Dismissed

Prof. V.M. Aniyan v. the University of Calicut, Represented by the Registrar

Kerala HC4 Apr 2017WP(C)/3135/2012

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging the calculation of retirement benefits. The petitioner, though granted interim relief to serve until age 60, was ultimately classified as non-teaching staff with a superannuation age of 55. The Court held that since the interim order merged with the dismissed main petition, no pension or interest benefits could accrue from the unauthorized five-year

What did the court decide?

Petitioner not entitled to salary, pension benefits from the extended period, or interest on delayed payment.

Prof. V.M. Aniyan Vs the University of… — Pension and Retirement Benefits | Kerala HC (2017)

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C.R.

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939

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WP(C).No. 3135 of 2012 (N) ---------------------------

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PETITIONER:

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PROF. V.M. ANIYAN

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S/O MADHAVAN, RESIDING AT 'ASWINAM', CHAKKARAPARAMBU ROAD, VENNALA P.O, COCHIN-682028.

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BY ADV. SRI.R.SURENDRAN

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RESPONDENTS:

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THE UNIVERSITY OF CALICUT, REPRESENTED BY THE REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT-673635.

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THE VICE CHANCELLOR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT-673635.

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R1,R2 BY ADV. SRI.P.C.SASIDHARAN SC CALICUT UNIVER.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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wpc nO.3135 OF 2012 APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT	P1:	TRUE COPY OF THE INTERIM ORDER DATED 27.09.1996 ON C.M.P. NO.26586 OF 1996 IN O.P.NO 14986 OF 1996 ON THE FILE OF HIGH COURT OF KERALA.
EXHIBIT	P2:	TRUE COPY OF JUDGMENT DATED 14.01.2008 IN O.P. NO. 14986 OF 1996 OF THE HIGH COURT OF KERALA.
EXHIBIT	P3:	TRUE COPY OF THE ORDER NO: AD.H1/16578/2001 DATED 24.11.2010 ISSUED BY THE FIRST RESPONDENT.
EXHIBIT	P4:	TRUE COPY OF THE ORDER NO.SW(1)UU-2001-02/ADV.ADJ. DATED 26-2-2011.
EXHIBIT	P5:	TRUE COPY OF THE LETTER DATED 27-7-2009 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER.
EXHIBIT	P6:	TRUE COPYOF THE REPRESENTATION DATED 29-9-2011 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.
EXHIBIT	P7:	TRUE COPY OF THE POSTAL RECEIPT DATED 30-9-2011.
EXHIBIT	P8:	TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT DATED 3-10-2011 SIGNED BY THE FIRST RESPONDENT.
EXT.P9		TRUE COPY OF THE ORDER DTD.26.2.2011 ISSUED BY THE FIRST RESPONDENT.
RESPONDE	NTS'	EXHIBITS

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ANN.R1	TRUE COPY OF U.O.NOTE NO.Ad.H1/Pen/16578/01dtd.25.2.2012.
ANN.R1(a)	TRUE COPY OF U.O.NO.Ad.H1/Pen/16578/01 dtd 16.2.2002.
ANN.R1(b)	TRUE COPY OF THE U.O.NO.Ad.H1/Pen/16578/2001 DTD.18.1.2003.
ANN.R1(c)	TRUE COPY OF U.O. NOTE No.Fin.Audit 2/NLC/8/2001 dtd.24.9.2011.
ANN.R1(d)	TRUE COPY OF U.O.No.Ad./Pension Revision Cell/2011(2)DATED 22.11.2011.
ANN.R1(e)	TRUE COPY OF THE COMMUNICATION ISSUED BY THE FINANCE OFFICER, UNIVERSITY OF CALICUT TO THE JDLFA.
ANN.R1(f)	TRUE COPY OF THE COMMUNICATION ISSUED BY THE JDLFA TO THE FINANCE OFFICER, UNIVERSITY OF CALICUT.
ANN.R1(g)	TRUE COPY OF THE REQUEST SUBMITTED BY THE FINANCE OFFICER TO THE DEPUTY DIRECTOR, LOCAL FUND AUDIT DTD.15.1.2008.

TRUE COPY

p.s.to judge

CSS/

C.R.

Dama Seshadri Naidu, J.

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WPC No.3135 of 2012 -------------------------------------------Dated this the 4^th day of April 2017

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JUDGMENT

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Introduction:

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In a university, for the teaching staff the age of superannuation is 60, and for the non-teaching staff 55. Prof. V. M. Aniyan, an employee of the University of Calicut, claims that he belongs to the teaching faculty and that he should be allowed to serve until he is 60, not 55. Aided by an interim order in a writ petition filed by him, he continues in service until he is 60. The Court eventually on merits rejects his claim; he is declared to be part of non-teaching staff. The writ petition dismissed, what follows? How does the interim order affect the outcome—Aniyan’s service benefits?

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Facts:

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Prof. Aniyan, while working as a Dean of Students' Welfare in the first respondent University, had a dispute: When should he retire? Born on 01.10.1941, he entered the University service on 25.6.1987. By 30^th September 1996, he completed 55 years—the age

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W.P.(C) No. 3135/2012 -2-

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of superannuation for the non-teaching staff.

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The University treated him to be part of the non-teaching staff and intended to retire him, then. Aggrieved, in anticipation of his impending, and perhaps imminent, retirement, Aniyan filed O.P.No.14986 of 1996 before this Court. He contended that he should be retired at sixty rather than at fifty-five, for he should be treated as part of teaching faculty. He obtained an interim direction, too, against his retirement at 55.

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Pending the writ petition, Aniyan also completed 60 years. Thus, he attained the age of superannuation as claimed by himself.

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This Court, in the course of time, observed a cleavage in the judicial opinions regarding whether Aniyan’s post be reckoned as teaching or non-teaching. A Division Bench, on reference, resolved the issue through the Ext.P2 judgment: Aniyan’s post is non-teaching; he ought to have retired by 55.

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While ruling against Aniyan, the Division Bench has, however, noticed that Aniyan continued in service from 55 years to 60 years, on the strength of an interim direction. Therefore, adjusting

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equities, the Division Bench has ordered that the salary and other benefits Aniyan had received for the last five years should not be recovered from him. To compute his terminal benefits, Aniyan should be treated to have retired at 55.

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In the light of Ext.P2 judgment, the University issued Ext.P3 order calculating Aniyan's retirement benefits. Now, in this writ petition, Aniyan assails the Ext.P3.

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Submissions:

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Petitioner’s:

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Sri R. Surendran, the learned counsel for Aniyan, has submitted that Aniyan was paid the salary for the last five years only because he had actually worked. Drawing my attention to the directions in the Ext.P2 judgment, he further contended that this Court observed only to the effect that the last five years should not be considered while the University fixes Aniyan's terminal benefits. It has, however, not specifically interdicted Aniyan's right to have the pension fixed based on the last drawn salary, that is, when he actually retired.

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In the alternative, Sri R. Surendran has also submitted that

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had Aniyan retired on his completing 55 years, first, he would have been gainfully employed if he had chosen to; second, Aniyan would have been drawing a pension from day one after his attaining 55 years. Neither benefit has Aniyan got.

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On the other hand, the University now wants to reckon the terminal benefits, argues Sri R. Surendran, on the notionally last-drawn pay when Aniyan had attained 55. It also refuses to pay interest on the pensionary amount from the date Aniyan completed 55 years.

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So, Sri Surendran urges this Court to direct the respondent University to reconsider Ext.P3 and issue fresh proceedings calibrating Aniyan's terminal benefits taking the last-drawn pay on his actual retirement. The learned counsel has also further contended that, for any reason, if this Court was inclined to hold that the last drawn pay should be taken when Aniyan had attained 55, it might direct the University to pay interest on the terminal benefits.

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The Respondent-University:

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Sri P. C. Sasidharan, the learned Standing Counsel for the respondent University, has contended that Aniyan continued in service

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only on the strength of this Court’s interim direction. But, in the end, the writ petition ended in dismissal. So, he contends that once an interim order merges with the main order that negatived Aniyan’s claim, the interim order stands nullified. And no benefits gained by Aniyan through that abortive interim order should be allowed to be retained.

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Finally, Sri P. C. Sasidharan argued that the Ext. P3 order accords with the Ext.P2 judgment. So it remains unassailable.

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Heard Sri R.Surendran, the learned counsel appearing for Aniyan and Sri P.C.Sasidharan, the learned Standing Counsel for the Calicut University, besides perusing the records.

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Issue:

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Is Prof. Aniyan entitled to have his terminal benefits calibrated on the last drawn pay when he actually retired or when he completed 55?

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Discussion:

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To answer the above issue, we need to examine the judicial directive in the Ext.P2 judgment. So, it is meet to extract to the

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principal part of that judgment:

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“[P]etitioner was not entitled to be treated as a member of the teaching staff for becoming eligible to continue in service up to 60 years. However, since petitioner was allowed to continue till 60 years of age during the pendency of the O.P., there will be a direction to the respondents to allow the petitioner to retain the salary and other benefits drawn by him during the extended period of service. However, for the purpose of pension, petitioner will not be entitled for any benefit for the additional period of 5 years served by him under orders of this Court. In other words, pension will be computed treating him as retired on reaching the age of 55 years. The O.P. Is dismissed but granting the limited relief stated above.”

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(italics and emphasis supplied)

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What is the Effect of an Interim Order?

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An order of stay granted pending disposal of a writ petition, suit, or other proceedings comes to an end with the main proceedings. It is the duty of the court, then, to put the parties in the same position they would have been but for the interim order of the court. Any other view, according to the Supreme Court in State of Gujarat v. Dilipbhai Shaligram Patil,¹ would inflict hardship on the successful party for no fault of his; it would also amount to rewarding the writ petitioner despite his failure. Any such unjust consequence cannot be

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1 (2006) 8 SCC 72

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countenanced by the courts. On this proposition, Dilipbhai Shaligram Patil quotes with approval Kanoria Chemicals and Industries Ltd. v. U.P. SEB.²

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But two contingencies must be distinguished: quashing of an order and staying of that order. In Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn.,³ the Supreme Court has held that quashing of an order restores the position that had existed before the quashed order was passed. Staying the operation of an order, however, does not lead to that result. It only means that the order stayed would not be operative from the date of stay. And it does not mean that the order has been wiped out from existence.

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We cannot be unmindful that a court grants an interim order

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to preserve the lis and to protect the suitor’s right from getting nullified because of the lis pendence developments. The order’s legitimacy and survival depend on the eventual outcome of the principal proceedings.

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It aims at, pure and simple, preserving status quo ante. An interim order is the tail that cannot be allowed to wag the whole body, so to

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2 (1997) 5 SCC 772

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3 (1992) 3 SCC 1

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say.

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The UP Electricity Board revised the electricity rates. The notification provided for imposing on the consumer statutorily permitted interest if it did not pay on time the bill raised at the revised rates. The consumer obtained a stay from the High Court of Allahabad: The operation of the notification remained stayed. The Board was restrained from realising the billed amount at the revised rates. The consumer was ordered to continue paying at the old rate. Eventually the writ petition dismissed, the Board demanded “late payment charges” from the consumer. The consumer once again approached the High Court; this time questioning the late-payment charges. The contention was obvious: The consumer did not pay the amount ‘on time’ because the very notification stood suspended until the earlier writ petition was dismissed. A Division Bench of the Allahabad High Court rejected the consumer’s plea. The matter, then, was taken to Supreme Court.

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In Kanoria Chemicals and Industries Ltd. v. U.P. SEB,⁴ the Supreme Court has held: As a matter of fact, the contention of the

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4 (1997) 5 SCC 772 at page 777

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consumers herein, extended logically should mean that even the enhanced rates are also not payable for the period covered by the order of stay because the operation of the very notification revising/enhancing the tariff rates was stayed. It is baffling how the enhanced rates can be said to be payable but not the late-payment surcharge thereon, when both the enhancement and the late payment surcharge are provided by the same notification—the operation of which was stayed. It eventually held that the consumer must pay the late-payment charges. In the peculiar circumstances of that case, the Court reduced the amount, though.

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To sum up, I may reiterate a truism that an interim order merges with the principal order. If at all the substantive lis ends in dismissal, it should be concluded, by legal fiction, as if the litigant had had no favourable order at any time. No benefit accrued. The Courts have consistently disapproved a suitor’s effort to take advantage of an interim order and retain a benefit despite his losing the very cause on the merits, eventually. An interim order, then, is at the suitor’s risk.

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How Should We Construe Ext.P2 Judgment?

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Even going by the directive in the Ext.P2 judgment, the observation is unambiguous that for pension, “the petitioner will not be entitled to any benefit for the additional period of 5 years” served by him under orders of this Court. All that the learned Division Bench held, as a matter of concession or by way of equity, is that Aniyan could retain the salary and other incidental benefits he drew for the five years. Nothing more.

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In these facts and circumstances, I find no merit in Aniyan’s plea that his pensionary benefits should be reckoned by taking his lastdrawn pay on his actual retirement, at 60. Having taken advantage of the litigation initiated by himself, and successfully retired at 60, he could not be seen playing a victim.

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Is Prof. Aniyan Entitled to Interest on the Delayed Pension?

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On interest demanded for the delay—for the five years between Aniyan’s 55 and 60 and thereafter till actual payment—I must hold that Aniyan drew a salary for five years with no manner of right, save an interim order which eventually evaporated into thin air, as if it

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were. Aniyan’s defence that he had worked for that period is, I reckon, falls flat. Anybody working without legitimacy can hardly expect any recompense. The Court needs to adjust equities not only in the petitioner’s favour but also in the respondent’s favour when, especially, it involves public funds or public interest. After all, equity is not a culde-sac. Paid for five years well past his superannuation, Aniyan cannot seek interest on his terminal benefits even if they were paid later, for Aniyan himself contributed to the delay and retained the salary for the whole unathorised period, too.

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