Chandrika D. v. Regional Cancer Centre (RCC) and Government of Kerala

1 WPC 39902/22 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` THURSDAY, THE 4[TH] DAY OF JULY 2024 / 13TH ASHADHA, 1946 ``` ``` WP(C) NO.39902 OF 2022 ``` ## **`PETITIONER/S:`** ``` CHANDRIKA.D., AGED 61 YEARS EC -0111, MEDICAL RECORDS OFFICER- RCC -RETD, W/O. SURESH KK, SURABHI, AN E-7, SAMUEL GARDENS, PONGUMMOODU, MEDICAL COLLEGE. P.O, THIRUVANANTHAPURAM 695011. ``` ``` BY ADV S.ABDUL RAZZAK ``` ## **`RESPONDENT/S:`** - **`1 REGIONAL CANCER CENTRE (RCC), REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011.`** - **`2 GOVERNMENT OF KERALA, HEALTH & FAMILY WELFARE (J) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 695001.`** ``` BY ADV ATHUL SHAJI ``` ## **`OTHER PRESENT:`** ``` GP SMT ANIMA. M ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 9.12.2022, THE COURT ON 4.7.2024 DELIVERED THE FOLLOWING: ``` 2 WPC 39902/22 ## **JUDGMENT** (Dated this the 4[th] day of July 2024) The petitioner superannuated from the 1[st] respondent as Senior Grade Medical Records Officer on 30.11.2021. He joined the service as non-academic service as per order dated 9.5.1985. After probation, the petitioner claimed the pay scale admissible to the post of Medical Records Officer as he was appointed as Medical Records Officer by order dated 17.2.2006. Consequently, by order dated 21.4.2008, the same was sanctioned. However, it was cancelled, which was challenged by the petitioner before this Court in W.P.(C) No.30709 of 2019. 2. Following the implementation of 6[th] Central Pay Revision Order of Pay Structure based on 7[th] Central Pay Revision, it was allowed to RCC employees with effect from 3 WPC 39902/22 1.1.2016. After retirement, by order dated 27.12.2021, II FCP due was granted to the petitioner with retrospective effect from 17.2.2020. The next increment was due on 1.7.2021 and the basic pay drawn at the time of retirement was Rs.64,100/-. The monthly pension, at the rate of 40% of the retirement alone, was paid on 27.7.2022 pursuant to representation dated 12.4.2022, after obtaining an undertaking agreeing recovery of legally enforceable liability if any, detected due to wrong fixation of pay while in service. Earned leave surrender value for 300 days was also sanctioned on 16.2.2022. For calculating pension, a lesser basic pay was reckoned, and a calculation note was prepared. An amount of Rs.3,76,205/- was illegally recovered alleging excess pay on re-fixation and a lesser amount was released. Retirement gratuity was due for 37 years in service, but only 33 years was reckoned, that too on the basic pay of lesser than the last basic reckoned for pay 4 WPC 39902/22 pension. Retirement gratuity was limited on the basis of 6[th] Central Pay Revision, instead of determining the same based on 7[th] Central Pay Revision. Ext.P13 is the note issued on superannuation showing the eligible gratuity amount to the petitioner. Thereafter, the petitioner superannuated on 30.11.2021 and the 1[st] respondent has sent a letter to the Chief Manager SBI Medical College branch to credit an amount of Rs.14,38,615/- to the account of the petitioner. The petitioner challenges Ext.Nos.P14 and P15, before this Court. 3. A counter affidavit is filed by the 1[st] respondent, contending that the petitioner was appointed in the post of Medical Records Officer by order dated 17.2.2006. Though she was granted the pay scale of Rs.6,500-10500 as per her request, it was cancelled as she did not possess the necessary qualifications prescribed for the post. She challenged the same before this court in W.P.(C) no.30709 of 2019 and this court 5 WPC 39902/22 directed the Government to examine the representation filed by the petitioner. The representation was rejected by Ext.R1(a). On an introduction of Central pay scale, the grade promotion followed in the RCC was dispensed with and new pattern of grade promotion known as FCP/LP was introduced. A three men committee was constituted to suggest the remedial measures in order to rectify the anomalies in the pay scale. The committee found certain irregularities in fixation and grant of higher scale of pay to certain categories of employees. The executive committee of RCC accepted the Three men committee report and forwarded to the Government for approval. The Government as per GO(Rt.) No.869/2012/H&FWD dated 16.3.2012, accorded sanction to implement the modified FCP/LP to the non-academic staff of RCC. As per GO(MS) No.76/2021/H&FWD dated 26.2.2021, the Government extended 7[th] Central Pay Revision to academic and non-academic staff of the 1[st] respondent. It was found that pay revision was given to the 6 WPC 39902/22 petitioner wrongly. She has given an undertaking that excess payment shall be refunded by her to the RCC by adjusting against future payment due. The undertaking is produced as Ext.R1(b). On the said undertaking, the excess paid salary was recovered and the cash equivalent of earned leave surrender with the consent of the petitioner. 4. Heard the counsel for the petitioner, standing counsel for the 1[st] respondent and the Government Pleader. 5. Though it is contended by the respondents that an undertaking was given by the petitioner that ‘while revising the pay, any excess payment made shall be refunded to RCC by adjustment against future payment due to her’, the said undertaking was not given at the time of the pay revision, but prior to 2 months of the superannuation. Therefore, the said undertaking cannot be acted upon to recover the amounts. The counsel for the petitioner argues that the apex court in **State of** 7 WPC 39902/22 **Punjab v. Rafiq Masih [(2015) 4 SCC 334]** , held that the recovery from employees belonging to Class III and Class IV (Group C & D) in service or the retired employees or who are due to retire within one year of order of recovery and for recovery from employees to whom excess payment has been made in excess of 5 years from the order of recovery, are impermissible in law. Therefore, since the petitioner retired from service on 30.11.2021 and recovery is affected after the said date, the judgment of the apex court in **Rafiq Masih** (supra) is squarely applicable to this case and the recovery is impermissible. Therefore, the petitioner is entitled to succeed and there will be a direction to the respondents to refund the entire amount due to the petitioner, which has been adjusted as per Ext.P14, within a period of 2 months from the date of receipt of a copy of this judgment. 8 WPC 39902/22 The gratuity amount, which has been recovered, shall be paid with interest at the rate of 8% per annum, from the date on which it became due. All the other amounts will carry interest at the rate of 6% per annum, if the same is not paid within a period of 2 months as stipulated above. The Writ Petition is disposed of as above. Sd/- **BASANT BALAJI, JUDGE** dl/ 9 WPC 39902/22 ## **`APPENDIX OF WP(C) 39902/2022`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1 PHOTOCOPY OF ORDER DATED 25-11-2021 RETIRING THE PETITIONER.`** ``` Exhibit P2PHOTOCOPY OF 1ST APPOINTMENT ORDER DATED 9-5-1985. ``` - **`Exhibit P3 PHOTOCOPY OF APPOINTMENT ORDER DATED 17-02-2006 AS M R O .`** - **`Exhibit P4 PHOTOCOPY OF GO (RT) NO. 869/2012/ H& FWD DT. 16/3/ 2012. Exhibit P5 PHOTOCOPY OF G.O(MS) NO. 76/2021/H&FWD DATED 26/02/2021. Exhibit P6 PHOTOCOPY OF REVISED PAY- FIXATION STATEMENT WITH PREREVISED STATEMENT DATED 29-10-21`** - **`Exhibit P7 PHOTOCOPY OF ORDER DATED 27-12-2021 FOR II FCP.`** - **`Exhibit P8 PHOTOCOPY OF PAY FIXATION STATEMENT DATED 27-12-2021.`** - **`Exhibit P9 PHOTOCOPY OF PPO DATED NIL.`** - **`Exhibit P10 PHOTOCOPY OF UNDERTAKING DATED 24-6-2022 .`** - **`Exhibit P11 PHOTOCOPY OF SANCTION ORDER 16-02-2022 FOR EARNED LEAVE SURRENDER.`** - **`Exhibit P12 PHOTOCOPY OF NOTE NO. RCC/33/2022-FIN -E FOR EARNED LEAVE SURRENDER VALUE AND RECOVERY`** - **`Exhibit P13 PHOTOCOPY OF NOTE NO. RCC/33/2022-FIN -EFOR RETIREMENT GRATUITY`** - **`Exhibit P14 PHOTOCOPY OF 2ND RESPONDENT'S ORDER NO. RCC/33/-FIN - E/2022-23 DATED 20-10-2.2.`** - **`Exhibit P15 PHOTOCOPY OF G.O (RT) NO. 2778/2022/H& FWD DATED 21-112022.`** ## **`RESPONDENT EXHIBITS`** ``` Exhibit R1(a)True copy of the G.O.(Rt)No. 2157/2020/H and FWD dated 17/11/2020 ``` ``` Exhibit R1(b)True copy of undertaking dated 24.08.2021. ``` ``` Exhibit R1(c)True copy of the Letter No. HEALTH-FW2/259/2018-HEALTH dated 16.08.2022 ```