Mallika Devi and Savithri Amma v. State of Kerala and Regional Cancer Centre, Medical College, Thiruvananthapuram and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 12[TH] DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 WP(C) NO. 30276 OF 2022`** ``` PETITIONERS: ``` ``` 1MALLIKADEVIS AGED66YEARS W/O.THANKAPPANPILLAI,SENIORPERSONALASSISTANT, REGIONALCANCERCENTRE,THIRUVANANTHAPURAM,RESIDINGAT 'NAVASREE',PULINTHANAM,KOLIYACODEP.O., THIRUVANANTHAPURAM-695607. 2SAVITHRIAMMA.V, AGED67YEARS W/O.SREEKUMARANNAIR,SENIORPERSONALASSISTANT, REGIONALCANCERCENTRE,THIRUVANANTHAPURAM,RESIDINGAT 'MAYYAZHI',SANTHIVILA,NEMOMP.O., THIRUVANANTHAPURAM-695020. BYADVS. D.KISHORE MEERAGOPINATH R.MURALEEKRISHNAN(MALAKKARA) ``` ## **`RESPONDENTS:`** ``` 1THESTATEOFKERALA REPRESENTEDBYITSSECRETARYTOGOVERNMENT,HEALTHAND FAMILYWELFAREDEPARTMENT,GOVERNMENTSECRETARIAT, THIRUVANANTHAPURAM-695001. 2THEREGIONALCANCERCENTRE, REPRESENTEDBYITSDIRECTOR,MEDICALCOLLEGEP.O., THIRUVANANTHAPURAM-695011. ``` ``` 3THEDIRECTOR, REGIONALCANCERCENTRE,MEDICALCOLLEGEP.O., THIRUVANANTHAPURAM-695011. 4THECONTROLLEROFFINANCE, REGIONALCANCERCENTRE,MEDICALCOLLEGEP.O., THIRUVANANTHAPURAM-695011. 5THEACCOUNTSOFFICER, REGIONALCANCERCENTRE,MEDICALCOLLEGEP.O., THIRUVANANTHAPURAM-695011. ``` ``` 6THEEXECUTIVECOMMITTEEOFREGIONALCANCERCENTRE REPRESENTEDBYITSCHAIRMAN,REGIONALCANCERCENTRE, MEDICALCOLLEGEP.O.,THIRUVANANTHAPURAM-695011. ``` ``` WP(C)NO.30276OF2022 ``` ``` 2 ``` ``` SRI.ATHULSHAJI ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 12.10.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` ``` WP(C)NO.30276OF2022 ``` ``` 3 ``` ## **JUDGMENT** The petitioners are Class-III employees who, after having served for decades in the Regional Cancer Centre, Thiruvananthapuram, attained superannuation on 31.10.2015 and 30.11.2015, respectively. They have approached this Court being aggrieved by the non-disbursement of their terminal benefits. The petitioners have also challenged the orders issued by the respondents ordering the recovery of excess pay alleged to have been drawn by them. 2. According to the petitioners, they were granted assessment promotions on the completion of 5 and 8 years under the Time Bound Grade Promotion (TBGP) Scheme. They were also granted promotion under the Flexible Complementing and Ladder Promotion (FCP & LP) Scheme. They were also granted enhanced pay in the course of their unblemished service. They state that a three-member committee was appointed to find out the anomalies in the pay fixation and to submit a report. After the retirement of the petitioners, provisional pension sanction orders were issued based on the pay fixation in tune with the recommendations of the three-member committee. The petitioners noticed that such an action had the effect of lowering the pay scale of the petitioners, ignoring the benefits granted earlier. The 2nd respondent granted sanction for recovering the amounts paid allegedly in excess. According to the petitioners, no notice was granted ``` WP(C)NO.30276OF2022 ``` ``` 4 ``` to the petitioners, and their explanations were not sought. According to the petitioners, the recovery of excess pay drawn by the petitioners 10 years prior to their retirement and from their gratuity is illegal and violative of the law laid down by the Apex Court. 3. It is in the above backdrop that this writ petition is filed seeking to quash Exts.P2, P3, P4 and P6 orders to the extent it reduces the pay of the petitioners and for a declaration that the amounts alleged to have been drawn by the petitioners due to erroneous fixation of pay cannot be recovered from the gratuity or otherwise. They have also sought for issuance of directions to disburse the full amount of gratuity, pension as well as earned leave surrender benefits with accrued interest. 4. Sri. D. Kishore, the learned counsel appearing for the petitioners, submitted that the entire action on the part of the respondents in attempting to recover the alleged excess payments made ten years prior to their retirement cannot be sustained under law. According to the learned counsel, the petitioners have the right to get their pay and terminal benefits fixed on the basis of the last drawn pay. He would urge that the amounts were disbursed on the strength of the various regulations and orders that were in vogue at the time, and therefore, the contention that excess amounts were paid that too based on a report of a committee cannot be sustained under law. It is pointed out that no notice was ever issued to the petitioners before the alleged re-fixation or while lowering their pay scale. ``` WP(C)NO.30276OF2022 ``` ``` 5 ``` The learned counsel would also refer to the law laid down by the Apex Court in **State of Punjab v. Rafiq Masih (White Washer)** [(2015) 4 SCC 334], **Susheel Kumar Singhal v. Pramukh Sachiv Irrigation Department and Ors.** [(2014) 16 SCC 444] to substantiate his contention. It is further submitted that employees similarly placed as the petitioners had approached this Court complaining of recovery of excess pay and non-disbursement of benefits, and a learned Single Judge of this Court in W.P.(C) No. 6804/2021 and connected cases had allowed those petitions by judgment dated 23.12.2021. It is further submitted that following the above judgment, a learned Single Judge had considered W.P.(C) No. 26072/2020 and by judgment dated 23.3.2022 (produced as Ext.P7), had quashed the orders demanding recovery of excess amount and ordered refund. Though the judgments rendered by the learned Single Judges were challenged before the Division Bench by Ext.P8 in W.A.No. 869/2022 and connected cases (judgment dated 21.7.2022), had dismissed the appeal, holding that no interference is warranted. 5. In response, it is submitted by the learned Standing Counsel that a three-member committee was formed to look into the anomalies, and it is based on the report submitted by them that steps were taken to recover the excess pay given. He would reiterate the judgment rendered by the Apex Court in **High Court of Punjab and Haryana and Ors. v. Jagdev Singh** [2016 KHC 6515] would apply as some of the petitioners have given ``` WP(C)NO.30276OF2022 ``` ``` 6 ``` an undertaking permitting to recover amounts paid in excess. 6. I have considered the submissions and have gone through the records. 7. I find that the case of the petitioners is identical to the matters considered by the learned Single Judge in Ext.P7 judgment and which was the subject matter of Ext.P8 judgment rendered by a Division Bench of this Court. The Division Bench had held that the action on the part of the respondents in refixing the pay and attempting to recover the amounts on the basis of unilateral fixation done without notice to the retired employees is plainly illegal. This Court had also held that the principles of law laid down by the Apex Court in **Rafiq Masih** (supra) would squarely apply in the facts and circumstances. The Division Bench had considered the contention that the principles of law laid down in **Jagdev Singh** (supra) would apply and it was held that the above judgment would have no application. It was also held that the recovery is plainly barred going by the principles laid down by the Apex Court. Having considered the sequence of events, the facts of the instant case and the contention of the respondents, I am of the considered opinion that the observations and findings rendered by this Court in Exhibit P7 and P8 judgments clearly apply to the facts of the instant case. The respondents are not entitled to recover the alleged excess amounts paid to the petitioners herein in view of the law laid down in **Rafiq Masih** (supra). ``` WP(C)NO.30276OF2022 ``` ``` 7 ``` 8. In view of the discussion above, the petitioners are entitled to succeed. Exts.P2, P3, P4 and P6 are quashed. It is declared that the respondents are not entitled to recover any amount as excess payments allegedly paid to the petitioners from their retirement benefits by refixing the pay of the petitioners by altering the last drawn pay after their retirement. The respondents are directed to disburse the full amount of gratuity, pension and earned leave surrender benefits to the petitioners within two months from the date of receipt of a copy of this judgment, failing which, the amount shall carry interest at the rate of 6% from the date on which it is due till actual payment. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ``` Sru ``` ``` WP(C)NO.30276OF2022 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 30276/2022`** |`PETITIONERS EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE ORDER NO.1053/ADMN-II/2015/RCC`| ||`DATED 31.10.2015 ISSUED BY THE 3RD RESPONDENT`| ||`TO THE 1ST PETITIONER.`| |`Exhibit P2`|`TRUE COPY OF THE NOTE NO. RCC/FIN-E/2015-16`| ||`DATED 6.11.2015 ISSUED BY THE 5TH RESPONDENT TO`| ||`THE SENIOR ADMINISTRATIVE OFFICER OF REGIONAL`| ||`CANCER CENTRE.`| |`Exhibit P3`|`TRUE COPY OF THE REVISED STATEMENT OF FIXATION`| ||`OF PAY DATED 30.10.2015 OF THE 1ST PETITIONER`| ||`ISSUED BY THE 5TH RESPONDENT.`| |`Exhibit P4`|`TRUE COPY OF THE NOTE NO. RCC/FIN-E/2015-16`| ||`DATED 1.12.2015 ISSUED BY THE 3RD RESPONDENT TO`| ||`THE 2ND PETITIONER .`| |`Exhibit P5`|`TRUE COPY OF THE NOTE NO. RCC/FIN-E/2015-16`| ||`DATED 1.12.2015 ISSUED BY THE 3RD RESPONDENT TO`| ||`THE 2ND PETITIONER WITH RESPECT TO ENCASHMENT`| ||`OF EARNED LEAVE .`| |`Exhibit P6`|`TRUE COPY OF THE REVISED STATEMENT OF FIXATION`| ||`OF PAY DATED 16.11.2015 OF THE 2ND PETITIONER`| ||`ISSUED BY THE 5TH RESPONDENT.`| |`Exhibit P7`|`TRUE COPY OF THE JUDGMENT DATED 23.3.2022 IN`| ||`W.P.(C) 26072/2020 OF THIS HONOURABLE COURT.`| |`Exhibit P8`|`TRUE COPY OF THE JUDGMENT DATED 21.7.2022 IN`| ||`WRIT APPEAL 869/2022 AND CONNECTED CASES OF`| ||`THIS HONOURABLE COURT.`|