Judgement - 07KLC-2255

(Before S.Siri Jagan, J)
Thursday, the 2nd June, 2005/12th Jyaishta, 1927

Party Array / Case No.

OP.No.20866 of 1999(H)

                             A.Sivankutty Nair  :   Petitioner


       The Secretary to Govt. & anr      :    Respondents




    JUDGMENT(Full Text)

    S.Siri Jagan, J:_


    1.   The petitioner, at the time of filing this original petition, was an Office Superintendent (Higher Grade) in the Finance Department, Government Secretariat, Thiruvananthapuram. Subsequent to the filing of the original petition, he retired from service.

    2.   The petitioner became an Office Superintendent by promotion from the post of Selection Grade Typist in February 1993, by Ext.P1 order. At that time, the scale of pay of Office Superintendent was higher than that of Selection Grade Typist. Therefore, his pay in the scale of pay applicable to Office Superintendent was fixed and approved by Exts.P2 and P3.

    3.   In March 1995, by Ext.P4 order, the Government equalized the scales of pay of Selection Grade Typist and Office Superintendent, retrospectively with effect from 1-3-1992, with monetary benefits from 1-4-1995. Consequent to audit objection applying Ext.P4 order, the pay fixation of the petitioner done as per Exts.P2 and P3 on 18-2-1994 was undone and recovery of alleged excess pay of Rs. 15737/drawn by him, was sought to be recovered by Ext.P5 memo. This was without notice to him, the petitioner alleges. Representations in this regard by Exts. P6, P7 and P8 went unheeded. In fact, by Ext.P6, the petitioner had also sought for a re-option which is allowable as per Government Orders like Ext.P9 in such circumstances. In Ext.P8, he also pointed out the anomaly of juniors drawing more salary and sought for stepping up pay at par with juniors. However, the Government, by Exts.P10 and P11 declined petitioner's request.

    4.   The petitioner further submits that in the case of Smt.Sathyaseela, who was the first person promoted as per Ext.P1 whose case is exactly identical to that of the petitioner, audit objection was dropped and, by Ext.P12, Government sought clarification from the accountant General's Office as to why in the case of the petitioner and the other persons in Ext.P1, the audit objection was not dropped. He also points out that there are instances wherein the Government had waived recovery of excess pay drawn on account of wrong fixation of pay as evidenced by Exts.P14 and P15. The petitioner further submits that when promotion to posts in the same scale of pay is ordered, one advance increment can be sanctioned as per Ext.P13 order which was also denied to the petitioner.

    5.   It is because the petitioner's lamentations fell on deaf ears that he approached this Court by filing this petition.

    6.   The 1st respondent has filed a counter affidavit justifying the action of the Government. It is stated therein that when scale of pay of the feeder post and promoted post are the same, no fixation can be granted and only one advance increment can be granted and only one advance increment can be granted and one advance increment was granted to the petitioner. While justifying the audit objections, the 1st respondent does not deny Ext.P12. Instead, it is stated as follows:

          "It is submitted that consequent on the regularization of pay, the audit objection in respect of fixation of pay in the case of Smt.Sathyaseela was dropped vide letter dated 29-6-1998 from Accountant General, Thrissur. When the Government Memo regularizing the pay of the other officer Superintendents was received in the Office of the Accountant General, the audit objection was dropped subject to verification of recovery in all the three cases during next audit and the inspection report was requested to be treated as closed as per letter. No.OA/HQ/11/111/12-31/dated 31-08-1998 from Accountant General, Kerala, Thrissur".

    7.   These contentions were reiterated during arguments. Counsel for the petitioner submits that when he was promoted in 1993, the scales of pay of Selection grade Typist and Office Superintendent were different and therefore the fixation was perfectly valid with reference to the rules obtaining then and, therefore, by a retrospective operation given to an executive order, amounts cannot be recovered from the petitioner. Further, relying on the decisions of the Hon'ble Supreme Court in Nand Kishore Sharma & others v. State of Bihar & others, 1995 Supp (3) SCC 722, Sahib Ram v. State of Haryana and others, 1995 Supp (1) SCC 18, Union of India v. Indian Railway SAS Staff Association & others, 1995 Supp(3) SCC 600, Bharat K.Gupta v. Arun Kumar and another (2000) 10 SCC 658 and the decisions of this Court in Satyapalan v. Dy. Director of Education, 1998(1) KLT 399, Usuvathunnisa v. Asst. Educational Officer, 1990(2) KLT 530, Jayasree v. State of Kerala, 2002) 3) KLT 1020, counsel for the petitioner would argue that even if the fixation was wrong, since the petitioner was not in any way responsible for such wrong fixation, the excess mount paid cannot be recovered from the petitioner.

    8.   On the other hand, the Government Pleader appearing for the respondents, relying on a Single Bench decision in Rose v. State of Kerala, 2004(1) KLT 934 and a Division Bench decision in United India Insurance Co. Ltd v. Roy 2005(2) KLT 63 argued that excess amounts paid on account of wrong fixation of pay can be recovered.

    9.   In the meanwhile, the petitioner had retired and on account of the interim stay granted by this Court, the recovery could not be made. The Govt. Pleader would submit that even in such circumstances, invoking Rule 3C of Part III of the K.S.R, excess payment can be recovered within 4 years of retirement. However, I need not consider this argument since the proceedings for recovery had started even before retirement.

    10. I have considered the rival contentions of both parties on the basis of the decisions cited. In the decision in Shib Ram's case, 1995 Supp (1) SCC 18 supra, the Principal of a College granted upgraded pay scale to a Librarian on the basis of a proceedings by the Government of India contrary to the recommendation of the U.G.C and in relaxation of the prescribed qualifications. However, the Government of Haryana directed to withdraw the upgraded scale granted to the Librarian. The Librarian challenged the same before the High Court which was rejected. On appeal, the Supreme Court in the above decision, held as follows:

          "Admittedly, the appellant does not possess the required educational qualifications. Under the circumstances, the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs".

    11. In the decision in Nand Kishore Sharma's case, 1995 Supp (3) SCC 722 supra, an Anomaly Committee appointed by the Bihar Government recommended the pay scale of Rs. 296-460 to plant Protection Supervisors. Although, this was not officially accepted by the State Government, the Department conceded the claim. Later on, State Government realized that there was no sanction for the grant of higher scale of pay and directed recovery of the excess amount paid to the employees. The High Court dismissed the writ petition challenging the withdrawal of the higher scale of pay. In appeal, while confirming the withdrawal of the higher scale of pay, the Hon'ble Supreme Court directed the State Government not to recover the amount paid to the employees. The relevant portion of the judgment reads thus:

          The learned counsel for the appellants has vehemently contended that the higher pay scale having been granted to them by the State Government on its own with the concurrence of the Finance Department, there was no justification whatsoever to have cancelled the same and ordered recovery from the appellant. He has further contended that no opportunity was afforded to them before passing the impugned order to their detriment. We are not inclined to interfere with the impugned judgment of the High Court. We agree with the High Court that unless there was an order of the Government sanctioning and granting revised pay scales to the appellants, they were not entitled to claim the same. But, at the same time, we are of the view that the appellants cannot be blamed The anomaly Committee recommended grant of higher pay scales to them. The Finance Department also concurred with the same and as a result thereafter the appellants were given the pay scales and were disbursed the arrears as a lump sum. Having paid the arrears to the appellants, the State Government could not have reversed the same specifically without complying with the rules of natural justice. It is no disputed that no opportunity was afforded to the appellants before passing the order of recovery. We, therefore, grant limited relief to the appellants to the extent that we quash the order directing recovery of the amount paid to the appellants in the year 1981. The State Government shall not effect recovery of the arrears in the revised pay scale for the period from 1-1-1976 to 1-1-1981. We, however, agree with the High Court that the appellants were not entitled to the revised pay scale and as such we hold that it was rightly withdrawn from them".

    12. In the decision reported in 1995 Supp (1) SCC 600 supra, on the basis of the recommendation of the Pay Commission, revised pay scales were granted to Government employees with effect from 1-4-1987. On the application of the employees, the Central Administrative Tribunal directed the Government to grant revised pay scales with effect from 1-1-1986. This was reversed by the Hion'ble Supreme Court holding as follows:

          "The result, therefore, is that the respondent-employees in the preset proceedings would be entitled to the revised pay scales only with effect from 1-4-1987 since the revised pay scales will be fixed for the first time with effect from that date. They are not entitled to any difference on the basis of the notional fixation of pay w.e.f. 1-1-1986. The arrears, if any, paid to the respondent-employees on account of the notional fixation of their pay w.e.f 1-1-1986 may be recovered from their future salaries. It is, however, made clear that the said arrears shall not be recovered from those of the employees who had already retired from service".

    13. In the Single Bench decisions of this Court in Usuvathunnisa'a case, 1990 (2) KLT 530 supra, by staff fixation order, posts of Arabic Teacher was sanctioned in 1982-1983 and continued up to 1985-1986. Later, staff fixation was found to be illegal. Setting aside the direction of the Assistant Educational Officer to refund the amounts which they have received as remuneration, this Court held as thus:

          "In any view of the case, the petitioner cannot be called upon at this stag to refund amounts which they have received as remuneration for service rendered in the schools. Consequent on the posts being sanctioned and on approval being granted for the appointments, the petitioners had functioned as full-time Arabic Teachers in the respective schools from the respective dates of their appointment. Having obtained the benefit of their service, based on orders for which the petitioners were not responsible, and which they had no reason to suspect were, in any manner, illegal, it is not open to the respondents subsequently to turn round and claim refund of the salary paid, branding the entire proceedings as null and void, or as illegal. The petitioners have every reason to presume that the statutory authority, namely, the Assistant Educational officer, has acted legally and within the bounds of his power and jurisdiction in sanctioning the full time posts and in approving their appointment. As stated by Kochu Thommen, J. (as he then was) in Aleyamma v. Deputy Director, Education, I.L.R. 1982 (2) Kerala 509, every person has a right to place his trust in orders made by a competent authority in the normal course of his jurisdiction unless, of course, the order is vitiated by fraud or interests of third parties are adversely affected. It is unjust and unfair to call upon persons like the petitioners to refund amounts drawn by them, for service rendered by them years after the event after they had acted on the faith and strength of the orders of the statutory functionary, and adjusted their affairs accordingly. When the petitioners have worked in a particular grade (as full time teachers) and the benefit of that work has gone to the schools, it cannot be said that they did so at their own peril, with liability to refund the salary in case it was found in any subsequent collateral proceedings that the sanctioning of their posts was not legal or proper.

    14. In the decision in Sathyapaln's case, 1998 (1) KLT 399 supra, after holding that reckoning of provisional service followed by regular service in a different category to be illegal, this Court, in the following words, held that it is arbitrary to mulct the recipients with liability to refund the amount obtained by them by reason of the wrong fixation:

          "The petitioners were granted increment on promotion as H.S.A by the department, taking into account, the temporary service which ought not to have been counted for increment. It is far later that, based on an audit objection, Exts.P3 and P4 were issued to cancel the grant of increment and for consequent pay fixation. The petitioners were not at fault in granting the increment, it is the administrative authority which granted the increment counting the period which could not have been counted. Therefore, it is arbitrary to mulct the petitioners with the liability to refund the amount which they obtained by reason of a wrong fixation of pay made by the administration authority of the period upto 1984. Therefore, that part of Exts.P3 and P4 directing refund of the alleged excess amount drawn, as confirmed in Exts.P13 and P14, is quashed. It is further made clear that the petitioners are not entitled to the increment counting the temporary service: but the excess pay cannot be directed to be refunded until the date of Exts.P13 and P14. The respondents are liable to refix the pay of the petitioners without any liability for refund upto the date of Exts.P13 and P14".

    15. In Jayasree's case, 2002 (3) KLT 803 supra, two employees of the high Court on selection by the P.S.C was appointed as Assistants Grade II in the Secretariat. Their pay in the said post was fixed counting their service under the High Court as Government service in accordance with Rule 37(b) of the K.S.R. While declaring this to be incorrect, this Court held that the excess amount paid consequent to such wrong fixation cannot be recovered in the absence of misrepresentation by the employee. In paragraphs 15, 16 and 17, this Court observed as follows:

          "15. However, it is noticed that this Court and the Supreme Court are taking the view that in cases where it is found that erroneous excess payments happened to be made bona fide but by wrong interpretation/understanding of a statutory provision/Government order and not on account of any misrepresentation made by the concerned employee the excess amount paid till the date of the rectification order may not be recovered.

          16.            This Court in Aleyamma v. Dy. Director of Education (O.P.No.4792 of 1980 judgment dated 15-6-1982) (1982 KLT SN 45) (Case No.70) was concerned with the case of a teacher who was sanctioned higher scale of pay by the competent officer on a wrong understanding of the relevant Government orders. The court noticed that the order was made by the competent officer, bona fie, the petitioner did not supply any wrong information on the basis of which the officer was misled and both the parties have acted bona fide at all times. In the above circumstances, it was held that to be called upon to refund amounts paid in terms of an order made by a competent officer particularly after a lapse of several years, not only causes hardship but it is in principle unjust and wrong. It was also observed that every person has a right to place his trust in orders made by a competent authority unless the order is vitiated by fraud or interest in favour of the third parties are adversely affected. Similar views have been taken by this Court in Mohammedkutty v. State of Kerala, (1989 (2) KLT 155), Mohanan v. State of Kerala (1991 (2) KLT SN 22) (Case No.33) and in the decision in Stanley's case discussed earlier. The Supreme Court also in Sahib Ram v. State of Haryana and others, (1995 Suppl (1) SCC 18) observed that the principal of the college where the appellant was working as a Librarian allowed him revised pay scale purporting to act under a Government order. The Government directed the principal to withdraw the said scale of pay. While rejecting the challenge against the said order, the Supreme Court noted that since the date of refixation the appellant had been paid his salary on the revised scale and observed as follows: "However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the principal for which the appellant cannot be held to be at fault. Under the circumstances, the amount paid till date may not be recovered from the appellant".

          17. Following the principles laid down in the said decision, while upholding Exts.P5 and P6 memos of the first respondent, I direct the respondents not to recover the excess payment made till the date of the said memos from the salary of the petitioners. However, the respondents are free to recover excess payment, if any, made thereafter from the salary of the petitioners in which case the first respondent will grant some instalment facility".

    16. These decisions are clear authority for the proposition that excess payment made pursuant to wrong fixation of pay cannot be recovered unless there is fault on the employee like misrepresentation.

    17. In answer to this, the learned Government Pleader has cited a Division bench decision of this Court in United India Insurance Co. Ltd v. Roy 2005 (2) KLT 63 and a Single Bench decision in Rose v. State of Kerala, 2004(1) KLT 934. I am of the considered opinion that the said Division Bench decision is distinguishable on facts. In that case, what was sought to be recovered was payment made by mistake contrary to the direction given by the General Insurance Company of India which is binding on all Insurance Companies. Further, in view of the decisions of the Supreme Court, the legal position is pretty clear that excess amount paid on account of wrong fixation of pay cannot be recovered unless the employees has, in any way, contributed to the mistake. The decisions in favour of the said proposition far outweighs the proposition to the contrary. Therefore, I respectfully disagree with the Single Bench decision in Rose case supra.

    18.Further, in the preset case, there is no wrong fixation of pay at all. In February 1993, petitioner was promoted as Office Superintendent from the post of Selection grade typist, the post of Office Superintendent carried a higher scale of pay than that of Selection Grade Typist. Therefore, the fixation done as per Exts.P2 and P3 were perfectly valid. It was only because the Government gave retrospective operation to Ext.P4 that the scales of pay of the two posts became identical and consequently the fixation wrong. It is totally unjust and unreasonable to take away the benefits of promotion obtained by an employee in the right royal way, by giving a retrospective operation to a subsequent Government Order which came two years later, which would confer no benefit on the petitioner. It could even be argued that the retrospective operation of Ext.P4 itself is bad, as such retrospective operation benefits only those persons who remained in the cadre of Selection Grade Typists from 1993 to 1995. For granting a benefit to Selection grade Typists, the benefits of promotion legally acquired in normal course by those who were promoted as Office Superintendents from 1993 onwards cannot be taken away retrospectively.

    19. Ext.P4 itself gives another very plausible reason for taking such a view. While making Ext.P4 retrospective from 1-3-1992, it was specifically provided that monetary benefits will be granted only from 1-4-1995. If monetary benefits accrued on account of the retrospective operation has to be denied to the beneficiaries, by the same token, monetary benefits rightly enjoyed by the persons adversely affected by such retrospective operation should not be taken away. For this reason also, the recovery of the excess amount paid on account of the artificially created wrong fixation is unsustainable.

    20. There is yet another reason based on discrimination as well for taking this view. In respect of another person, namely, Smt.Satyaseela, who was tarred with the same brush had been given a special treatment dropping the audit objection whereas the other two covered by Ext.P1, including the petitioner, is proceeded against for recovery. Thus, the 1st respondent has unsuccessfully tried to brush aside by a most incomprehensible and unintelligible prosy exercise in the counter affidavit which is quoted above. The same, while confirming that the audit objection was dropped by a jumble of words, tries to give an impression that the recovery is postponed in the case of Smt.Sathyaseela, without actually confirming it. Further, in Exts.P14 and P15, the Government by themselves, waived recovery of excess pay paid to two other employees in similar circumstances. Therefore, the reasonable conclusion is that the petitioner has been discriminated in the matter.

          Therefore, I hold that the recovery by Ext.P5 is unsustainable and Ext.P5 to the extent it orders recovery of Rs.15,737/- is unsustainable. The original petition is disposed of as above. However, I make no order as to costs.