ORDER
Vishwanatha Shetty, J.
1. The petitioner in this petition is the former Vice-Chancellor of Kannada University, Hampi at Vidyaranya in the State of Karnataka. In this petition, he has prayed for quashing of the order dated 12th November 1998, a copy of which has been produced as Annexure-0 according sanction for payment of pension and fixing his pension at Rs. 2,650/- p.m. with effect from 1st March 1998 on the basis that he retired in the grade of a Reader in the 1st respondent -University (hereinafter referred to as ‘the University’).
2. The facts in brief which may be relevant for disposal of this petition may be stated as hereunder:
The petitioner was appointed as a Lecturer in Kannada in the University on 21st July 1975. Subsequently, he was promoted as a Reader in the University with effect from 29th May 1981. When he was working as a Reader in the University, keeping in mind the academic achievements of the petitioner in the field of Kannada Folklore and Drama and several positions he occupied during his tenure as a Reader in the University, the Syndicate of the University by means of its Resolution dated 5th October 1991 in exercise of the power conferred on it under Sub-section (10) of Section 49 of the Karnataka State Universities Act, 1976 (hereinafter referred to as ‘the Act’) resolved to appoint the petitioner as a Visiting Professor of the University. Thereafter, pursuant to the said resolution an appointment order dated 10th October 1991, a copy of which has been produced as Annexure-A to this petition was issued to the petitioner. By means of Order dated 15th November 1991, a copy of which has been produced as Annexure-F, to this petition, the pay-scale of the petitioner was fixed at Rs. 5500/- with a special pay of Rs. 80/- in the scale of Rs. 4500-150-5700-200-7300. While the petitioner was so working as a Visiting Professor in the University, the petitioner was appointed as a Special Officer of a proposed Kannada University by the State Government by means of its order dated 16th October 1991, a copy of which has been produced as Annexure-D to this petition. Subsequently on formation of the Kannada University, the petitioner was appointed as a Vice-Chancellor of the Kannada University by means of Order dated 10th July 1995, a copy of which has been produced as Annexure-H to this petition and he continued in that office till 28th February 1998. The petitioner on his appointment as a Visiting Professor in the University he worked for a period of about ten days; and when the petitioner was working as a Special Officer and as a Vice-Chancellor of the Kannada University, his lien was continued in the University. The petitioner retired from the University on attaining the age of superannuation with effect from 31st January 1997. On his retirement, his pension was settled by means of Order-Annexure-O dated 12th November 1998, which is impugned in this petition.
4. Sri Krishna Dixit, learned Counsel appearing for the petitioner challenging the correctness of the Order-Annexure -O made two submissions. Firstly, he submitted that the claim of the petitioner for his retirement benefits was required to be fixed in the pay-scale of Professor as on the date of retirement of the petitioner from the University service on his attaining age of superannuation, he was holding the post of a Visiting Professor in the University. He submits that since admittedly the same has not been done, the Order-Annexure-O is liable to be quashing and a direction is required to be issued to the University to re-fix the pensionary benefits on the basis that the petitioner had retired from the service of the University as a Professor. Elaborating this submission, he pointed out that merely because the University in exercise of the power conferred on it under Sub-section (10) of Section 49 of the Act had appointed the petitioner as a Visiting Professor will not make any difference so long as on the date of his retirement from the University service, he was holding the post of a Visiting Professor in the University. It is his submission that it is only in exceptional cases in respect of persons who have achieved high academic distinctions and professional attainments, on the recommendation of the Vice-Chancellor of the University, such persons could be invited to occupy the post of a Visiting Professor in the University; and the same having been done in the case of the petitioner keeping in mind the high academic achievements of the petitioner which is set out by the Syndicate of the University in its resolution dated 5th October 1991, a copy of which has been produced as Annexure-B to this petition, it is not permissible for the University to deny the benefit of the pay-scale of the Professor while settling the retirement benefits of the petitioner. He also pointed out that in Order – Annexure – F dated 15th November 1991, the basic pay of the petitioner was fixed at Rs. 5,500/- with a special pay of Rs. 80/- with total emoluments of Rs. 5,580/- in the scale of Rs. 4500-150-5700-200-7300. It is his further submission that since unjustifiably the claim of the petitioner for settlement of retirement benefits in the pay-scale of a Professor has been denied ever since the date of retirement on 31st January 1997, the University must be directed to pay interest on the amount payable to the petitioner at 18 percent per annum. Secondly, Sri Dixit submitted that the deduction of a sum of Rs. 26,500/- out of the D.C.R.G. amount payable to the petitioner on the assumption that excess payments were made to the petitioner during the academic years 1985-86 to 1987-88 is totally illegal and unauthorised. It is his submission that since the same has been done without hearing the petitioner and without giving an opportunity to the petitioner, the same is liable to be declared as illegal on the ground that the same came to be made in disregard of the principles of natural justice. It is also his submission that as a matter of fact no excess payment was made to the petitioner during the periods referred to above.
5. However, Sri Ravi Malimath, learned Counsel appearing for the University supported the action of the University and pointed out that since the petitioner was appointed as a Visiting Professor in exercise of the power conferred on the University under Sub-section (10) of Section 49 of the Act, the petitioner is not entitled for the benefit of pay – scale of a Professor. According to him, the decision taken to settle the retirement benefits of the petitioner in the grade of a Reader was just and proper. He also submitted that since the appointment of the petitioner was only a contract appointment under Sub-section (10) of Section 49 of the Act, the petitioner is bound by the terms of the contract. In this connection, he referred to me the agreement dated 21st October 1991 entered into between the petitioner and the University. He further pointed out that since the petitioner has drawn excess money in excess of the amount payable to him during the years 1985-86 to 1987-88, the University was justified in deducting the said amount while settling his retirement benefits. Therefore, he submits that this is not a fit case where this Court should interfere in exercise of its power conferred on it under Articles 226 and 227 of the Constitution of India to nullify the Order – Annexure O and grant the relief sought for by the petitioner. With regard to the claim for payment of interest at 18 percent per annum on the amount payable to the petitioner, Sri Malimath pointed out that since the decision taken by the University cannot be stated to be unreasonable, or arbitrary and the same has been taken bona fide keeping in mind the interest of the University, the claim made by the petitioner for grant of interest should be denied to him. Sri Srinivasamurthy, learned Additional Government Advocate supported the submissions of Sri Ravi Malimath.
6. In the light of the rival contentions advanced by the learned Counsel appearing for the parties, the two questions that would emerge for my consideration in this petition are:
1. Whether the petitioner is entitled for settlement of his retirement benefits in the pay-scale of a Professor in the University?
(2) Whether the deduction of a sum of Rs. 26,500/- out of the D.C.R.G. amount payable to the petitioner was justified?
Regarding Question No. 1:
Sub-section (1) of Section 49 of the Act provides for constitution of a Board of Appointment for selecting persons for appointment of Professors, Librarian, Readers and Lecturers in the University. Subsection (2) of Section 49 of the Act provides for the procedure to be followed by the Board of Appointment of the University while selecting Teachers in the service of the University. However, Sub-section (10) of Section 49 of the Act provides that notwithstanding anything contained in Sub-sections (1) to (9) of Section 49, the Syndicate would be competent to invite, on the recommendation of the Vice-Chancellor a person of high academic distinction and professional attainments to accept the post of a Visiting Professor in the University on such terms and conditions as may be mutually agreed upon. It is useful to refer to the said Section which reads as hereunder:
“49(10) Notwithstanding anything contained in the preceding sub-sections the Syndicate shall be competent to invite, on the recommendation of the Vice-Chancellor, a person of high academic distinction and professional attainments to accept the post of visiting Professor in the University on such terms and conditions as may be mutually agreed upon.
Provided that there shall not be more than four such Visiting Professors in a University at any given time.”
As it can be seen from Sub-section (10) of Section 49, an exception is made to the generality of the provisions contained in Section 49 of the Act, wherein the University is required to follow the procedure prescribed while making the appointment of the Teachers in the University. Sub-section 7 of Section 2 of the Act provides that teachers includes Professors, Readers, Lecturers and other persons imparting instruction in any affiliated college. Subsection 8 of Section 2 of the Act defines the teachers of the University and states that teachers of the University means persons appointed for imparting instructions in the University or in any college maintained by the University. Therefore, even a Visiting Professor appointed by the University in exercise of the power conferred on it under Sub-section (10) of Section 49 of the Act will be a teacher of the University. The resolution dated 5th October 1991 passed by the University sets out in detail the high academic distinction and professional attainments of the petitioner in various fields. It is useful to refer to the relevant portion of the resolution of the Syndicate which reads as hereunder:
“The Syndicate examined the bio-data of Dr. Chandrashekar Kamber as suggested by the Government. Dr. Kambar has published 18 Kannada plays, 6 collection of Poems, 3 novels, 10 research books on Kannada Folklore and Drama, presented several research papers on Indian Folklore and theater in the University of Chicago American Oriental Centre, New York, International Theatre Institute, Berlin and Moscow and in many Indian Universities and institutions in addition to having worked for three years (1983-87) as Chairman, Karnataka Nataka Academy and Member of the same Academy from 1980 to-date, Vice-Chairman of National School of Drama Society, New Delhi, Member of Karnataka Janapada and Yakshagana Academy as well as Sahitya Academy, New Delhi. Besides, he has produced five Kannada feature films, 8 Kannada documentaries and composed music for six feature films, of which ‘Kadu Kudure’ and ‘Sangeetha’ won the National Awards and his Kannada plays have won several State and National awards. In the light of these facts about the professional and academic achievements of Dr. Kambar, the Syndicate was satisfied that Dr. Kambar was prominently qualified to occupy the Kailasam Chair created above for the studies of Kannada Theatre and Folklore. Therefore, the Syndicate in exercise of its powers vested under Sub-section 10 of Section 49 of Karnataka State Universities Act, 1976, resolved to promote Dr. Chandrashekar Kambar as Visiting Professor in Bangalore University and to invite him to occupy the Kailasam Chair with immediate effect and subject to the above terms and such other conditions as may be mutually agreed upon until further orders.”
It is also pointed out by the learned Counsel appearing for the petitioner that subsequent to the appointment of the petitioner as Visiting Professor of the University, he was also conferred with the ‘Padma Shri’. Therefore, there cannot be any doubt that the University keeping in mind the attainments of the petitioner in the field of his specialisation exercised its power under sub – section (10) of Section 49 of the Act and appointed him as a Visiting Professor. Thereafter, the petitioner worked in the University for ten days as a Visiting Professor before he was sent on deputation as a Special Officer to the proposed Kannada University, and was appointed as a Vice-Chancellor of Kannada University on 10th July 1995; and retained his lien in the University as a Visiting Professor. Now, the question is merely because the petitioner was appointed as a Visiting Professor of the University in exercise of its power under Sub-section (10) of Section 49 of the Act, can he be denied of the pay-scale of a Professor on the ground that his earlier appointment was in the grade of a Reader and he is not entitled to claim the pay -scale of a Professor as the provision contained in Sub-section (10) of Section 49 provides that the Visiting Professor so appointed is entitled for payment of pay-scale as mutually agreed upon? In my view, such a contention is not available to the University in the facts and circumstances of the case for two reasons. Firstly, the Order-Annexure-F dated 15th November 1991, shows that the basic pay of the petitioner was fixed at Rs. 5,500 /- with a special pay of Rs. 80/- in all amounting to Rs. 5,580/- in the scale of Rs. 4,500-150-5700-200-7,300. The appointment of the petitioner was as a Professor. No doubt, the nomenclature is as a Visiting Professor. However it is necessary to point out that but for the power conferred on the University under Sub-section (10) of Section 49 of the Act, the appointment of teachers which includes the post of Professor in the University has to be made only in strict compliance of the provisions contained in Sub-sections (1) to (9) of Section 49 of the Act. As noticed by me earlier, Sub-section (10 of Section 49 of the Act is in the nature of an exception made to the generality of the provisions contained in Sub-sections (1) to (9) of Section 49 which sets out the procedure for appointment of the teachers in the University. This power, to my mind appears, has been reserved to the University with a view to draw the best talent to improve the academic curriculum and quality of education in the University. The guidelines laid down under Sub-section (10) of Section 49 with regard to the status of a person who is to be invited to be appointed as a Visiting Professor and the power to fix his remuneration on mutual agreement clearly indicates that the position of the Visiting Professor cannot be below the status or the position of a Professor of the University, if it is not higher in status than that of a Professor in the University. When such a power was exercised by the University and the petitioner was appointed as a Visiting Professor of the University, in my view, it is not permissible for the University to deny the benefit of the pay-scale of the Professor to the petitioner. Therefore, I have no hesitation to come to the conclusion that the retirement benefit of the petitioner was required to be fixed in the pay-scale of a Professor of the University. Secondly, as it can be seen from the Order- Annexure-F the basic pay of the petitioner was fixed at Rs. 5,580/- in the scale of Rs. 4500-150-5700-200-7300 which is the pay-scale fixed to the Professor. Further, the clause four in the agreement dated 21st October 1991 entered into between the petitioner and the University in unequivocal terms states that the petitioner is entitled to the basic pay in the time-scale of Rs. 4500-150-5700-200-7300 and D.A. if any to be sanctioned by the University for the benefit of its employees. It is useful to refer to the said clause which reads as hereunder:
“4. The said Dr. Chandrashekar Kambar shall be entitled to pay in the time scale of Rs. 4500-7300 and to D.A. if any at the rates sanctioned by the University from time to time for the benefit of its employees, subject to the University Service Rules in this behalf, provided always that the annual increment or increments shall depend on the work of the previous year of the said Dr. Chandrashekar Kambar being found satisfactory of which the Vice-Chancellor shall be the sole judge.”
Therefore, the pay of the petitioner in the agreement relied upon by the counsel for the University was fixed in the pay-scale of Rs. 4500-150-5700-200-7300 with D.A. at the rates to be sanctioned by the University from time to time for the benefit of its employees. Further, from Annexure-F dated 15th November 1999, it is seen that fixation of the pay of the petitioner was also made on his appointment. There is also no scope for any dispute that the petitioner would be entitled for the increments in terms of the provisions of the Karnataka Civil Services (Pension) Rules. When this being the position, I am unable to understand as to how the University could fix the retirement benefit of the petitioner in the scale of the Reader which position he was holding before his appointment as a Visiting Professor in the University. In the light of what is stated above, I am of the view that the terms and conditions set out in the agreement entered into between the University and the petitioner is of no assistance to support the contention of Sri Ravi Malimath that the petitioner is not entitled for fixation of his retirement benefits in the pay-scale of the Professor of the University. The University is bound by the fixation of the pay-scale of the petitioner made in Order-Annexure-F and also the clause four of the agreement referred to above. On this ground also, I am of the view that the petitioner is entitled for settlement of his retirement benefits in the pay-scale of the Professor of the University. Therefore, the Order-Annexure-0 is liable to the quashed and a direction is required to be issued to the respondents to settle the retirement benefits payable to the petitioner in the pay-scale prescribed to the Professor of the University.
Regarding Question No. 2:
No doubt, it is the contention of the Counsel for the University that a sum of Rs. 26,500/- was deducted out of the D.C.R.G. amount payable to the petitioner as the petitioner was paid excess amount during the years 1985-86 to 1987-88 in addition to the amount to which he was entitled. However, it is not disputed by the counsel for the University that the said deduction was made without hearing the petitioner and giving an opportunity to the petitioner. Whether any excess payment was made to the petitioner in addition to the amount for which he was actually entitled during the period referred to above; and if so what exactly is the amount of excess payment made to the petitioner was required to be determined by the University after hearing the petitioner and giving an opportunity to him. The deduction of the amount in question, it cannot be disputed would result in civil consequences so far as the rights of the petitioner is concerned. Therefore, the principles of natural justice require that the petitioner should have been given an opportunity before proceeding to make such a deduction. Admittedly the same having not been done, the deduction of a sum of Rs. 26,500/- out of the D.C.R.G. payable to the petitioner is liable to be declared as illegal.
7. Now, the only question that remains to be considered is as to whether the petitioner is entitled for any interest in respect of the delayed settlement of his retirement benefits as stated above; and if so what should be the rate of interest? Since the petitioner was appointed as a Visiting Professor and his pay-scale was fixed in Order-Annexure-F in the grade of a Professor of the University, there was no scope and it was not permissible for the University to settle his retirement benefits in the grade of a Reader. Even the agreement referred to above also fixes his pay-scale in the grade of a Professor.
The action of the University in settling the retirement benefits of the petitioner in the pay-scale of a Reader was totally illegal and arbitrary. Therefore, the University should be held liable to pay interest to the petitioner for the delayed settlement of his retirement benefits; however, keeping in mind the interest rate fixed for delayed settlement of retirement benefits of Government Servants is only at 12 percent per annum, I am of the view it would be reasonable to award interest only at 12 percent per annum.
8. In the light of the discussion made above, I make the following order:
(i) Order - Annexure-0 dated 12th November 1998 is hereby quashed. (ii) The 1st respondent-University is directed to re-fix the retirement benefits of the petitioner in the time-scale of a Professor of the University and pay the same to the petitioner with interest at 12 per cent per annum from the due date in accordance with law and in the light of the observation made above. (iii) Till a decision is taken as directed above, it is needless to point out that the University is directed to pay the regular pension as determined in terms of the Order-Annexure -O dated 12th November 1998. (iv) The University is reserved liberty to take appropriate decision in respect of the excess payment made to the petitioner for the years 1985-86 to 1987-88 after giving an opportunity to the petitioner as stated above. (v) The 1st respondent is given six weeks time to comply with the direction given above from the date of receipt of a copy of this order. 9. In terms stated above, this petition is allowed and disposed of. Rule issued is made absolute. 10. Sri L.K. Srinivasa Murthy, learned Addl. Government Advocate is given four weeks time to file his memo of appearance.