Aravindan P.C. v. State of Kerala and Guruvayur Devaswom

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942** ## **WP(C).No.9256 OF 2019(F)** ## **PETITIONER:** **ARAVINDAN.P.C., AGED 57 YEARS** **S/O. LATE CCHANDRASEKHARAN NAIR, HEALTH SUPERVISOR (RETD), GURUVAYUR DEVASWOM, GURUVAYUR, NOW RESIDING AT PUTHENPURACKAL HOUSE, POVARNEY P.O., PALA, KOTTAYAM DIST-686 577** **BY ADV. SRI.SAJAN VARGHEESE K.** ## **RESPONDENTS:** - **1 STATE OF KERALA REP.BY BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF DEVASWOM, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001** - **2 THE ADMINISTRATOR, GURUVAYUR DEVSWOM, GURUVAYUR-680 101** - **3 THE DEPUTY ADMINISTRATOR, GURUVAYUR DEVSWOM, GURUVAYUR-680 101** - **4 ADDL.R4. GURUVAYUR DEVASWOM, GURUVAYUR, REPRESENTED BY THE ADMINISTRATOR.** - **5 ADDL.R5. KERALA STATE AUDIT, GURUVAYUR DEVASWOM AUDIT, GURUVAYUR, REPRESENTED BY THE SENIOR DEPUTY DIRECTOR. ARE IMPLEADED AS PER ORDER DATED 29/01/2020 IN I.A.NO.2/2020.** - **R1, BY GOVERNMENT PLEADER R2 BY ADV. SRI.T.K.VIPINDAS** ## **OTHER PRESENT:** ## **GP SUNIL KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-102020, THE COURT ON 09-11-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.9256/2019 2 ## **JUDGMENT** ## **Dated this the 9[th] day of November 2020** 1. This writ petition is filed seeking the following reliefs :- _i) call for records relating to Exhibits-P1 to P6;_ _(ii) issue a writ of mandamus or other appropriate writ or order or direction, declaring that the petitioner is entitled to have the retiral benefits without having any deduction as mandated in exhibit P2; as such directing the respondents, with particular reference to the 2[nd] respondent to provide all retiral benefits to the petitioner forthwith, with interest on the delayed payment at least at the rate of 12% per annum;_ _(iii) issue a writ of mandamus or other appropriate writ or order or direction, directing the 2[nd] respondent to finalize the retiral benefits of the petitioner at the earliest, in a time limit to be fixed by this Honourable Court and directing to disburse the same to the petitioner forthwith along with interest at lease at the rate of 12% per annum for the delayed payment;”_ 2. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel appearing for the Guruvayur Devaswom. W.P.(C).No.9256/2019 3 3. Petitioner was appointed as Health Assistant in the Guruvayur Devaswom on 21.04.1983. The post was later re-designated as Junior Health Inspector Grade-II. He was promoted as Additional Health Supervisor with effect from 15.03.2002. Later, on 01.06.2003, he was promoted as Health Supervisor and he continued so till his retirement on 28.02.2018. When his pensionary benefits were not disbursed to him, the petitioner approached the respondents with Ext.P1 representation. Ext.P2 communication was thereafter issued by the Senior Deputy Director of Local Fund Audit to the 2[nd] respondent pointing out that the petitioner had not acquired the departmental test qualification required for appointment to the post of Health Supervisor and that he had completed 25 years of service required for grant of exemption from test qualification only on 10.05.2008. It was therefore found that the promotions and increments granted to the petitioner were erroneous and that pensionary benefits could be fixed and disbursed only after the defects are W.P.(C).No.9256/2019 4 rectified. Ext.P3 notice was issued to the petitioner by the 3[rd] respondent on 11.12.2018 giving him further time to produce evidence of his acquisition of test qualification and informing him that his pay and pension would be refixed. Though Exts.P4 and P5 replies were submitted, the pensionary benefits were not disbursed. 4. The petitioner approached this Court and the admitted pensionary benefits were ordered to be released. It is submitted by the learned counsel for the petitioner that an amount of more than Rs.15 Lakhs is still withheld from the petitioner's retirement benefits towards the excess pay and emoluments drawn by him from 2003 onwards. 5. The learned counsel for the petitioner submits that the recovery of amounts paid to the petitioner as pay and emoluments from 2003 onwards on the strength of an audit objection raised at the W.P.(C).No.9256/2019 5 time of retirement is completely untenable. It is further submitted, relying on the decision of the Apex Court in **State Of Punjab & Others vs Rafiq Masih (White Washer)** [2015 (4) SCC 334], that the respondents are totally unjustified in seeking to recover amounts already paid from the pensionary benefits of the petitioner who had already retired. Reliance is placed on the decisions of this Court reported in **Kasaragod District Cooperative Bank Ltd. And another v. Radha K.A. and another** [2016 (1) KHC 260 and **Ajith Kumar v. State of Kerala** [2017 (3) KLT 58]. 6. A counter affidavit has been placed on record by respondents 2 and 3. It is submitted that the petitioner had claimed the promotion as Additional Health Supervisor by filing a writ petition and it was on the basis of the direction of this Court to consider his claim for promotion as Assistant Health Supervisor that he was granted promotion as such on 15.03.2002. He was W.P.(C).No.9256/2019 6 later promoted as Health Supervisor by order dated 17.6.2003. It is stated that at the time of retirement of the petitioner, the State Audit Department had raised objections to the grant of promotion to the petitioner as Health Supervisor. Exhibit R2(a) to (e) documents are produced by the respondents. It is stated that the audit objection raised in Ext.P2 was communicated to the petitioner and the petitioner was asked to produce the certificates evidencing his test qualification as on the date of his promotion as Health Supervisor. It is stated that since the petitioner was unable to produce the certificates, Ext.R2(f) communication was issued by the Deputy Director of State Audit on 28.05.2019 directing recovery of the amounts from the petitioner's pensionary benefits. 7. It is contended by the learned counsel for the Guruvayur Devaswom that even before the petitioner's retirement, the irregularities in his promotion had been intimated by the State W.P.(C).No.9256/2019 7 Audit Department and that the petitioner who had availed the benefit of a wrong promotion could not attempt to evade recovery of the amounts drawn by him far in excess of his entitlement. ## 8. A counter affidavit has also been placed on record by the 5[th] respondent stating as follows: 5. It is respectfully submitted that the fixation of pay of the petitioner in consequence of promotion to the post of Additional Health Supervisor w.e.f. 15.03.2002 was not approved by this office since the post was not included in the Regulation. Hence this office has directed to produce the orders of Guruvayoor Devaswom Commissioner regarding the creation of the above post, vide letters dated 26.12.2017 and 02.07.2018. True copies of the above two letters are produced herewith and marked as Annexures R5(c) and R5(d) respectively. 6. In reply to that, Devaswom Authorities have produced an order of the Commissioner in which the Health Inspector and Additional Health Inspector post of Guruvayoor Devaswom were upgraded as Health Supervisor. They have also produced a copy of an order of the Commissioner promoting the petitioner as Additional Health Supervisor. Even though the scale of pay of the post was not W.P.(C).No.9256/2019 8 mentioned in that order, this office has accepted it, as at least it proves the existence of the post of Additional Health Supervisor. 7. Since the scale of pay sanctioned to the Additional Health Supervisor post was equal to that of Health Supervisor, a direction was given to Guruvayur Devaswom to produce records which confirms that the post of Additional Health Supervisor and Health Supervisor are same and they are with the same time scale of pay. The Service Book of Sri. Aravindan P.C. was again submitted to this office after rectifying the defect pointed out by this office. On 30.07.2018, the Guruvayur Devaswom Managing Committee has resolved to approve Additional Health Supervisor post as equal and same as that of Health Supervisor. Hence this office approved the fixation of his pay in the post of Additional Health Supervisor. But on further verification it is noticed that Sri. P.C. Aravindan has not passed the required department test (A/c Test Paper II KFC & KBM) Which is essential to declare probation in the post of Health Supervisor (vide clause 9(b) of GDER 1983). Hence he is not eligible for an increment unless he has acquired the obligatory department test (vide Rule 31 KSR Part I). He is eligible for an increment in the post of Health Supervisor When he completes 25 years of service in Guruvayur Devaswom ie on 10.05.2008 (as exempted from all obligatory tests as envisaged in 2[nd] proviso to clause 9(c) of GDER 1983). It is also noticed that a 27 year time bound Higher Grade was erroneously sanctioned to him. All the anomalies noted above were intimated to Devaswom authorities and directed to recover excess pay and allowance sanctioned to him due to erroneous fixation of pay (vide this office lr. No.KSA(GRD) A1-920/17(10) dated 08.10.2018. W.P.(C).No.9256/2019 9 True copy of lr. No.KSA(GRD) A1-920/17(10) dated 08.10.2018 is produced herewith and marked as Annexure R5 (e) . Even though due drawn statement of excess pay drawn by him due to erroneous fixation of pay as stated above were submitted to this office for verification, this office could not verify it because the duly authorized and attested pay bill registers were not submitted along with it.” 9. A reply affidavit has also been placed on record by the petitioner to the counter affidavits filed by respondents 2 and 3 as well as the 5[th] respondent. 10.I have considered the contentions advanced. It is not in dispute that the petitioner had been promoted as Additional Health Supervisor on 15.03.2002 and as Health Supervisor on 01.06.2003. The surviving objection is with regard to declaration of his probation in the post of Health Supervisor and the increment granted to him. Admittedly, the appointment as Health Supervisor had not been recalled by any process known to law. Even going by the averments of the respondents, it was only in the year 2017 that an audit objection was raised with regard to W.P.(C).No.9256/2019 10 the qualification for appointment to the post of Health Supervisor. Ext.P2 refers to earlier communication dated 02.09.2017, 26.12.2017, 06.03.2018, 01.06.2018 and 02.07.2018 and replies dated 12.06.2018 and 15.09.2018. It is the contention now raised that the petitioner completed 25 years of service for grant of exemption from test qualification only on 10.05.2008 and that therefore, grant of increments to him was incorrect. It is also contended that he had been given the 27 years time bond higher grade which was erroneous. 11. The Apex Court in **State Of Punjab & Others vs Rafiq Masih (White Washer) [2015 (4) SCC 334]** had specifically held as follows:- “.18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: W.P.(C).No.9256/2019 11 (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.“ ## 12. This Court in **Kasaragod District Co-operative Bank Ltd. And** **another v. Radha K.A. and another** [2016 (1) KHC 260] considered the issue and held that recovery of excess amounts paid after five years of the erroneous payment would be unjustified in the light of the judgment of the Apex Court in **Rafiq Masih's** case. W.P.(C).No.9256/2019 12 ## 13.In **Ajith Kumar v. State of Kerala** [2017 (3) KLT 58], this Court held at paragraph 5 as follows:- “5. However, this does not apply to recoveries sought to be made. We have already referred to the undertaking given as well as clause 12 of the promotion order, Ext.P2. The writ petitioner/appellant did not commit any fraud or misrepresentation nor did he persuade the authorities to pay him the remuneration of temporary cashier. He was duly promoted under the 20% quota subject to passing of departmental examination. The fact remains that he worked as a cashier. The undertaking clearly stipulated that upon reversion he was entitled only to the higher remuneration for the time for which, he had so worked. This being so, the Board having asked the appellant to discharge the duties of Cashier cannot, for the said period, reduce his remuneration to that of the Lineman. That would also be against the principles enunciated by the Apex Court in the case of State of Punjab & Ors. v. Rafiq Masih (White Washer) (2015 (1) KLT 429 (SC) = (2015) 4 SCC 334), wherein, it has been clearly held that recoveries cannot be made from employees after their superannuation in such situations. Thus, we have no option but to allow the appeal, setting aside the judgment of the learned Single Judge as also the order as contained in Ext.P4, being order of the Chief Engineer (HRM) dated 5.7.2011 and direct him to hear the petitioner/appellant before taking any decision in the matter.” 14. The learned counsel for the respondents also sought to place reliance on Rule 3C of Part III, KSR. Rule 3C of Part III, KSR provides as under: W.P.(C).No.9256/2019 13 “3C. Notwithstanding anything contained in these rules, recovery of excess payments made to an officer by mistake within a period of four years before his retirement and which are detected within a period of four years after retirement may be made from his pension and other amounts due to him after retirement, subject to the condition that such deduction if made from his pension shall be effected only in monthly instalments in whole rupees and that the amount of each instalment shall not exceed 10 per cent of the monthly pension admissible to him. ## **GOVERNMENT DECISION** 1) The words 'pension admissible' referred to in this rule is the 'pension admissible' before commutation. 2) In the event of death of the pensioner during the course of recovery, specific sanction of Government is required to waive recovery of the balance amount outstanding.” 15.In the instant case, the petitioner's appointment which is said to be erroneous was one made in the year 2003. Admittedly, the petitioner acquired the exemption from test qualification on 10.05.2008. It is therefore clear that it is well after 15 years of the date of the erroneous promotion that the objection is raised and orders of recovery are sought to be passed against the petitioner. W.P.(C).No.9256/2019 14 Taking note of the binding judgments of the Apex Court and of the Division Bench of this Court, I am of the opinion that the recovery of the amounts paid from 2003 to 2008 from the pensionary benefits of the petitioner who had already retired is not possible. Even if Rule 3C of Part III KSR is sought to be pressed into service, the same shall not be applicable in view of the fact that the mistake allegedly occurred long prior to the period of four years before retirement, provided in the said rule. 16.In the above view of the matter, I am of the opinion that the impugned action of the respondents in withholding amounts from the retirement benefits is completely untenable. This writ petition is therefore liable to be allowed. The respondents are directed to release the amounts withheld from the retirement benefits of the petitioner within a period of two months from the date of receipt of a copy of this judgment. In the light of the fact that the fixation of pensionary benefits have been delayed on the W.P.(C).No.9256/2019 15 basis of the audit objection raised by the 5[th] respondent, the prayer for grant of interest is declined. This writ petition is ordered accordingly. ## **Anu Sivaraman, Judge** sj ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 24.07.2018 SUBMITTED BEFORE THE GURUVAYUR DEVASWOM** **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 08.10.2018 ISSUED BY THE AUDIT DEPARTMENT** **EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 11.12.2018 ISSUED TO THE PETITIONER** **EXHIBIT P4 TRUE COPY OF HE EXPLANATION DATED 26.12.2018 SUBMITTED BEFORE THE RESPONDENTS NO.1 AND 2** **EXHIBIT P5 TRUE COPY OF THE PETITION DATED 29.01.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P6 TRUE COPY OF THE GOVERNMENT CIRCULAR DATED 02.11.2011** **RESPONDENT'S EXHIBITS:** **EXHIBIT R2(a) TRUE COPY OF THE JUDGMENT OF O.P.27797 OF 2001 DATED 23.10.2001. EXHIBIT R2(b) TRUE COPY OF THE LETTER OF KERALA STATE AUDIT DEPARTMENT DATED 06.03.2018. EXHIBIT R2(c) TRUE COPY OF THE LETTER 08-05-2018 TO SENIOR DEPUTY DIRECTOR. EXHIBIT R2(d) TRUE COPY OF THE LETTER 12-06-2018 TO SENIOR DEPUTY DIRECTOR. EXHIBIT R2(e) TRUE COPY OF THE ORDER THIS RESPONDENT DATED 30-11-2018 TO SENIOR. EXHIBIT R2(f) TRUE COPY OF THE LETTER 28-05-2019 ISSUED BY THE SENIOR DEPUTY DIRECTOR. EXHIBIT R2(G) THE TRUE COPY OF THE COMMUNICATION ISSUED BY THE DEPUTY DIRECTOR, OFFICE OF THE AUDIT DEPARTMENT, GURUVAYUR DEVASWOM DATED 26.12.17.** **EXHIBIT R2(H) THE TRUE COPY OF THE PROCEEDINGS OF THE GURUVAYUR DEVASWOM COMMISSIONER DATED 08.03.2002. EXHIBIT R2(I) THE TRUE COPY OF THE PROCEEDINGS RE-FIXING OF THE SALARY WHICH WAS SUBMITTED BEFORE THE AUDIT DEPARTMENT, GURUVAYUR DEVASWOM. EXHIBIT R2(J) TRUE COPY OF THE REPLY OF STATE AUDIT DEPARTMENT, GURUVAYUR DEVASWOM DATED 11.1.2019. EXHIBIT R2(K) THE TRUE COPY OF THE ORDER NO.KSA (GRD) A1920-2017 OF THE STATE AUDIT DEPARTMENT, GURUVAYUR DEVASWOM DATED 28.05.2019.** True copy PS to Judge