K SAMBASIVAN Vs. COCHIN UNIVERSITY OF SCIENCE

JUDGEMENT

(1.) PETITIONER who was working as Assistant Librarian, Selection Grade of the first respondent University retired from the service on superannuation on 30.09.2004. He challenges Ext. P6 and P7. Ext. P6 is an Order passed by the University based on the resolution of the syndicate confirming the decision dated 25.06.2009 of the Local Fund Audit stating that the petitioner had completed 5 years service in the Selection Grade only on 01.07.2000 and not in 1997. It is the case of the petitioner that the first respondent University had fixed the petitioner's pay while he was the Assistant Librarian on the basis of the formula for pay fixation of the University teachers and his pay was re-fixed as Rs. 14,940/- as on 01.07.1997 in the new scale of Rs. 12000-420- 18300 on the basis of Ext. P2. It is the contention of the Audit Department that the petitioner is entitled for revision of pay fixation only from 01.07.2000. It is on the basis of Ext. P6 issued by the 3rd respondent the 1st respondent informed the petitioner as per letter dated 25.06.2009 that the petitioner's pension could be fixed only on the basis of the revised pay fixation at Rs. 14,940/- from 01.07.2000. This communication is Ext. P7. In Ext. P7, University also informed the petitioner about a direction to recover from the petitioner, the excess pay drawn from 01.07.1997 to 30.09.2004 amounting to Rs. 2,15,552/-.

(2.) ACCORDING to the petitioner, the pay fixation has been done by the 1st respondent on the basis of Ext. P1 by which persons who were drawing a basic pay Rs. 4,325/- and having 5 years service in the Selection Grade were granted the enhanced pay scale and their basic pay was fixed at Rs. 14,940/-and therefore based on Ext. P1 that the petitioner's pay was re-fixed at Rs. 14,940/- with effect from 01.07.1997. It is at the time of retirement when his pensionary benefits were being prepared that the Government Auditor of Local Fund Audit raised an objection stating that the re-fixation of the petitioner's pay was wrong and that the petitioner's pay should be revised at Rs. 14,940/- only from 01.07.2000 i.e., on completion of 5 years in the selection grade, which event happened only on 01.07.2000. Petitioner raises his claim on the basis of judgment of this Court in W.P.(C) 10892/2004 as Ext. P5. Hence, in addition to seeking to quash Ext. P6 and Ext. P7, petitioner seeks for a direction to the first respondent to fix the retirement benefits of the petitioner based on the salary that he was drawing from 01.07.1997 onwards. Respondents 1 and 2 has filed a common counter inter alia stating that the petitioner's pay on 01.01.1996 was Rs. 4,075/-. From the pre-revised scale of pay of Rs. 3700-125- 4950-150-5700 he had opted to come over to revised scale with effect from 01.01.1996 and his pay was fixed at Rs. 12,000/- with effect from 01.01.1996. The petitioner thereafter submitted a request for re-option with effect from 01.07.1997 and accordingly his revised basic pay was fixed at Rs. 14,940/- with effect from 01.07.1997 based on Government Order dated 04.07.2000 which is produced as R1(a). According to the University there was a confusion as to how the pay of a Teacher or Assistant Librarian with less that 5 years service as on 01.01.1996 having a basic pay of Rs. 4,325/- should be fixed. According to the University, there was a doubt as to how for a teacher with less than 5 years as on 01.01.1996 the pre-revised basic pay of Rs. 4,325/- should be revised as the Government Order does not specifically address the question. It is also stated that the petitioner did not have 5 years service as Assistant Librarian (Selection Grade) as on 01.01.1996 and also 01.07.1997. But still his pay was fixed at Rs. 14,940/- as on 01.07.1997 which is evident from Ext. P2. According to the University this matter was communicated by Ext. R1(b) in which it is clearly indicated that the above pay fixation is subject to final approval by the Deputy Director, Local Fund Audit and any excess drawn consequent to final approval by the Deputy Director of Local Fund is liable to be refunded. It is further stated that the audit objection was raised by Local Fund Audit Office much earlier to petitioner's retirement when the pay fixation proposal under 1996 UGC pay revision scheme had been forwarded. So, according to the University, petitioner was wrongly given the said pay scale. Clause 1(vi) of Ext.P3 reads as follows:-

(3.) FROM the factual situation that has arisen in the above matter of fixation of pay scale of the petitioner it could be seen that, it is not a disputed fact that the petitioner is placed in the post of Asst. Librarian, Selection Grade only from 01.07.1995 as such only when he attains 5 years in the Selection Grade he is entitled for re-fixation of pay, that is with effect from 01.07.2000. Even going by Ext R1(b) dated 02.02.2001 which is the order of the Finance Officer of 1st respondent revising petitioner's pay scale and fixing the pay at Rs. 14,940/-, in the remarks column it is clearly indicated that the pay fixation is subject to the final approval of the Deputy Director, Local Fund Audit. Thereafter, it could be seen that the Local Fund Audit Department objected to the petitioners pay scale being fixed at a higher rate from 01.01.1997 even before his retirement. Under these circumstances, when the pension documents had been prepared, the matter had been objected by the Local Fund Department and it is relevant to note in Ext. R3(j) dated 10.03.2003 the Finance Officer informed the Deputy Director of Local Fund Audit that there was a wrong fixation of pay scale of the petitioner. Under these circumstances, Ext. P6 and Ext. P7 is only a consequential order. Petitioner was fully aware of the fact that his pay scale was fixed at Rs. 14,940/- subject to audit objection. That being the situation I do not think that the petitioner is entitled to challenge Ext. P6 and Ext. P7.