Dr. S. Anilkumar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA, 1942** ## **WP(C).No.27284 OF 2014(I)** ## **PETITIONER:** ## **DR.S.ANILKUMAR** **DIRECTOR, PUBLIC RELATIONS AND PUBLICATIONS, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY.P.O., KOCHI-682022.** **BY ADV. SRI.JELSON J.EDAMPADAM** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY COCHIN UNIVERSITY.P.O., KOCHI-682022, REPRESENTED BY ITS REGISTRAR. 3 JOINT DIRECTOR OF LOCAL FUND AUDIT COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY .P.O., KOCHI-682022.** **R1 BY GOVERNMENT PLEADER SMT.DIVYA.C.BALAN R2-3 BY SRI.S.KRISHNAMOORTHY, SC, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY R2 BY ADV. SRI.M.R.HARIRAJ, SC, COCHIN UNIVERSITY OF SCIENCE R2-3 BY SRI.V.S.AFSAL KHAN, SC, COCHIN UTY. OF SCIENCE & TECHNOLOGY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **:2:** W.P.(C).No.27284/2014 ## **JUDGMENT** The petitioner was appointed as Publicity Assistant in the Spices Board with effect from 24.11.1988 and he continued in the said post till 13.08.1995. Thereafter, the petitioner joined the service of the 2[nd] respondent University on 14.08.1995 as Public Relations Officer. By Ext.P9 order dated 27.9.1999, the University gave sanction to the Vice Chancellor to reckon the period of 6 years, 8 months and 20 days service of the petitioner in Spices Board, for pensionary benefits as per G.O.(P)No.369/87/Fin. dated 31.03.1987. 2. While effecting the revision of pay during 2004 and 2009, the pay of the petitioner was fixed on the basis of service weightage, calculated by including his prior service in the Spices Board. Ext.P1 produced along with the writ petition is the order by which the University adopted the 8[th] pay revision as issued by the Government of Kerala, with effect from 01.07.2004. Ext.P2 which is the pay fixation effected on the basis of Ext.P1 takes in the service of the petitioner in the Spices Board. Subsequently, the pay was again revised with effect from 2009. Ext.P3 statement of pay **:3:** W.P.(C).No.27284/2014 shows that fixation as per the pay revision of 2009 was also done taking into account the service rendered by the petitioner in the Spices Board. 3. On the question whether service weightage for fixation of pay can be granted for prior service of University employees, the 1[st] respondent had issued Ext.P5 order, which would show that prior Government Service of University employees will be reckoned for service weightage and that it will not be reckoned for any other service benefits. The above position was clarified by the 1[st] respondent in their letter Ext.P6, to the University stating that the prior service only takes in State Government service. On 04.08.2014, the University issued Ext.P4 memo to the petitioner, wherein it was stated that the objection raised in the Local Fund Audit Report for 2007-08, to the counting of prior service rendered by the petitioner in the Spices Board, for the pay fixation of the petitioner consequent to 2004 pay revision, is found to be correct and that the pay fixation stands cancelled. The memo requires the petitioner to file a re-option for pay revision of 2004 in the changed circumstances. This was followed by Ext.P7 statement of pay fixation, giving effect to the correction as suggested by the audit **:4:** W.P.(C).No.27284/2014 objection. Ext.P7 also says that the excess salary paid to the petitioner will be recovered from his monthly salary in 24 installments. Ext.P8 is the consequential pay fixation on the basis of pay revision of 2009, wherein also it is stated that excess pay drawn by the petitioner will be recovered. 4. The petitioner has approached this Court praying to quash Exts.P4 to P8, to the extent the petitioner's pay has been reduced from what was granted as per Exts.P2 and P3, and for a direction to the respondents not to recover from the petitioner any amount that he has already drawn and enjoyed on the basis of Exts.P2 and P3. At the time of admission of the writ petition on 20.10.2014, this Court directed that no coercive steps shall be taken to recover any amounts from the salary of the petitioner. The above order was later modified on 04.03.2015 to the effect that there is no impediment in the University re-fixing the pay and effecting further payments as per the reduced fixation of pay. 5. The 2[nd] respondent has filed a counter affidavit contending that what was done was only correcting an error which had occurred at the time of pay fixation during 2004 and 2009. It is submitted therein that the fact that the service of the petitioner **:5:** W.P.(C).No.27284/2014 in the Spices Board is not a service which qualifies under clause 4 of Annexure 3 of Ext.P1 which has been extracted in paragraph 3 of the counter affidavit. The said clause reads as follows: “(1) To the pay so fixed, one increment for each completed four years of service, subject to a maximum of four increments in the revised scale, will be added. Note: Service for the purpose of this rule means service (where protection of pay is allowed) including broken periods of service qualifying for normal increments in the scale of pay. Service during the period of bar on increment without cumulative effect and dies non period will also be reckoned. Time spent on leave that will not count for normal increment will not be reckoned. Prior service of Government employees in aided educational institutions and vice versa will also be reckoned for determining the length of service.” Reliance is also placed on the judgment of the Hon'ble Supreme Court in **Chandi Prasad Uniyal v. State of Uttarakhand** reported in **[** ( **2012) 8 SCC 417]** to contend that excess amounts paid can be recovered on correction of a mistake even if the mistake was not due to misrepresentation or fraud by the employee. 6. The 1[st] respondent has also filed a counter affidavit, wherein it is stated that the powers of the University are not exclusive and they have to invariably obtain prior approval/sanction of the Government for the decisions which entail financial **:6:** W.P.(C).No.27284/2014 commitment. According to the 1[st] respondent, upgradation of the post of Public Relations Officer with respect to the petitioner and the scale of pay fixed by the University without approval of the Government has to be treated as irregular. 7. Heard Sri Jelson J. Edampadam on behalf of the petitioner, Sri S.Krishnamoorthy Standing Counsel for the 2[nd] and 3[rd] respondents and Smt.Divya C.Balan Government Pleader on behalf of the 1[st] respondent. 8. The counsel for the petitioner submits that going by Ext.P9, the service rendered by the petitioner in Spices Board is included for the purpose of his pension. He further contends that the petitioner has already retired from service and going by the dictum laid down in **State of Punjab and others v. Rafeeq Masih** **(White Washer) and others** reported in **[ 2015 (4) SCC 334],** the respondents are not entitled to recover the excess pay from the petitioner. The counsel specifically relies on the situations postulated in clause 2 and clause 3 in paragraph 18 of the judgment. Paragraph 18 of the above said judgment reads as follows: “18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, **:7:** W.P.(C).No.27284/2014 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx” Clause 2 specifically relates to recovery from retired employees or the employees who are due to retire within one year, of the order of recovery. A reading of the above clause clearly shows that what is intended to be included are the cases of employees who have retired prior to the date of order of the recovery or who are due to retire within one year. In the case of the petitioner, the orders Exts.P7 and P8 where by the pay was re-fixed and recovery is ordered, are issued on 30.09.2014. Admittedly, the petitioner was in service on that date and he retired much after the period of one **:8:** W.P.(C).No.27284/2014 year from the date of Exts.P7 and P8. As such, the petitioner cannot rely on the said clause for raising a contention that no recovery can be effected from his pay. As already stated, the recovery was kept in abeyance only because of orders issued by this Court. 9. A reading of clause 3 would show that recovery from employees cannot be made when the excess payment has been made for a period in excess of 5 years before the order of recovery is issued. In the case on hand, excess payment was being made with effect from 13.06.2005, which is the date of option for revised pay as per 2004 pay revision, as can be seen from Ext.P7. Pursuant to the modified interim order issued by this Court, the respondents have been paying the reduced pay on the basis of refixation for the period subsequent to the issuance of Exts.P7 and P8. Going by clause 3 above, the respondents cannot be permitted to recover amounts which have been paid in excess prior to 5 years from the date of Exts.P7 and P8, i.e., 30.09.2009. 10. The question remains whether the rules that govern the University permits recovery of arrears and if so to what extent. Chapter III of the Cochin University First Statutes on Service **:9:** W.P.(C).No.27284/2014 Conditions of Teachers and other Staff of the University, 1981, deals with the terms and conditions of service of staff of the University other than the University Teachers. Statute 2 in Part 1 of Chapter III reads thus: “(2)Application of entire works to University employees :- (a) Subject to the provisions of the Act and these Statutes, the Kerala Service Rules, 1959, the Kerala State Subordinate Service Rules, 1958, the Government Servants' Conduct Rules, 1960 and the General Provident Fund (Kerala) Rules as amended from time to time, mutatis mutandis apply to all the University employees: Provided that the said rules shall, in their application to the members of the University service, be construed as if the employer were the Cochin University instead of the Kerala Government.” 11. The Cochin University First Statutes does not deal with the recovery of amounts paid in excess of pay to the employees. The provision applicable in the Kerala Service Rules is contained in Rule 3C of Part III of KSR which reads as follows:- “3C:- Notwithstanding anything contained in these Rules recovery of excess payments made to an officer by mistake within a period of 4 years before his retirement and which are detected within a period of 4 years after retirement may be made from his pension and other amounts due to him after retirement, subject to the condition that such **:10:** W.P.(C).No.27284/2014 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 % of the monthly pension admissible to him.” 12. A reading of Rule 3C would show that it does not deal with a situation where the excess payment is detected much before the retirement of the employee, the employee is put on notice regarding the recovery that is to be effected and the proceedings for recovery is stayed by the Court. So Rule 3C cannot in any manner advance the cause of the petitioner and the only relief that he can claim will be on the basis of clause 3 of paragraph 18 of the judgment in **Rafiq Masih (supra)** . 13. Regarding the contention of the petitioner that the period spent in the service of the Spices Board should be included for the purpose of fixation of pay, particularly since the same has been included for the purpose of pension, as seen from Ext.P9 can only be rejected. There is no provision in the University Act or Statutes that permits such an inclusion of period of service under a different employer. Nor is any binding Government orders brought to my notice, which provides for such an inclusion. Ext.P1 by which the University adopted the Eighth Pay Revision also does not provide for **:11:** W.P.(C).No.27284/2014 inclusion of the service rendered in Spices Board. On the other hand, Ext.P5 specifically deals with grant of service weightage only in case of prior Government service rendered by University employees. In the result, the writ petition is allowed in part. Exts. P7 and P8 orders re-fixing the pay on the basis of the pay revisions of 2004 and 2009 are quashed. It is declared that the respondents are not entitled to recover any amount from the petitioner on the basis of a re-fixation of the pay on the basis of 2004 pay revision. The respondents are directed to pass fresh orders of pay fixation on the 2009 revision, on the basis of the above declaration. The respondents are entitled to recover any amount determined to have been paid in excess on the basis of the pay fixation done as above, with effect from 30.9.2009 till 30.9.2014, on which day the recovery was ordered as per Ext.P7 and P8. The respondents shall complete the process of re-fixation and inform the petitioner regarding the total amount that is liable to be recovered at the earliest, at any rate within 4 months from the date of receipt of a copy of the judgment. The petitioner may opt to pay of the excess amount found due as above either as a one time payment or the **:12:** W.P.(C).No.27284/2014 same may be recovered from the pension payable to the petitioner, as provided in Rule 3C of Part III of Kerala Service Rules, and intimate his option to the respondents within 3 weeks from the date of receipt of the intimation from the respondents regarding the excess pay to be recovered. If the petitioner fails to make the options as above, the respondents may proceed to recover the amounts from the pension payable to the petitioner, in the manner provided in Rule 3C of Part III, KSR, effective from the pension payable for the following month. In the circumstances of the case, there will be no order as to costs. Sd/- **T.R. RAVI JUDGE** dsn **:13:** W.P.(C).No.27284/2014 ## **APPENDIX** **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE UNIVERSITY OFEER NO. AD. A1/215/2006(PR) DATED 20-7-2006.** - **EXHIBIT P2 TRUE COPY OF THE STATEMENT OF PAY FIXATION (PAY REVISION 04) NO. FIN. II/PR-04/901/2006/01134 DATED 3-4-2007 OF THE FINANCE OFFICER OF THE UNIVERSITY.** - **EXHIBIT P3 TRUE COPY OF THE STATEMENT OF PAY FIXATION NO. FIN/II/PR 2009-1/2011/1134 DATED 15-12-11.** - **EXHIBIT P4 TRUE COPY OF THE MEMO NO. FIN II/F/22/PR-04 DATED 4-8-2014 ALONG WITH RELEVANT EXTRACT OF THE AUDIT REPORT.** - **EXHIBIT P5 TRUE COPY OF THE O. (P) NO. 40/2012/(39)/FIN. DATED 11-1-12.** - **EXHIBIT P6 TRUE COPY OF THE GOVERNMENT LETTER NO.44737/ARCA3/2012/FIN DATED 12-7-2012.** - **EXHIBIT P7 TRUE COPY OF THE FIXATION STATEMENTS NO.FI. II/PR-04/901/2006/01134 DATED 30-9-2014.** - **EXHIBIT P8 TRUE COPY OF THE PAY FIXATION NO. FIN.II/PR2009/2011/1134A DATED 30-9-2014.** - **EXHIBIT P9 TRUE COPY OF THE UNIVERSITY ORDER NO. AD. A1/14240/92 DATED 27-9-1999.**