Kerala High Court
Sankaran Kutty vs State Of Kerala on 20 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
WP(C) NO. 20961 OF 2018
PETITIONERS:
1 SANKARANKUTTY T.V.
AGED 61, S/O LATE A.S. PILLAI,RESIDING AT SREE
HARI,CHERUTHURUTHY P.O., THRISSUR-679531.
2 N. GOPAKUMAR
DEPUTY REGISTRAR,KERALA KALAMANDALAM DEEMED TO BE
UNIVERSITY,CHERUTHURUTHY P.O., THRISSUR-679531.
BY ADVS.
SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,CULTURAL AFFAIRS
DEPARTMENT,GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-1.
2 THE KERALA KALAMANDALAM DEEMED TO BE UNIVERSITY
REPRESENTED BY ITS REGISTRAR,OFFICE OF THE KERALA
KALAMANDALAM DEEMED TO BE UNIVERSITY,CHERUTHURUTHY
P.O., THRISSUR-679531.
3 THE VICE CNANCELLOR
THE KERALA KALAMANDALAM DEEMED TO BE
UNIVERSITY,CHERUTHURUTHY P.O., THRISSUR-679531.
4 THE REGISTRAR
THE KERALA KALAMANDALAM DEEMED TO BE
UNIVERSITY,CHERUTHURUTHY P.O., THRISSUR-679531.
BY ADV Thomas Abraham
GP SRI BINOY DAVIS,
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO.20961 OF 2018
2
JUDGMENT
The 1st petitioner was appointed as Typist in the
Kerala Kalamandalam on 04.12.1985. The 2 nd petitioner was
also appointed as L.D. Clerk in the same organization on
09.12.1985. The 1st petitioner was thereafter promoted as
Cashier on 22.04.2000. The 2nd petitioner was subsequently
promoted as U.D Clerk and then Accounts Officer. While so,
14 posts of non-teaching staff including 3 posts of Section
Officers in the scale of pay 10790-18000 was sanctioned as
per Ext.P3 order dated 01.03.2011. As per Ext.P4
Government Order dated 21.03.2013 promoting petitioners as
Section Officers. On creation of 14 non-teaching posts, the
petitioners became entitled to the considered promotion to
the post of Section Officer in the scale of pay 18714 - 33680
Ext.P4 was thereafter followed by order dated 21.03.2013
issued by the Kerala Kalamandalam, by the time it become
deemed University. Thereafter, the 1st petitioner while in
service retired on 30.04.2015.
WP(C) NO.20961 OF 2018
2. The 2nd petitioner was also retired after filing of
this Writ Petition. Pursuant to Ext.P5, the pay of the
petitioners were fixed in terms of Rule 28A of Part I Kerala
Service Rules (KSR), as evident from Exts.P6 and P7.
Consequent to the retirement of the 1 st petitioner, the
pensionary benefits were also sanctioned by the Audit
Department as evident from Ext.P8. Based on the sanctioning
of the pensionary benefits/retirement benefits, the
Government by order dated 17.08.2015 approved the
payment of terminal benefits to the 1 st petitioner. While so,
Ext.P12 came to be issued on 20.03.2015 by the Senior
Deputy Director of the Local Fund Audit intimating the
Registrar of Kerala Kalamandalam that the fixation of pay of
the petitioners in terms of Rule 28 A of Part I KSR was in
appropriate and that Rule 30 of Part I KSR had to be
followed. Pursuant to the audit report, the Kalamandalam
Deemed University issued notice dated 22.06.2018, as
evident from Ext.P16 requiring the 2 nd petitioner to show
cause as to why the proceedings cannot be taken against him
for re-fixation of pay. By Ext.P18, the Government on
21.03.2019 concurred with the decision of the Local Fund
WP(C) NO.20961 OF 2018
Audit and accorded sanction for proceedings for revision of
pay fixed in terms of Rule 28A of Part I KSR. Exts.P12, P16
and P18 are challenged in this Writ Petition.
3. A counter affidavit has been filed on behalf of the
respondents 2 to 4, in which it is contended that while issuing
Ext.P3, the University was specifically directed that re-
designation of the post does not involved any change in duty
and the same have to be filled either by deputation or by
filing up the same from the existing qualified persons.
According to the University, the post of Section Officer is not a
promotional post and therefore, the pay should have been
fixed in terms of Rule 30 of Part I KSR and therefore, the
objection made by the Local Fund Audit is perfectly correct
and therefore, the petitioners are not entitled for any relief
sought for in the present Writ Petition.
4. I have heard Sri.K.R.Ganesh - learned counsel
appearing for the petitioners and Sri.Thomas Abraham -
learned Standing Counsel for respondents 2 to 6 and the
learned Government Pleader appearing for the 1st
respondent.
WP(C) NO.20961 OF 2018
5. Sri.K.R.Ganesh - learned counsel for the petitioners
would contend that the petitioners were working as Cashier
and Accounts Officer, they were promoted to the post of
Section Officer by Ext.P4. Along with the petitioners, one
Sri.V. Kaladharan was also promoted, which is evident from
Ext.P4. The learned counsel further pointed out that the
contention of the respondents 2 to 4 that the post of Section
Officer is not a promotional post and there is no change in the
duty cannot be accepted. The post in which the petitioners
held prior to the promotion was Cashier and Accounts Officer
respectively and that no stretch of imagination, the post of
Section Officer could be equated with that of the post in which
they were holding at the time of issuance of Ext.P4. Learned
counsel further pointed out that consequent to the revision of
pay on 01.07.2014, the petitioners are not being given the
said benefit and the petitioners are also not being sanctioned
with regular pension and provisional pension is being granted
to them. He placed reliance on Ext.P17 judgment in WP(C)
32109/2002, in which a similar issue was considered by the
learned Single Judge. According to the learned counsel for
the petitioners, the State as well as the Accountant General
WP(C) NO.20961 OF 2018
filed W.A.No.1453/2020 which was also discussed on
17.01.2014.
6. On the other hand, Sri. Thomas Abraham - learned
Standing Counsel for respondents 2 to 4 contend that the
psot of Section Officer is not a promotional post and
therefore, the pay of the petitioners were wrongly fixed under
Rule 28A of Part I KSR. He further pointed out that the pay
should have been fixed in terms of Rule 30 of Part I KSR and
therefore, the audit objection is perfectly legal and
sustainable.
7. The learned Government Pleader also supported
the audit objection and further submitted that there is nothing
illegal or arbitrary in issuing consequential order under,
Ext.P18 which only accorded sanction for implementation of
the audit objection.
8. I have considered the rival submissions raised
across the Bar.
9. On the other hand Rule 28A and Rule 30 of Part I
KSR are extracted as follows:
"28A. Notwithstanding anything contained in these
rules, where an officer holding a post in a
WP(C) NO.20961 OF 2018
substantive, temporary or officiating capacity is
promoted or appointed in a substantive, temporary
or officiating capacity to another post carrying a
higher time-scale of pay, his initial pay in the
higher time-scale of pay, shall be fixed at the stage
next above the pay notionally arrived at in the
lower time-scale of pay by increasing the actual
pay drawn by him in the lower timescale by one
increment. A refixation of pay will be allowed
whenever there is a change of pay in the lower
time-scale. This rule shall be deemed to have come
into force with effect from 3rd February 1962.
Provided that the provisions of this rule shall not
apply to promotions from posts carrying a scale of
pay the minimum pay of which exceeds *Rs.2,640
*This amendment shall be deemed to have come
into force with effect from 1st July, 1988. [G.O.(P)
1005/92/Fin., dt. 27 -11-1992]. The limit of Rs.550
has been revised to Rs.650 with effect from 1st
January 1966 [G.O. (P) 261/67/Fin., dated 4th July
1967, G.O.(P) 91/68/Fin., dated 5th March 1968]
and Rs.650 to Rs.900 with effect from 1st July
1968 [G.O. (P) 173/70/Fin., dated 20th March
1970] and from Rs.900 to Rs.1200 with effect from
1st July 1973 [G.O. (P) 136/75/Fin., dated 1st April
1975 and from Rs.1,200 to Rs.1,550 with effect
from 1 st July 1978[G.O.(P) 493/79/Fin., dated
28th May 1979] and from Rs.1550 to Rs.2100 with
effect from 1 st July, 1983 [G.O.(P) 1109/87/Fin.
dated 23rd December 1987] and from Rs.2100 to
Rs.2640 with effect from 1 st July 1988 [G.O.(P)
1005/92/Fin. dated 27th November, 1992] [G.O.(P)
WP(C) NO.20961 OF 2018
624/84/Fin., dt. 29 -10-1984] Provided also that
where a Government servant is immediately before
his promotion or appointment to a higher post,
drawing pay at the maximum of the time-scale of
the lower post, his initial pay in the time-scale of
the higher post shall be fixed at the stage next
above the pay notionally arrived at by increasing
his pay in respect of the lower post by an amount
equal to the last increment in the time-scale of the
lower post. Effective from the date of orders. [G.O.
(P) 348/75/Fin., dt. 1-8-1975] Provided that if he
has either previously held substantively or
officiated in (i) the same post or (ii) a permanent
or temporary post on the same time-scale or (iii) a
permanent post on an identical time-scale or a
temporary post on an identical time-scale, such
post being on the same time-scale as a permanent
post, then the initial pay shall not be less than the
pay which he drew, on the last such occasion and
he shall count for increment the period during
which he drew that pay on such last or any
previous occasions. This amendment shall be
deemed to have come into force with effect from
21st July 1964."
30. The holder of a post, the pay of which is
changed, shall be treated as if he were transferred
to a new post on the new pay; provided that he
may at his option retain his old pay until the date
on which he has earned his next or any subsequent
increment in the old scale, or until he vacates his
post or ceases to draw pay in that time-scale. The
WP(C) NO.20961 OF 2018
option once exercised is final.
Note 1.-This rule applies to an officiating holder of a
post as well. But any break in the officiating period
such as that due to transfer to another post, or
non-employment would operate as vacating of the
post and the pay during a subsequent officiating
period in the same post will be fixed only as if the
officer was then appointed to the new scale of pay.
'The holder of a post' occurring in this rule applies
also to a person who is not actually holding the
post, the pay of which is changed, provided he has
a lien or a suspended lien on that post. The words
'his old pay' in the proviso of the rule should be
held to include not only the rate at which the
individual was drawing his officiating pay on the
crucial date but also the time-scale of pay in which
he was drawing that pay. Thus for the period of
option the old scale of pay in which he was drawing
his officiating pay should be treated as continuing
for the individual concerned.
Note 2.- Option under the proviso of the rule to
officers under suspension is governed by the
following :-
1. Cases in which the revised scale of pay takes
effect from a date prior to the date of suspension.
In such cases the officer should be allowed to
exercise the option under Rule 30 even if the
period, during which he is to exercise the option,
falls within the period of suspension. He will be
entitled to the benefit of increase in pay if any, in
respect of the duty period before suspension, and
also in the subsistence allowance, for the period of
WP(C) NO.20961 OF 2018
suspension, as a result of such option.
2. Cases in which the revised scale of pay takes
effect from a date falling within the period of
suspension--
(a) Under suspension an officer retains a lien on his
substantive post. As the expression 'holder of a
post' occurring in Rule 30 includes also a person
who holds a lien or a suspended lien on the post
even though he may not be actually holding the
post, such an officer should be allowed option
under Rule 30 even while under suspension. The
benefit of option will however, practically accrue to
him in respect of the period of suspension, only
after his reinstatement, depending on the fact
whether the period of suspension is treated as duty
or not.
(b) An officer, who does not retain a lien on a post
the pay of which is changed, is not entitled to
exercise the option under Rule 30. If, however, he
is reinstated in the post and the period of
suspension is treated as duty, he may be allowed to
exercise the option after such reinstatement. In
such cases, if there is a time-limit prescribed for
exercising the option and such period had already
expired during the period of suspension, a
relaxation may be made in each individual case for
extending the period during which the option may
be exercised."
10. It is also pertinent to note that under Ruling 2 of
Rule 30 of Part I KSR, which reads as under:
WP(C) NO.20961 OF 2018
"Ruling No.2. The pay of an officer when the post
held by him is upgraded will be regulated as
follows :
(i) If the competent authority specifically orders
that the appointment of an officer to the upgraded
post involves an enhancement of duties and higher
responsibilities and is therefore a promotion, pay
will be fixed under Rule 28, 28A or 37 (a) of Part I,
Kerala Service Rules, as the case may be.
(ii) In other cases, pay will be fixed under Rule 37
(a), Part I Kerala Service Rules.
11. If the Competent Authority specifically orders
appointment of an officer to an upgraded post involving an
enhancement of duties, then pay could be fixed in terms of
Rule 28 A of Part I KSR . This is the true purport of Ruling 2 of
Rule 30 of Part I KSR.
12. To a pointed query raised by this Court,
respondents 2 to 4 as to whether what steps were taken
against Sri.V. Kaladharan, who is serial No.1 in Ext.P4,
learned counsel for respondents 2 to 4 referred to paragraph
20 of the counter affidavit, in which it is stated that, though
the Local Fund Audit had objected against the fixation of pay
in respect of Sri.V.Kaladharan, the said report could not be
verified due to oversight and later by G.O.(Rt)
WP(C) NO.20961 OF 2018
No.571/2017/CLAD dated 19.09.2017, the benefit of fixation
granted to Sri.V.Kaladharan under Rule 28 A of Part I KSR was
approved by the Local Fund Audit and pension was
accordingly fixed. It is further pointed out by the learned
counsel for the respondents 2 to 4 the exact fixation by
oversight will not ipsofacto to enable the petitioners to claim
the benefit of Rule 28A of Part I KSR.
13. This Court cannot be oblivious of the fact that the
report of the Local Fund Audit came on 23.02.2015. It is
thereafter that the retirement benefits of the petitioners were
sanctioned by the Accountant General on 09.07.2015 as
evident from Ext.P8. Acting on Ext.P8, the Government also
sanctioned the terminal benefits of the petitioners on
17.08.2015. The Executive Board of the Kerala Kalamandalam
Deemed University took a decision on Et.P12 Audit objection,
after a lapse of nearly three years i.e., on 16.03.2018.
Thereafter, by Ext.P18 order, the Government also took a
decision to accept the decision of the Audit Objection on
21.03.2019. The sequence of events as narrated above shows
that atleast after issuance of Ext.P12, it took the Government
nearly four years to act upon the said objection.
WP(C) NO.20961 OF 2018
14. As a matter of fact, the respondents 2 to 4 had any
objection with regard to the report of the Local Fund Audit,
the pensionary benefits of the 1 st petitioner could not have
been sanctioned as evident from Ext.P8. The Government has
also accorded permission to sanction of the terminal benefits
on 17.08. 2015. At any rate, this Court cannot ignore the fact
that serial No.1 - Sri.V.Kaladharan was sanctioned the
pensionary benefits and other retirement benefits in terms of
his pay fixed under Rule 28A of Part I KSR.
15. This Court is not impressed by the contention
raised by the learned counsel for the respondents 2 to 4 that
the post of Section Officer is not a promotional post and it
does not involve any change in duties. The fact remains that
the petitioners were working as Cashier and Accounts Officer
in the Kalamandalam Deemed University. While the re-
designation of the post were done and later by Ext.P4 the
petitioners were appointed as Section Officer in the higher
scale. There is nothing brought on record to show that, the
scale of Cashier and Accounts Officer are one and the same
that of the Section Officer. Still further, the duties discharged
by a Cashier or an Accounts Officer and that of the Section
WP(C) NO.20961 OF 2018
Officer are one and the same is not made clear in any of the
pleadings before this Court.
16. The learned counsel for the petitioner is justified in
placing reliance on the judgment of the Division Bench in WA
No.1453/2010 dated 17.01.2014, which affirms the view
taken by this Court in Ext.P17 judgment.
In the above circumstances, this Court respectfully
agreed with the views expressed by the learned Single Judge
in Ext.P17 judgment as affirmed by the learned Division
Bench. Accordingly, the Writ Petition is allowed. Exts.P12,P16
and P18 are quashed. There will be a direction to the 1 st
respondent to take appropriate steps to refix the salary of
the petitioners in terms of pay revision order dated
01.07.2014. The needful in this regard shall be done at any
rate, within a period of two months from the date of receipt of
a copy of this judgment. Once such pay has been revised, the
petitioners pension shall be fixed in terms of the revised pay
by protecting their pay as done in Ext.P4 in terms of Rule 28A
of Part I KSR. The entire consequential benefits including
arrears of pension shall be thereafter released to the
petitioners, at any rate with a further period of three months
WP(C) NO.20961 OF 2018
from the date of such fixation.
Writ Petition is allowed. No order as to costs.
EASWARAN.S
JUDGE
lsn
WP(C) NO.20961 OF 2018
APPENDIX OF WP(C) 20961/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER NO.
A6/70/98/KKM DATED 22.4.2000
EXHIBIT P2 TRUE COPY OF ORDER NO. KKM/A-
6/2532/2001 DATED 7.12.2001.
EXHIBIT P3 TRUE COPY OF GO P NO. 29/2011/CAD DT.
1.3.2011
EXHIBIT P4 TRUE COPY OF G.O. (RT) NO.
144/2013/CAD DATED 21.3.2013.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION NO.
U.O. NO. 277/2013 DATED 23.3.2013.
EXHIBIT P6 TRUE COPY OF THE PAY FIXATION
STATEMENT OF THE 1ST PETITIONER.
EXHIBIT P7 TRUE COPY OF THE PAY FIXATION
STATEMENT OF THE 2ND PETITIONER.
EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS DATED
9.7.2015 OF THE AUDIT AND ACCOUNT
DEPARTMENT.
EXHIBIT P9 TRUE COPY OF G.O. (RT) NO.
413/2015/CAD DATED 17.8.2015.
EXHIBIT P10 TRUE COPY OF PAY FIXATION STATEMENT OF
SRI. KALADHARAN.
EXHIBIT P11 TRUE COPY OF G.O. (RT) NO.
571/2017/CLAD DATED 19.9.2017
EXHIBIT P12 TRUE COPY OF COMMUNICATION NO. LET
(PEN.3)-206/15 DATED 20.3.2015
EXHIBIT P13 TRUE COPY OF G.O. (MS) NO. 12/2018/CAD
DATED 5.3.2018
EXHIBIT P14 TRUE COPY OF REPRESENTATION DATED
14.6.2018
EXHIBIT P15 TRUE COPY OF REPRESENTATION DATED
1.6.2018
EXHIBIT P16 TRUE COPY OF COMMUNICATION DATED
22.6.2018 ISSUED BY THE 4TH
WP(C) NO.20961 OF 2018
RESPONDENT.
Exhibit P17 TRUE PHOTOCOPY OF THE JUDGMENT DATED
11.03.0210 I O.P.NO.32109/2002 OF THIS
HONOURABLE COURT.
Exhibit P18 TRUE PHOTOCOPY OF THE COMMUNICATION
NO. CLAD-A1/208/2018-CLAD DATED
21/03/2019 ISSUED BY THE ADDL.
SECRETARY TO THE 2ND RESPONDENT.
RESPONDENTS EXHIBITS:
EXT.R2(a): TRUE COPY OF THE LETTER OF THE GOVERNMENT
DATED 21.03.2019 ISSUED BY THE GOVERNMENT
TRUE COPY
P.A TO JUDGE
LSN
