Supreme Court of India
SMT. SASIKALA DEVI. P versus THE STATE OF KERALA AND ANR. on 28 April 2023
[2023] 3 S.C.R. 857
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 transfer –Fixation of pay of the employee on the promotional post in thetransferee University – Entitlement to benefits of promotion –Employee appointed as Assistant Grade-II in the University of Calicutand promoted as Assistant Grade-I – Employee transferred to MGUniversity and was promoted there – Thereafter, employee appliedfor inter-university transfer to Kerela University and was placed asthe junior-most Assistant in the entry cadre of Assistant Grade -II,the post to which she was appointed in the University of Calicut –Subsequently, the employee was promoted as Assistant Grade-I andpay fixed on promotional post – However, on audit the same waswithdrawn – Writ petition there against allowed by the Single Judge,however, set aside by the Division Bench – On appeal, held:Employee had already got three promotions before they gotthemselves transferred to Kerala University – Salary drawn by themof the higher post was protected – It was more than what was due toAssistant Grade-I, the post on which they were promoted even afterbeing placed as Assistant Grade-II at the bottom of the seniority –Grant of promotional benefits to the category of persons to whichthe employee belong would mean granting them double benefit –Firstly, they already got in the University they were working whenthey were promoted as Assistant Grade-I and secondly when theywere promoted on the same post in transferee University – No reasonto interfere with order of the High Court – No recovery to be madeof any amount already paid to them – However, there can be re-fixation of pension as per the emoluments appellants were entitledto – Kerala Service Rules, 1959 – Kerala University First Statutes –Chapter 4, Statute No. 14A.
State of Punjab and Others v. Rafiq Masih (WhiteWashter) & Ors. (2015) 4 SCC 334 : ]2014] 13 SCR1343 – relied on.
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ACase Law Reference
(2015) 4 SCC 334relied on
Para 12
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8716of 2012.
BFrom the Judgment and Order dated 23.06.2010 of the High Courtof 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,CRahat 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 byDRAJESH BINDAL, J.
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1. This order will dispose of two appeals bearing Civil AppealNos. 8716 and 8717 of 2012.
2. The judgment of the Division Bench of the High Court of KeralaEpassed in W.A. Nos.1904 and 1975 of 2008 is under challenge beforethis Court. Vide aforesaid judgment, the Single Bench judgment of theHigh Court passed in O.P. No.38578/2002 and W.P.(C) No.15190/2006dated 20.02.2008
3. The facts are being noticed from Civil Appeal No.8716 of 2012,Fas common questions of law are involved.
4. The learned counsel for the appellant submitted that the appellantwas appointed as Assistant Grade-II in the University of Calicut on04.05.1988. She was promoted as Assistant Grade-I on 21.12.1989.Thereafter, she was transferred to M.G. University on 04.02.1992 interms of applicable guidelines for inter-university transfers. OnG26.02.1993, she was promoted as Senior Grade Assistant and thereafter,on 03.03.1999 as Selection Grade Assistant.
5. On 04.11.1999, the appellant applied for inter- university transferto Kerala University. As per the policy for inter-university transfer, theappellant was placed as the junior- most Assistant in the entry cadre ofH
Assistant Grade-II, which was the post on which she was appointed inthe year 1988 in the University of Calicut. On 29.09.2001, her name wasincluded in the list of eligible Assistant Grade-II who were entitled to bepromoted as Assistant Grade-I. On 22.05.2002, the appellant waspromoted as Assistant Grade-I. Her pay was fixed on the promotionalpost. However, on an audit objection raised, the same was withdrawn. Awrit petition was filed which was allowed by the Single Bench. However,in appeal filed by the State, the order was reversed by the DivisionBench of the High Court, which is under challenge in the present appeal.In fact, there was no error in fixation of pay of the appellants as theywere to be given benefits, which were being given to other employeeson promotion. If not given to the appellants, it would amount todiscrimination.
6. On the other hand, learned counsel for the respondentssubmitted that there was apparent error in fixation of pay of the appellantson the promotional post. Prior to their transfer in Kerala University, theyhad already got three promotions and their salary was fixed in terms ofthe applicable Rules. In inter-university transfer, they were placed at thebottom of the seniority list of Assistant Grade-II, however, their pay wasprotected. On promotion from Assistant Grade-II to Assistant Grade-I,they will not be entitled to upgradation of their salary for the reason thatthey were already getting salary of even a higher post namely SeniorGrade Assistant. There is no error in the order passed by the DivisionBench of the High Court.
7. Heard learned counsel for the parties and perused the paperbooks.
8. Writ Petition came to be filed as audit objection was raisedregarding wrong refixation of the pay of the appellants. The issue involvedin the appeals is regarding fixation of pay of the appellants on thepromotional post in the transferee University. There is no dispute on thefacts that in terms of the policy provided for inter-university transfers onreciprocal basis, an employee transferred to another University shallrank junior most in the entry grade of the category concerned. Even anexample has also been given, namely, a Senior Grade Assistant orAssistant Grade-I, if transferred shall be appointed as junior- mostAssistant Grade-II. The previous service is not to be counted towardsseniority. The only protection given is regarding the pay drawn by such AB
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Aemployee. Such higher pay was to be treated as personal pay. Therelevant Statute No.
14A of Chapter 4 of Kerala University First Statutes applicablefor inter-university transfer is extracted below:
“14A. Posting of employees on transfer from otherBUniversities: The Syndicate may, on request from the employeesconcerned, sanction, posting of employees on transfer fromother Universities in the State subject to the followingconditions:
(1-2) x x x x x x x x xC
(3) Apersontransferred fromanother University shall takehis rank below the junior-most in the entry grade of thecategory concerned.(eg. A Senior GradeAssistant orAssistant Grade I if transferred shall be appointed as Juniormost AssistantGradeII).
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(4-5) x x x x x x x x x
(6) Thepersontransferredshallbe entitledtoprotectionfromdropofemoluments. His pay on such appointmentshall be fixed at the minimum of the scale of pay he wasdrawing in the parent University, is less than minimum. InEcase he was drawing under the parent University pay abovethe minimum and equal to a stage in the scale of pay of thepost in this University service, his pay will be fixed at thatstage and if the pay he was drawing under his parentUniversity is not a stage in the scale of pay of the post inFthis University service, it will be fixed at the next lowerstage, the difference being treated as personal pay to beabsorbed in future increases of pay.”
(emphasis supplied)
9. The issue arose when the transferred employees were promotedGin the transferee University. Their pay was fixed in terms of the normalrule granting higher pay on promotion. Audit objection was raisedregarding wrong fixation of pay of the appellants. In the case in handundisputed fact is that the appellants had already got three promotionsbefore they got themselves transferred to Kerala University. The salaryHdrawn 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 promotedeven after being placed as Assistant Grade-II at the bottom of the seniority.Any promotion of a transferred employee from Assistant Grade-II toAssistant Grade-I will not entitle her of any benefit of higher scale oreven increment, which is applicable to the employees normally promotedfor the reason that these special class of employees were already drawingsalary of the higher post which in terms of the policy for inter-universitytransfer was protected, though they were placed at the bottom of theseniority at the entry level.
10. The argument raised by the learned counsel for the appellantsthat there is no bar under Rule 28A of the Kerala Service Rules, 1959for grant of such benefit is merely to be noticed and rejected as theentire scheme has to be read in totality. Grant of promotional benefits tothe category of persons to which the appellants belong would meangranting them double benefit. Firstly, they already got in the Universitythey were working when they were promoted as Assistant Grade-I andsecondly when they were promoted on the same post in transfereeUniversity.
11. We do not find any error in the order passed by the DivisionBench of the High Court.
12. At the time of the hearing, it was submitted that all the appellantswho were given the benefits have retired from service and recoverieswere sought to be made from them though they were not at fault in grantof those benefits at the time of promotion. Considering the aforesaidfact and keeping in view the judgment of this Court in State of Punjaband Others v. Rafiq Masih (White Washter) & Ors.[1], we direct thatno recovery of the amount already paid to them be effected. However,their pension can be refixed considering the emoluments to which theappellants were entitled at the time of their retirement in accordancewith the rules.
13. The Appeals are disposed of accordingly.
Nidhi Jain(Assisted by : Shraddha Singh, LCRA)
Appeals disposed of.
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