Smt. Sasikala Devi. P v. The State of Kerala and

SMT. SASIKALA DEVI. P v. THE STATE OF KERALA AND ANR. (Civil Appeal No. 8716 of 2012) APRIL 28, 2023 [ABHAY S. OKA AND RAJESH BINDAL, JJ.] Service Law: Pay fixation – Inter-University transf er – Fixation of pay of the employee on the promotional post in the transferee University – Entitlement to benefits of promotion – Employee appointed as Assistant Grade-II in the University of Calicut and promoted as Assistant Grade-I – Employee transferred to MG University and was promoted there – Thereafter, employ ee applied for inter-university transfer to Kerela University and was placed as the junior-most Assistant in the entry cadre of Assistant Grade -II, the post to which she was appointed in the University o f Calicut – Subsequently, the employee was promoted as Assistant Gra de-I and pay fixed on promotional post – However, on audit the same was withdrawn – Writ petition there against allowed by the Sing le Judge, however, set aside by the Division Bench – On appea l, held: Employee had already got three promotions before th ey got themselves transferred to Kerala University – Salary drawn by them of the higher post was protected – It was more than what was due to Assistant Grade-I, the post on which they were promoted even after being placed as Assistant Grade-II at the bottom of the seni ority – Grant of promotional benefits to the category of pers ons to which the employee belong would mean granting them double be nefit – Firstly, they already got in the University they were working when they were promoted as Assistant Grade-I and secondl y when they were promoted on the same post in transferee University – N o reason to interfere with order of the High Court – No recovery t o be made of any amount already paid to them – However, there can be re-fixation of pension as per the emoluments appellants were entitled to – Kerala Service Rules, 1959 – Kerala University First Statutes – Chapter 4, Statute No. 14A. State of Punjab and Others v. Rafiq Masih (White Washter) & Ors. (2015) 4 SCC 334 : ]2014] 13 SCR 1343 – relied on. Case Law Reference

(2015) 4 SCC 334 relied on Para 12 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8716 of 2012. From the Judgment and Order dated 23.06.2010 of the High Court of Kerala at Ernakulam in WA No. 1904 of 2008. With Civil Appeal No. 8717 of 2012. A. Raghunath, Venkita Subramoniam T. R., Likhi Chand Bonsle, Rahat Bansal, Harsh Anand, V. K. Sidharthan, Advs. for the Appellants. Nishe Rajen Shonker, Mrs. Anu K Joy, Abraham C. Mathew, Alim Anvar, G . Prakash, Mrs. Beena Prakash, Advs. for the Respondents. The Judgment of the Court was delivered by

RAJESH BINDAL, J.

¶1This order will dispose of two appeals bearing Civil Appeal Nos. 8716 and 8717 of 2012.

¶2The judgment of the Division Bench of the High Court of Kerala passed in W.A. Nos.1904 and 1975 of 2008 is under challenge before this Court. Vide aforesaid judgment, the Single Bench judgment of the High Court passed in O.P . No.38578/2002 and W.P .(C) No.15190/2006 dated 20.02.2008

¶3The facts are being noticed from Civil Appeal No.8716 of 2012, as common questions of law are involved.

¶4The learned counsel for the appellant submitted that the appellant was appointed as Assistant Grade-II in the University of Calicut on

04.05.1988. She was promoted as Assistant Grade-I on 21.12.1989. Thereafter, she was transferred to M.G. University on 04.02.1992 in terms of applicable guidelines for inter-university transfers. On

26.02.1993, she was promoted as Senior Grade Assistant and thereafter, on 03.03.1999 as Selection Grade Assistant.

¶5On 04.11.1999, the appellant applied for inter-university transfer to Kerala University. As per the policy for inter-university transfer, the appellant was placed as the junior-most Assistant in the entry cadre of Assistant Grade-II, which was the post on which she was appoint ed in the year 1988 in the University of Calicut. On 29.09.2001, her name was included in the list of eligible Assistant Grade-II who were entitled to be promoted as Assistant Grade-I. On 22.05.2002, the appel lant was promoted as Assistant Grade-I. Her pay was fixed on the promo tional post. However, on an audit objection raised, the same was withdrawn. A writ petition was filed which was allowed by the Single Bench. However, in appeal filed by the State, the order was reversed by t he Division Bench of the High Court, which is under challenge in the present appeal. In fact, there was no error in fixation of pay of the ap pellants as they were to be given benefits, which were being given to other emp loyees on promotion. If not given to the appellants, it wou ld amount to discrimination.

¶6On the other hand, learned counsel for the respondent s submitted that there was apparent error in fixation of pay of the appellants on the promotional post. Prior to their transfer in Kerala University, they had already got three promotions and their salary was fixed in terms of the applicable Rules. In inter-university transfer, they were placed at the bottom of the seniority list of Assistant Grade-II, however, their pay was protected. On promotion from Assistant Grade-II to Assistant Grade-I, they will not be entitled to upgradation of their salary for the reason that they were already getting salary of even a higher post nam ely Senior Grade Assistant. There is no error in the order passed by the Division Bench of the High Court.

¶7Heard learned counsel for the parties and perused the pape r books.

¶8Writ Petition came to be filed as audit objection was raised regarding wrong refixation of the pay of the appellants. The issue involved in the appeals is regarding fixation of pay of the appellants on the promotional post in the transferee University. There is no dispute on the facts that in terms of the policy provided for inter-university transfers on reciprocal basis, an employee transferred to another Universit y shall rank junior most in the entry grade of the category concerned. Even an example has also been given, namely, a Senior Grade As sistant or Assistant Grade-I, if transferred shall be appointed a s junior-most Assistant Grade-II. The previous service is not to be c ounted towards seniority. The only protection given is regarding the pay drawn by such employee. Such higher pay was to be treated as personal pa y. The relevant Statute No. 14A of Chapter 4 of Kerala University First Statutes ap plicable for inter-university transfer is extracted below: “14A. Posting of employees on transfer from other Universities: The Syndicate may, on request from the employees concerned, sanction, posting of employees on transfe r from other Universities in the State subject to the foll owing conditions: (1-2) x x x x x x x x x

(3) A person transferred from another University shall take his rank below the junior-most in the entry grade of the category concerned. (eg. A Senior Grade Assistant or Assistant Grade I if transferred shall be appointed as Junior most Assistant Grade II). (4-5) x x x x x x x x x

(6) The person transferred shall be entitled to protection from drop of emoluments . His pay on such appointment shall be fixed at the minimum of the scale of pay he was drawing in the parent University, is less than minimum . In case he was drawing under the parent University pay above the minimum and equal to a stage in the scale of pay of the post in this University service, his pay will be fixed at that stage and if the pay he was drawing under his paren t University is not a stage in the scale of pay of the p ost in this University service, it will be fixed at the ne xt lower stage, the difference being treated as personal pay to be absorbed in future increases of pay.” (emphasis supplied )

¶9The issue arose when the transferred employees were promoted in the transferee University. Their pay was fixed in terms of the normal rule granting higher pay on promotion. Audit objection was rai sed regarding wrong fixation of pay of the appellants. In the cas e in hand undisputed fact is that the appellants had already got thr ee promotions before they got themselves transferred to Kerala University. The salary drawn by them of the higher post was protected. It was more than what was due to Assistant Grade-I, the post on which they were promote d even after being placed as Assistant Grade-II at the bottom of the seniority. Any promotion of a transferred employee from Assistant Grade-II to Assistant Grade-I will not entitle her of any benefit of hi gher scale or even increment, which is applicable to the employees normally promoted for the reason that these special class of employees were already drawing salary of the higher post which in terms of the policy for inter-university transfer was protected, though they were placed at the botto m of the seniority at the entry level.

¶10The argument raised by the learned counsel for the appellants that there is no bar under Rule 28A of the Kerala Service Ru les, 1959 for grant of such benefit is merely to be noticed and rejec ted as the entire scheme has to be read in totality. Grant of promotional benefits to the category of persons to which the appellants belong woul d mean granting them double benefit. Firstly, they already got in the University they were working when they were promoted as Assistant Grade-I and secondly when they were promoted on the same post in transf eree University.

¶11We do not find any error in the order passed by the Division Bench of the High Court.

¶12At the time of the hearing, it was submitted that all the appellants who were given the benefits have retired from service and recoveries were sought to be made from them though they were not at fault in grant of those benefits at the time of promotion. Considering th e aforesaid fact and keeping in view the judgment of this Court in State of Punjab and Others v. Rafiq Masih (White Washter) & Ors. 1, we direct that no recovery of the amount already paid to them be effected. How ever, their pension can be refixed considering the emoluments to w hich the appellants were entitled at the time of their retireme nt in accordance with the rules.

¶13The Appeals are disposed of accordingly. Nidhi Jain Appeals disposed of. (Assisted by : Shraddha Singh, LCRA) 1 (2015) 4 SCC 334