Smt. Sasikala Devi P. vs The State Of Kerala

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8716 OF 2012

Smt. Sasikala Devi. P … Appellant

Versus

The State of Kerala & Anr. … Respondents

WITH CIVIL APPEAL NO.8717 OF 2012

JUDGMENT

Rajesh Bindal, J.

1. This order will dispose of two appeals bearing Civil

Appeal Nos. 8716 and 8717 of 2012.

2. The 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 Signature Not Verified

was reversed.

Digitally signed by Anita Malhotra Date: 2023.04.28 17:20:12 IST Reason: Page 1 of 8 Civil Appeal No.8716/2012

3. The facts are being noticed from Civil Appeal No.8716

of 2012, as common questions of law are involved.

4. The 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.

5. On 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 appointed 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,

Page 2 of 8 Civil Appeal No.8716/2012

the appellant was promoted as Assistant Grade-I. Her pay was

fixed on the promotional 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raised, the same was withdrawn.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 the 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 appellants as

they were to be given benefits, which were being given to other

employees on promotion. If not given to the appellants, it

would amount to discrimination.

6. On the other hand, learned counsel for the

respondents 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 namely Senior Grade Assistant. There is

Page 3 of 8 Civil Appeal No.8716/2012

no error in the order passed by the Division Bench of the High

Court.

7. Heard learned counsel for the parties and perused

the paper books.

8. Writ 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 University shall rank junior

most in the entry grade of the category concerned. Even an

example has also been given, namely, a Senior Grade Assistant

or Assistant Grade-I, if transferred shall be appointed as junior-

most Assistant Grade-II. The previous service is not to be

counted towards seniority. The only protection given is

regarding the pay drawn by such employee. Such higher pay

was to be treated as personal pay. The relevant Statute No.

Page 4 of 8 Civil Appeal No.8716/2012

14A of Chapter 4 of Kerala University First Statutes applicable

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 transfer from other Universities in the State subject to the following 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

Page 5 of 8 Civil Appeal No.8716/2012

drawing under his parent University is not a stage in the scale of pay of the post in this University service, it will be fixed at the next lower stage, the difference being treated as personal pay to be absorbed in future increases of pay.” (emphasis supplied)

9. The 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 raised regarding wrong fixation of pay of

the appellants. In the case in hand undisputed fact is that the

appellants had already got three 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

promoted 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 higher 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

Page 6 of 8 Civil Appeal No.8716/2012

for inter-university transfer was protected, though they were

placed at the bottom of the seniority at the entry level.

10. The argument raised by the learned counsel for the

appellants that there is no bar under Rule 28A of the Kerala

Service Rules, 1959 for grant of such benefit is merely to be

noticed and rejected as the entire scheme has to be read in

totality. Grant of promotional benefits to the category of

persons to which the appellants belong would 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 transferee University.

11. We do not find any error in the order passed by the

Division Bench of the High Court.

12. At 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 the aforesaid fact and keeping

Page 7 of 8 Civil Appeal No.8716/2012

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. However, their pension can be refixed considering the

emoluments to which the appellants were entitled at the time

of their retirement in accordance with the rules.

13. The Appeals are disposed of accordingly.

______________, J.

(Abhay S. Oka)

______________, J.

(Rajesh Bindal)

New Delhi April 28, 2023.

//vj-ss//

1 (2015) 4 SCC 334

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