IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 OP.No. 10283 of 1997(Y) ---------------------------------- PETITIONER(S): ----------------------- A.D. NARAYANAN, RETIRED PROFESSOR, S.N. COLLEGE, KANNUR, NOW RESIDING AT GANDHI NAGAR, KOCHI-20. BY MR.KRB.KAIMAL, SENIOR ADVOCATE. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACOUNTANT GENERAL A&E, TRIVANDRUM. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, CALICUT. 4. THE SREE NARAYANA TRUST, REPRESENTED BY ITS SECRETARY, S.N. TRUST, KOLLAM. 5. PRINCIPAL, S.N. COLLEGE, KANNUR. R1 TO R3 BY GOVERNMENT PLEADER SMT.T.B. REMANI. R4 BY ADV. MR.A.N.RAJAN BABU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 10283/1997-Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER G.O.MS NO.83/91/H.EDN. DATED 24/03/1991 OF 1ST RESPONDENT. EXT.P2: COPY OF THE PROFORMA FOR FIXATION FORWARDED BY THE 5TH RESPONDENT TO 3RD RESPONDENT DATED 10/06/1992. EXT.P3: COPY OF THE ORDER NO.PR/40/AB/173/93-94/767 DATED 30/11/93 OF 2ND RESPONDENT. EXT.P4: COPY OF THE REPRESENTATION OF PETITIONER TO 5TH RESPONDENT DATED 25/08/1996. EXT.P5: COPY OF THE LETTER FROM COMMISSIONER & SECRETARY (FINANCE TO ACOUNTANT GENERAL (A&E) 2ND RESPONDENT NO.86180/PEN.81/94/FIN. DATED 16/08/1995. EXT.P6: COPY OF THE LETTER FROM 2ND RESPONDENT TO PETITIONER NO.PR/G1/6- 44/35. EXT.P7: COPY OF THE LETTER PR1/G1/6-44/60 DATED 10/11/95 FROM 2ND RESPONDENT TO COMMISSIONER & SECRETARY (FIN.) (PENSION) DEPARTMENT, TRIVANDRUM. EXT.P8: COPY OF THE LETTER NO.PM/PR/90/AD REV.1/1/AB/96-97-233 DATED 30/05/1996 FROM 2ND RESPONDENT COPY TO PETITIONER. EXT.P9: COPY OF THE PRESENTATION OF PETITIONER TO 2ND RESPONDENT DATED 12/06/1996. EXT.P10: COPY OF THE PAYMENT ORDER DATED 20/06/1996 FROM 2ND RESPONDENT TO DIST. TREASURY OFFICER, ERNAKULAM. EXT.P11: COPY OF THE REPRESENTATION OF PETITIONER TO 1ST RESPONDENT DATED 10/08/1996. EXT.P12: COPY OF THE APPENDIX VII TO GO(P)NO.79/90/H.EDN. DATED 27/03/1990. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 10283 of 1997 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January, 2010 J U D G M E N T 1. The petitioner was a Professor of S.N. College, Kannur who retired from service on 31.03.1989. After his retirement by G.O.(P) No.79/90/H.Edn. dated 27.03.1990 the Government implemented University Grants Commission Scales of pay with effect from 01.01.1986. The scale of pay in the UGC scale applicable to the petitioner was Rs.3700 - 5700-. But the monetary benefits thereof was restricted to be paid from 01.04.1990 onwards. The petitioner opted 04.04.1986 as the date to come over to the revised scale of pay for the retrospective revision of pay. Pursuant thereto petitioner's pay was fixed as follows: 04.04.1986 - Rs.3,700/- 01.07.1987 - Rs.3,825/- 01.07.1988 - Rs.3,950/- 2. Petitioner was paid the retirement benefits only on the basis that the petitioner's basic pay as on the date of O.P. No. 10283 of 1997 -2- retirement was Rs.3,950/-. According to the petitioner that fixation is wrong. He would submit that as per Rule 3 of Ext.P12 formula for Fixation of Pay in the Revised Scales recommended by the U.G.C. the next increment of a teacher whose pay has been fixed in the revised scale in accordance with Rule 2 thereof shall be granted on the date he would have drawn his increment, had he continued in the existing scale. The petitioner submits that as is clear from Ext.P2 the petitioner's date of last increment in the state scale was 01.07.1985 and his date of next increment was 01.07.1986 in the pre-revised scale of pay. Therefore going by Rule 3 of Ext.P12, petitioner would have drawn one increment in the UGC scale of pay on 01.07.1986 and consequently fixation of pay of the petitioner in the UGC scale of pay should have been as follows: 04.04.1986 - Rs.3,700/- 01.07.1986 - Rs.3,825/- 01.07.1987 - Rs.3,950/- 01.07.1988 - Rs.4,075/- O.P. No. 10283 of 1997 -3- 3. The petitioner would therefore submit that the basic pay of the petitioner as on the date of retirement should have been fixed as Rs.4,075/- and his retirement benefits calculated accordingly. 4. Although no counter affidavit has been filed by the 4th respondent, counsel for the 4th respondent would submit that originally the petitioner's pay was wrongly fixed and later on that mistake was corrected and a new fixation was forwarded to the Deputy Director of Education which has not been considered by the Deputy Director. In the counter affidavit filed by the 1st respondent the contention of the petitioner regarding the mode of fixation of the petitioner's pay is not seen disputed. The contention raised therein is that the authority competent to sanction increment to the petitioner is the Manager of the college and the increment granted by the Manager has been approved based on which petitioner's pensionary benefits have been computed. They have also got a contention that for the purpose of fixation of DCRG emoluments as defined O.P. No. 10283 of 1997 -4- in Note 4 below Rule 63 only is applicable. According to them going by Note 4 below Rule 63 only in cases of notional promotion average emoluments would calculated based on the pay actually received and not in case of notional revision of scale of pay. The officers concerned are eligible as a result of notional promotion eventhough they may not have actually drawn the same. The contention is that the pay fixed on notional revision of scale of pay is not covered by Note 4. 5. In answer to the contention of the 1st respondent the counsel for the petitioner submits that he should not be made to suffer because of the mistake committed by the Manager. He pointed out that he filed Ext.P4 petition before the Principal of the College and the 4th respondent agrees that the mistake has been duly corrected and new fixation has been forwarded to the Deputy Director for appropriate approval of the same. For the inaction on the part of the Manager and the Deputy Director, the petitioner should not be penalized is the contention raised by the O.P. No. 10283 of 1997 -5- petitioner. As regards the second contention of the 1st respondent, the petitioner points out that by Ext.P5 the Government had clarified that pay notionally fixed in the UGC Scale of pay can be reckoned as emoluments for DCRG and family pension for retirements prior to 01.04.1990 vide Note 4 below Rule 62, Note 4 below Rule 63 and Rule 90 (5) Part III, K.S.R. He would therefore submits that the petitioner's pay as on the date of retirement should be directed to be notionally fixed as Rs.4,075/- and the respondents 1 to 3 should be directed to re-compute the retirement benefits of the petitioner on that basis and pay the arrears of retirement benefits due to him accordingly. 6. I have considered the rival contentions in detail. After considering the arguments of both sides, I am of the opinion that the petitioner is right in his contention that, after the revised scale of pay came into force, the first increment should have been given on 01.07.1986 which was his normal increment date in the state scale of pay. Rule 3 of Ext.P12 reads as follows: O.P. No. 10283 of 1997 -6- “The next increment of a teacher whose pay has been fixed in the revised scale in accordance with rule 2 shall be granted on the date he would have drawn his increment, had he continued in the existing scale: Provided that in cases where the pay of a teacher is stepped up in terms of the note under rule 2, the next increment shall be granted on the completion of qualifying service of 12 months from the date of stepping up of the pay in the revised scale. Provided further that in the case of persons who had been drawing maximum of the existing scale for more than a year as on 01.01.1986 the next increment in the revised scale shall be allowed on 01.01.1986.” 7. If that be so, after his revision of pay, he is entitled to one increment on 01.07.1986. One increment is Rs.125/-. If that be so, petitioner's basic pay should have been notionally fixed as Rs.4,075/- as on 01.07.1988. Consequently on the date of retirement namely 31.03.1989, his notional basic pay should have been Rs.4,075/-. In view of Ext.P5 clarification issued by the Government notwithstanding the provisions in the K.S.R the petitioner is entitled to retirement benefits based on the basic pay of Rs.4,075/-. In the above circumstances there would be a direction to the respondents 1 to 3 to re-fix the DCRG due to the petitioner with his last drawn basic pay as Rs.4,075/-. O.P. No. 10283 of 1997 -7- Orders shall be passed in this regard and arrears paid to the petitioner as expeditiously as possible at any rate within a period of two months from the date of receipt of a copy of this judgment. The original petition is allowed as above. S. SIRI JAGAN JUDGE shg/