IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN THURSDAY, THE 1ST FEBRUARY 2007 / 12TH MAGHA 1928 WP(C).No. 5908 OF 2005(C) PETITIONER: P.K.VELAYUDHAN, RETIRED TECHNICAL ASSISTANT GR.III, DEPARTMENT OF SHIP TECHNOLOGY, COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, RESIDING AT GOKULAM HOUSE KANGARAPPADY P.O., COCHIN-21. BY ADV. SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.NAVEEN.T SRI.T.G.SUNIL SRI.ANTONY BENEDICT RESPONDENT: COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN-22,REPRESENTED BY ITS REGISTRAR ADDITIONAL RESPONDENT NO.2:- STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. (IMPLEADED AS ADDITIONAL 2ND RESPONDENT VIDE ORDER DATED 27.2.2006 ON I.A. NO. 1099/2006) BY ADV. SRI.SUNIL CYRIAC, SC, COCHIN UNIVERSITY SRI.A.A.ABUL HASSAN,SC,COCHIN UNIVERSIT GOVT. PLEADER SMT. D.P. RENU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.1.2007, THE COURT ON 1.2.2007, DELIVERED THE FOLLOWING: WP(C) 5908/2005 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF ORDER NO. AD. A3/A.OBJ./99 DATED 13.5.2002 ISSUED BY THE RESPONDENT. EXT.P2 TRUE COPY OF ORDER NO. FIN.II/F/911/94. DATED 4.7.2002 ISSUED BY THE RESPONDENT. EXT.P3 TRUE COPY OF REPRESENTATION DATED 17.1.2005 SUB,MITTED BY THE PETITIONER TO THE RESPONDENT. EXT.P4 TRUE COPY OF ORDER NO. FIN.IV/239/F/2004-05 DATED . 4.2.2005 ISSUED BY THE RESPSONDENT. EXT.P5 TRUE COPY OF REPRESENTATION DATED 7.2.2005 FILED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P6 TRUE COPY OF ORDER NO. AD. A3/NLC/2002. DATED 9.2.2005 ISSUED BY THE RESPONDENT. EXT.P7 TRUE COPY OF ORDER (MEMO) NO. ADA3/ADVT./NO.3/82. DATED 3RD FEBRUARY, 1984 ISSUED BY THE RESPONDENT. EXT.P8 TRUE COPY OF ORDER NO. AD.A3/5361/76. DATED 29TH JANUARY, 1989, ISSUED BY THE RESPONDENT- UNIVERSITY. EXT.P9 TRUE COPY OF ORDER NO. AD.A3/35/87. DATED 3.6.1989 ISSUED BY THE RESPONDENT-UNIVERSITY. EXT.P10 TRUE COPY OF ORDER NO. AD.A3/35/87. DATED 1.1.1994 ISSUED BY THE RESPONDENT-UNIVERSITY. RESPONDENTS' EXHIBITS: EXT.R1(A) TRUE COPY OF THE RELEVANT PORTION OF THE AUDIT REPORT. EXT.R1(B) TRUE COPY OF THE LETTER NO. 6397/82/2002/HEDN. DATED 5.11.2002 ISSUED BY THE GOVERNMENT OF KERALA. EXT.R1(C) TRUE COPY OF THE LETTER NO. 8045/B2/2004/HEDN. DATED 16.8.2004 ISSUED BY THE GOVERNMENT OF KERALA. EXT.R1(D) TRUE COPY OF THE REQUEST DATED 5.3.1999 OF THE PETITIONER. P.R. RAMAN, J. ============= W.P.(C) NO. 5908 OF 2005 =================== DATED THIS, THE 1ST DAY OF FEBRUARY, 2007 J U D G M E N T Petitioner entered service of the Cochin University as a Plumber on 11.11.1981. He was thereafter promoted as Laboratory Assistant (Meteorological) in the Department of Ship Technology on 9.2.1984 and thereafter as Laboratory Assistant Grade I on 1.2.1990. The post of Laboratory Assistant was later re-designated as Technician Gr.II and thereafter he got appointment as Technical Assistant Gr-II on 1.2.1999. In the meanwhile, the University issued Ext.P1 order dated 13.5.2002, as per which, on the basis of the decision taken by the Syndicate, he became entitled to get appointment as Technical Assistant Gr-II with effect from 30.11.1991 and Technical Assistant Gr. III with effect from 30.11.1996. As per Ext.P1 order, the financial benefits arising out of the same has to be given with effect from 20.10.2001. Fixation of pay of the petitioner in the category of Technical Assistant Grade-III was sanctioned by the University by Ext.P2 order dated 4.7.2002. His basic pay in the category of Technical Assistant Grade III was fixed as Rs. 2200 in the scale of pay of WP(C) 5908/05 :2: 2200-3500. When the pay revision was effected with effect from 1.3.1997 the scale of pay of Technical Assistant Grade III was revised to Rs. 7200- 11400. Based on that, on 1.11.1997 his basic pay was fixed as 7400/- on 1.11.1998, at Rs. 7600 on 1.11.1999, at Rs. 7800 on 1.11.2000 at Rs. 8025 and on 1.11.2001 at Rs. 8250. The next increment date due was on 1.11.2002 in the scale of pay of Rs. 7200-200-7800-225-11400 for technical Assistant Grade III. He retired from service on 30.9.2004. But the pensionary benefits and leave surrender benefits are not paid, though the non liability certificate was sent from the Department in which he was working, to the Registrar of University and no liability was fixed against him. It is his case that in such circumstances, he is entitled to get pensionary benefits and leave salary legitimately due to him. He sent a representation Ext.P3 dated 17.1.2005 and thereafter, the University by order dated 4.2.2005, produced as Ext.P4 herein, sanctioned superannuation pension , Death-Cum-Retirement Gratuity, commutation value of pension and family pension. According to the petitioner, he was drawing a basic pay of Rs. 8700/- for ten months before his retirement and his pension should have been fixed at Rs. 3480/-, whereas it is fixed at only Rs. 2,308/- for calculating the pension benefits as per Ext.P4. His further case is that from out of the benefits sanctioned as per Ext.P4, arrears of WP(C) 5908/05 :3: pension and commuted value of pension alone were disbursed to him and the DCRG is not given. Pointing out the illegalities, he submitted Ext.P5 representation to the first respondent on 7.2.2005; but no steps were taken on the ground that there are some audit objection as mentioned in Ext.P4. According to petitioner, he was not aware of the audit objection, if any, raised. While so, by order dated 9.2.2005, Ext.P6 produced in this case, the first respondent fixed a liability of Rs. 4,32,212/- as excess pay drawn by the petitioner. Petitioner challenges Ext. P6 as illegal. 2. In the counter affidavit filed by the University, it is contended that the petitioner joined in the service of the University in the year 1981 as a Plumber and was promoted as a Laboratory Assistant in 1984. He was granted the first time bound higher grade on completion of five years in the year 1989 and he was inducted in to the technical cadre (Scientific) as Technical Assistant Grade I in 1992 and promoted as Technical Assistant Gr. III in the year 1996. While holding the post of Technical Assistant Grade III, he retired from the service on 30.9.2004. It is also submitted that the Technical Cadre (Scientific) to which petitioner belonged was created by the University Syndicate with a view to widen the promotional scope of the technical staff of the University. According to the University, there had been repeated audit objection pertaining to the creation of technical cadre WP(C) 5908/05 :4: and the Government pointed out that the employees of the University are in a much advantageous position when compared to their counter parts in Government service and it was reminded that the University being a grantee institution, prior sanction of the Government might have been obtained before the introduction of the scheme. The University Syndicate meeting held on 9.12.1998 resolved to replace the ratio promotion scheme and to include the technical staff in the time bound higher grade scheme on completion of 7, 15, 20 and 25 years of service whereas for Government employees it was 10,18 and 23 years. It was pointed out by the audit party that consequent to the replacing of ratio promotion by the time bound higher grades on 9.12.1998, many of the employees of the cadre enjoyed both the higher grades under ratio promotion schemes on completion of five years and under the time bound higher grade scheme on completion of seven years of service and in fact they got two higher grades within a period of seven years which was irregular. According to them, petitioner was granted the first time bound higher scale on completion of five years in the year 1989, as per the old scheme of ratio promotion, while such pay scale was admissible only on completion of seven years service as per the revised scheme on formation of Technical Cadre (Scientific) and introduction of the time bound higher grade scheme. This was objected by the audit party for WP(C) 5908/05 :5: the reason that it runs contrary to the promotion prospects in the State Government service. In sum and substance, according to them, the issue raised by the audit was that petitioner was given both the benefits of ratio promotion and time bound higher scheme simultaneously and also skipping one pay scale of Rs. 1100-2070. The relevant portion of the audit objections is produced as Ext.R1(A). Though the University took effects to settle the audit objection by making repeat requests to the Government to waive the audit objection in the case of employees to whom grades have already been granted, Government informed that since the University follows the government pattern of scale of pay to its employees, the benefits contemplated in Government pay revision orders alone can be extended to its employees. The letters issued by the Government in this regard are produced as Exts. R1(B) and R1(C) herein. Therefore, it became necessary on the part of the University to review the grades on which audit objections were raised and to deduct the excess pay drawn on account of these grades from the employees who had benefited. That is how, the liability was fixed on the petitioner as per Ext.P6. Since the petitioner retired from service, the said liability was liable to be deducted from out of his pensionary benefits. According to the University, it was under bona fide impression that it would receive a favorable reply from Government; but WP(C) 5908/05 :6: Government having negatived the request, they are justified in issuing Ext.P6 order. 3. The State was impleaded as per order dated 27.2.2006, in I.A. 1099/2006. The State was also given three weeks time to file counter; but no counter is seen filed. 4. Petitioner filed a reply affidavit to the counter affidavit filed by the University. It is contended in the reply affidavit that audit objection, if any, contained in Ext.R1(A) was never put to him and no notice was given. Further, according to him, the payments already made were based on the Syndicate decision and merely because the Government subsequently did not agree with the same, such payment made cannot be recovered. Further, the University, being a separate entity, is competent to take its own decision regarding its employees and hence payment given based on the Syndicate decision cannot be recovered based on some objection on the part of the Government. Petitioner further points out that even the audit objection is not factually correct. According to him, he as appointed as a Plumber in 1981 in the scale of pay of 330-515 and while holding that post on the basis of direct recruitment he was appointed as Laboratory Assistant in the scale of pay of Rs. 420 –720 by order dated 3.2.1984, produced as Ext.P7. Thereafter, the pay revision order was issued and he WP(C) 5908/05 :7: was given revised scale of pay of 780-1320 from 9.2.1984. During that period, the promotion scheme of technical staff was ratio promotion in the ratio of 1:1:1; but before he completed five years of service as Laboratory Assistant (Metallurgical) to become eligible for ratio promotion, to become eligible for ratio promotion, the University issued Ext.P8 order dated 29.1.1989 introducing time bound grade promotion scheme in the place of ratio promotion scheme. In Ext.P8 employees like petitioner who were awaiting promotion on completion of five years of service were allowed to get the promotion on the basis of ratio promotion existed earlier. Thus according to him, since he was drawing the scale of pay of Rs. 780 – 1320 as Laboratory Assistant on completion of five years of service, he was entitled to get ratio promotion in the scale of pay of Rs. 850-1600. But in the pay revision order which came in to effect in 1988 the scale of pay of Rs. 780 –1320 was revised to 1000 -1710 and the next scale of pay of Rs. 850 –1600 was revised to Rs. 1100 – 2070. Hence on the basis of Ext.P8 he was given ratio promotion on completion of five years of service as Laboratory Assistant in the scale of pay of Rs. 850 – 1600 by Ext.P9 order dated 3.6.1989. Hence according to the petitioner, it is obvious that on the basis of Ext.P9 order issued, in accordance with the provisions contained in Ext.P8, he got the scale of pay of Rs. 1100 – 2070 with effect from WP(C) 5908/05 :8: 9.2.1989. In Cochin University of Science and Technology excepting technical staff all other staff in the scale of pay of Rs. 780 –1320 shown in Clause 6 of Ext.P8 were getting immediate higher scale of pay of Rs. 975 – 1725. But in the matter of technical staff alone an intermediate scale of pay of Rs. 850 - 1600 - was introduced which was a clear anomaly in the matter of fixation of scale of pay of technical staff. When this anomaly was brought to the notice of the University, it was corrected by directing that the technical staff who were promoted in the revised scale of pay of Rs. 1000 – 1710 would be given revised scale of pay of Rs. 1250 – 2230. Petitioner relies on Ext.P10 order dated 1.1.1994 to show that the higher grade of Rs. 1100 – 2070 granted to him earlier was canceled. Hence the statement contained in the counter affidavit that he has got a ratio promotion and time bound higher grade promotion is seriously disputed and even contended as illegal. 5. 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 WP(C) 5908/05 :9: 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 canceled by any subsequent decision of the Syndicate. No materials whatsoever is also placed canceling 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 for fastening any liability or recovery thereafter. True even in that event, a question may arise as to whether a subsequent decision could have any retrospective effect of recovering such excess pay drawn by the petitioner based on the decision and benefits conferred thereunder. But in the present situation, such question do not arise directly. In Sreedharan v. Union of India (2002 (1) KLT 444) a Bench decision of this Court held as follows: " There may be power to correct the mistake and regulate the pension prospectively in accordance therewith. But the exercise of power after several years of retirement of a Government servant cannot stand scrutiny in the light of the mandate to act fairly and reasonably, radiating from Art. 14 of the Constitution of India. But, in this case, this aspect WP(C) 5908/05 :10: need not be decided by us because the Tribunal has already given a declaration in Ext.P1 that the reduction of the salary of the applicant with retrospective effect is illegal. The said declaration has become final. The Tribunal in its discretion did not give liberty to the respondents to re-fix the salary after affording an opportunity of hearing to the petitioner. Since the declaration made by the Tribunal has become final, the respondents are bound to implement it even in the absence of a consequential direction. So the consequential direction sought by the petitioner herein is unnecessary. Even without any direction, the respondents being public authorities are bound to respect the declaration of law." 6. In this case, petitioner retired as early as on 30.9.2004. Ext.P1 decision based on which emoluments were paid is dated 13.5.2002. In the absence of any decision canceling Ext.P1, it is too late for the respondents to contend that the petitioner is liable to refund the excess amount or that there is any liability to be cleared in this behalf. 7. In State of Karnataka v. Mangalore University Non-Teaching Employees' Association (2002(3) SCC 302 the apex court held in a similar situation that since the employees had drawn the allowance on the basis of financial sanction by the competent authority and viz. the Government, and had incurred additional expenditure towards house rent, the employees should not be punished for no fault of theirs. WP(C) 5908/05 :11: 8. In Santhakumari v. State of Kerala ( 2005(4) KLT 649) this Court held that when a mistake is mutual that has to be shared by both the parties and unless there is any statutory bar in recovering the amount any amount paid by mistake should be recovered depending upon the facts and circumstances of each case. It is true that mutual mistake could always be corrected and the consequence that may follow by correcting the mistake have to be evaluated depending on the facts and circumstances of each case. In the present case there is no such defect since if at all there is any mistake in Ext.P1, the same was not canceled or revoked by the University as already stated above. Therefore, in the peculiar facts and circumstances of the case, it has to be held that Ext.P6 is illegal and accordingly, I quash the same. Resultantly, all the benefits due and payable to the petitioner will be calculated and paid expeditiously. The writ petition is allowed as above. P.R. RAMAN, JUDGE.