K.V. Muraleedharan Nair v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942** ## **WP(C).No.16713 OF 2020(L)** ## **PETITIONER:** **K.V.MURALEEDHARAN NAIR AGED 58 YEARS** **S/O.VASUDEVAN NAIR, KAILASAM, EVOOR P.O., HARIPPAD, ALAPPUZHA DISTRICT.** **BY ADVS. SHRI.JOHN VIPIN SHRI.SUNIL KUMAR A.G** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REP. BY ITS PRINCIPAL SECRETARY, WATER RESOURCES (WC-C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE KERALA WATER AUTHORITY, REPRESENTED BY MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.** - **3 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.** - **4 THE CHIEF ENGINEER, HRD AND GENERAL, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.** - **5 THE FINANCE MANAGER AND CHIEF ACCOUNTS OFFICER, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.** - **6 THE DEPUTY CHIEF ENGINEER, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695001.** - **7 THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, THIRUVALLA, PATHANAMTHITTA-689101.** - **8 THE EXECUTIVE ENGINEER,** **WP(C).No.16713 OF 2020 2** # **P H DIVISION (SOUTH), OBSERVATORY HILLS, THIRUVANANTHAPURAM, KERALA-695033.** **R2-6 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY** **GP-SRI.SUNIL KUMAR KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16713 OF 2020 3** ## **JUDGMENT** The petitioner says that he was appointed as a Lower Division Clerk (LDC) in the services of the Kerala Water Authority (KWA for short) on 15.04.1992 and that his probation in the said post was declared on 16.04.1994. He says that he was promoted as an Upper Division Clerk (UDC) 02.11.1998 and that this date of promotion was reassigned as 31.7.1994, as per an order of the 4[th] respondent – Chief Engineer, dated 01.01.2014. He then asserts that the 2[nd] Higher Grade was sanctioned on 15.04.2008 and that he was promoted as a Head Clerk on 19.08.2011; as Junior Superintendent on 05.05.2014 and as Divisional Accounts Officer on 05.11.2016. He says that he subsequently retired from service on 31.01.2018, on attaining the age of superannuation. 2. The petitioner alleges that almost a year after his retirement, Exts.P9 and P10 ## **WP(C).No.16713 OF 2020 4** proceedings have been issued by the KWA, holding that there is a liability of an amount of Rs.2,39,874/- against him, merely saying that this is because of “reassignment of U.D.Clerk Pay Re-fixation”. The petitioner says that these proceedings are completely untenable since they have been issued more than ten years after he had been granted the benefit and that any recovery pursuant thereto stands prohibited on account of the judgment of the Hon'ble Supreme Court in _**State of Punjab & Others v. Rafiq Masih (White Washer) & Others [(2015) 4 SCC 334].**_ 3. The petitioner further contends that, in any event of the matter, the recovery now ordered trough Exts.P9 and P10 are factually and legally impermissible, since he had been granted the same consequent to valid proceedings and since he was fully qualified to claim and obtain the same. **WP(C).No.16713 OF 2020 5** 4. The petitioner explains that, in the year 2009, he and certain other employees had approached this Court by filing W.P(C)No.24198 of 2009, which was filed assailing a seniority list published in the category of UDCs as also the steps then initiated for recovery of amounts on the basis of the reassignment of the date of their promotions. He says that this writ petition was allowed, setting aside the impugned proceedings; and that the 4[th] respondent, thereafter, published a provisional seniority list of UDCs vide order dated 28.10.2013, ratifying all the irregularities which appeared in the earlier seniority list of the year 2008. 5. The petitioner says that the respondents, thereafter, sanctioned salary and other allowances to him and that subsequently, Ext.P1 proceedings was issued by the 3[rd] respondent, modifying the earlier order stipulating that employees included **WP(C).No.16713 OF 2020 6** therein is free to enjoy pay and allowances, based on the date of promotion assigned strictly at par with the conditions mentioned in the Circular dated 14.01.2015. 6. the petitioner further says that when the 1997 pay revision was introduced, all employees were allowed to exercise option to come over to the revised scale of pay with effect from 01.03.1997 or with effect from any other date that they chose, which is evident from Ext.P3. He says that he, therefore, opted for 01.07.2005 to shift to the revised scale of pay and allowances and that this date does not violate any of the Rules or order prevailing at that time. He says that, similarly, when the 2004 pay revision was introduced, he opted the date as 15.04.2008, to come over to the revised scale; and that subsequently the 2[nd] Time Bound Higher Grade was sanctioned to him on completion of 16 years of service. He says that as per the relevant clauses of the ## **WP(C).No.16713 OF 2020 7** Government Order dated 08.08.2008, he was entitled to the 2[nd] Higher Grade on completion of 16 years of service in the entry post and in the 1[st] promoted post/time bound higher grade post taken together. 7. The petitioner asserts that the option once exercised for Time Bound Higher Grade promotion must be construed to be final and that all his options to come over to the revised scale of pay under both the pay revisions were done in accordance with the extant Rules. He says that it is in such manner that he was promoted as a Junior Superintendent on 05.05.2014 and later as a Divisional Accounts Officer on 05.11.2016; and that his pay was correctly fixed in the said post with effect from 07.11.2016. 8. The petitioner further contends that though, at the period when he was in service, no objection were raised against him with respect to any of the grade ## **WP(C).No.16713 OF 2020 8** promotions or the consequent pay and allowances obtained by him, that the 7[th] respondent issued Ext.P6 order on 01.02.2018, reassigning his date of promotion to the post of UD Clerk and thus refixing his pay much after he had retired from service. He says that this how Exts.P9 and P10 orders were issued fixing liability against him and thus contends that no such could have been imposed against him on account of the afore facts and since his grade promotions had been offered and increments paid as per valid orders and sanctions, in the issuance of which, he had absolutely no role to play. 9. The petitioner thus contends that, going by _**Rafiq Masih (Supra),**_ no recovery is possible and that too, after more than 10 years after the benefits were granted to him, particularly because the KWA has no case that they were obtained by him on account of any fault or error that ## **WP(C).No.16713 OF 2020 9** can be attributed to him. The petitioner, therefore, prayed that this writ petition be ordered as prayed for by him. 10. In response, the learned Standing Counsel for the Kerala Water Authority, Shri.Benjamin Paul, submitted that there is nothing wrong in Exts.P9 and P10, since the objections as regards the petitioner's Grade Promotions and options under the Pay Revisions can be found out only at the time when his pension papers are processed. He submitted that, as is the case of any other employee, the petitioner has also given necessary undertaking before the KWA that if any amounts are found due from him at the time when his pension papers are processed, he will refund the same and therefore, that the Authority was well with in its powers in issuing Exts.P9 and P10 and thus prayed that this writ petition be dismissed. 11. Even when I hear Shri.Benjamin Paul ## **WP(C).No.16713 OF 2020 10** on the afore lines, it is indubitable that the declarations in _**Rafiq Masih (Supra)**_ have been further explained by the Hon'ble Supreme Court in _**High Court of Punjab & Haryana & Others v. Jaydev Singh**_ **[(2016) 14 SCC 267],** wherein, it has been clarified that the observations in the former judgment will not apply if an employee had given an undertaking, that on account of the wrong fixation of pay or allowances, the same will be refunded by him. 12. In the case at hand, though the KWA says that all the employees have given undertakings at the time when their pension papers are processed to the effect that any excess paid to them will be refunded, the fact remains that the amounts quantified against the petitioner, through Exts.P9 and P10, are those which were given to him under valid orders over ten years ago, while he was in service. ## **WP(C).No.16713 OF 2020 11** 13. Pertinently, the impugned orders are issued only after a year subsequent to the petitioner's retirement on attaining the age of superannuation; and it is admitted that no time before it, had he been even notified that there is any such liability against him. 14. That apart, the liability now quantified is not something that the petitioner had obtained illegally but was admittedly paid to him under valid orders and sanctions at the relevant time, based on the extant Rules and Regulations. 15. I am, therefore, of the firm view that the ratio in _**Rafiq Masih (Supra)**_ would apply in its full force to the facts of this case and that no recovery can be ordered from the petitioner, particularly after he had retired from service and since it has been more than a decade after the said benefits had been granted to him under ## **WP(C).No.16713 OF 2020 12** valid orders. In the afore circumstances, this writ petition is ordered and the respondents are directed to disburse the retiral benefits to the petitioner _de hors_ Exts.P9 and P10, as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. After I dictated this part of the judgment, the learned counsel for the petitioner brought to my notice that, as per the interim order of this Court dated 16.10.2020, the DCRG amounts have already been received by his client. If this be so, then the afore directions will be read by the respondents as being the balance amounts due to the petitioner. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/4.3.2021** **WP(C).No.16713 OF 2020 13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROCEEDING NO.KWA/JB/E9/3647/2013 DATED 5.1.2015 OF R3.** - **EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.JS.465/2015 DATED 27.2.2015 ISSUED BY ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, MAVELIKKARA.** - **EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF G.O.(P) NO.54/1999 DATED 19.8.1999.** - **EXHIBIT P4 TRUE COPY OF THE PAY/LEAVE SALARY SLIP DATED 16.1.2017 ISSUED FROM THE OFFICE OF R3.** - **EXHIBIT P5 TRUE COPY OF THE PAY/LEAVE SALARY SLIP DATED 5.12.2017 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS NO.E1320/2006/VOL.II DATED 1.2.2018 ISSUED BY 7TH RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE PAY/LEAVE SALARY SLIP NO.KWA/E19/DAO/1747 DATED 3.5.2018 OF R3.** - **EXHIBIT P8 TRUE COPY OF PROCEEDING NO.KWA/AO(ESTT)/PEN:9439/COM:NON MEDICAL)/8503/5409 DATED 16.5.2018 OF 3RD RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF LETTER NO.E1-320/2006 VOL.II DATED 14.2.2020 OF 7TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE LETTER NO.KWA/PHDN.S/E13922/2017 DATED 13.3.2020 OF EXECUTIVE ENGINEER, PH DIVISION (SOUTH), THIRUVANANTHAPURAM.** **EXHIBIT P11 TRUE COPY OF REPRESENTATION DATED 11.11.2019 SUBMITTED BY THE PETITIONER. EXHIBIT P12 THE TRUE COPY OF THE GRATUITY PAYMENT ORDER NO-KWA/AQ (PEN) PEN-9439/COM:(NON-MEDICAL) 85.3 DTD. 16.9.2020 ISSUED BY 5TH RESPONDENT**