IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1904 of 2008()
1. THE STATE OF KERALA, REPRESENTED BY THE
... Petitioner
Vs
1. SMT.SASIKALA DEVI.P.,
... Respondent
2. THE UNIVERSITY OF KERALA, REPRESENTED
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY.
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :23/06/2010
O R D E R
“CR”
C.N.RAMACHANDRAN NAIR
&
P.S.GOPINATHAN, JJ.
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Writ Appeal Nos.1904 & 1975 of 2008.
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Dated this the 23rd day of June, 2010.
COMMON JUDGMENT
Gopinathan, J.
Assailing a common judgment dated 20.2.2008 in
OP.No.38578/2002 and WP(C).No.15190/2006 these appeals
are preferred. Appellant is the first respondent State in
both writ petitions. The first respondent in
WA.No.1904/2008 is the petitioner in WP(C).No.15190/06.
Respondents 1 to 18 in the other appeal are the petitioners
in OP.No.38578/02. The second respondent, University of
Kerala, in WA.No.1904/08 is the second respondent in the
Original Petition. The 19th respondent, M.G. University, in
the other appeal is the 19th respondent in the Original
Petition. Some of the writ petitioners entered in the service
WA.Nos.1904 & 1975/08.
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of the Calicut University and others in Agriculture
University as Assistant Grade-II and they were got
promoted as Assistant Grade-I and then as Senior Grade
Assistants. While so, they sought for inter-University
transfer. As per the existing Statutes, they are entitled to
inter-University transfer on condition that they would be
reverted back to the entry cadre and on transfer, they
would take the rank below the junior-most Assistant Grade-
II in the transferred University. However, their pay would
be protected. Accordingly, on their applications for
transfer, all of them were reverted back as Assistant Grade-
II and transferred to the respective Universities. They took
their rank below the junior-most Assistant Grade-II with
protected salary. Later, in their turn, they were given
promotions as Assistant Grade-I, Senior Grade Assistant,
Selection Grade Assistant and Section Officers etc. The
University granted fixation of their salary under Rule 28A of
Part I KSR on every promotion. Appellant objected granting
fixation again on promotion as Assistant Grade-I and Senior
WA.Nos.1904 & 1975/08.
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Grade for the reason that they were already given two
fixations before transfer. Orders were issued, vide Exts.P2
and P3 for recovery of the excess salary drawn by them.
Assailing those orders, the writ petitions were preferred.
2. The appellant defended stating that since the writ
petitioners had already got two fixations on their promotion
as Assistant Grade-I and Senior Grade before their transfer,
they are not entitled to a further fixation on their promotion
in the transferred University as Assistant Grade-I and
Senior Grade. Though, the learned Single Judge found that
the writ petitioners had already enjoyed the benefit of
fixation under Rule 28A before their transfer and that a
further fixation is an anomaly in the matter in so far as the
writ petitioners are really getting an undeserving benefit,
stating that because of the statutory provisions that didn’t
prohibit granting of such benefits, the writ petitions were
allowed. Now these appeals.
3. We heard the learned Government Pleader and
the learned counsel appearing for the contesting
WA.Nos.1904 & 1975/08.
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respondents.
4. The fact that before the writ petitioners were
transferred, they got two promotions, namely, Assistant
Grade-I and Senior Grade and on such promotions they
were given fixation under Rule 28A and that the pay so
fixed and was drawing at the time of transfer was protected
when they were transferred is admitted. The reversion to
the entry cadre on inter-University transfer was really
intended for the transferees not making claim of seniority
against those who are already in the service of the
transferred University with settled seniority. Otherwise,
entry of the transferees with protected seniority to the
service of the transferred University would de-stabilize the
settled seniority of those already in the service of the
University. In the event, such transferred Assistants are
given promotion in the due course and at the time of
promotion if they are given fixation under Rule 28A, it
would tantamount to double fixation merely because of the
reason that they got an inter-University/departmental
WA.Nos.1904 & 1975/08.
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transfer. The result is that they would be entitled for undue
pecuniary advantage. No rule would contemplate such
double fixation. Granting double fixation is not the
intention of the authorities while the transferees are
reverted to the entry cadre at the time of inter-University
transfer. In the event, such fixation under Rule 28A is again
given to the Assistants who are transferred to the
University, they would be entitled to higher salary than
their seniors in the cadre only for the reason that they were
transferred from other University. The pleadings in both
petitions would show that the writ petitioners entered the
service of the transferee University in between 1988 and
1990. It appears that they were promoted within two years
not on counting particular length of service but, on applying
the principle of ratio promotion. In the transferred
University also they had obtained the benefit of such ratio
promotion. Ext.P12 produced in OP.No.38578/02 would
show that even after subsequent promotions to higher levels
such transferred officers were fixed with higher salary than
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their seniors and the seniors had rushed to this Court for
getting their salary fixed in par with juniors, though not at a
higher stage. We mentioned the same only to note that the
double entitlement under Rule 28A would cast the
exchequer a burden for the reason that this writ petitioners
were granted an inter-University/departmental transfer
without de-stabilizing the settled seniority of those who are
already employed in the transferred University.
5. The learned Single Judge had noted the anomaly
and also the fact that the writ petitioners had got
undeserving benefits. But, the writ petitions were allowed
for the reason that the statutory provision does not prohibit
granting such benefits. The learned Single Judge omitted to
note that there is no provision in the rule to grant two
fixation to any of the employees in the State/University
service on promotion to the very same cadre. In the above
circumstance, the power vested on this Court under Article
226 of the Constitution would not have been invoked, so as
to entitle the writ petitioners to get undue benefit for the
WA.Nos.1904 & 1975/08.
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reason that they were given inter-University/departmental
transfer to suit the convenience of the petitioners. The
discretionary power vested on the High Court is not to
protect or safeguard the undeserving benefits. It shall not
be exercised in favour of a person to retain an undeserving
benefit that he had got. Writ jurisdiction, though wide is
discretionary. It can be generally invoked when
fundamental rights are breached, abuse or misuse of
authority, malfeasance, misfeasance, violation of natural
justice etc. It shall not be invoked merely because, it is not
forbidden. Discretion is always vested with the Court to
interfere in appropriate cases. It shall be exercised with
circumspection. It shall not be exercised when it is
revealed that by such exercise an undeserving benefit
would be protected. We find that the petitioners are not
entitled to have two fixations on promotion to the same
cadre. The appellant was right in taking steps for recovery
of the undue benefit obtained to the writ petitioners. It is
not an illegal, arbitrary or excessive exercise of authority to
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be prohibited by exercising writ jurisdiction. The writ
petitions are devoid of any merit.
In the result, the writ appeals succeed. While
reversing the judgment under challenge, the writ petitions
would stand dismissed with costs which we fix at Re.1/-.
C.N.RAMACHANDRAN NAIR
(Judge)
P.S.GOPINATHAN
(Judge)
kvs/-