SCIENCE STUDIES, THIRUVANANTHAPURAM - 695 031. 15. DR.KUSALA RAJENDRAN, SCIENTIST E2, -DO- 16. DR.G.MOHAN KUMAR, SCIENTIST E2, -DO- 17. V.SHARAVAN KUMAR, SCIENTIST E1, -DO- 18. T.K.KRISHNACHANDRAN, TECHINICAL OFFICER, -DO- 19. DR.N.SUBASH, SCIENTIST E2, -DO- 20. JOHN PAUL, SCIENTIST C, -DO- 21. DR.V.SASIKUMAR, SCIENTIST E2, -DO- 22. DR.C.M.HARISH, SCIENTIST E2, -DO- 23. DR.M.N.MURALIDHARAN NAIR, SCIENTIST E2, -DO- 24. DR.K.K.RAMACHANDRAN, SCIENTIST E2, -DO- 25. K.VIJAYAKUMAR, SCIENTIST E1, -DO- 26. V.MURALIDHARAN, SCIENTIST E1, -DO- 27. DR.M.SAMSUDDIN, SCIENTIST E2, -DO- 28. DR.T.S.SHAHUL, SCIENTIST E2, -DO- 29. C.K.SASIDHARAN, SCIENTIST C, -DO- 30. DR.P.P.OUSEPH, SCIENTIST F, CENTRE FOR EARTH SCIENCE STUDIES, THIRUVANANTHAPURAM - 695 031. 31. M.RAMESH KUMAR, TECHNICAL OFFICER GRADE II, -DO- 32. A.VIJAYAKUMARAN NAIR, TECHNICAL OFFICER GRADE II, -DO- 33. S.MOHANAN, TECHNICAL OFFICER, GRADE II, -DO- 34. M.AJITHKUMAR, TECHNICAL OFFICER GRADE II, -DO- BY ADV. SRI.B.RAGUNATHAN SRI.V.V.MATHEW SRI.G.GOPALAKRISHNA PILLAI RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY CHAIRMAN, STATE COMMITTEE ON SCIENCE, TECHNOLOGY AND ENVIRONMENT AND EX-OFFICIO SECRETARY TO GOVT.,SCIENCE,TECHNOLOGY AND ENVIRONMENT DEPT. (STED), SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004. 2. CENTRE FOR EARTH SCIENCE STUDIES, REPRESENTED BY DIRECTOR, CENTRE FOR EARTH SCIENCE STUDIES, THIRUVANANTHAPURAM - 695 031. R2 BY ADV. SRI.U.K.RAMAKRISHNAN SRI.E.K.MADHAVAN SRI.P.V.LOHITHAKSHAN SMT.P.VIJAYAMMA R1 BY SMT. T.B. REMANI, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.65511/2002 DISMISSED. 11/1/2008 SD/- T.R. RAMACHANDRAN NAIR, JUDGE. APPENDIX EXT.P1-TRUE COPY OF THE GO DATED 11.4.90 EXT.P2-TRUE COPY OF THE CIRCULAR DATED 22.5.2000 EXT.P3-TRUE COPY OF THE LETTER DATED 19.9.2001 EXT.P4-TRUE COPY OF LETTER DT.4.1-.2001 EXT.P5-TRUE COPY OF LETTER DT.28.5.02 EXT.P6-TRUE COPY OF REPRESENTATION DT.4.7.2002 EXT.P7-TRUE COPY OF NOTE DATED 12.12.2002 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.38911 of 2002 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of January, 2008. JUDGMENT The petitioners are aggrieved by the orders Exts.P3, P5 and P7 by which the benefit towards surrender leave salary granted to them, is sought to be recovered. The year in question is 1999. 2. Petitioners 1 to 30 are working as Scientists in the various grades and petitioners 31 to 34 are working as Technical Officers Grade II under the second respondent. The same is an autonomous institution established by the State of Kerala under the Science, Technology and Environmental Department. The second respondent is completely controlled by the State of Kerala and is funded by the State and the Central Governments. 3. Ext.P1 is the order by which the Government has provided the pay and other service conditions of the scientific and non-scientific staff in Research and Development Centres under Science, Technology and Environmental Department. By a later Govt. Order, viz. G.O.(P) No.82/99/STED dated 2.8.1999 the Scientific and Technical staff of the second respondent were ordered to be eligible for encashment of leave with salary (surrender leave salary) for 20 days in a calender year which was to OP 38911/2002 -2- be paid from 1999 onwards. Based on the said Govt. Order, Ext.P2 circular dated 22.5.2000 was issued by the second respondent. All the petitioners were beneficiaries of the said circular and surrender leave salary for 20 days each were drawn and disbursed to the petitioners for the years 1999 and 2000. Later, based on an audit objection raised by the Accountant General (Audit), Kerala, the Government directed recovery of the amounts paid by way of surrender leave salary to the petitioners for the year 1999. The said direction is evidenced by Ext.P3. By Ext.P4, the Director of the second respondent requested the Accountant General to drop the said audit objection. The Government was also addressed in the matter. But in Ext.P5, the Government informed the Secretary of the Scientists Association of the second respondent that the action of the Director, CESS in having paid the surrender leave salary on a retrospective basis cannot be ratified. Again, the employees submitted Ext.P6 representation not to effect the recovery and later by Ext.P7, the second respondent issued orders for effecting recovery from the DA arrears payable to the petitioners herein. The petitioners attack the said orders as illegal. By order dated 20.12.2002 in C.M.P. No.65511/2002, this court had granted interim stay of the recovery pursuant to Ext.P7. 3. Counter affidavits have been filed by respondents 1 and 2. In the OP 38911/2002 -3- counter affidavit filed by the Government, the stand taken is that even though as per Govt. Order dated 2.8.1999 surrender of leave has been permitted to all employees including Scientists, since the application for surrender of leave was not submitted prior to the period, the Accountant General pointed out it as an irregularity. It is on the basis of the said objection that the action of the second respondent was not ratified by the Government also. It is therefore contended in the counter affidavit that the Government directed the Director of CESS to initiate action to recover the amount from the DA arrears. The counter affidavit filed by the second respondent also shows that the Government Order dated 2.8.1999 permitted payment of surrender leave salary to the employees including Scientists, as applicable to the State Government employees. 4. This is a case where based on competent orders issued by respondents 1 and 2, the petitioners were given the benefit of surrender leave salary. That the Govt. Order dated 2.8.1999 enables the Scientific and Technical staff of the second respondent to be eligible for encashment of leave with salary for 20 days in a calender year, is not disputed. Evidently, this was ordered to be paid from 1999 onwards. The delay, if any, occurred is not on the part of the petitioners, but it appears that it was only because of the delay in issuing a circular, Ext.P2 by the second respondent, for which OP 38911/2002 -4- no mistake can be attributed to the petitioners. Their title to get surrender leave salary has been declared by G.O. dated 2.8.1999 and it cannot be taken away on any other ground. When the Government permitted the surrender leave salary to be payable from 1999 onwards, any administrative delay in issuing a circular for disbursing the same as per the Govt. Order, cannot militate against the rights of the petitioners. In fact, in Ext.P2 it is clearly stated that since the Government Order is effective from 2.8.1999, the encashment is permissible from the year 1999 onwards. 5. What is sought to be projected is an audit objection of the Accountant General. It is settled law that audit cannot sit in judgment over competent orders passed by the authorities concerned, herein being respondents 1 and 2. Such objections cannot have the effect of nullifying orders or proceedings taken by statutory authorities. (See Usuvathunnisa v. Asst. Educational Officer - 1990 (2) KLT 530). It is not a case where the petitioners deliberately delayed the submission of application for claiming the benefit and the respondents have no such case also. What is relevant is whether the payment was eligible as per G.O. dated 2.8.1999 and by Ext.P2. The approach otherwise made against the payment, can only be termed as too technical as petitioners cannot be blamed for any assumed OP 38911/2002 -5- irregularity. As the title to the payment of surrender leave salary cannot be disputed, and as they are clearly entitled for the said benefit, I am of the view that the audit objection does not survive and the payment effected to the petitioners, cannot be faulted also. Therefore, Exts.P3, P5 and P7 as far as the same direct recovery of surrender leave salary paid to the petitioners for the year 1999, are quashed. It is declared that the payment of surrender leave salary to the petitioners for the year 1999 is perfectly legal and valid. The original petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/ OP 38911/2002 -6- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.38911 of 2002-G - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 11th January, 2008.