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2010 DIGILAW 48 (KER)

Israel S v. Director Kerala Bhasha Institute

2010-01-15

K.SURENDRA MOHAN

body2010
JUDGMENT K. Surendra Mohan, J. 1. The petitioner retired from the service of the Kerala Bhasha Institute on 30/04/2004 as a Publication Assistant. His complaint is that his Death Cum Retirement Gratuity (DCRG) has not been paid so far. According to him no disciplinary proceedings are pending against him. Therefore, he is entitled to disbursement of the amount of DCRG with interest thereon at the rate of 12% per annum. 2. The petitioner was initially appointed as a Lower Division Compositor under the Kerala Bhasha Institute. The Kerala Bhasha Institute is a Society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Act, 1955. It is an autonomous body subject to the administrative power and supervision of the State Government. The governing body consists of the Chief Minister as its Chairman and Directors appointed and members nominated by the State Government. The Minister for Cultural Department is the Vice President of the Governing Body. The day-to-day administration of the institute is attended to by the Director under the control of the Governing Body. 3. The initial appointment of the petitioner was as an L.D. Compositor. Thereafter, he was appointed as a U.D. Copy Holder, after successive promotions. While so, there was a decision to reduce the strength of Copy Holders in the Press and to create three fresh posts of U.D. Copy Holders in the Kerala Bhasha Institute and to appoint three senior copy holders to the said posts. Subsequently, the post of U.D.Copy holder was redesignated as Publication Assistant as per Ext. P2 order of the first respondent. As per Ext. P3 proceedings of the governing body the decision of the first respondent was ratified. However, the decision to re-designate the post of the petitioner as Publication Assistant was subject to approval by the Government. Though approval is stated to have been sought, approval was not obtained. The petitioner's Death Cum Retirement Gratuity (DCRG) has not been disbursed to him for the reason that the post from which he had retired could not obtain approval of the Government. Proceedings have also been issued for recovery of the excess amount alleged to have been paid to him as salary, which is Ext. P9. The petitioner challenges the action of the respondents in this writ petition. 4. The counsel for the first respondent as well as the Government Pleader have filed separate counter-affidavits. Proceedings have also been issued for recovery of the excess amount alleged to have been paid to him as salary, which is Ext. P9. The petitioner challenges the action of the respondents in this writ petition. 4. The counsel for the first respondent as well as the Government Pleader have filed separate counter-affidavits. The common case put forward by the respondents is that the governing body of the Kerala Bhasha Institute could not have the authority by itself to create new posts. It is an admitted case that creation of the post of Publication Assistant by Ext. P3 was subject to approval by the Government. Since approval was not granted by the Government, it is pointed out that petitioner has no right to claim DCRG as a retired Publication Assistant. However, he would be able to claim his DCRG as a U.D. Copy Holder. The first respondent has also produced Ext. R1(a) proceedings of the Government dated 30th April, 2007 by which approval for the post has been declined. On the above grounds, the counsel for the respondents pray for dismissal of the writ petition. 5. I have heard Mr. Lai George, counsel for the petitioner, Mr. Vijaya Mohan, counsel for the first respondent and the learned Government Pleader who appears for the other respondents. I have also given anxious consideration of the contentions raised. 6. It is an admitted fact that the post occupied by the petitioner was re-designated as Publication Assistant by Ext. P3 proceedings of the Governing Body, Ext. P3 shows that the meeting was presided over by the Chief Minister, the Ministerfor Cultural Affairs, the Vice Chancellor of the Mahatma Gandhi University. Additional Secretary to the Department of Cultural Affairs and other authorities. It is certainly true that creation of the post as per Ext. P3 was subject to approval by the Government. However, the Government approval for the post that was created was not given and, therefore, the petitioner retired from the said post on 30th April, 2004. Subsequently, it is pointed out that approval has been declined by the proceedings of the Government evidenced by Ext. R1 (a). However, it has been specifically directed in Ext. R1 (a) that sanction has been accorded for continuing the posts occupied by the persons who had retired from service as supernumerary posts for the limited purpose of disbursing to them their pensionary benefits. R1 (a). However, it has been specifically directed in Ext. R1 (a) that sanction has been accorded for continuing the posts occupied by the persons who had retired from service as supernumerary posts for the limited purpose of disbursing to them their pensionary benefits. It is also made clear that said provision is being made on humanitarian considerations. In view of the above clear direction contained in Ext. R1(a) it cannot be said that there is no sanction for disbursing to the petitioner the amount of DCRG that is due to him as a retired Publication Assistant. The stand taken by the respondents that he could be paid only the DCRG that is due to him by virtue of his designation as a U. D. Copy Holder is therefore, unsustainable. 7. Counsel for the petitioner has placed reliance on a judgment dated 3th March, 1987 of this Court in Original Petition No. 1218 of 1986 wherein it has been held that the stipulation that Government approval was necessary for a post created by the governing body of an institution wherein the Chief Minister, the Government Secretary and others who are members was an unnecessary formality. The decision has also gone on to hold that even in the absence of a formal approval being obtained from the Government the decision of the governing body was perfectly legal and valid. This Court has in paragraph 9 of the said judgment summed up the position as follows: "To me, it appears, that the Governing body of the Institute is so constituted that the Executive Government is adequately represented in it. The Chairman of the Governing Body is the Chief Minister. The Director, in whom some of the Executive functions vest, is an appointee of the Government. Secretaries to the Government of the concerned Departments are members of that body. Every other member is a nominee of the Government. I cannot visualise that a reservation of the power in the Government to disapprove the decisions of the Governing Body was consciously made. It is impossible to visualise the situation where the decision of a committee chaired by the Chief Minister shall be subject to approval by subordinate bureaucrats. Every other member is a nominee of the Government. I cannot visualise that a reservation of the power in the Government to disapprove the decisions of the Governing Body was consciously made. It is impossible to visualise the situation where the decision of a committee chaired by the Chief Minister shall be subject to approval by subordinate bureaucrats. It is more difficult to conceive that the Government, in constituting an autonomous body, so devised its constitution as to enable the Chief Minister, as Chairman of the Governing Body of the institute to blow hot, and as Head of the Executive Government to blow cold. I am of the opinion that Ext. P2 decision of the Governing Body had become final and its incorporation into the Special Rules was only an executive ministerial function to be discharged by the Government. I should necessarily hold, to avoid an obvious anomally, as also an apparent absurdity, that there was no power in the Government to approve or disapprove the decisions of the Governing Body." On the above reasoning the Court has allowed the said original petition. The above view of this Court is also an additional reason to allow the claim of the petitioner. 8. The counsel for the petitioner has also relied on the decision of this Court dated 05/ 08/2009 in WP (C) 6108/2008 wherein a retired employee has been held entitled to recover the amount of DCRG with interest thereon at the rate of 7.5% per annum. I do not find any reason to take a different view in the present case. 9. In view of the above this writ petition is allowed. There will be a direction to the respondents to disburse the amount of DCRG due to the petitioner as a retired PublicationAssistant with interest thereon at the rate of 7.596 per annum from 01/07/2004. The amount shall be disbursed as expeditiously as possible, at any rate within a period of four months from today.