Jisha C. v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY, THE 31ST DAY OF JULY 2018 / 9TH SRAVANA, 1940 OP(KAT).No. 295 of 2018 ----------------------------AGAINST THE ORDER IN OA(EKM) 1100/2018 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 04-06-2018 ## PETITIONER(S)/APPLICANT ------------------------------ JISHA.C, W/O GIRIDHAR.P.C, AGED 35 YEARS, NOW RESIDING AT PILIKODE VAYAL, P.O.PILIKODE,KASARAGOD-671310. (PRESENTLY WORKING AS STAFF NURSE GR.II, AT COMMUNITY HEALTH CENTRE, KUMBLA). BY ADVS.SRI.MAHESH V RAMAKRISHNAN SRI.K.PRAMOD SMT.CHITHRA.S.BABU RESPONDENT(S)/RESPONDENTS: 1. THE STATE OF KERALA, REP.BY ITS SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE (C) DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM-695001. 3. THE DISTRICT MEDICAL OFFICER OF HEALTH, KANHANGAD, KASARAGOD-671315. 4. THE PRINCIPAL, GOVERNMENT SCHOOL OF NURSING, KANHANGAD, KASARAGOD-671315. 5. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM-695001. 6. THE MEDICAL OFFICER, - COMMUNITY HEALTH CENTRE, KUMBALA, KASARAGOD-671321. BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 31-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 295 of 2018 (Z) APPENDIX PETITIONER(S)' EXHIBITS: EXHIBIT P1:TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION O.A.(EKM)NO.1100/2018 DATED 30.05.2018 ALONG WITH EXHIBITS. EXHIBIT P2:TRUE COPY OF THE ORDER DATED 04.06.2018 IN O.A.(EKM)NO.1100/2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM(CAMP SITTING,ERNAKULAM). RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE **C.T. RAVIKUMAR** ## **& A.M.BABU, JJ. ========================== O.P.(KAT) No.295 OF 2018 ==========================** Dated this the 31[st ] day of July, 2018 ## **JUDGMENT** _Ravikumar, J._ This original petition is directed against judgment dated 4.6.2018 in O.A.(EKM) No.1100 of 2018 passed by the Kerala Administrative Tribunal. The petitioner herein was the applicant therein and she filed the said original application challenging Annexure A11 viz., G.O.(Rt)No.527/2018/H & FWD dated 16.02.2018 as also the demand notice issued in pursuance thereof. The proposal therein was to recover an amount of Rs.1,43,612/- from the petitioner on the ground that the said amount was paid to her in excess. The payment was effected pursuant to Annexure A3 order whereby and whereunder the request of the Director of Health Services to enhance the remuneration of the Nursing Tutors working on contract basis in Government Nursing Schools was accepted by the Government. However, the contention of the petitioner was that since **O.P.(KAT).295/2018** 2 she had been working as Nursing Tutor on contract basis from 7.3.2012 and going by the 9[th] Pay Commission Report, revision of pay was to be applied with effect from 1.7.2009, she was entitled to get enhanced pay with arrears with effect from 7.3.2012. Therefore, according to her, there is no excess payment. However, the Tribunal repelled the said contention relying on a Full Bench decision of this Court in **State of Kerala and others v. V.J. Philomina [2008 (1) KLT 666].** The further contention of the petitioner was that even if it is found that her entitlement to enhanced pay was only with effect from 22.2.2014, the date of Annexure A3, in the light of the decision of the Hon'ble Apex Court in **State of Panjab and others v. Rafiq Masih (White Washer) and others [(2015) 4 SCC 334]** , the respondents are not entitled to recover the amount paid in excess. However, the Tribunal held that the said decision was not applicable to the case on hand and the original application was dismissed as per the impugned order. It is in the said circumstances that this original petition is filed. 2. We have heard the learned counsel for the petitioner and the **O.P.(KAT).295/2018** 3 learned Government Pleader. 3. The petitioner was working as Nursing Tutor on contract basis from 7.3.2012 till 2.8.2013 on which day, her contract was terminated consequent to her recruitment through Public Service Commission as Staff Nurse Grade-II and joining duty as a regular employee. The recommendations of the 9[th] Pay Commission was accepted by the Government in the meanwhile with effect from 1.7.2009. Consequently, the scale of pay of Nursing Tutor was revised from Rs.10790-18000 to Rs.18740-33680. In respect of Nursing Tutors working on contract basis at Government Nursing Schools who were being paid a consolidated pay of Rs.10,790/- viz., the minimum in the pre-revised scale of pay, their remuneration was enhanced at the request of the Director of Health Services as per Annexure A3 to Rs.18,740/- which is the minimum pay in the revised scale of pay of Nursing Tutors. Annexure A3 is dated 22.2.2014. Pursuant to the said decision under Annexure A3, the petitioner who was working as Nursing Tutor on contract basis was granted an amount of Rs.1,43,612/- as arrears of pay during that period. It is this amount **O.P.(KAT).295/2018** 4 that is ordered to be recovered under Annexure A11 and obviously, the Tribunal had declined to interfere with the steps to effect recovery pursuant to the same. The question is whether the Tribunal went wrong in holding that the petitioner is entitled to get arrears only with effect from 22.2.2014 and not with effect from any anterior date. 4. As noticed hereinbefore, the contention of the petitioner is that she is entitled to get the enhanced pay and arrears with effect from 7.3.2012. We have already adverted to the circumstances under which Annexure A3 was issued. A bare perusal of Annexure A3 dated 22.2.2014 would reveal that it is Government Order enhancing the remuneration of Nursing Tutors working on contract basis at Government Nursing Schools to the minimum scale of pay of Rs.18740-33680 as recommended by the 9[th] Pay Commission. In other words, as per Annexure A3, the consolidated pay of Rs.10,790/which was the minimum in the pre-revised scale of pay of Nursing Tutors was enhanced to Rs.18,740/- which is the minimum in the revised scale of pay of Nursing Tutors. Annexure A3 did not state the date from which it should take its effect, specifically. When an order **O.P.(KAT).295/2018** 5 does not specifically state commencement of its operation and when that order is one creating financial liability, it can be treated only as an order commencing its operation only from the date on which it was issued. There is absolutely nothing in Annexure A3 which would indicate or suggest the contrary. Essentially, the foundation for the contention of the petitioner is the words 'as recommended by the 9[th] Pay Revision Commission' employed in Annexure A3. Before dealing with it any further, it is only proper to refer to the reason that led to the order for recovering the aforementioned amount from the petitioner:- 2. But during the audit of Accountant General, it was found that sanctioning of the arrear amount for the period from 07.03.2012 to 30.09.2013 is irregular as the G.O(Rt)No.621/2014/H&FWD dated, 22.02.2014 do not specify the retrospective effect on granting arrear to the contract employees and therefore they were not eligible for the arrears and recommended for review and regularisation. Annexure A11 Government Order would reveal that Government too held the action of the Principal, as illegal and ordered to recover the said amount. The punctuation mark 'coma' in para 2 would reveal words 'as recommended by the 9[th] Pay Revision Commission' would **O.P.(KAT).295/2018** 6 qualify the minimum scale of pay and not the enhancement of pay from Rs.10,790/- to 18,740/-. 5. As noticed hereinbefore, taking into account the aforesaid circumstances, the Tribunal relied on the decision in **V.J. Philomina'** s case (supra). Going by the said decision, any order granting financial benefits unless otherwise specifically stated with respect to the date on which it is to be given effect to, it would and it could take its effect from the date of its issuance and not earlier than that. The Tribunal, in the light of the decision in **V.J.Philomina** 's case found that with respect to the date of its operation, nothing is stated in Annexure A3 and therefore, by applying the dictum in **V.J.Philomina** 's case, it could be treated that Annexure A3 would operate only with effect from 22.2.2014. The said conclusion arrived at by the Tribunal cannot be said to be contrary to law. In fact, it is a decision taken by the Tribunal perfectly in accordance with law. In such circumstances, merely because the petitioner entered into the service on 7.3.2012, she cannot be heard to contend that she is entitled to get the benefit of Annexure A3 with effect from that date. **O.P.(KAT).295/2018** 7 6. We will now, consider the question whether the contention of the petitioner that even if there is excess payment, she is not liable to refund the same based on the decision in **Rafiq Masih (White Washer)'** s case could be accepted. The learned counsel for the petitioner submitted that in that decision, the Apex Court held that wherever the court concludes that recovery if effected from employee would be iniquitous or harsh or arbitrary, action for recovery could be prohibited. A close scanning of the decision would reveal that the Apex Court in unambiguous terms held that such a consideration is required in the case of employees belonging to lower rungs. The petitioner could not be said to be belonging to such a class as she was working as Nursing Tutor. In such circumstances, we do not find any reason to uphold the contention of the petitioner that the respondents are not entitled to recover the amount paid in excess. But at the same time, taking note of the submission of the learned counsel that now, recovery is being effected @ Rs.10,000/- per month and also taking note of the fact that the petitioner is having sufficient left over service, we are of the view that the amount of recovery from the salary shall **O.P.(KAT).295/2018** 8 not exceed Rs.5,000/- per month. Ordered accordingly. Subject to the above, this original petition is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/A.M.BABU (JUDGE)** **spc/** **O.P.(KAT).295/2018** 9