IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 WP(C).No. 37245 of 2010(E) -------------------------------------- PETITIONER: ------------------- M.VENUGOPAL, AGED 58 YEARS, S/O.THE LATE NARAYANAN NAIR, LAB ASSISTANT(RETIRED DEPARTMENT OF ELECTRONICS, CUSAT, COCHIN-22, RESIDING AT 'SINDHU VIHAR', MUPPATHADAM, ALUVA-682 110. BY ADV. SRI.TOJAN J. VATHIKULAM. RESPONDENTS: ------------------------ 1. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI, REPRESENTED BY ITS REGISTRAR, KOCHIN-22. 2. DEPUTY REGISTRAR (FINANCE), COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHIN-22. 3. FINANCE OFFICER, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-22. 4. DEPUTY DIRECTOR (HG), LOCAL FUND AUDIT, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-22. 5. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. R1 TO R3 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI, S.C. R4 & R5 BY SR. GOVT. PLEADER SRI. T.T. MUHAMOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37245/2010-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. AD.A3/5361/76 DTD. 29/01/1989. EXT.P.2: COPY OF THE ABOVE ORDER BEARING NO.FIN.II/F/09(872)/92-93 DTD. 27/10/1992. EXT.P.3: COPY OF THE ABOVE ORDER BEARING NO.AD.A3/200/89 (VOL3) DTD. 28/07/1997. EXT.P.4: COPY OF THE ORDER NO. AD.A3/200/89 DTD. 03/11/1999. EXT.P.4.A: COPY OF THE ABOVE ORDER BEARING NO.FIN.II/F/906/99 DTD. 19/01/2000. EXT.P.5: COPY OF THE STATEMENT OF PAY FIXATION DTD. 15/03/2007. EXT.P.6: COPY OF THE ORDER DTD. 18/08/2007. EXT.P.7: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C).5908/2005 DTD. 01/02/2007. EXT.P.8: COPY OF THE ORDER BEARING NO.AD.A1/20843/93 DTD. 27/08/2008. EXT.P.9: COPY OF THE ORDER BEARING NO.AD.A4/NLC/2008 DTD. 28/11/2008. EXT.P.10: COPY OF THE ORDER DTD. 26/12/2009 BASED ON THE SYNDICATE RESOLUTION. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE SYNDICATE RESOLUTION DTD. 18/12/2004. EXT.R1.B: COPY OF THE DECISION OF THE SYNDICATE. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 37245 of 2010-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of March, 2011. JUDGMENT The grievance raised by the petitioner is regarding the non disbursal of eligible and full pensionary benefits in the light of the audit objection raised by the fourth respondent. 2. The petitioner entered service as Gardner on 16.3.1973, and was later appointed as a Watchman and Peon. On 19.2.1979 he was appointed as Lab Assistant. In 1988 the University introduced ratio promotion scheme in the technical cadre. It was modified by introducing a time bound higher grade promotion scheme on completion of 7, 15, 20 and 25 years as per Ext.P1. The post of Lab Assistant was also included therein. 3. Accordingly, the petitioner was granted 10 years' higher grade in the cadre of Lab Assistant with effect from 9.12.1988 as per order dated 13.4.1989 in the scale of pay of Rs.740-1245. In 1992 the post of Laboratory Assistant was included in the technical cadre. The pay was revised later by order dated 27.10.1992 (Ext.P2). As per Ext.P3 order, the next higher grade was granted on completion of 15 years, with effect from 19.2.1994. Ext.P4 is the order by which 20 years grade was wpc 37245/2010 2 sanctioned to him which is with effect from 19.2.1999. As per Ext.P4(a) order dated 19.1.2000 his pay was fixed in the higher grade scale at Rs.6500/- in the scale of Rs.6500 - 10550. As on the date of retirement, the last pay drawn by the petitioner is Rs.14,750/-. He retired from service on 31.5.2007. By Ext.P6, the terminal benefits were sanctioned not in tune with the last pay drawn. An amount of Rs.3,95,154/- is fixed as liability alleging excess pay drawn. 4. The petitioner relies upon Ext.P7 judgment of this Court rendered in similar circumstances, holding the view that the audit objection like the one raised herein is illegal. It is stated that the above judgment was followed by this Court in W.P.(C) Nos.2332/2008, 9038/2008, 11877/2009 and 28489/2009. In fact, the Syndicate took the view that the higher grades granted are in tune with the scheme and accordingly Ext.P8 order was issued releasing the withheld amount of DCRG. Ext.P9 consequential order was also passed. Ext.P10 is the office order reflecting the decision of the Syndicate to regularise the time bound higher grade to the pensioners while they were in service and to fix the pension accordingly. 5. The stand of the University in the counter affidavit is that it is only because of an audit objection, wherein the grant of time bound higher grades was found to be not in conformity with G.O.(P) NO.3000/98/Fin. wpc 37245/2010 3 dated 25.11.1998 that the amount is withheld. 6. The Syndicate has taken the resolution as stated in para 9 of the counter affidavit to regularise the time bound higher grades sanctioned to the pensioners while they were in service, and to fix the pension accordingly. It is also stated that as per this, the pensionary benefits were revised. What is pointed out is that the Local Fund audit has not admitted the revised calculation in spite of the decision of the Syndicate. A similar question was addressed by this Court in Ext.P7 judgment. Therein, after referring to the decision of the Syndicate, it was held thus in para 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 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 cancelling 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 wpc 37245/2010 4 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.” Reliance is placed thereon on the decision of a Division Bench of this Court in Sreedhran v. Union of India (2002 (1) KLT 444). 7. I respectfully agree with the above view. Herein, as evident from the pleadings it can be seen that the time bound higher grades were sanctioned in terms of the scheme framed by the University. Based on the decision of the Syndicate, Ext.P8 order has also been passed whereby the Syndicate resolved to release the withheld amount of DCRG for all the employees who retired from service. Therein, the Syndicate has reiterated that the higher grade granted to the employees upto 27.12.2003 was according to the decision of the Syndicate. Reliance was placed on the decisions of this Court in two different cases wherein it was held that the Syndicate has every right to grant such benefits to its employees. By Ext.P10 also, the Syndicate resolved to regularise the time bound higher wpc 37245/2010 5 grade to the pensioners while they were in service and to fix the pension accordingly. In the light of these decisions, the audit objections cannot survive. Therefore, the petitioner is entitled to succeed in the writ petition. 8. The writ petition is therefore allowed. There will be direction to release the full pensionary benefits to the petitioner based on Exts.P8 and P10 orders after restoring the pay of the petitioner based on the higher grades granted and the subsequent fixations granted to him. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment and consequential monetary benefits also will be disbursed accordingly. No costs. (T.R. Ramachandran Nair, Judge.) kav/