Dr.P.M.Mubarak Pasha vs State Of Kerala
2022 Latest Caselaw 9187 Ker

               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

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

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

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

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

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

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

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

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

(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

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

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.