K.V.AJITHKUMAR v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 22ND DAY OF FEBRUARY 2017/3RD PHALGUNA, 1938 WP(C).No. 29622 of 2011 (C) ---------------------------- PETITIONER(S): ------------- K.V.AJITHKUMAR, S/O OF VASU AGED 56 YEARS CASHIER (RETIRED), KERALA STATE ELECTRICITY BOARD,, MARADU (RESIDING AT KAVANAL HOUSE, EROOR SOUTH, TRIPPUNITHURA, ERNAKULAM DISTRICT. BY ADVS.SRI.V.A.MUHAMMED SRI.M.SAJJAD RESPONDENT(S): -------------- 1. THE STATE OF KERALA AND OTHERS ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF, POWER, GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM - 695 001. 2. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDHYUTHI BHAVAN, THIRUVANANTHAPURAM - 695 001. 3. THE CHIEF ENGINEER (HUMAN RESOURCES MANAGEMENT), KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM - 695 004. 4. THE ACCOUNTS OFFICER, OFFICE OF THE HUMAN RESOURCES MANAGEMENT, KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN,, THIRUVANANTHAPURAM - 695 004. 5. SRI.E.K.HARIDASAN, OVERSEER, OFFICE OF THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE,, KERALA STATE ELECTRICITY BOARD, ERNAKULAM 682 018. R2-R4 BY ADV. SRI.K.S.ANIL, SC, KSEB R BY GOVERNMENT PLEADER, SMT.MARY BEENA JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CONTD..... :2: WP(C).No. 29622 of 2011 (C) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS : ---------------------- EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER (MEMO) OF THE PETITIONER EXT.P2 TRUE COPY OF THE RELEVANT PAGE OF THE APPOINTMENT ORDER EXT.P3 TRUE COPY OF THE RELIEVING ORDER MEMO OF THE EXECUTIVE ENGINEER EXT.P4 TRUE COPY OF THE ORDER NO.PAX/PPO-39227 OF THE ACCOUNTS OFFICER EXT.P5 TRUE COPY OF THE LETTER OF THE EXECUTIVE ENGINEER UNDER R.I. ACT EXT.P6 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER EXT.P7 TRUE COPY OF THE RELEVANT PAGE OF GRADATION LIST OF LINEMAN GRADE I EXT.P8 TRUE COPY OF THE ORDER NO. EB4(b0/Pro/90/Ovr/2008 OF THE CHIEF ENGINEER ALONG WITH THE RELEVANT PAGE OF THE LIST EXT.P9 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE CHIEF ENGINEER RESPONDENT'S EXHIBITS : NIL --------------------- //TRUE COPY// P.A. TO JUDGE SKS ## **ANIL K. NARENDRAN, J. ================== W.P.(C.) No. 29622 of 2011 ---------------------------------Dated this the 22[nd] day of February, 2017** ## **JUDGMENT** The petitioner, who retired from the service of the Kerala State Electricity Board as Cashier on 30.04.2010 is before this Court in this writ petition seeking a writ of certiorari to quash Ext.P4 order dated 05.07.2011 of the 4[th] respondent and seeking a writ of mandamus commanding the respondents to revise his pensionary benefits reckoning the last ten month's salary, which he actually received; or in the alternative to work out his pensionary benefits and disburse the same as if he was promoted as Overseer along with his immediate juniors. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent to consider and pass appropriate orders on Ext.P9 representation dated 18.04.2011, after affording him an opportunity of being W.P. (C.) No. 29622 of 2011 2 heard. 2. The reliefs sought for in the writ petition are opposed by the 3[rd] respondent by filing a counter affidavit. According to the 3[rd] respondent, the petitioner was given temporary appointment as Cashier against 20% quota earmarked for in-service candidates, subject to the conditions stipulated in Ext.P2 Board order, which categorically provides that he will be regularised in the quota only after passing the prescribed eligibility test conducted by the Kerala Public Service Commission. The petitioner, having failed to pass the said eligibility test, is not entitled for the scale of pay as Cashier. As such, there is absolutely no illegality or irregularity in the recovery ordered in Ext.P6, based on the audit objection in Ext.P5. 3. I heard the arguments of learned counsel for the petitioner and also learned Standing Counsel for Kerala W.P. (C.) No. 29622 of 2011 3 State Electricity Board representing the respondents 1 to 4. 4. The pleadings and materials on record would show that by Ext.P1 order, the petitioner was appointed as Mazdoor in the Kerala State Electricity Board (for brevity “the Board”). Later, he was promoted as Lineman. 20% of the vacancy of Cashier in the Board are reserved for Board employees. By Ext.P2 order, the petitioner and others were given temporary appointment as Cashier against 20% quota earmarked for Board employees, subject to the conditions contained therein. Ext.P2 order provides that, the appointment so made are purely temporary and without prejudice to the claims of seniors, if any. The appointees will be regularised in the quota only after they pass the prescribed eligibility test conducted by the Kerala Public Service Commission. The petitioner is Sl.No.82 in Ext.P2 order. W.P. (C.) No. 29622 of 2011 4 5. While continuing as Cashier on temporary basis, the petitioner retired from service on 30.11.2010, on attaining the age of superannuation, which is evident from Ext.P3 relieving order. After retirement, while authorising terminal benefits, the 4[th] respondent/the Accounts officer of the Board, fixed a liability of Rs.21,545/- on the petitioner as pay fixation objection. 6. On the receipt of Ext.P4, the petitioner enquired the reason for such objection. He obtained Ext.P6 copy of his service Book, under the Right of Information Act, which was furnished along with Ext.P5 communication dated 05.09.2011 of the Executive Engineer concerned. In Ext.P6 Service Book, it has been recorded that, the petitioner has not qualified the eligibility test for Cashier and as such he is eligible for increment only in the lower scale. Hence, excess pay already paid shall be recovered. In Ext.P6, the liability of W.P. (C.) No. 29622 of 2011 5 the petitioner based on the pay fixation objection is quantified as Rs.21,545/-, which is ordered to be recovered from his DCRG. 7. According to the petitioner, the recovery sought to be made based on Ext.P6 is legally unsustainable for the reason that, during the said period he was paid only the salary for the work done as Cashier. When there is no objection as to the quality of service rendered by him, no recovery under the guise of excess payment can be made by the Board. The petitioner would also contend that, he was not given any notice prior to fixation of liability or even an opportunity to explain the pay fixation objection. If the petitioner is not qualified to hold the post of Cashier, the Board should have reverted him to the post of Lineman, in which event, he would have got promotion as Overseer with effect from the date on which his immediate junior, namely, W.P. (C.) No. 29622 of 2011 6 the 5[th] respondent was promoted, since the petitioner is fully qualified for being promoted as Overseer. Relying on Ext.P7, the gradation list of Lineman Gr-I, and Ext.P8 order of the Chief Engineer dated 01.12.2008, the petitioner would contend that, the 5[th] respondent, who was Sl.No.5218 in the gradation list was promoted as Overseer with effect from 01.12.2008. The petitioner submitted Ext.P9 representation before the 2[nd] respondent, pointing out that he is entitled for promotion as Overseer, in case his promotion as Cashier stands cancelled, with effect from the date on which his junior, namely, the 5[th] respondent was promoted. 8. The specific stand taken by the 3[rd] respondent is that, the temporary appointment of the petitioner as Cashier by Ext.P2 order was made subject to the conditions contained herein. In view of the conditions in Ext.P2 order, such temporary appointment as Cashier can be regularised W.P. (C.) No. 29622 of 2011 7 in the 20% quota for Board employees only after passing the prescribed eligibility test conducted by the Kerala Public Service Commission. The 3[rd] respondent would also contend that, the claim of the petitioner, who was temporarily appointed as Cashier is governed by Rule 28A of Part I of Kerala Service Rules. As per Rule 9(a) of Kerala State and Subordinate Service Rules, temporary appointees are not eligible to get subsequent increment in the temporary post unless otherwise determined by the Board. Increments due will be granted in the subsistence pay (lower post) only, as the temporary promotion will not count for probation and hence for increment. 9. Regarding the contention of the petitioner that, in case he was found not qualified to hold the post of Cashier, he should have been reverted to the post of Lineman, so as to enable him to get promotion as Overseer, the 3[rd] W.P. (C.) No. 29622 of 2011 8 respondent would contend that the petitioner who gave willingness to abide by the conditions contained in Ext.P2 order, while accepting the temporary appointment as Cashier, never requested to revert him back to the post of Lineman Gr-I. Hence, he cannot be considered for promotion as Overseer from the worker category. 10. As evident from Ext.P2 order, the petitioner was given temporary appointment as Cashier in the 20% quota earmarked for Board employees on a specific condition that his appointment as Cashier will be regularised in that quota only after he passes the prescribed eligibility test conducted by the Kerala Public Service Commission. Having failed to pass the eligibility test, the petitioner cannot claim regularisation in the post of Cashier based on the temporary appointment granted in Ext.P2 order. As such, he is also not entitled for the payment of increment in the scale of pay W.P. (C.) No. 29622 of 2011 9 attached to the post of Cashier in view of the provisions under the KSR and KS&SSR referred to hereinbefore. Therefore, as rightly found in Ext.P4, there was an excess payment of Rs.21,545/-, which has to be treated as the liability of the petitioner in respect of the pay fixation objection, which has to be recovered from his terminal benefits. 11. Regarding the contention of the petitioner that, the respondents should have reverted him to the post of Lineman Gr-I, so as to enable him to get regular promotion as Overseer with effect from the date on which his immediate junior was promoted to that post, it has to be noticed that, at no point of time the petitioner had made any request before the respondents to revert him back to the post of Lineman Gr-I. In the absence of any such request, the petitioner continued as Cashier till his retirement. W.P. (C.) No. 29622 of 2011 10 Therefore, once, it is found that the petitioner is not entitled for regularisation as Cashier in the absence of test qualification, he cannot turn around and contend that he should have been reverted back to the post of Lineman Gr-I and considered for promotion to the post of Overseer under the worker category. 12. Relying on the judgment of the Apex Court in **State of Punjab and oths v. Rafiq Masih (White Washer) (2015 (4) SCC 334)** , the learned counsel for the petitioner would contend that any excess payment made to the petitioner, even if he does not have the requisite test qualification for the post of Cashier, cannot be recovered after his retirement from service. 13. The principle laid down by the Apex Court in **Rafiq Masih's case (Supra)** has no application to the facts of the case on hand for the reason that, by Ext.P2 order the W.P. (C.) No. 29622 of 2011 11 petitioner was granted provisional appointment as Cashier on specific condition that he should pass the requisite test qualification for getting regularisation. Therefore, at the time of superannuation, the petitioner was continuing as a temporary cashier, without regularisation. In the absence of increment only in the subsistence pay (lower post) as his temporary appointment will not count for probation and hence for increment. Since, it was wrongly given to the petitioner, the respondent Board has got every right to get it recovered from his terminal benefits. In such circumstances, I find absolutely no reason to interfere with Ext.P4 order or the action of the respondent Board in recovering the excess amount paid to the petitioner, while he was holding the post of Cashier based on the temporary appointment granted in Ext.P2. W.P. (C.) No. 29622 of 2011 12 In the result, the writ petition fails and the same is accordingly dismissed. No order as to costs. **sd/ANIL K.NARENDRAN JUDGE** SKS //TRUE COPY// P.A. TO JUDGE