National Institute Of Technology ... vs Dr. T.V.Gopalan
2022 Latest Caselaw 8711 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                   &
                 THE HONOURABLE MRS. JUSTICE C.S. SUDHA
         THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                           WA NO. 454 OF 2022
  AGAINST THE JUDGMENT DATED 16.12.2021 IN WP(C) 7893/2019 OF HIGH
                            COURT OF KERALA
APPELLANTS/RESPONDENT NOS.2 & 3:

     1       NATIONAL INSTITUTE OF TECHNOLOGY CALICUT
             (FORMERLY REGIONAL ENGINEERING COLLEGE, CALICUT)
             NIT CAMPUS, P.0., KOZHIKODE-673 601
             REPRESENTED BY ITS REGISTRAR.
     2       THE DIRECTOR
             NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT
             NIT CAMPUS P.O., KOZHIKODE- 673 601,
             BY ADVS.
             SHYAM PADMAN
             C.M.ANDREWS
             BOBY M.SEKHAR
             LAYA MARY JOSEPH
             HARISH ABRAHAM
             ASHWATHI SHYAM


RESPONDENTS/PETITIONER & RESPONDENT NOS.1 & 4:

     1       DR. T.V.GOPALAN
             AGED 76 YEARS,
             S/O LATE P. GOVINDAN NAIR,
             TRICHANBARA HOUSE, NO. 33/5487A,
             K.S.E.B SUBSTATION ROAD, CHEVAYOOR P.O.
             KOZHIKODE, KERALA- 673 017.
     2       UNION OF INDIA
             REPRESENTED BY ITS SECRETARY,
             MINISTRY OF PERSONNEL,
             PUBLIC GRIEVANCES AND PENSIONS,
             DEPARTMENT OF PENSION AND PENSIONERS WELFARE,
             3RD FLOOR, LOK NAYAK BHAVAN, KHAN MARKET,
             NEW DELHI-110 003.
 W.A.No.454 of 2022
                                    2

      3       MINISTRY OF HUMAN RESOURCES DEVELOPMENT
              GOVERNMENT OF INDIA, REPRESENTED BY ITS SECRETARY,
              DEPARTMENT OF EDUCATION,
              SHASTRI BHAVAN, NEW DELHI-110 001.
              BY ADVS.
              SRI.B.S.SWATHIKUMR (B/O)
              B.S.SWATHI KUMAR
              ANITHA RAVINDRAN
              HARISANKAR N UNNI



      THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 07.07.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.454 of 2022
                                               3



                      P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                           ------------------------------------------
                              Writ.Appeal No. 454 of 2022
                      -----------------------------------------------------
                          Dated this the 7th day of July, 2022

                                     JUDGMENT

C.S.Sudha, J.

This appeal is against the judgment dated 16/12/2021 in W.P(C)

No.7893/2019. The appellants are respondents 2 and 3 in the writ petition

and the respondents herein are the petitioner and respondents 1 and 4

respectively in the writ petition. The parties and the documents in this

appeal will be referred to as described in the writ petition.

2. The writ petition was filed by the petitioner, a retired Professor

and Head, Department of Training, Placement and Linkage, National

Institute of Technology, Calicut (NIT) seeking enforcement of Ext.P7 OM

relating to the recommendations of the 7th Central Pay Commission; to

revise his pension from 01/01/2016 and to disburse the arrears of pension

from 01/01/2016 till date with 12% interest. The writ petition has been

allowed by way of the impugned judgment. Aggrieved, the 2 nd and 3rd

respondents have come up in appeal.

W.A.No.454 of 2022

3 . Heard Adv.Shyam Padman, the learned counsel for the appellants

and Adv.B.S.Swathi Kumar, the learned counsel for the first respondent and

Adv.Jaishankar V.Nair, the learned counsel for respondents 2 and 3.

4. According to respondents 2 and 3, the petitioner is not entitled

to the benefits of Ext.P7 OM. There has been an erroneous fixation of his

pension resulting in undue monetary benefits to the petitioner. The pension

of the petitioner has to be regulated in accordance with Rule 18(3) of CSS

(Pension) Rules, 1972 and when so regulated he would not be entitled to

the benefits claimed.

5. The learned Single Judge on hearing the parties, passed an

interim order dated 09/07/2021, the relevant portion of which reads -

" ......... 3. I am of the view that this controversy cannot be decided as is a disputed question with regard to the calculation of amount and cannot be adjudicated by this Court at this stage of the time, since the parties are ad idem, on the consensus, I direct the Deputy Director (DT), Office of the Deputy Director, Branch Office- Kochi, Golden Jubilee Road. Kaloor, Kochi

- 682 017 to hear the parties with regard to the calculations of the pension particularly considering the fact that the petitioner had already been paid the arrears with effect from 01.02.2018. The veracity whether the petitioner is entitled to amount with effect from 01.01.2006 would be in the domain of this Court, but as far as the calculation whether it amounts to double benefit or not would be taken into consideration by the officer appointed. The officer appointed shall afford opportunity to both the parties and give them sufficient opportunity of hearing. A period of two months is granted for the aforementioned Officer to look into the matter. The Deputy Director is also at liberty to conduct the hearing through virtual mode also subject to the situation at the relevant point of time."

W.A.No.454 of 2022

6. Based on the report dated 24/09/2021 filed by the

aforementioned officer, the writ petition has been allowed and the

respondents have been directed to pay the arrears of pension as per the

observations of the Controller of Audit General.

7. The grievance of respondents 2 and 3 is that the report relied

on by the Single Judge is incorrect, which has been prepared without taking

into consideration the various OMs in Appendix 7 of the CCS(Pension)

Rules, which govern the pro-rata retirement benefits in case of permanent

absorption. The findings in the report are also not in consonance with the

instructions issued by the 1st respondent Ministry and hence based on an

erroneous report, the reliefs prayed for ought not to have been granted, goes

the argument.

8. The learned Single Judge has never gone into the merits of the

report. Sitting in appeal, we also cannot go into the merits of the report or

decide whether the findings in the report are right or wrong. If the report is

incorrect as contended, the 2nd and 3rd respondents are at liberty to challenge

the same before the appropriate forum/authority concerned. Therefore no

interference into the impugned judgment is called for.

In the result, the writ appeal is dismissed, reserving the liberty to the W.A.No.454 of 2022

appellants (respondents 2 and 3) to challenge the report dated 24/09/2021

of the Deputy Director, (DT) II, Indian Audit and Accounts Department,

Office of the Principal Director of Audit (Central), Chennai, before the

appropriate forum/authority.

All Interlocutory Applications, if any pending, shall stand closed.

Sd/-

P.B. SURESH KUMAR JUDGE

Sd/-

C.S.SUDHA JUDGE

Jms/07.07 W.A.No.454 of 2022

APPENDIX OF WA 454/2022

PETITIONER ANNEXURES Annexure A1 TRUE COPY OF OM NO.28/10/84-PENSION UNIT DATED 29.08.1984 Annexure A2 TRUE COPY OF OM NO. 28(10)/84-P&PW.VOL.II DATED 07.02.1986 Annexure A3 TRUE COPY OF OM NO.4(12)/85-P&PW DATED 31.03.1987 Annexure A4 TRUE COPY OF LETTER NO.F.40-18/2020-TS.III DATED 09.12.2020