Full Judgment Text
Civil Appeal No.8716/2012
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
J U D G M E N T
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:
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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,
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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raised, the same was withdrawn.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
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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.
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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
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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
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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
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Civil Appeal No.8716/2012
in view the judgment of this Court in State of Punjab and
1
Others v. Rafiq Masih (White Washter) & Ors. , 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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