Dr.K.S.Radhakrishnan vs State Of Kerala

Mohammed Nias C. P. , J.

The petitioner was in the service of the Department of Collegiate Education, Government of Kerala, from 1.6.1983 onwards. He was initially placed in the category of Lecturer (Senior Scale) and thereafter promoted as Lecturer (Sel. Grade) and was re-designated as Reader by order dated 29.10.2002. With effect from 10.12.2004, the petitioner was appointed as the Vice Chancellor of Sree Sankaracharya University of Sanskrit, Kalady, the term of which expired on 9.12.2008 and thereafter, the petitioner submitted his request for voluntary retirement vide communication dated 4.10.2007 before the second respondent. He had also expressed his willingness to retire from service with effect from 9.12.2008 from the University. However, the same was not allowed, and the petitioner approached this Court by filing WP(C)No.29764 of 2008, which was allowed, holding that the petitioner will be treated as voluntarily retired on 9.12.2008 by Ext.P1 judgment. The respondents were also directed to sanction the pension and other retirement benefits to the petitioner within two months thereafter. The petitioner submits that the same was not complied with.

Meanwhile, the petitioner was appointed as Chairman of the Public Service Commission with effect from 14.8.2011 by Ext.P2 order. The directions in Ext.P1 order were not complied with, which forced him to file a contempt of court case, pending which the Government passed Ext.P3 order sanctioning pension at the rate of Rs.29,920/- with effect from the date on which the petitioner demits the office of the Chairman of the PSC. The period from 10.12.2008, which is the period between the voluntary retirement as Vice Chancellor to 12.8.2011 (the date of appointment as Chairman of PSC), was regularised by condoning, and pension was calculated based on the salary as Chairman of the PSC. The petitioner submits that he has been receiving the pension at the rate mentioned therein. Later, on a complaint filed by one person by the name of P.A.Antony, Ext.P7 order was passed dated 3.10.2016 by which the pension fixed as per Ext.P3 was varied unilaterally. Ext.P7 was passed without hearing the petitioner, and the same was challenged by him by filing WP(C)No.6525/2022, which was disposed of as Ext.P8 judgment dated 2.8.2021 directing the respondents to hear the petitioner and pass orders, in accordance with law. The petitioner was also issued with Ext.P9 notice to which the petitioner has given Ext.P10 reply. The petitioner thereafter was served with Ext.P14 order, which did not reflect any of the contentions raised by him. The writ petition is filed challenging Ext.P14 order.

The government has filed a counter affidavit stating that the pension fixed as per Ext.P3 was wrong, and there was no power to condone the period between the date of voluntary retirement and the date of assumption of office as Chairman of PSC. It is also stated that the petitioner’s pension ought to have been reckoned based on the relevant Rules, namely Kerala Public Service Commission (Composition of Conditions of Service of Members and Staffs) Regulations, 1957, in particular, 4(2) thereof and not Rule 7 as contended by the petitioner. Learned Government Pleader also submits that Ext.P3 was passed contrary to the Rules, and therefore, the Government had the power to rectify the same which will not have the backing of Article 318 of the Constitution of India. It is also pointed out that the petitioner has also given an undertaking under the provisions of the KSR by which he was bound to return the amount illegally collected by him. Heard Sri.Anand, senior counsel instructed by Smt.Latha Anand and Sri. Ramanand learned Special Government Pleader.

Learned counsel for the petitioner submits that there was no reason at all to vary Ext.P3 order. None of the contentions raised by the petitioner was considered. He argues that the petitioner was entitled to the protection of Article 318 of the Constitution of India and that the Governor passed Ext.P3 order in the exercise of his power under the Rules. It is also submitted that fixation of pension by Ext.P3 suffers from no illegality for it to be verified years later that too on the complaint of a stranger.

After hearing the learned senior counsel for the petitioner and the learned Government Pleader. It is seen that none of the contentions raised by the writ petitioner has been referred to while passing the impugned order. The petitioner’s contention that Ext.P3 was fixed in terms of the relevant regulations, that at any rate, he has protection under Article 318 of the Constitution, that Ext.P3 order could not have been varied based on a complaint of a third party stranger, which was not served on him etc., none of these contentions are seen considered in the impugned order that varied Ext.P3 order and directed to recover the amount allegedly collected illegally by the petitioner. Though contentions are raised and the Government resists the claim of the petitioner, I am of the view that in the first instance, the above contentions will have to be considered by the Government. Accordingly, the impugned orders are quashed and there will be a direction to the Government to re-hear from the stage of Ext.P14. The petitioner will be given a month to give a detailed reply pointing out his defences to the attempt of the government to vary Ext.P3. The petitioner will be entitled to take up all contentions which are permissible under law to defend Ext.P3. The respondents shall pass an appropriate order dealing with the contentions raised by the petitioner and pass a speaking order within three months of the date of receipt of a copy of this judgment.

The writ petition is allowed as above.