Binu Joseph and Others v. State of Kerala and Greater Cochin Development Authority

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE V.G.ARUN`** ## **`MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944`** ## **`WP(C) NO. 29105 OF 2019`** ## **`PETITIONER/S:`** - **`1 BINU JOSEPH AGED 49 YEARS`** - **`W/O. VARGHESE, WORKING AS ATTENDER HIGHER GRADE, G.C.D.A, COCHIN - 682 020`** - **`2 RAJEEV V.B. AGED 49 YEARS S/O. LATE V.N. BAHULEYAN, WORKING AS SENIOR CLERK, G.C.D.A, COCHIN - 682 020`** - **`3 VINEESH A AGED 39 YEARS S/O. A. ASOKARAJAN, WORKING AS CLERK, G.C.D.A, COCHIN - 682 020`** - **`4 K. JAYAKUMARI AGED 47 YEARS`** - **`W/O. THULASEEDHARAN PILLAI, WORKING AS ATTENDER , G.C.D.A, COCHIN - 682 020`** - **`5 K.P. MINIMOL AGED 47 YEARS W/O. RAJENDRA HARISH SINJI, WORKING AS CLERK , G.C.D.A, COCHIN - 682 020`** - **`6 MANUSHA L AGED 38 YEARS W/O. MURALEEDHARAN, WORKING AS CLERK , G.C.D.A, COCHIN - 682 020`** - **`7 MUHAMMED ABDUL HAMEED M.E. AGED 52 YEARS S/O. ERAMUTTY MUSALIAR, WORKING AS SENIOR CLERK, G.C.D.A, COCHIN - 682 020`** - **`8 ANILKUMAR G. AGED 40 YEARS S/O GOPALAN, WORKING AS SENIOR CLERK , G.C.D.A, COCHIN - 682 020`** - **`9 JACOB P.P. AGED 48 YEARS S/O. PATHROSE, WORKING AS ATTENDER , G.C.D.A, COCHIN - 682 020`** - **`BY ADV P.K.RAVI SANKAR`** ``` RESPONDENT/S: ``` ``` WP(C) NO. 29105 OF 2019 ``` ``` 2 ``` - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM - 695 001`** - **`2 GREATER COCHIN DEVELOPMENT AUTHORITY REPRESENTED BY ITS SECRETARY, ERNAKULAM, ERNAKULAM DISTRICT - 682 020`** - **`3 SECRETARY GREATER COCHIN DEVELOPMENT AUTHORITY, ERNAKULAM, ERNAKULAM DISTRICT - 682 020`** - **`4 ADMINISTRATIVE OFFICER GREATER COCHIN DEVELOPMENT AUTHORITY, ERNAKULAM, ERNAKULAM DISTRICT - 682 020`** - **`BY ADVS. MINI.V.A. SRI.M.K.THANKAPPAN, SC, GCDA`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 29105 OF 2019 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 23[rd] day of May, 2022** The petitioners were appointed as Peons (subsequently re-designated as Office Attendant) in the Greater Cochin Development Authority and climbed the promotion ladder and reached up to the post of Attender, Attender Higher Grade, Clerk and Senior Clerk. The GCDA has been following the Secretariat pattern from the date of its establishment vis-a-vis the service conditions of its employees. The pay revision orders issued from time to time with respect to State Government employees, including employees in the Municipal Common Service, were granted to certain category of employees in the GCDA also. Thus in the 10th pay revision order (Ext.P26), higher grades and higher scale of pay was granted for the posts of Office Attendants(formerly Peons) and Attenders. But the Government found the ratio based Higher Grade granted to the employees to be illegal and directed the GCDA to take corrective measures. Even though the GCDA ``` WP(C) NO. 29105 OF 2019 ``` ``` 4 ``` sought regularisation of the Higher grades already granted, that request was turned down by Ext. P27. Thereupon, the GCDA issued Ext.P28 order cancelling the ratio based Higher Grade granted and directing recovery of the excess salary paid. Consequently, Ext P29 communication was issued requiring the first petitioner to refund Rs. 1,04,354/-. In the wake of Exts.27, 28 and 29, the petitioners apprehended similar action. Hence, this Writ Petition, seeking to quash Exts.27, 28 and 29. 2. Adv.P.K. Ravi Sankar, learned Counsel for the petitioners submitted that by Ext.P24, the Government had informed the Secretary, GCDA that all future fresh appointments in GCDA (other than promotion) will be to posts and designation on par with Municipal Common Service and not the Secretariat. The petitioners having been appointed subsequent to Ext.P24, the posts to which they were appointed is at par with the Municipal Common Service. Reliance is placed on Ext.P26 to point out that ``` WP(C) NO. 29105 OF 2019 ``` ``` 5 ``` ratio based Higher Grade promotion was granted in identical posts in the Municipal Common Service. Alternatively it is contend that the ratio based grade promotions having been granted more than 10 years back, sudden cancellation of the benefit and consequential recovery is illegal and unjustified. To buttress his contention that there cannot be any recovery from the salary paid, learned Counsel placed reliance on the decision of the Apex Court in **State of Punjab v Rafiq Masih (White Washer) [(2015) 4 SCC 334]** . As to the contention of the GCDA that some among the petitioners have executed bonds undertaking to refund the excess salary, if any paid, it is submitted that no document evidencing the execution of such bonds are produced and even if the bonds are taken to have been executed, recovery is impossible in the light **Rafiq Masih** . 3. Senior Government Pleader V.Venugopal submitted that reliance placed by the petitioners on Ext.P24 is ``` WP(C) NO. 29105 OF 2019 ``` ``` 6 ``` misplaced, since in organisations like the GCDA, the pay revision commissions recommendations can be made applicable only after obtaining permission from the Government and subject to the conditions imposed in the order granting sanction. In the case at hand, the 8th, 9th and 10th pay revisions were sanctioned to the employees of GCDA as per G.O.(MS) Nos. 2251/07/LSGD dated 17.08.2007, G.O.(MS) No.305/2011/LSGD dated 07.12.2011 and G.O.(MS) No.27/2018/LSGD dated 25.02.2018 respectively. The ratio based Higher Grades for Office Attendants and Attenders was not specified in Schedule B applicable to the employees appointed after 04.07.2006. Even though State Government employees were granted ratio based higher grade promotions, petitioners cannot claim such benefit, unless it is specifically stated in the Government Orders sanctioning pay revision benefits. Attention is drawn to the communications between the GCDA and the Government to point out that the Government never approved the ratio ``` WP(C) NO. 29105 OF 2019 ``` ``` 7 ``` based Higher Grade promotions granted by the GCDA to the Office Attendants and Attenders in its service. Specific reference is made to Ext.R3(f) by which the Chairman, GCDA had brought the issue to the notice of the Minister for Local Self Government Department. In reply to the letter the Government issued Ext.P27, specifically pointing out that in spite of the condition in that prior permission should be obtained from the Government before granting ratio based higher grade promotions, the GCDA had failed to obtain the sanction and hence, the question of approving the promotions does not arise. Attention is also drawn to Ext.P28 consequential order to point out that, all throughout the GCDA was conscious of its mistake in not having obtained prior sanction for effecting ratio based higher grade promotions. 4. Adv.V. Mini, the learned Standing Counsel for the GCDA supported the contentions of the learned Government Pleader and submitted that the ratio based ``` WP(C) NO. 29105 OF 2019 ``` ``` 8 ``` Higher Grade promotions mistakenly granted does not confer them with any legal right to seek continuance of the benefit. 5. Having heard the learned Cousnel for the parties and having gone through the documents, including the communications between the GCDA and the Government, I have no doubt that the ratio based Higher Grade was granted without prior or post sanction from the Government. As such, the Government is well within its rights to direct cancellation of the benefits granted. As rightly pointed out by the learned Government Pleader, there is clear distinction between grant of pay revision benefits to Government employees and employees in organisations like the GCDA. While benefits of pay revision orders will be automatically applied to the Government employees, such benefits can be extended to employees in the GCDA only after obtaining sanction from the Government. The manner in which the pay revision is to be ``` WP(C) NO. 29105 OF 2019 ``` ``` 9 ``` implemented will depend upon the directives in the order granting sanction. In the case at hand, the Government had not included Office Attendant and Attender among the category of employees entitled for ratio based Higher Grade. Being so, grant of ratio based higher grade promotions granted to the petitioners does not confer with any legal right to demand that the benefit should be continued. 6. Coming to the question of recovery, I find substantial merit in the contention of the learned Counsel for the petitioners that having extended the benefit for more than 10 years, there cannot be a recovery of the benefits, particularly in the absence of any allegation that the petitioners had any role in the grant of ratio based higher grade promotions. In **Rafiq Masih,** the Apex Court postulated the situations where the recovery is impermissible in law. Those situations are as under; ``` WP(C) NO. 29105 OF 2019 ``` ``` 10 ``` ``` (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. ``` The first situation postulated by the Apex Court, viz; that ``` WP(C) NO. 29105 OF 2019 ``` ``` 11 ``` recovery cannot be effected from employees belonging to the Class-III and Class-IV service squarely applies in the case of the petitioners, since the petitioners belong to Class-IV service. Even though GCDA has a contention that some of the petitioners have executed bonds undertaking to refund the excess salary paid, evidence regarding execution of such bonds is not made available. In such circumstances, I am bound by the decision in **Rafiq Masih** (supra). 7. Learned Government Pleader submitted that even if the recovery is held to be illegal, the GCDA is bound to correct the anomaly with respect to the petitioner’s salary on the basis of Ext.P27 order. I find the submission to be well founded. Having found the grant of ratio based Higher Grade promotions to be wrong, the GCDA has to correct the anomaly with respect to the petitioners salary based on Ext.P27 order. ``` WP(C) NO. 29105 OF 2019 ``` ``` 12 ``` In the result, the Writ Petition is disposed of as under:- _`1. The challenge against Ext.P27 is held to be unsustainable.`_ ``` 2. It is declared that the respondents have no legal right to affect recovery of the excess salary paid to the petitioners consequent to the ratio based higher grade promotions granted to them. ``` ``` 3. The GCDA can re-fix the salary of the petitioners in terms of the directions contained in Ext.P27, without affecting recovery from the salary already paid. ``` ## **Sd/-** **V.G.ARUN JUDGE** **RK** ``` WP(C) NO. 29105 OF 2019 ``` ``` 13 ``` ## **`APPENDIX OF WP(C) 29105/2019`** |**`PETITIONER EXHIBITS`**|| |---|---| |**`EXHIBIT P1`**|**`TRUE COPY OF THE ORDER OF APPOINTMENT`**| ||**`OF THE 1ST PETITIONER BEARING NO.`**| ||**`5054/ESTT.2/2003/GCDA DATED 3-4-2007`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P2`**|**`TRUE COPY OF THE ORDER NO.`**| ||**`167/ESTT.2/09/GCDA DATED 16-6-2009`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P3`**|**`TRUE COPY OF THE ORDER NO.`**| ||**`1909/ESTT.2/2006/GCDA DATED 30-3-2011`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P4`**|**`TRUE COPY OF THE ORDER NO.`**| ||**`1909/ESTT.2/10/GCDA DATED 2-9-2011`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P5`**|**`TRUE COPY OF THE ORDER NO.`**| ||**`2479/ESTT.2/2014/GCDA DATED 22-8-2015`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P6`**|**`TRUE COPY OF THE ORDER OF APPOINTMENT`**| ||**`OF THE 2ND PETITIONER BEARING NO.`**| ||**`5054/ESTT.2/2003/GCDA DATED 19-11-2007`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P7`**|**`TRUE COPY OF THE ORDER NO.`**| ||**`1909/ESTT.2/2010/GCDA DATED 31-3-2020`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P8`**|**`TRUE COPY OF THE ORDER NO.`**| ||**`269/ESTT.2/2014/GCDA DATED 29-3-2014`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P9`**|**`TRUE COPY OF THE ORDER NO.`**| ||**`2843/ESTT.2/2011/GCDA DATED 7-7-2016`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P10`**|**`TRUE COPY OF THE ORDER NO.`**| ||**`1989/ESTT.2/2015/GCDA DATED 13-8-2018`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P11`**|**`TRUE COPY OF THE ORDER OF APPOINTMENT`**| ||**`OF THE 1ST PETITIONER BEARING NO.`**| ||**`5054/ESTT.2/03/GCDA DATED 31-1-2008`**| ||**`ISSUED BY THE 3RD RESPONDENT`**| |**`EXHIBIT P12`**|**`TRUE COPY OF THE ORDER NO.`**| ``` WP(C) NO. 29105 OF 2019 ``` ``` 14 ``` ``` 167/ESTT.2/2009/GCDA DATED 2-12-2010 ISSUED BY THE 3RD RESPONDENT EXHIBIT P13TRUE COPY OF THE 2843/EXTT-2/2011/GCDA DATED 30-12-2017 ISSUED BY THE 3RD RESPONDENT EXHIBIT P14TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 4TH PETITIONER BEARING NO. 7305/ESTT.2/2009/GCDA DATED 22-12-2011 ISSUED BY THE 3RD RESPONDENT EXHIBIT P15TRUE COPY OF THE ORDER NO. 2479/ESTT.2/2014/GCDA DATED 12-6-2015 ISSUED BY THE 3RD RESPONDENT EXHIBIT P16TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 5TH PETITIONER BEARING NO. 7305/ESTT.2/2009/GCDA DATED 22-12-2011 ISSUED BY THE 3RD RESPONDENT EXHIBIT P17TRUE COPY OF THE ORDER NO. 2479/ESTT.2/2014/GCDA DATED 12-6-2015 ISSUED BY THE 3RD RESPONDENT EXHIBIT P18TRUE COPY OF THE ORDER NO. 2843/ESTT.2/2011/GCDA DATED 22-12-2016 ISSUED BY THE 3RD RESPONDENT EXHIBIT P19TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 6TH PETITIONER BEARING NO. 5054/ESTT.2/03/GCDA DATED 16-5-2008 ISSUED BY THE 3RD RESPONDENT EXHIBIT P20TRUE COPY OF THE ORDER NO. 1909/ESTT.2/2006/GCDA DATED 30-3-2011 ISSUED BY THE 3RD RESPONDENT EXHIBIT P21TRUE COPY OF THE ORDER NO. 4941/ESTT.2/2018/GCDA DATED 8-3-2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT P22TRUE COPY OF THE ORDER NO. 269/ESTT.2/2014/GCDA DATED 7-3-2014 ISSUED BY THE 3RD RESPONDENT EXHIBIT P23TRUE COPY OF THE ORDER NO. 269/ESTT.2/2014/GCDA DATED 29-3-2014 ISSUED BY THE 3RD RESPONDENT EXHIBIT P24TRUE COPY OF THE LETTER NO. 7491/G2/04/LSGD DATED 4-7-2006 ISSUED BY THE 1ST RESPONDENT EXHIBIT P25TRUE COPY OF THE G.O.(P)NO. ``` ``` WP(C) NO. 29105 OF 2019 ``` ``` 15 ``` ``` 817/95(58)/FIN. DATED 14-11-1995 ISSUED BY GOVERNMENT OF KERALA EXHIBIT P26TRUE COPY OF THE RELEVANT PORTION OF G.O. (P) NO. 7/2016/FIN. DATED 20-1- 2016 ``` ``` EXHIBIT P27TRUE COPY OF THE LETTER NO. LSGD- IA3/24/2018-LSGD DATED 1-12-2018 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT ``` ``` EXHIBIT P28TRUE COPY OF THE ORDER NO. 9054/STT- 2/2017/GCDA DATED 12-6-2019 ISSUED BY THE 3RD RESPONDENT EXHIBIT P29TRUE COPY OF THE NOTE NO. 4158/F.B.5/13/GCDA DATED 25-9-2019 ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER ``` **`RESPONDENT’S EXHIBITS` EXHIBIT R3(A)** **`TRUE COPY OF THE LETTER NO.5708/ESTT2/2015/GCDA DATED 29.11.2016` EXHIBIT R3(B)** **`THE TRUE COPY OF THE LETTER NO.KSAGDA(A2)740/15 DATED 14.12.2017` EXHIBIT R3(C)** **`TRUE COPY OF THE LETTER NO.5708/ESTT2/2015/GCDA DATED 27.01.2018` EXHIBIT R3(D)** **`THE TRUE COPY OF THE LETTER NO.IA3/24/2018/LSGD DATED 17.03.2018` EXHIBIT R3(E)** **`THE TRUE COPY OF THE LETTER NO.5708/ESTT/2015/GCDA DATED 15.05.2018` EXHIBIT R3(F)** **`TRUE COPY OF THE LETTER NO.5708/ESTT2/2015/GCDA DATED 29.08.2018`**