IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
WP(C) NO. 10964 OF 2022
PETITIONER:
DR.P.M.MUBARAK PASHA, AGED 60 YEARS
S/O.MOULAVI P.M. EDASSERY, THE PETALINE, KARALIPARAMBU,
NALLUR EAST, FEROKE, KOZHIKODE-673 631.
S.PRASANTH (AYYAPPANKAVU)
VARSHA BHASKAR
ANUPAMA SIBI
THRESSY THOMAS
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY
TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE CHANCELLOR, SREENARAYANAGURU OPEN UNIVERSITY,
RAJ BHAVAN, KERALA.
3 UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR,
THENHIPALAM, MALAPPURAM-673 635.
4 THE REGISTRAR, UNIVERSITY OF CALICUT,
THENHIPALAM, MALAPPURAM-673 635.
K.JAJU BABU (SR.)
P.C.SASIDHARAN
SMT.M.U.VIJAYALAKSHMI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 10964 OF 2022
2
JUDGMENT
The petitioner is stated to be the present Vice Chancellor of the Sree Narayanaguru Open University (for short 'Open University') and says that he was appointed to the said post after he had obtained voluntary retirement from the services of the third respondent - University of Calicut, in which he was working as the Director of College Development Council.
2. The petitioner says that he had earlier applied to the University of Calicut for the post of Director, College Development Council in response to the notification dated 04.03.2004 - a copy of which is on record as Ext.P1 and that he was appointed after being interviewed by a duly constituted Selection Committee, he being placed as rank No.1 in the subsequent rank list. He says that he was, thereafter, appointed against a notified vacancy as per the order of the Calicut University dated 16.07.2004 and that his probation was also declared, as is evident from Ext.P3 Minutes of the Syndicate, with effect from 27.09.2005.
3. The petitioner submits that, thereafter, the Calicut University notified the vacancy of the Director, School of Distance Education, on 30.05.2005, to which, he applied and WP(C) NO. 10964 OF 2022 3 was selected, after again being ranked No.1 consequent to the selection done by a Selection Committee, leading him to be appointed to the said post through Ext.P4. He asserts that his probation in this post was also declared with effect from 29.09.2006, in which capacity, he continued till 07.09.2007 , when he entered long leave without pay and allowances to take up an assignment abroad. He submits that, as is evident from Ext.P5, his earlier service in the "Farook College" was reckoned by the third respondent - University of Calicut for pensionary benefits; and that while so, he applied for voluntary retirement on 02.09.2019, which was allowed with effect from 02.12.2019, as is manifest from Ext.P6. He says that he was thereafter appointed as the Vice Chancellor of the Open University, in which he is presently working.
4. The petitioner alleges that, however, in spite of the afore, his salary in the post of Vice Chancellor in the Open University could not be fixed because his pensionary benefits were not properly reckoned by the third respondent and says that, he understands this is because the Kerala Local Funds Audit Department had raised an objection to the effect that the post of Director, College Development Council, which he had earlier served, is not included among the categories of WP(C) NO. 10964 OF 2022 4 post under the University Statutes.
5. The petitioner contends that even if there is any such objection, it is untenable and that this is perspicuous from Exts.P8 and P9 proceedings of the University of Calicut itself, wherein, it has been specifically stated that no such objection can be construed to be valid because the post in question had the concurrence of the Government and since the petitioner had been validly appointed and his probation declared. He points out that, as is indubitable from Exts.P8 and P9, the University resolved to grant him pension reckoning his earlier service in the "Farook College" also, and to answer the audit objections; but that no action was taken thereafter, thus leading to the controversy now projected.
6. Smt.Anupama Sibi - learned counsel for the petitioner, further submitted that, on account of the afore imbroglio, while her client's salary was fixed by the Open University, an amount of Rs.83,400/- has been deducted, purportedly under the impact of Rule 100 of the Kerala Service Rules (KSR), saying that this is the maximum pension eligible to a Professor under the applicable Guidelines of the University Grants Commission (UGC). She says that this is egregiously improper because the petitioner is not drawing any pension WP(C) NO. 10964 OF 2022 5 as of today; and to make matters worse, Ext.P14 communication has been now issued to him by the University of Calicut saying that his request for terminal surrender of earned leave cannot be granted because their circular, dated 01.01.2016, clarifies that such benefit, while being relieved from one service to another, is not applicable. The learned counsel argued that this is contrary to the provisions of Part I of the KSR because both the Aided College service and University service are governed by the same statutory scheme; and hence that there can be no justification for treating the two services as separate for the purposes of earned leave. She concluded her submissions saying that similarly placed persons have already been granted benefits, as is clear from Exts.P15 and P16; and hence that Ext.P14 is without any forensic basis.
7. Sri.P.C.Sasidharan - learned standing counsel for both the Universities in this case, conceded that Exts.P8 and P9 proceedings of the Calicut University, makes it luculent that the petitioner was appointed as its Director of College Development Council as per the resolutions of its Syndicate and other competent Authorities; and which was thereafter offered concurrence by the Government. He submitted that WP(C) NO. 10964 OF 2022 6 when the University had taken such a view, it was impermissible for the Audit Department to have still held that the petitioner is not entitled to the benefits of the said post, merely because it had not been allegedly included in the Statutes of the University.
8. As regards Ext.P14 is concerned, Sri.P.C.Sasidharan submitted that the petitioner has been denied his request for terminal surrender of earned leave because the circular of the University dated 01.01.2016 inhibits such, while a person is relieved from one service to another. He concluded his submissions saying that Ext.P11 order has ordered deduction of an amount of Rs.83,400/- apparently because the petitioner's appointment in the "Open University" can only be seen to be under the rigor of Rule 100 of the KSR and since this is the maximum pension eligible to a Professor under the "UGC Scheme". He submitted that he has nothing more to say on this issue.
9. Sri.Jaju Babu - learned senior counsel instructed by Smt.M.U.Vijayalakshmi - learned standing counsel for the second respondent - Chancellor of the "Open University", explained that Ext.P11 was issued because the petitioner, after having retired from the services of the Calicut WP(C) NO. 10964 OF 2022 7 University, was appointed as a Vice Chancellor of the said University; and therefore, that the maximum pension eligible to him was found necessary to be deducted from his salary, within the purlieus of Rule 100 of the KSR. The learned senior counsel submitted that the Chancellor has acted without error in doing so and thus prayed that no further orders be issued against him.
10. In reply, Smt.Anupama Sibi - learned counsel for the petitioner, submitted that the deduction of the afore amount of Rs.83,400/- from her client's salary is without any rationale because he is not drawing any such from the Calicut University as of now. She added that this figure has been fixed in an arbitrary manner without any basis and thus prayed that, Ext.P11 to that extent be set aside.
11. When I consider and assess the afore rival submissions, it is indubitable that the primary issue involved in this case is as to the entitlement of the petitioner to pension from the Calicut University. The other issues are corollary and will obtain resolution dependent on the opinion of this Court on the above one.
12. It is virtually without contest that the petitioner was earlier working in the "Farook College" and that he was WP(C) NO. 10964 OF 2022 8 thereafter appointed as the Director, College Development Council by the Calicut University, following due procedure. His probation to said post was declared. Subsequently, he was selected to be the Director of School of Distance Education of the said University, in which post also his probation had been declared. He subsequently took leave without allowances for taking up an assignment abroad; and on the termination of the same, he was allowed to retire voluntarily on 02.12.2019, thus being appointed as the Vice Chancellor of the "Open University".
13. Even though the Calicut University took a decision to grant him eligible pensionary benefits, reckoning his services in the "Farook College" also, it appears that the same had not been put into effect solely because of certain audit objections raised by the Audit Department. However, as is without doubt from Exts.P8 and P9 proceedings of the University of Calicut, they have resolved that such objections are without basis and to answer them appropriately, holding unequivocally that the post in question was created with the concurrence of the Government and that the petitioner was appointed against it after following every applicable provision.
14. In such perspective, I fail to understand how the WP(C) NO. 10964 OF 2022 9 Audit Department can raise any objection against the post to which the petitioner was appointed under valid sanction of the University and when such post was created with the concurrence of the Government. Such objections, therefore, can only be seen to be pedantic in nature, particularly when it allegedly says that the petitioner's appointment is bad only for the reason that the post in question was not part of the Statutes of the University.
15. It is needless to expatiate that the Calicut University appointed the petitioner to the post in question after obtaining the concurrence and sanction of the Government; and hence, the objections raised thereafter - that too, several years later - can never find the favour of this Court. In that sense, certainly, the petitioner is entitled to all his benefits as have been found in his favour by the University of Calicut, through Exts.P8 and P9, de hors such objections.
16. That being so declared, the fixing of the salary of the petitioner by the second respondent - Chancellor of the "Open University", ordering a deduction of Rs.83,400/- on the ground that that was maximum permissible for a Professor under the "UGC Scheme" certainly will have to be reviewed depending upon the fixation of his pensionary benefits by the WP(C) NO. 10964 OF 2022 10 Calicut University.
17. Finally, as regards Ext.P14 communication of the Calicut University, relating to the request of the petitioner for terminal surrender of his earned leave, it is evident that the said order does not record an independent opinion of the University, but they have followed the views of the Additional Chief Secretary of the Government dated 21.06.2021. Even though the said letter is not before this Court, I am of the view that the afore said claim will have to be considered by the Government again, adverting to the petitioner's specific argument that both the Aided College Service and the University service fall under Part I of KSR and that persons who are similarly situated had already been granted analogous benefits, as is discernible from Exts.P15 and P16.
In the afore circumstances, I order this writ petition with the following directions:
(a) The University of Calicut is directed to quantify and disburse the eligible pensionary benefits to the petitioner de hors the audit objections relating to his appointment in the post of Director, College Development Council; which shall be done as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. WP(C) NO. 10964 OF 2022 11
(b) The second respondent - Chancellor of the Open University is directed to reconsider the deduction of Rs.83,400/- mentioned in Ext.P11, after affording an opportunity of being heard to the petitioner and after the pensionary benefits are quantified by the Calicut University in terms of the afore directions.
(c) Ext.P14 is set aside and the Government is directed to reconsider the claim of the petitioner for his terminal surrender of earned leave, after affording him an opportunity of being heard; and to consequently intimate the University of Calicut appropriately, who will thereupon, issue appropriate orders thereon, as expeditiously as is possible. The Government shall comply with the directions within a period of three months from the date of receipt of a copy of this judgment.
Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 10964 OF 2022 12 APPENDIX OF WP(C) 10964/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION NO.AD.F2/10591/2002 DATED 04.03.2004 ISSUED BY THE 3RD RESPONDENT.
Exhibit P2 TRUE COPY OF ORDER NO.AD.F2/10591/2002 DATED 16.07.2004 ISSUED BY THE 3RD RESPONDENT.
Exhibit P3 TRUE COPY OF THE EXTRACT OF THE URGENT ITEM OF THE MINUTES OF THE SYNDICATE MEETING HELD ON 03.09.2005.
Exhibit P4 TRUE COPY OF ORDER NO.GAII/C1/1134/2005 DATED 14.10.2005 ISSUED BY THE 3RD RESPONDENT.
Exhibit P5 TRUE COPY OF UO NO.GAII/C1/1459/2006 DATED 20.08.2011 ISSUED BY THE 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF UNIVERSITY ORDER NO.16896/2019/ADMN DATED 02.12.2019 ISSUED BY THE 3RD RESPONDENT.
Exhibit P7 TRUE COPY OF THE NOTIFICATION NO.GS3-
2850/2020 DATED 13.10.2020 ISSUED BY THE 2ND RESPONDENT.
Exhibit P8 TRUE COPY OF UO NO.10747/2021/ADMN DATED 01.10.2021 ISSUED BY THE 3RD RESPONDENT. Exhibit P9 TRUE COPY OF UO NO.16281/2021/ADMN DATED 12.11.2021 ISSUED BY THE 3RD RESPONDENT. Exhibit P10 TRUE COPY OF THE REPRESENTATION DATED 04.01.2022 SUBMITTED BY THE PETITIONER TO THE VICE CHANCELLOR OF THE 3RD RESPONDENT.
Exhibit P11 TRUE COPY OF THE LETTER NO.GS3 DATED 22.12.2021 SENT BY THE PRINCIPAL SECRETARY OF THE GOVERNOR TO THE WP(C) NO. 10964 OF 2022 13 PETITIONER.
Exhibit P12 TRUE COPY OF THE REPRESENTATION DATED 19.01.2022 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.
Exhibit P13 TRUE COPY OF THE LETTER NO.170253/GA-
II/C2/2019/ADMN DATED 20.04.2020 SENT BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT. Exhibit P14 TRUE COPY OF LETTER NO.170253/GA-
II/C2/2019/ADMN DATED 20.07.2021 SENT BY THE 3RD RESPONDENT TO THE PETITIONER.
Exhibit P15 TRUE COPY OF UO NO.10384/2016/ADMN DATED 25.08.2016 ISSUED BY THE 3RD RESPONDENT. Exhibit P16 TRUE COPY OF UO NO.15049/2019/ADMN DATED 25.10.2019 ISSUED BY THE 3RD RESPONDENT. Exhibit P17 TRUE COPY OF CIRCULAR NO.41/2021/FIN DATED 03.05.2021 ISSUED BY THE ADDITIONAL CHIEF SECRETARY, FINANCE DEPARTMENT.