Kerala High Court
Dr. S.Pradeep Kumar vs State Of Kerala on 4 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
WP(C) NO. 3704 OF 2021
PETITIONER/S:
DR. S.PRADEEP KUMAR
AGED 58 YEARS
S/O.LATE N.SREEDHARAN NAIR, THANAL G.V 98, GREEN VALLEY, MUTTADA
P.O., THIRUVANANTHAPURAM-695025.
BY ADVS.
V.G.ARUN (K/795/2004)
SMT.V.JAYA RAGI
SRI.R.HARIKRISHNAN (KAMBISSERIL)
SRI.NEERAJ NARAYAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED THROUGH SECRETARY, DEPARTMENT OF HIGHER EDUCATION, 4TH
FLOOR ANNEX-II, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-
695001.
2 VICE-CHANCELLOR,
KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT-
670002.
3 THE REGISTRAR,
KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT-
670002.
4 KANNUR UNIVERSITY,
REPRESENTED BY ITS REGISTRAR, THAVAKKARA, CIVIL STATION P.O., KANNUR
DISTRICT-670002.
5 JOINT DIRECTOR,
KERALA STATE AUDIT DEPARTMENT, KANNUR UNIVERSITY AUDIT OFFICE,
KANNUR-670002.
6 FINANCE OFFICER,
KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT-
670002.
7 SYNDICATE REPRESENTED BY VICE-CHANCELLOR,
KANNUR UNIVERSITY , THAVAKKARA, CIVIL STATION PO., KANNUR DISTRICT-
670002.
BY ADV SRI.M.SASINDRAN
OTHER PRESENT:
GP SRI JIMMY GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 3704 OF 2021
2
JUDGMENT
Challenge has been laid to the orders dated 13.11.2019,
Ext.P12, 27.8.2020, Ext.P14 and 3.11.2020, Ext.P16.
2. Petitioner, after having rendered almost 23 years of
service as Associate Professor/Lecturer Selection Grade in
different colleges in the State of Kerala, retired on 18.3.2019.
The petitioner had joined the University service as Controller of
Examination on 18.5.2010 and subsequently, 3rd respondent
declared the probation of the petitioner vide order dated
6.8.2011. Accordingly, sanction was granted to authorize annual
increments due on 1.7.2010 raising the pay to Rs.47,490/- +
Grade pay of Rs. 10,000/- and to 49,220/- + Grade pay of
10,000/- with effect from 1.7.2011 in the pay band of Rs.37,400-
67,000/-, Ext.P5. The 3rd respondent/ Registrar Kannur
University vide order dated 6.1.2012 confirmed the post of the
Petitioner as the Controller of Examination, Ext.P6. Pursuant to
Ext.P5 order, the 6th respondent issued annual increment to the
petitioner due on 1.7.2010 and 1.7.2011, Ext.P7.
WP(C) NO. 3704 OF 2021
Vide communication dated 26.7.2019, 5th respondent, Joint
Director, Kerala State Audit Department issued a
communication to the 3rd respondent that the increment
sanctioned to the petitioner on 1.7.2010 and 1.7.2011 were
irregular since his probation in the post of Controller of
Examination was declared only on 1.7.2011, Ext.P9. Annual
increments sanctioned pursuant to protection of pay was
disbursed only after successful completion of probation in the
post of Controller of Examination evidenced from the
communication issued by the 3 rd respondent to the 5th
respondent, Ext.P10. There was a direction to the Finance
Department of University to re-fix the subsequent annual
increments after 1.7.2011. Accordingly, Ext.P5 order was
amended by order dated 7.11.2019, Ext.P11. Subsequently, re-
fixed the subsequent annual increments after 1.7.2011 and
excess salary was ordered to be recovered vide communication
dated 13.11.2019, Ext.P12. Pensionary benefits were granted to
the petitioner but DCRG amount of Rs.14,00,000/- was withheld
and Rs.23,717/- from commutation value.
WP(C) NO. 3704 OF 2021
3. Syndicate vide item No.2020.056 dated 20.1.2020
resolved to issue notice for effecting the recovery. Accordingly,
order dated 27.8.2020 was issued, for implementing the
modified syndicate decision by Assistant Registrar on behalf of
the 3rd respondent. The 3rd respondent vide communication
dated 3.11.2020 denied the petitioner's request for re-fixation of
annual increments, Ext.P16. It is contended that there is no
power of review provided under the Kannur University First
Statues, 1998. Moreover, the recovery cannot be effected, if
there was no fault of the petitioner in view of the ratio decidendi
culled out in the Supreme Court judgment in State of Punjab
and Others v. Rafiq Masih (White Washer) and Others
[(2015) 4 SCC 334]. Once the salary of the petitioner was
protected, there could not have been any dispute for denial of
the increment and the objection of the audit for excess payment
was wholly irrelevant and without jurisdiction.
4. On the contrary, learned counsel for the University
contended that they acted only on the basis of the objection
raised by the Audit department but do not dispute the order
WP(C) NO. 3704 OF 2021
dated 1.10.2011, Ext.P5.
5. I have heard the learned counsel for the parties and
appraised the paper book. It would be apt to reproduce the
relevant portion of the order dated 1.10.2011, Ext.P5 whereby
his increment due on 1.7.2010, the date on which
petitionerdrew increment in his parent department was
sanctioned by the Syndicate.
KANNUR UNIVERSITY
Establishment-Controller of Examinations - Dr.S.Pradeep
Kumar, Protection of pay drawn during previous service-
Sanctioned - Revised Orders issued. K.U.Campus,Dated 01-10-
ADMINISTRATION BRANCH
Ad.A2.5576 /2010, K.U Campus, dated 1.10.2011
1. UO. of even No.(1) dated 06-08-2011
2. U.O of even No.(11) dated 06-08-2011
3. Submission dated 05-09-2011 from Dr.S.Pradeep Kumar,
Controller of Examinations
4. Extract of the minutes of the Syndicate on item No.2011.624
dated 13-09-2011
ORDER
Dr.S.Pradeep Kumar, the Controller of Examinations (joined
University Service as such on 18.5.2010 FN) was granted
protection of pay drawn during prior service vide U.O. read (1)
and pay fixed accordingly at 45810/-+Grade pay.10,000/- in the
pay band of Rs.37400-67000+Grade pay 10,000/- with effect
from 18-05-2010 FN. It was further ordered that Dr.S.Pradeep
Kumar, Controller of Examinations will be eligible for next
increment with effect from 1-07-2011 in accordance with UGC
WP(C) NO. 3704 OF 2021
norms and on declaration of satisfactorily completion of
probation in the cadre of Controller of Examinations.
Probation of Dr.S.Pradeepkumar was declared to have
satisfactorily completed in the cadre of Controller of
Examinations with effect from 18-05-2011 FN and formal orders
issued vide U.O.read (2)
Dr.S.Pradeepkumar, Controller of Examinations vide paper read
(3) requested to sanction the increment due on 01-07-2010, the
date on which he drew increment in his parent department his
pay has been protected and orders issued vide reference (1)
above. The matter was placed before the Syndicate for
consideration and Syndicate, vide resolution read at (4),
resolved to grant increment due on 01-07-2010 since Syndicate
had already resolved to protect the pay.
Considering the matter in detail, sanction is accorded by the
Vice Chancellor to fix the pay of Dr.S.Pradeep Kumar,
Controller of Examinations at Rs.45810/- +Grade pay Rs.10,000
with effect from 18-05-2010 FN and to authorize annual
increments due on 01-07-2010 raising the pay to Rs.47490-
Grade Pay Rs.10,000/- and to 49220/- +Grade pay 10,000/- with
effect from 1.7.2011 in the pay band of Rs.37400-67000 Grade
pay .10,000/- on implementing the Syndicate decision.
Expenditure towards the above will be met from the Head of
Account Part 1 Non-Plan MH-02-001 of the budget estimates.
The University orders issued cartier read at (1) stands modified
to this extent.
6. It is a matter of record that the petitioner retired on
18.3.2019. Syndicate could not have implemented the objection
of the audit department regarding the excess payment of
increment as it sans any reasons much less cogent reasons.
Even otherwise, it is settled law that once the order by which
WP(C) NO. 3704 OF 2021
the petitioner was granted the increments remains intact and in
the absence of the revision, the recovery cannot be effected. No
opportunity of hearing had also been granted to the petitioner.
The findings of the Supreme Court in the judgment (supra)
reads thus:
12. It is not possible to postulate all situations of hardship,
which would govern employees on the issue of recovery, where
payments have mistakenly been made by the employer, in
excess of their entitlement. Be that as it may, based on the
decisions referred to herein above, we may, as a ready
reference, summarise the following few situations, wherein
recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV
service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are
due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has
been made for a period in excess of five years, before the order
of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been
required to discharge duties of a higher post, and has been
paid accordingly, even though he should have rightfully been
required to work against an inferior post.
v. In any other case, where the Court arrives at the conclusion,
that recovery if made from the employee, would be iniquitous
or harsh or arbitrary to such an extent, as would far outweigh
the equitable balance of the employer's right to recover.
I am of the view that the action of the respondents in
seeking the recovery and withholding of DCRG was wholly
irrational and illegal. Exts.P12, P14 and P16 are quashed.
Writ petition is allowed. Respondents are directed to pay
WP(C) NO. 3704 OF 2021
the arrears of pensionary benefits including DCRG within a
period of two months from the date of receipt of a certified
copy of the judgment. In case of any default, the amount
will carry interest @10%.
sd/-
sab AMIT RAWAL
JUDGE
WP(C) NO. 3704 OF 2021
APPENDIX OF WP(C) 3704/2021
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE OFFER LETTER FOR
APPOINTMENT ISSUED TO THE 3RD RESPONDENT
DATED 15.05.2010 BEARING
REF.NO.AD.A2.5576/2010.
EXHIBIT P2 A TRUE COPY OF THE APPOINTMENT ORDER DATED
05.06.2010 BEARING NO.A2/5576/2010(1)
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
EXHIBIT P3 A TRUE COPY OF THE ORDER BEARING
NO.AD.A2/5576/2010(11) DATED 06.08.2011
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
EXHIBIT P4 A TRUE COPY OF THE ORDER ISSUED BY THE 3RD
RESPONDENT BY NO.AD.A2/5576/2010(1) DATED
06.08.2011.
EXHIBIT P5 A TRUE COPY OF THE ORDER BEARING
NO.AD.A2.5576/2010 DATED 01.10.2011 ISSUED
BY THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P6 A TRUE COPY OF THE ORDER BEARING
NO.A2.5576/2010 DATED 06.01.2012 ISSUED BY
THE 3RD RESPONDENT TO THE PETITIONER.
EXHIBIT P7 A TRUE COPY OF THE ABSTRACT OF ORDER DATED
10.10.2011 BEARING NO.FIN/B2/INCRE/GO/11-12
DATED 10.10.2011 ISSUED BY DEPUTY
REGISTRAR(FINANCE)FOR 6TH RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE ORDER BEARING
NO.A2/5576/2010 DATED 08.03.2019.
EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION DATED
26.07.2019 BEARING NO.KSA/K.N.U/U6/290/2019
ISSUED BY THE 5TH RESPONDENT TO THE 3RD
RESPONDENT.
WP(C) NO. 3704 OF 2021
EXHIBIT P10 A TRUE COPY OF THE LETTER DATED 01.10.2019
ISSUED BY 3RD RESPONDENT TO THE 5TH
RESPONDENT.
EXHIBIT P11 A TRUE COPY OF THE ORDER DATED 07.11.2019
ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P12 A TRUE PHOTOCOPY OF THE ORDER
NO.FIN.B2/11809/GER/2019 DATED 13.11.2019
ISSUED BY THE DEPUTY REGISTRAR(FINANCE) ON
BEHALF OF THE 6TH RESPONDENT.
EXHIBIT P13 A TRUE COPY OF THE ORDER BY NO.ADMIN/AD-
B3/16009/2019 DATED 28.01.2020 ISSUED BY
THE DEPUTY REGISTRAR (ADMINISTRATION) ON
BEHALF OF THE 3RD RESPONDENT.
EXHIBIT P14 A TRUE PHOTOCOPY OF THE ORDER NO.ADMIN/AD-
B3/16009/2019 DATED 27.08.2020 ISSUED BY
ASSISTANT REGISTRAR ON BEHALF OF 3RD
RESPONDENT.
EXHIBIT P15 A TRUE COPY OF THE REPRESENTATION DATED
14.07.2020 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
EXHIBIT P16 A TRUE COPY OF THE ORDER BEARING
NO.ADMIN/AD-A2/17573/2019 DATED 03.11.2020
ISSUED BY THE 3RD RESPONDENT.
