IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 5539 of 2001(H)
1. B.K.NAYAR
... Petitioner
Vs
1. THE REGISTRAR,UNIVERSITY OF CALICUT
... Respondent
For Petitioner :SMT.PREETHY KARUNAKARAN
For Respondent :SRI.P.C.SASIDHARAN, SC, CALICUT UTY.
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :25/09/2009
O R D E R
S. Siri Jagan, J.
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O.P. No. 5539 of 2001
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Dated this, the 25th September, 2009.
J U D G M E N T
The petitioner is a retired Professor (Higher Grade) of the 2nd
respondent-University. In this original petition, he challenges Ext.
P13 order, whereby his objection regarding the fixation of his pay in
accordance with the UGC scale of pay has been overruled and the
proposal to recover from him certain amounts as liability has been
confirmed. The facts leading to this original petition are as follows:
2. Prior to the implementation of the UGC Scheme in the
Universities and Colleges in Kerala, in the University of Calicut, there
were two grades of Professors. One was that of Professor and the
other was that of Professor (Higher Grade). In the 1983 Pay
Revision, the scale of pay of Professor was revised as Rs. 2450-3600
and that of the Professor (Higher Grade) was revised as Rs. 2600-
3800. Pursuant thereto, the pay of the petitioner was fixed in the
scale of pay of Rs. 2600-3800 applicable to Professor (Higher Grade)
as Rs. 3675/-. The petitioner retired from service on 30-9-1987. At
the time of retirement, he was drawing a basic pay of Rs. 3675/-.
While so, the Government implemented the UGC Scheme as per
Exts.P2 and P3 Government Orders. As per the UGC Scheme, there
was only one cadre of Professor instead of the two existing prior to
the implementation of the UGC scheme. The scale of pay of the post
of Professor as per the UGC Scheme was fixed as Rs. 4500-7300.
According to the petitioner, this scale of pay is corresponding to the
pre-revised scale of pay of Professors as Rs. 2450-3600. Since
the scale of pay of the petitioner was Rs. 2600-3800, he is entitled to
the corresponding scale of pay in the UGC Scheme. He would submit
that in the Department of Collegiate Education of the Government of
Kerala, where also the UGC Scheme was implemented, the scale of
pay of Rs.2600-3800 applicable to Additional Director of Collegiate
O.P. No. 5539/01 -: 2 :-
Education was revised as Rs. 4500-7300 with a minimum of
Rs. 5700/- in the scale and therefore since in the University there was
no scale corresponding to Rs. 2600-3800 applicable to Professor
Higher Grade, the said scale of pay should be made applicable to the
petitioner and the petitioner’s pay should be fixed in that scale of pay
as Rs. 5700/- and his retirement benefits should be revised
accordingly. He has also got a contention that in any event his salary
should have been fixed in the scale of pay of Rs. 4500-7300
corresponding to his basic pay of Rs. 3675/- in accordance with rules
for fixation of pay in the new scale of pay.
3. The retirement benefits due to the petitioner including his
salary for the last month were not paid to the petitioner at the time of
his retirement even though he had submitted his pension papers
seven months prior to his retirement. After several correspondence
in the matter, by Ext. P1 dated 11-9-1991, an amount of Rs.1,03,005/-
was sanctioned to the petitioner as commuted value of pension.
Petitioner’s pension was also fixed therein. Petitioner’s last month’s
salary and DCRG were withheld pending settlement of some
advances. According to the petitioner, there were no amounts
pending settlement in respect of the petitioner at the time of his
retirement, since he had cleared all the advances..
4. On 24-1-1989, a communication was issued to the petitioner
wherein all advances drawn by the petitioner for 17 years, during
which time the petitioner was the Head of the Department, were
included as pending adjustment. By letter dated 26-9-1989, the
petitioner was informed that an amount of Rs. 2,93,089.05 was
pending as advances of the petitioner, apart from several books
which were not found in the stock or issued. By Ext. P6 reply dated
24-1-1990, the petitioner is stated to have given a detailed
explanation contending that there is no liability pending as against
O.P. No. 5539/01 -: 3 :-
the petitioner. Since the DCRG and arrears of salary due to the
petitioner were not paid to him, the petitioner is stated to have sent a
representation to the 1st respondent seeking disbursal of the same.
Since, no reply was given to the petitioner in respect thereof, the
petitioner filed O.P.No. 9057/1992 seeking the relief in respect of the
following:
“(a) Death cum Retirement Gratuity.
(b) Salary for the month of September 1987.
(c) Arrears of salary on the basis of re-fixation in the U.G.C.
Scale of Rs. 5,700/- – Rs. 7300/- effective from 1-1-1986.
(d) Arrears of enhanced pension effective from 1-10-1987; and
(e) Penal interest on all dues at market rates from the date of
retirement until payment.”
In that original petition, the petitioner claimed a total amount of
Rs. 3,38,075.95 on the above counts. The University did not file any
counter affidavit in that original petition for a long time and on 18-1-
1994, by Ext. P7 interim order, this Court directed the University to
pay to the petitioner a sum of Rs. 1,03,005/- determined as commuted
value of pension and a sum of Rs. 45,000/- as DCRG making a total of
Rs. 1,48,005/-. The University did not challenge that order, But, that
order was not complied with. The petitioner filed a contempt petition
as CCC No. 123/1994. Thereupon, the amount was paid to the
petitioner. Subsequently, in December, 1992, a counter affidavit was
filed by the respondents taking the stand that the petitioner misled
this Court and forced the respondents to pay a sum of Rs. 1,03,005/-
as commuted value of pension, which had already been paid to the
petitioner long before. But, the petitioner submits that he did not
mislead this Court and since more than Rs. 3 lakhs were due to the
petitioner from the respondents, although in the interim order, the
O.P. No. 5539/01 -: 4 :-
amount of Rs. 1,03,005/- was mentioned as commuted value of
pension, the petitioner accepted the amount as part of the other
amounts due to him. The respondents also did not seek any
clarification in the matter from this Court .
5. On 15-10-1993, by Ext. P8 letter dated. 15-10-1993, the
petitioner was informed that a sum of Rs. 18,906.20 is pending
settlement towards advances drawn by the petitioner. The petitioner
filed Ext. P9 reply dated 24-11-1993 disclaiming any liability in
respect thereof. The respondents, however, by Ext. P10 order dated
24-2-1994, fixed the amount of Rs. 18,906.20 as liability of the
petitioner, after 7 years of his retirement. The petitioner filed
objection to the same on 3-3-1994 by Ext. P11.
6. In the meantime, by Ext. P5 order dated 30-3-1995, the
University fixed the pay of the petitioner in the UGC scale of pay as
Rs. 4800/-. The petitioner filed objection dated 4-4-1995 to the same.
While so, O.P.No. 9057/1992 came up for hearing before this Court
on 24-11-1998. That original petition was disposed of by directing the
University to consider the objection raised by the petitioner dated
4-4-1995 to Ext. P5 and to take a decision in that regard. This Court
also permitted the petitioner to make additional representations, if
any, in the matter. A copy of the judgment of this Court is produced
as Ext. P12. Pursuant thereto, Ext. P13 order has been passed,
wherein, the petitioner’s objection to the fixation of pay by Ext. P5 has
been rejected and the petitioner was directed to pay a sum of Rs.
1,21,911/- with interest at the rate of 18% with effect from 21-4-1994.
The petitioner is challenging Ext. P13 order in this original petition.
7. Regarding the fixation of the pay of the petitioner in the UGC
scale of pay, his contention is that before the implementation of the
UGC Scheme, he was drawing a pay of Rs. 3675/- in the scale of pay
of Rs.2600-3800 and when the UGC Scheme was introduced, the
O.P. No. 5539/01 -: 5 :-
petitioner is entitled to the UGC scale of pay corresponding to the
scale of pay of Rs.2600-3800. According to the petitioner, although
the UGC Scheme did not contemplate the post of Professor (Higher
Grade), since the post of Professor (Higher Grade) was existing in the
University prior to the implementation of the UGC Scheme, the
petitioner was entitled to have the corresponding scale of pay fixed.
The petitioner submits that in the Collegiate Education Department of
the Government of Kerala, where also the UGC Scheme was
implemented, the pre-revised scale of pay corresponding to Rs. 2600-
3800 was available to the Additional Director of Collegiate Education,
which scale of pay was revised to Rs. 4500-7300 with a minimum of
Rs. 5700/- in the scale, as per Table 9 annexed to Ext. P4. Therefore,
according to the petitioner, the petitioner is also entitled to fixation of
pay at Rs. 5,700/- in the scale of pay of Rs. 4500-7300, which was
the revised scale of pay of Additional Director of Collegiate Education.
In the alternative, he would further contend that even if he is not
entitled to the scale of pay of Rs. 4500-7300, he is entitled to fixation
of pay in the scale of pay of Rs. 4500-7300 applicable to University
Professor corresponding to the pay scale of Rs. 3675/-, which he was
drawing in the pre-revised scale of pay. According to the petitioner,
since the Additional Director of Collegiate Education is entitled to a
minimum of Rs. 5700/- as per Table 9 of Ext. P4, the petitioner’s pay
should also be fixed as Rs. 5700/- on the date of his retirement and his
retirement benefits should be computed accordingly. Regarding the
liability fixed on him, the petitioner would contend that going by Rule
3 of Part III of K.S.R, no liability could have been fixed on the
petitioner after three years of his retirement, whereas, in this case,
the amount of Rs. 18,960/- has been fixed as liability on the petitioner
more than 7 years after his retirement. He would further submit that
even otherwise, he had sufficiently explained the discrepancy and
O.P. No. 5539/01 -: 6 :-
therefore no liability was due from him. It is further contended that
the University had filed a suit for recovery of the amount of
Rs. 1,48,805/- from the petitioner, which suit was dismissed.
Therefore, no amount could have been ordered to be recovered from
him, is the contention raised. The petitioner would submit that the
petitioner is also entitled to interest on the delayed payment on
retirement benefits due to him.
8. A counter affidavit has been filed by the University disputing
all the contentions of the petitioner. According to them, the petitioner
is entitled to fixation of pay only in the scale of pay applicable to
Professors in the UGC Scheme. As per the UGC Scheme, there is
only one cadre of Professor and the scheme does not contemplate a
Professor (Higher Grade). The scale of pay of Professor as per the
UGC Scheme is Rs. 4500-7300 corresponding to the pre-revised scale
of pay of Rs. 2450-3600. By Ext. R2(e) order of the Government, the
method of fixation of pay in that scale has been detailed as per which
for the maximum in the pre-revised scale of pay of Rs. 3600/-, the
fixation of pay is Rs. 4800/-, which has been granted to the petitioner.
No fixation can be made otherwise than provided in Appendix VII of
Ext. R2(e), is the contention raised. The University raises a further
contention that admittedly, the pay of the petitioner was fixed by Ext.
P5 as early as on 30-3-1995 and he has not chosen to challenge the
same within a reasonable time. Therefore, he cannot now resurrect
his stale claim in this original petition is the contention of the
University in that regard.
9. As far as the fixation of liability is concerned, the University
would contend that the petitioner has received a duplicate payment in
respect of commuted value of pension, which the University was
forced to pay under threat of contempt proceedings and the order in
respect of the same was obtained by the petitioner by
O.P. No. 5539/01 -: 7 :-
misrepresenting the facts before this Court and the University is
entitled to recover the amount from the petitioner with interest
insofar as the same has been paid pursuant to orders of this Court,
which amount, the petitioner had, admittedly, earlier received
pursuant to Ext. P1. As far as the liability of Rs. 18,906/- is
concerned, it is submitted that that fixation of liability has also not
been challenged by the petitioner within a reasonable time and the
petitioner cannot collaterally challenge the same in this original
petition.
10. A reply affidavit has been filed by the petitioner in support
of his contention in the original petition and seeking to controvert the
contentions in the counter affidavit.
11. I have considered the rival contentions in detail.
12. I shall first deal with the objection of the University
regarding the petitioner sleeping over his rights in respect of the
fixation of pay. It is true that in Ext. P5 dated 30-3-1995, the pay of
the petitioner was fixed as Rs. 4800/-. But in Ext. P13 order, it is
specifically stated that a representation dated 4-4-1995 of the
petitioner is seen in the file in respect thereof. In Ext. P12
judgment of this Court, a representation dated 4-4-1996 is directed to
be disposed of. (This appears to be a mistake and the same should be
a representation dated 4-4-1996, which is clear from Ext. P13 order
also.) In any event, the fixation was during the pendency of O.P.No.
9057/1992. That original petition was disposed of by Ext.P12
judgment dated 24-11-1998 directing consideration of the petitioner’s
objection to Ext. P 5. It is pursuant to that direction in the judgment
that Ext. P13 order was passed, wherein the question of fixation of
pay has also been considered and rejected. That order is under
challenge before me, which was filed immediately after passing Ext.
P13 order. Therefore, I do not think that the University can now take
O.P. No. 5539/01 -: 8 :-
a contention that since the petitioner has not challenged Ext. P5 at
that time, the petitioner cannot collaterally challenge the same while
challenging Ext. P 13 order.
13. As far as the claim of the petitioner for fixation of pay in
accordance with Table 9 of Ext. P4 applicable to Additional Director of
Collegiate Education is concerned, I am unable to countenance the
contention of the petitioner. There is no post of Additional Director of
Collegiate Education in the University. Therefore, the fixation of pay
applicable to Additional Director of Collegiate Education cannot be
imported into the fixation of pay of Professor of the University. As
such, I do not find any merit in that contention of the petitioner.
14. But, the petitioner has still got another contention to the
effect that even otherwise, he is entitled to have his pay fixed in the
UGC scale of pay applicable to Professor corresponding to his pre-
revised pay of Rs. 3675/-. The contention of the petitioner is that
prior to the introduction of the UGC Scheme, there were two grades
of Professors in the University, one with a scale of pay of Rs. 2450-
3600 and another with a scale of pay of Rs. 2600-3800. In the UGC
Scheme, the two grades of Professors have been dispensed with and it
was unified as one post of University Professor. That would mean that
the two scales of pay of Rs. 2450-3600 and 2600-3800 have been
merged into one scale of pay with the revised scale of pay of Rs. 4500-
7300. Therefore, according to the petitioner, the petitioner is entitled
to fixation of pay in the scale of pay of Rs. 4500-7300 corresponding
to his pre-revised pay of Rs. 3675/-. He would submit that Appendix
VII of Ext. R2(e) is only a guideline giving a ready reckoner for
fixation of pay and although in the same only fixation of pay of the
maximum in the pre-revised scale of pay of Rs. 2450-3600 only has
been mentioned, that is not exhaustive and in the petitioner’s case,
he is certainly entitled to have his pay fixed corresponding to his pre-
O.P. No. 5539/01 -: 9 :-
revised pay of Rs. 3675/-, by fixing the same in accordance with Rule
2 of Appendix VII of Ext. R2(e). The contention of the University is
that it cannot be done. The University is bound by Ext. R2(e). Ext.
R2(e), particularly, Appendix VII thereof, contemplates only fixation of
pay in respect of pre-revised pay of up to Rs.3600/- and does not
contemplate fixation of pay in respect of pay of Rs. 3675/-. Therefore,
the petitioner is entitled to only fixation of pay corresponding to pre-
revised pay of Rs. 3600/-, which, going by Ext. R2(e) is Rs. 4800/-
which has been granted to the petitioner. After considering the
contentions of both parties, I am inclined to agree with the petitioner.
Admittedly, prior to the introduction of the UGC Scheme, there were
in fact, two grades of Professors in the University, one having the
scale of pay of Rs. 2450-3600 and the other that of Professor (Higher
Grade) having the scale of pay of Rs. 2600-3800. It cannot be taken
that the petitioner should be denied all benefits in respect of his pre-
revised pay of Rs. 3675/- when the two posts have been merged into
one post of Professor having a common scale of pay of Rs. 4500-7300.
It must be taken that the revised scale of pay of Rs. 4500-7300 is by
merging the two pre-revised scales of pay of Rs. 2450-3600 and
Rs. 2600-3800. Therefore, although a unified scale of pay has been
prescribed for Professor, that would not mean that the petitioner
cannot have fixation of pay in the revised scale of pay of Rs. 4500-
7300, corresponding to the pay he was drawing formerly, namely,
Rs. 3675/-. I do not find any merit in the contention that no fixation
can be done otherwise than in Appendix VII of Ext. R2(e), which
contemplates a fixation of pay only up to the maximum in the pre-
revised scale of pay viz. Rs. 3600/-. Appendix VII is only a ready
reckoner and cannot be treated as exhaustive for all situations.
Fixation has to be made in accordance with Rule 2 of Ext. R2(e). In
any event, this is a peculiar situation which calls for an interpretation
O.P. No. 5539/01 -: 10 :-
as above to do complete justice to the parties. Therefore, a pay
corresponding to Rs. 3675/- could be fixed for the petitioner in the
scale of pay of Rs. 4500-7300 following Rule 2 of Ext. R2(e). Hence,
I am of opinion that the petitioner should be given that benefit.
15. As far as the claim of the University for refund of the
amount of Rs. 1,03,005/- is concerned, I do not think that the
petitioner can take exception to the same. It is not disputed before
me that pursuant to Ext. P1, the commuted value of pension of Rs.
1,03,005/- had already been paid to the petitioner. In Ext. P7 order in
O.P.No. 9057/1992, this Court had directed to pay the very same
amount again. Therefore, obviously, there is a duplication of
payment, which has to be refunded by the petitioner. But, since I
have already held that the petitioner is entitled to have his pay fixed
corresponding to his pre-revised pay of Rs. 3675/-, the retirement
benefits due to him would also have to be revised in which event the
petitioner would be eligible for arrears of pension and other
retirement benefits. From the said amount of Rs. 1,03,005/-, the
arrears are to be adjusted.
16. As far as the liability of Rs. 18,906/- is concerned,
admittedly, the same was fixed more than 7 years after the retirement
of the petitioner. Going by Note 3 of Rule 3 of Part III of K.S.R, the
same is permissible insofar as the liability of the retired employee
has to be fixed within 3 years from the date of retirement. It is to be
further noted that the University had filed a suit for recovery of that
amount, which suit had been dismissed. Therefore, the said amount
of Rs. 18,906/- cannot be recovered from the petitioner now.
17. In the above circumstances, the original petition is disposed
of with the following directions:
Ext. P13 order, insofar as the objection of the petitioner
against Ext. P5 fixation of pay was rejected and recovery of liability of
O.P. No. 5539/01 -: 11 :-
Rs. 18,906/- is confirmed, is quashed. The respondents are directed
to re-fix the pay of the petitioner in the scale of pay of Rs. 4500-
7300 corresponding to the pre-revised pay of Rs. 3675/- applying
clause 2 of Ext. R2(e). The petitioner’s retirement benefits also shall
be revised accordingly. The petitioner would be liable to refund the
amount of Rs. 1,03,005/-. However, from the same, the arrears of
retirement benefits due to the petitioner shall be deducted and the
petitioner would be liable to pay only the balance, if any, and if any
further amounts are due to the petitioner, even after adjusting
the said Rs. 1,03,005/-, the same shall be paid to the petitioner. The
above exercise shall be taken up and completed as expeditiously as
possible, at any rate, within three months from the date of receipt of
a copy of this judgment. The demand for interest in Ext. P13 is also
quashed. So also the demand of interest by the petitioner for delay in
payment of retirement benefits, is also denied in view of the peculiar
circumstances of the case.
Sd/- S. Siri Jagan, Judge.
Tds/