IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 OP.No. 38578 of 2002(P) ----------------------- PETITIONERS: ------------ 1. K.G.SASIDHARAN, SECTION OFFICER, P.G.PRIVATE REGISTRATION SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 2. N.V.VARADARAJ, SECTION OFFICER, EJ-I SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 3. LEELAMMA G., SELECTION GRADE ASSISTANT, B.ED. CENTRE, MAHATMA GANDHI UNIVERSITY, PAIPAD, CHANGANACHERRY. 4. S.K.JAYASREE, SELECTION GRADE ASSISTANT, D.D.SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 5. K.CHANDRASEKHARAN NAIR, SELECTION GRADE ASSISTANT, B.COM SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 6. G.VALSALAKUMARI, SECTION OFFICER, AD.B3 SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 7. M.N.RADHAMMA, SECTION OFFICER, E.H.SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 8. N.SARASWATHY, SELECTION GRADE ASSISTANT, P.D.II SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 9. LATHIKA, SELECTION GRADE ASSISTANT, AD.AI SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 10. G.REMADEVI, SECTION OFFICER, B.COM SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 11. M.R.AMBIKADEVI, SECTION OFFICER, SC/ST CELL, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. OP.No. 38578/2002/P -2- 12. RAJAN K.MATHEW, SELECTION GRADE ASSISTANT, ON DEPUTATION TO 'FRIENDS', KOTTAYAM. 13. T.D.RAJAN NAIR, SELECTION GRADE ASSISTANT, ER-I SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 14. K.K.MOHANAN, SECTION OFFICER, SCHOOL OF BEHAVIOURAL SCIENCES, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 15. K.S.SIVASANKARAN NAIR, SELECTION GRADE ASSISTANT, UNIVERSITY COLLEGE OF TEACHER EDUCATION, MAHATMA GANDHI UNIVERSITY, VAIKOM. 16. B.CHANDRASENAN, SECTION OFFICER, SCHOOL OF PEDAGOGICAL SCIENCES, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 17. C.R.KURIAN RETHI, SELECTION GRADE ASSISTANT, SCHOOL OF MEDICAL EDUCATION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. 18. H.ABDUL NAZER, SELECTION GRADE ASSISTANT, INFORMATION CENTRE, MAHATMA GANDHI UNIVERSITY, ERNAKULAM. BY ADV. SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.S.D.ASOKAN RESPONDENTS: ------------- 1. MAHATMA GANDHI UNIVERSITY, KOTTAYAM, REPRESENTED BY ITS REGISTRAR. 2. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SENIOR GOVERNMENT PLEADER, SMT.M.R.SREELATHA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/02/2008, ALONG WITH WPC NO. 15190 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 38578/2002/P ORDER ON CMP NO.65078/2002 IN OP NO.38578/2002 DISMISSED Sd/- 20.2.2008. S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ORDER NO.AD.1/6875/82(1) VOL.III. DT.20-4-1988 ISSUED BY THE UNIVERSITY OF CALICUT. EXT. P2: COPY OF ORDER NO.AD.A1.5.2869/88. DT. 3RD JUNE, 1988 ISSUED BY THE 1ST RESPONDENT. EXT. P3: COPY OF ORDER NO.AD.AI.1.5579/88.DT. 20TH MAY, 1989 ISSUED BY THE 1ST RESPONDENT. EXT. P4: COPY OF ORDER NO.AD.AI.1.6605/88. DT. 21ST DECE.1989 ISSUED BY THE 1ST RESPONDENT. EXT. P5: COPY OF ORDER NO.AD.AI.1.6/91. DT. 18TH JUNE, 1991 ISSUED BY THE 1ST RESPONDENT. EXT. P6: COPY OF ORDER DATED 9-1-1992 ISSUED BY THE FINANCE OFFICER, M.G.UNIVERSITY. EXT. P7: COPY OF ORDER NO.AD.A1-1-1905/95. DT. 1-1-1996 OF THE 1ST RESPONDENT. EXT. P7(A): COPY OF RELEVANT EXTRACT OF THE PAY FIXATION STATEMENT. EXT. P8: COPY OF ORDER NO.AD.A1-245/90 VO.II. DT. 23-11-1999 ISSUED BY THE 1ST RESPONDENT. EXT. P9: COPY OF ORDER NO.AD.A.1-2-15/95 VOL.II. DT. 19-3-1999 ISSUED BY THE 1ST RESPONDENT. EXT. P10: COPY OF ORDER NO.PRC/1/312/99. DATED 4-5-1999 ISSUED BY THE 1ST RESPONDENT. EXT. P11: COPY OF LETTER NO.33068/92/98/HIGHER EDN. (B) DEPT. DATED 8- 4-1999 SENT BY THE GOVERNMENT TO THE 1ST RESPONDENT. EXT. P12: COPY OF JUDGMENT DT. 4TH JANUARY, 2002 IN O.P.NOS.28550/2000 AND 29155/2000 OF THIS HON. COURT. OP.No. 38578/2002/P -2- EXT. P13: COPY OF THE COUNTER AFFIDAVIT FILED BY THE UNIVERSITY BEFORE THIS HON'BLE COURT IN O.P.NO.28850/2000. EXT. P14: COPY OF ORDER NO.AD.A1-1-6/2001. DATED 27-11-2002 ISSUED BY THE 1ST RESPONDENT. TRUE COPY/ P.A.TO JUDGE JP S.SIRI JAGAN, J. ======================= O.P. No. 38578/2002 & W.P.(C) No.15190/2006 ======================= Dated this the 20th day of February, 2008 JUDGMENT These two writ petitions relate to the same subject matter and therefore, they are being disposed of by this common judgment. The orders impugned are the same in both, although the number of the exhibits differs. The number of exhibits shall be referred to as obtaining in O.P. No.38578/2002. 2. The petitioners are employees of the Mahatma Gandhi University. They were originally appointed as Assistants Grade II in the Calicut University, Kerala Agricultural University and Cochin University of Science and Technology, on various dates between 1998 and 1990. While they were in their parent University, they had obtained promotion as Senior Grade Assistant. Later, they were appointed as Assistant Grade II in the Mahatma Gandhi University by transfer from their parent Universities, which transfer was governed by Statute no.14 A of Chapter 4 of Kerala University First Statutes which was made O.P. No. 38578/2002 & W.P.(C) No.15190/2006 -2- applicable to Mahatma Gandhi University till Mahatma Gandhi University frames Statutes of its own. That Statute 14 A reads thus: "14A. Posting of employees on transfer from other Universities: The Syndicate may, on request from the employees concerned, sanction, posting of employees on transfer from other Universities in the State subject to the following conditions:- (1) Posting of employees on transfer from other Universities may be allowed only on reciprocal basis. (2) Such transfer shall be restricted to employees of Class III and Class IV categories who have satisfactorily completed their probation. (3) A person transferred from another University shall take his rank below the junior-most in the entry grade of the category concerned. (eg. A Senior Grade Assistant or Assistant Grade I if transferred shall be appointed as Junior most Assistant Grade I I). (4) The person transferred shall not be allowed to count his previous service towards seniority but he may be allowed to count it towards increment, leave, pension, gratuity etc. He will not be required to undergo fresh probation at the entry grade. (5) The person transferred from this University shall relinquish his lien and all other rights in the University. (6) The person transferred shall be entitled to protection from drop of emoluments. His pay on such appointment shall be fixed at the minimum of the scale of pay of the post in the University service if the pay he was drawing in the parent University, is less than minimum. In case he was drawing under the parent University pay above the minimum and equal to a stage in the scale of pay of the post in this University service, his pay will be fixed at that stage and if the pay he was drawing under his parent University is not a stage in the scale of pay of the post in this University service, it will be O.P. No. 38578/2002 & W.P.(C) No.15190/2006 -3- fixed at the next lower stage, the difference being treated as personal pay to be absorbed in future increases of pay. (7) No T.A. or joining time pay will be allowed for persons on transfer from other Universities. (8) The University from which such employees are transferred shall pay the leave salary and pension contribution of such employees to the University when they are transferred. (9) Those who are transferred shall clear all liabilities outstanding in their name before the transfer is effected." 3. Subsequently, in 1997 the Mahatma Gandhi University framed Statutes of their own regarding the conditions of service of its employees which contained Statute number 22 A of Chapter 4 of the Mahatma Gandhi University Statutes, corresponding to rule 14 A of the Kerala University First Statute. Statute 22 A of Chapter 4 of Mahatma Gandhi University Statutes reads thus: "22. A. Posting of employees on transfer from other Universities: The Syndicate may, on request from the employees concerned, sanction posting of employees on transfer from other Universities in the State subject to the following conditions: (1) Posting of employee on transfer from other Universities may be allowed only on reciprocal basis. (2) Such transfers shall be restricted to employees of Class III and Class IV categories who have satisfactorily completed their probation. (3) A person transferred from another University shall O.P. No. 38578/2002 & W.P.(C) No.15190/2006 -4- take his rank below the juniormost in the entry grade of the category concerned (e.g. A Senior Grade Assistant or Assistant Grade I, if transferred, shall be appointed as Juniormost Assistant Grade II). (4) The person transferred shall not be allowed to count his previous service towards seniority, but he may be allowed to count it towards increment, leave, pension, gratuity etc. He will not be required to undergo fresh probation at the entry Grade. (5) The person transferred from this University shall relinquish his lein and all other rights in the University. (6) The person transferred shall be entitled to protection from drop of emoluments. His pay on such appointment shall be fixed at the minimum of the scale of pay of the post in this University service if the pay he was drawing in the parent University is less than the minimum. In case he was drawing under the parent University, pay above the minimum and equal to a stage in the scale of pay of the post in this University service, his pay will be fixed at that stage and if the pay he was drawing under his parent University is not a stage in the scale of pay of the post in this University service, it will be fixed at the next lower stage, the difference being, treated as personal pay in the absorbed in future increases of pay. (7) No T.A. or joining time pay will be allowed for persons on transfer from other Universities. (8) The University from which such employees are transferred shall pay the leave salary and pension contribution of such employees to the University when they are transferred. (9) Those who are transferred shall clear all liabilities outstanding in their name before the transfer is effected." 4. The pay of the petitioners inaccordance with the above rules were fixed protecting the pay which they were drawing as Senior Grade Assistants in their parent University. O.P. No. 38578/2002 & W.P.(C) No.15190/2006 -5- Subsequently, their turn for promotion as Senior Grade Assistants in Mahatma Gandhi University arose and they were duly promoted. At that time their pay was fixed giving fixation under Rule 28A of Part I of Kerala Service Rules. Subsequently, by Ext.P11 order, the Government objected to such fixation on two grounds. First is that, the petitioners had already obtained a Rule 28 A fixation while they were promoted as Senior Grade Assistants in their parent University and therefore, granting the very same benefit again in the Mahatma Gandhi University would amount to double benefit which cannot be countenanced. The second is that, by such fixation there would arise an anomaly in so far as they would be drawing more pay than their seniors, as a result of which the seniors would become entitled to senior-junior fixation in accordance with Ruling no.1 of Rule 28 A of Part I of KSR. In accordance with the directions in Ext. P11, Ext.14 order was passed by the Mahatma Gandhi University refixing the petitioners' pay deleting the fixation under Rule 28 A of Part I of KSR. Exts. P11 and P14 are under challenge before me in these two writ petitions. 5. The contention of the petitioners is that once they O.P. No. 38578/2002 & W.P.(C) No.15190/2006 -6- have been confirmed as Assistants Grade II in the Mahatma Gandhi University protecting the pay which they were drawing in the parent University they became a normal employee of the Mahatma Gandhi University, which is a separate entity and an autonomous institution apart from their parent University, eligible for all other benefits applicable to other Assistants Grade II of the Mahatma Gandhi University including benefits of fixation under Rule 28 A of Part I of KSR on promotion. They also point out that they have come over to the Mahatma Gandhi University forgoing their promotion as Senior Grade Assistants in their parent University joining the Mahatma Gandhi University as the juniormost among the Assistants Grade II although their pay was protected. Therefore there is no justice denying Rule 28A fixation when they are again promoted as Senior Grade Assistants. 6. The learned Government Pleader would submit that such a fixation would result in double benefit under Rule 28A of the KSR to the petitioners which cannot be permitted. According to her, evidently there is an anomaly in the matter, in so far as the petitioners got the pay they were drawing as Senior Grade O.P. No. 38578/2002 & W.P.(C) No.15190/2006 -7- Assistants in their parent University, which includes the Rule 28 A fixation also when they were promoted as Senior Grade Assistants in their parent University, protected. That being so, they cannot be given that benefit again. Secondly, it is pointed out that if the second fixation is granted to the petitioners, employees who were in the Mahatma Gandhi University all along, having the same length of service as the petitioners, would be drawing less pay than the petitioner, which would naturally give rise to claims by such seniors of the petitioners for stepping up of pay under Rule 28 A of Part 1 of KSR. On these grounds, the learned Government Pleader opposes the claim of the petitioners. 7. I have considered the rival contentions in detail. At the outset, I must admit that there is certainly an anomaly in the matter. But the question is whether in the name of anomaly the petitioners can be denied their right as per rules. 8. It is not disputed before me that each of these Universities are separate autonomous institutions, although all of them were bound by orders of the Government in respect of policy matters. The employees of the University are not O.P. No. 38578/2002 & W.P.(C) No.15190/2006 -8- government servants. The Mahatma Gandhi University has its own Statutes governing appointment by transfer from other Universities. The petitioners have been so appointed and their pay was fixed in the post of Assistants Grade II in accordance with those rules. That being so, the petitioners became Assistant Grades II of the Mahatma Gandhi University with the pay so fixed. Thereafter, they cannot be related back to their position as Senior Grade Assistants in their parent University. Thereafter, they cannot now be denied fixation under Rule 28 A of Part I of KSR when their turn for promotion as Senior Grade Assistants in Mahatma Gandhi University came in due course, on the ground that the petitioners had already got a fixation under Rule 28 A, when they were promoted as Senior Grade Assistants in their parent University in the absence of any provisions in the Statute governing such appointment by transfer. This is particularly so, because the two are separate and distinct service. The service in their parent University is distinct and separate from that of Mahatma Gandhi University. The question of other employees claiming junior-senior fixation also does not arise as is evident from the several decisions of this Court like Ext.P12 judgment. It O.P. No. 38578/2002 & W.P.(C) No.15190/2006 -9- is not difficult to contemplate a situation where a junior would be drawing more pay than a senior for several reasons, and there is no universal rule that no junior can draw higher pay than the senior. There is also no necessity to apply junior-senior fixation simply because the junior is drawing higher pay than the senior. In fact this position was accepted by the Supreme Court in CULCUTTA MUNICIPAL CORPORATION AND ANOTHER V. SUJIT BARAN MUCKERJEE AND OTHERS (1997 11 SCC 463). Therefore, the petitioners cannot be denied their statutory right on that ground also. 9. For the above reasons, I am satisfied that Exts. P11 and P14 are liable to be set aside. I do so. In view of the stay granted by this Court no recovery was made from the petitioners. Accordingly, the 1st respondent is directed to restore the petitioners' fixation of pay originally done within two months from the date of receipt of a copy of this judgment. 10. Before parting with these cases, I may observe that there is actually an anomaly in the matter in so far as the petitioners are really getting an undeserving benefit. I was forced to concede the same to them only because of the O.P. No. 38578/2002 & W.P.(C) No.15190/2006 -10- statutory provisions which does not prohibit granting of such benefits. In the above circumstances, the University and Government would do well to rectify this anomaly by suitably amending the statutes and rules. These writ petitions are allowed as above. S.SIRI JAGAN, JUDGE jp