IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 WP(C).No. 37478 of 2008(J) ------------------------------- PETITIONER: -------------- K.O.JOHN STEPHEN, AGED 56 YEARS, S/O.LATE K.V.OUSEPH KUTTY, KALLOOR HOUSE, ROSE VILLA, GANDHINAGAR, MANNUTHY - 680651. BY MR.BABU KARUKAPADATH, ADVOCATE. MS.M.A.VAHEEDA BABU, ADVOCATE. MR.JAGAN ABRAHAM M.GEORGE, ADVOCATE. MR.K.A.NOUSHAD, ADVOCATE. MR.P.G.PRAMOD, ADVOCATE. RESPONDENTS: ------------------ 1. THE KERALA AGRICULTURAL UNIVERSITY REPRESENTED BY ITS REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKARA, TRICHUR. 2. THE DEPUTY DIRECTOR, OFFICE OF THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, KERALA AGRICULTURAL UNIVERSITY, VELLANIKARA, THRISSUR. 3. THE ASSISTANT COMPTROLLER (P&L) KERALA AGRICULTURAL UNIVERSITY, VELLANIKARA, TRICHUR. 4. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURAL, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY MR.RENJITH THAMPAN, SC, KERALA AGRL.UTY FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.37478/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF ORDER DTD. 23.2.1989 OF R1, GRANTING THE PETITIONER 10 YEARS HIGHER GRADE WITH EFFECT FROM 1.2.1989. EXT. P2 : COPY OF ORDER DTD. 3.3.01 OF R1. EXT. P3 : COPY OF UNIVERSITY ORDER DTD. 30.11.00. EXT. P4 : COPY OF LETTER DTD. 3.6.08 OF R2 TO R3. EXT. P5 : COPY OF ORDER DTD. 11.6.08 OF R1. EXT. P6 : COPY OF ORDER DTD. 11.6.08 OF R1. EXT. P7 : COPY OF ORDER DTD. 9.9.08 OF R1. EXT. P8 : COPY OF ORDER DTD. 27.11.97 OF R1. EXT. P9 : COPY OF RELEVANT PORTION OF ORDER DTD. 11.7.94 OF R1. EXT. P10 : COPY OF JUDGMENT DTD. 20.6.06 IN O.P.No.19/99 OF THIS HON'BLE COURT. EXT. P11 : COPY OF ORDER DTD. 18.10.08 OF R1. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.37478 OF 2008 --------------------------------------- Dated this the 25th day of June, 2009. J U D G M E N T The petitioner herein is aggrieved by the re-fixation of pensionary benefits based on the audit objection raised by the 2nd respondent that too after the retirement of the petitioner. 2. The petitioner retired from service on 31.01.2008. The service particulars of the petitioner show that he entered service as Class IV employee on 07.10.1973 and was promoted as Driver (LDV) with effect from 01.01.1979. Later, he was granted 1st Time Bound Higher Grade and redesignated as LDV Driver (HG) with effect from 01.02.1989 as per the order passed by the University dated 23.02.1989. The said order has been produced as Exhibit P1. 3. The petitioner was given 2nd and 3rd Time Bound Higher Grade with effect from 01.04.1998 and 01.02.1999 respectively and was given common ratio promotion with effect from W.P.(C) No.37478/2008 2 01.07.2000 by the first respondent. The same is produced as Exhibit P2, and Exhibit P3 is the order of the University based on which Exhibit P2 order was passed. Later the petitioner was promoted as Vehicle Supervisor with effect from 01.06.2004 and continued as such till retirement. 4. When the proposal was submitted to the University for sanction of pension and other retirement benefits, objection was taken by the Local Fund Audit pointing out that the 1st Time Bound Higher Grade sanctioned with effect from 01.02.1989 is irregular. Accordingly, recommendation was given to recover the excess pay and allowances drawn by the petitioner from his pensionary benefits. 5. Exhibit P4 is a letter dated 03.06.2008 addressed to the Comptroller, Kerala Agricultural University by the Deputy Director of Local Fund Audit and Exhibit P5 is the order sanctioning pension at a reduced rate. Exhibit P6 will show that the pension commutation has also been sanctioned at a reduced rate. These have been prepared without considering the common ratio promotion. Exhibit P7 is the order by which the 2nd and 3rd higher W.P.(C) No.37478/2008 3 grades sanctioned were cancelled and Exhibit P8 is the order dated 27.11.1997, relied upon in Exhibits P4 and P7. 6. The petitioner is relying upon Exhibit P10 judgment of this Court in O.P.No.19/1999, which is a similar case wherein this Court has overruled similar objections raised by the audit. By Exhibit P11, the first respondent has regulated the pay of the petitioner based on Exhibit P7. These are under challenge in this writ petition. 7. The first respondent has filed a counter affidavit wherein the basic details regarding sanction of grant of higher grade etc. are admitted. In paragraph 6 it is stated that the 10 year grade promotion granted with effect from 01.02.1989 was cancelled as the petitioner had got regular promotion as LDV Driver Gr.II with effect from 01.04.1988 and his pay was revised by the University order dated 27.11.1997. But, in paragraph 7 it is admitted that 10 year grade promotion which was cancelled was restored on the strength of University order No.BG/A2/44036/93 dated 07.01.1999. Accordingly, his pay was refixed by the University on 06.02.1999. It is averred in the counter affidavit that the W.P.(C) No.37478/2008 4 Deputy Director of Local Fund Audit objected to the grant of Time Bound Higher Grade to the petitioner with effect from 01.02.1989 and also the common ratio promotion granted with effect from 01.07.2000, and recommended to recover the excess pay and allowances drawn from 01.02.1989 onwards. It is further averred that, the University itself has not regulated the pay of the petitioner, but has only acted according to the recommendation of the Local Fund Audit. 8. A reading of Exhibit P10 judgment shows that similar issues were considered by this Court therein. In paragraph 3 of the said judgment this Court held that University itself had decided to regularize the promotions by giving fitment benefit to all categories of staff and once the University, which is an autonomous body, takes a final decision to regularize the irregular grade promotions, thereafter, the Government Auditor cannot again rake up the irregularity to direct revision of pension cancelling the irregular grade promotions. It was observed in the same paragraph thus: W.P.(C) No.37478/2008 5 “.........May be the Government can take action against the University for having deviated from the Government norms. But that cannot affect the rights of the employees. Grade promotions were granted as early as on 25.10.1983 and 7.10.1989. The petitioner retired on 28.2.1994. Ext.P2 is issued more than three years after the retirement of the petitioner.....”. After holding so, the proceedings were quashed. Herein, the 1st Time Bound Higher Grade was granted as per Exhibit P1 with effect from 01.02.1989. It is admitted in paragraph 7 of the counter affidavit that even though the 1st Time Bound Higher Grade granted was cancelled, as per the University order dated 27.11.1997 the same was restored on the strength of the University order dated 07.01.1999. In Exhibit P9, the Pay Revision order of the University Employees also, it is made clear in paragraph 6(v) that the scales of pay assigned for grade promotions and fixation of pay deviating from Government norms prior to 01.03.1992 will not be reopened. Therefore, the reasoning adopted by this Court in Exhibit P10 judgment squarely applies here also. W.P.(C) No.37478/2008 6 9. Exhibit P2 shows that the University as early as on 03.03.2001 has granted common ratio promotion. It is only after the retirement of the petitioner that objections have been raised by the audit. When benefits have been granted as per competent orders like the one herein, the same cannot be withdrawn merely on the basis of the objections of the audit raised after the retirement of the said employee. The petitioner had enjoyed the benefit during the time when he was in service. At that point of time, there was no case that there is any irregularity in the proceedings and he was not given any opportunity to object to the withdrawal of the benefits also. In that view of the matter, the action taken by the University now merely based on the objections raised by the audit cannot be sustained. Therefore, this writ petition is allowed. The petitioner is entitled for all the monetary benefits flowing from Exhibits P1 and P2. The orders that are passed against him namely, Exhibits P5, P6, P7 and P11 are quashed. Revised proceedings will be passed in accordance with the findings rendered above after restoring the benefits within a W.P.(C) No.37478/2008 7 period of three months from the date of receipt of a copy of this judgment. It is submitted by the learned counsel for the petitioner that even now benefits have not been drawn by the petitioner at the reduced rate also. Therefore, the monetary benefits will also be disbursed within the above period of three months. T.R. RAMACHANDRAN NAIR JUDGE smp