IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37478 of 2008(J)
1. K.O.JOHN STEPHEN, AGED 56 YEARS,
... Petitioner
Vs
1. THE KERALA AGRICULTURAL UNIVERSITY
... Respondent
2. THE DEPUTY DIRECTOR, OFFICE OF THE
3. THE ASSISTANT COMPTROLLER (P&L)
4. STATE OF KERALA, REPRESENTED BY ITS
For Petitioner :SRI.BABU KARUKAPADATH
For Respondent :SRI.RENJITH THAMPAN,SC,KERALA AGRL.UTY
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :25/06/2009
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C) No.37478 OF 2008
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Dated this the 25th day of June, 2009.
J U D G M E N T
The petitioner herein is aggrieved by the re-fixation of
pensionary benefits based on the audit objection raised by the
2nd respondent that too after the retirement of the petitioner.
2. The petitioner retired from service on 31.01.2008. The
service particulars of the petitioner show that he entered service
as Class IV employee on 07.10.1973 and was promoted as Driver
(LDV) with effect from 01.01.1979. Later, he was granted
1st Time Bound Higher Grade and redesignated as LDV Driver
(HG) with effect from 01.02.1989 as per the order passed by the
University dated 23.02.1989. The said order has been produced
as Exhibit P1.
3. The petitioner was given 2nd and 3rd Time Bound Higher
Grade with effect from 01.04.1998 and 01.02.1999 respectively
and was given common ratio promotion with effect from
W.P.(C) No.37478/2008 2
01.07.2000 by the first respondent. The same is produced as
Exhibit P2, and Exhibit P3 is the order of the University based on
which Exhibit P2 order was passed. Later the petitioner was
promoted as Vehicle Supervisor with effect from 01.06.2004 and
continued as such till retirement.
4. When the proposal was submitted to the University for
sanction of pension and other retirement benefits, objection was
taken by the Local Fund Audit pointing out that the 1st Time
Bound Higher Grade sanctioned with effect from 01.02.1989 is
irregular. Accordingly, recommendation was given to recover the
excess pay and allowances drawn by the petitioner from his
pensionary benefits.
5. Exhibit P4 is a letter dated 03.06.2008 addressed to the
Comptroller, Kerala Agricultural University by the Deputy Director
of Local Fund Audit and Exhibit P5 is the order sanctioning
pension at a reduced rate. Exhibit P6 will show that the pension
commutation has also been sanctioned at a reduced rate. These
have been prepared without considering the common ratio
promotion. Exhibit P7 is the order by which the 2nd and 3rd higher
W.P.(C) No.37478/2008 3
grades sanctioned were cancelled and Exhibit P8 is the order
dated 27.11.1997, relied upon in Exhibits P4 and P7.
6. The petitioner is relying upon Exhibit P10 judgment of
this Court in O.P.No.19/1999, which is a similar case wherein this
Court has overruled similar objections raised by the audit. By
Exhibit P11, the first respondent has regulated the pay of the
petitioner based on Exhibit P7. These are under challenge in this
writ petition.
7. The first respondent has filed a counter affidavit wherein
the basic details regarding sanction of grant of higher grade etc.
are admitted. In paragraph 6 it is stated that the 10 year grade
promotion granted with effect from 01.02.1989 was cancelled as
the petitioner had got regular promotion as LDV Driver Gr.II with
effect from 01.04.1988 and his pay was revised by the University
order dated 27.11.1997. But, in paragraph 7 it is admitted that
10 year grade promotion which was cancelled was restored on
the strength of University order No.BG/A2/44036/93 dated
07.01.1999. Accordingly, his pay was refixed by the University
on 06.02.1999. It is averred in the counter affidavit that the
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Deputy Director of Local Fund Audit objected to the grant of Time
Bound Higher Grade to the petitioner with effect from 01.02.1989
and also the common ratio promotion granted with effect from
01.07.2000, and recommended to recover the excess pay and
allowances drawn from 01.02.1989 onwards. It is further
averred that, the University itself has not regulated the pay of
the petitioner, but has only acted according to the
recommendation of the Local Fund Audit.
8. A reading of Exhibit P10 judgment shows that similar
issues were considered by this Court therein. In paragraph 3 of
the said judgment this Court held that University itself had
decided to regularize the promotions by giving fitment benefit to
all categories of staff and once the University, which is an
autonomous body, takes a final decision to regularize the
irregular grade promotions, thereafter, the Government Auditor
cannot again rake up the irregularity to direct revision of pension
cancelling the irregular grade promotions. It was observed in the
same paragraph thus:
W.P.(C) No.37478/2008 5
“………May be the Government can take action
against the University for having deviated from the
Government norms. But that cannot affect the rights
of the employees. Grade promotions were granted
as early as on 25.10.1983 and 7.10.1989. The
petitioner retired on 28.2.1994. Ext.P2 is issued
more than three years after the retirement of the
petitioner…..”.
After holding so, the proceedings were quashed. Herein, the 1st
Time Bound Higher Grade was granted as per Exhibit P1 with
effect from 01.02.1989. It is admitted in paragraph 7 of the
counter affidavit that even though the 1st Time Bound Higher
Grade granted was cancelled, as per the University order dated
27.11.1997 the same was restored on the strength of the
University order dated 07.01.1999. In Exhibit P9, the Pay
Revision order of the University Employees also, it is made clear
in paragraph 6(v) that the scales of pay assigned for grade
promotions and fixation of pay deviating from Government norms
prior to 01.03.1992 will not be reopened. Therefore, the
reasoning adopted by this Court in Exhibit P10 judgment squarely
applies here also.
W.P.(C) No.37478/2008 6
9. Exhibit P2 shows that the University as early as on
03.03.2001 has granted common ratio promotion. It is only after
the retirement of the petitioner that objections have been raised
by the audit. When benefits have been granted as per competent
orders like the one herein, the same cannot be withdrawn merely
on the basis of the objections of the audit raised after the
retirement of the said employee. The petitioner had enjoyed the
benefit during the time when he was in service. At that point of
time, there was no case that there is any irregularity in the
proceedings and he was not given any opportunity to object to
the withdrawal of the benefits also.
In that view of the matter, the action taken by the
University now merely based on the objections raised by the
audit cannot be sustained. Therefore, this writ petition is
allowed. The petitioner is entitled for all the monetary benefits
flowing from Exhibits P1 and P2. The orders that are passed
against him namely, Exhibits P5, P6, P7 and P11 are quashed.
Revised proceedings will be passed in accordance with the
findings rendered above after restoring the benefits within a
W.P.(C) No.37478/2008 7
period of three months from the date of receipt of a copy of this
judgment. It is submitted by the learned counsel for the
petitioner that even now benefits have not been drawn by the
petitioner at the reduced rate also. Therefore, the monetary
benefits will also be disbursed within the above period of three
months.
T.R. RAMACHANDRAN NAIR
JUDGE
smp