Common Judgment:

Gopinathan, J.

Assailing a common judgment dated 20.2.2008 in OP.No.38578/2002 and WP(C).No.15190/2006 these appeals are preferred. Appellant is the first respondent State in both writ petitions. The first respondent in WA.No.1904/2008 is the petitioner in WP(C).No.15190/06. Respondents 1 to 18 in the other appeal are the petitioners in OP.No.38578/02. The second respondent, University of Kerala, in WA.No.1904/08 is the second respondent in the Original Petition. The 19th respondent, M.G. University, in the other appeal is the 19th respondent in the Original Petition. Some of the writ petitioners entered in the service of the Calicut University and others in Agriculture University as Assistant Grade-II and they were got promoted as Assistant Grade-I and then as Senior Grade Assistants. While so, they sought for inter-University transfer. As per the existing Statutes, they are entitled to inter-University transfer on condition that they would be reverted back to the entry cadre and on transfer, they would take the rank below the junior-most Assistant Grade-II in the transferred University. However, their pay would be protected. Accordingly, on their applications for transfer, all of them were reverted back as Assistant Grade- II and transferred to the respective Universities. They took their rank below the junior-most Assistant Grade-II with protected salary. Later, in their turn, they were given promotions as Assistant Grade-I, Senior Grade Assistant, Selection Grade Assistant and Section Officers etc. The University granted fixation of their salary under Rule 28A of Part I KSR on every promotion. Appellant objected granting fixation again on promotion as Assistant Grade-I and Senior Grade for the reason that they were already given two fixations before transfer. Orders were issued, vide Exts.P2 and P3 for recovery of the excess salary drawn by them. Assailing those orders, the writ petitions were preferred.

2. The appellant defended stating that since the writ petitioners had already got two fixations on their promotion as Assistant Grade-I and Senior Grade before their transfer, they are not entitled to a further fixation on their promotion in the transferred University as Assistant Grade-I and Senior Grade. Though, the learned Single Judge found that the writ petitioners had already enjoyed the benefit of fixation under Rule 28A before their transfer and that a further fixation is an anomaly in the matter in so far as the writ petitioners are really getting an undeserving benefit, stating that because of the statutory provisions that didn't prohibit granting of such benefits, the writ petitions were allowed. Now these appeals.

3. We heard the learned Government Pleader and the learned counsel appearing for the contesting respondents.

4. The fact that before the writ petitioners were transferred, they got two promotions, namely, Assistant Grade-I and Senior Grade and on such promotions they were given fixation under Rule 28A and that the pay so fixed and was drawing at the time of transfer was protected when they were transferred is admitted. The reversion to the entry cadre on inter-University transfer was really intended for the transferees not making claim of seniority against those who are already in the service of the transferred University with settled seniority. Otherwise, entry of the transferees with protected seniority to the service of the transferred University would de-stabilize the settled seniority of those already in the service of the University. In the event, such transferred Assistants are given promotion in the due course and at the time of promotion if they are given fixation under Rule 28A, it would tantamount to double fixation merely because of the reason that they got an inter-University/departmental transfer. The result is that they would be entitled for undue pecuniary advantage. No rule would contemplate such double fixation. Granting double fixation is not the intention of the authorities while the transferees are reverted to the entry cadre at the time of inter-University transfer. In the event, such fixation under Rule 28A is again given to the Assistants who are transferred to the University, they would be entitled to higher salary than their seniors in the cadre only for the reason that they were transferred from other University. The pleadings in both petitions would show that the writ petitioners entered the service of the transferee University in between 1988 and 1990. It appears that they were promoted within two years not on counting particular length of service but, on applying the principle of ratio promotion. In the transferred University also they had obtained the benefit of such ratio promotion. Ext.P12 produced in OP.No.38578/02 would show that even after subsequent promotions to higher levels such transferred officers were fixed with higher salary than their seniors and the seniors had rushed to this Court for getting their salary fixed in par with juniors, though not at a higher stage. We mentioned the same only to note that the double entitlement under Rule 28A would cast the exchequer a burden for the reason that this writ petitioners were granted an inter-University/departmental transfer without de-stabilizing the settled seniority of those who are already employed in the transferred University.

5. The learned Single Judge had noted the anomaly and also the fact that the writ petitioners had got undeserving benefits. But, the writ petitions were allowed for the reason that the statutory provision does not prohibit granting such benefits. The learned Single Judge omitted to note that there is no provision in the rule to grant two fixation to any of the employees in the State/University service on promotion to the very same cadre. In the above circumstance, the power vested on this Court under Article 226 of the Constitution would not have been invoked, so as to entitle the writ petitioners to get undue benefit for the reason that they were given inter-University/departmental transfer to suit the convenience of the petitioners. The discretionary power vested on the High Court is not to protect or safeguard the undeserving benefits. It shall not be exercised in favour of a person to retain an undeserving benefit that he had got. Writ jurisdiction, though wide is discretionary. It can be generally invoked when fundamental rights are breached, abuse or misuse of authority, malfeasance, misfeasance, violation of natural justice etc. It shall not be invoked merely because, it is not forbidden. Discretion is always vested with the Court to interfere in appropriate cases. It shall be exercised with circumspection. It shall not be exercised when it is revealed that by such exercise an undeserving benefit would be protected. We find that the petitioners are not entitled to have two fixations on promotion to the same cadre. The appellant was right in taking steps for recovery of the undue benefit obtained to the writ petitioners. It is not an illegal, arbitrary or excessive exercise of authority to be prohibited by exercising writ jurisdiction. The writ petitions are devoid of any merit.

In the result, the writ appeals succeed. While reversing the judgment under challenge, the writ petitions would stand dismissed with costs which we fix at Re.1/-.