K. Muthumani vs State Of Kerala And Ors

The petitioner retired from the service of the respondent University on 30.04.2005 while working as Section Officer (Higher Grade). By Ext.P1

proceedings dated 10.11.2004, her service as Lower Division Auditor in the office of the Assistant Examiner, Local Fund Audit, Calicut for the period

from 24.11.1977 to 18.02.1978 was counted as qualifying service for pension under the University.

It appears that long after the petitioner retired from service, based on observations of the Local Fund Audit Department, the petitioner's entitlement

to count the service between 24.11.1977 and 18.02.1978 came to be questioned and through Ext.P7 letter dated 13.07.2012 from the Registrar of the

second respondent University, the petitioner was informed the matter had been taken up with the Government along with a request to condone the

audit objection as a special case since the employee in question (the petitioner) had retired more than seven years ago. The Government through

Ext.P8 letter dated 07.11.2012 informed that given the orders of the Government in G.O.(P) No.2357/99/Fin dated 25.11.1999 “the provisional

service rendered by the employee cannot be reckoned as Qualifying Service for pension since it is not reckoned for incrementâ€. Based on this letter

dated 07.11.2012, the University issued Exts.P9 and Ext.P10 to the petitioner through which the benefits already sanctioned to the petitioner were

sought to be re-fixed by excluding the period of service from 24.11.1977 to 18.02.1978 from the qualifying service of the petitioner. On 15.01.2013,

Ext.P11 was issued re-quantifying the entitlement of the petitioner for pension and other pensionary benefits on account of the exclusion of the period

as above. This writ petition has been filed challenging Exts.P7, P8, P10, P11 and P12. Under an interim order of this Court, the recovery of excess

amounts paid and re-fixation as a consequence of Exts.P8, P9, P10 and P11 were kept in abeyance.

I have heard Sri. Brijesh Mohan, learned counsel appearing for the petitioner, Sri. S. Krishnamoorthy, the learned Standing counsel appearing for

the Cochin University of Science and Technology and Sri. Syamji Ram, the learned Government Pleader.

The learned counsel for the petitioner submits that the impugned proceedings are illegal and without jurisdiction for more than one reason. He would

submit that the counting of service between 24.11.1977 to 18.02.1978 was permissible in terms of decision No.2 (now deleted) under Rule 33 of Part I

KSR. He would also submit that the impugned proceedings are arbitrary for the reason that it had been issued more than seven years after the

retirement of the petitioner and in respect of a benefit that was granted in the year 2004. He would also submit that the proceedings are liable to be

quashed for the reason that they were issued in violation of the principles of natural justice. The learned counsel for the petitioner has also invited my

attention to Ext.P13 judgment of this Court, where a similar issue regarding re-fixation of retirement benefits based on an audit objection was

considered by this Court.

Per contra, the learned counsel for the University submits that the petitioner is not entitled to the benefit granted vide Ext.P1. He submits that the

illegality came to the notice of the University only following the audit objections of the Local Fund Audit Department and that though the University

had through Ext.P7 requested the Government to condone the audit objection as a special case, the Government had through Ext.P8 had rejected that

request for reasons already indicated above. He submits that the University was therefore forced to issued Exts.P9, P10, P11 and P12. The learned

Government Pleader appearing for the first respondent would submit that in the light of the provisions contained in G.O.(P)No.2357/99/Fin dated

25.11.1999, the sanction granted by the Vice-Chancellor to count the service between 24.11.1977 to 18.02.1978 in the case of the petitioner was

clearly without the sanction of law and that the audit objection raised by the local Audit Fund Department was therefore justified.

I have considered the rival contentions. This is a case where the period of service of the petitioner in the Local Fund Audit Department for the

period between 24.11.1977 and 18.02.1978 was counted as qualifying service for pension through Ext.P1 dated 10.11.2004. The petitioner retired from

service on 30.04.2005. It is not disputed before me that the pension and pensionary benefits of the petitioner were calculated by counting the aforesaid

period also together with the service in the University and the petitioner was drawing pension on that basis until Exts.P10 to P12 proceedings were

issued in 2012/2013. Moreover, all the proceedings issued by the University following Ext.P8 Government letter was issued without notice to the

petitioner and without considering her contentions.

In the overall facts and circumstances of the case, I think that the Government should have favourably considered Ext.P7 request of the University

and ought not to have issued Ext.P8 without considering the peculiar facts and circumstances of this case. The Government should have noticed the

fact that the petitioner had retired from service many years ago and also that the fact that the period of service that was sought to be counted was

less than 3 months. There has been considerable delay after the retirement of the petitioner in taking proceedings for re-fixation of pension and

pensionary benefits. Therefore, this Court would be justified in quashing the impugned orders as arbitrary and unsustainable on the ground of delay and

also on the ground that they were issued in violation of principles of natural justice. Ext.P8, P9, P10, P11 and P12 will stand quashed. It is ordered that

the petitioner will be entitled to pension and pensionary benefits counting service between 24.11.1977 to 18.02.1978 together with her service in the

second respondent University as qualifying service for pension. It is also directed that if any amount of pension or pensionary benefits (including any

amount on account of any revision) have been withheld on account of the controversy, such amounts shall be calculated and paid over to the petitioner

without any delay. Writ Petition is allowed in the manner indicated above.