High Court of KeralaSingle Judge2017-09-26Writ petition disposed of; no recovery; no costs.

N. Muraleedharan Thampi v. Kerala State Handloom Development Corporation Ltd. and Others

Case / Petition Number:WP(C).No. 27064 of 2011 (G)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhamed Mustaque
Judgment Date: 2017-09-26
Court Decision / Holding: The writ petition is disposed of with no recovery from the petitioner. It is held that no recovery shall be effected on the basis of the Special Rules from the petitioner, who had retired, and the writ petition is accordingly disposed of. No costs.
Final Disposition: Writ petition disposed of; no recovery; no costs.

Parties to the Case

Appellants / Petitioners

N. Muraleedharan Thampi

Respondents

Kerala State Handloom Development Corporation Ltd., Kannur represented by its Managing Director
Regional Manager, Kerala State Handloom Development Corporation Ltd., Thiruvananthapuram Region
State of Kerala represented by the Secretary to Government, Industries Department, Government Secretariat, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• K. Sasikumar
• S. Kannan

Counsels for Respondents

• P. Benny Thomas
• P. Gopinath
• K. John Mathai
• E. K. Nandakumar
• Princy Xevier

Case Synopsis & Summary

Muraleedharan Thampi, a former Quality Control Inspector and later Senior Production Supervisor with the Kerala State Handloom Development Corporation Ltd., sought relief in a writ petition against pay-scale reductions linked to a draft Special Rules for the corporation’s promotion policy. The corporation had drafted Special Rules in 1992 but finalised only in 2013. In the meantime, to align with revised pay for state employees, it granted 2nd time bound higher grade to qualifying staff after 18 years of service in the scale Rs. 6675-10550, subject to implementing the revised promotion policy. The Government, by Exhibit P5 dated 19/11/2003, held that before finalisation of the Special Rules, employees could not be given the higher scale, but would be eligible only for the next scale from the second higher grade i.e. Rs. 5000-8150. Several employees challenged this, and this Court issued an interim order in 2003 staying any recovery or downgrade, with further orders to come. In 2012, in W.P. No. 39662/2003 and connected matters, the Court directed the Government to decide the proposed revised promotion policy expeditiously and to consider retrospective relief if the policy permitted. The petitioner, who had already retired, faced recovery action for accepting the higher grade. The High Court held that the delay in approving the policy was attributable to the Government and, citing State of Punjab v. Rafiq Mash (White Washer) (2015) 4 SCC 334, that recovery would be inequitable; the writ petition was disposed of with no recovery and no costs.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he served from 1981 to 2010 and, during service, was given a 'second time bound higher grade' in the promotion scale contingent upon a revised policy. The Government’s 2003 decision restricted pay to the next higher scale till finalization of the Special Rules, and interim orders prevented recovery. The petitioner retired with the higher grade and faced recovery proceedings; he argues that recovery would be inequitable since the Government’s delay in finalizing the Special Rules caused the anomaly. The 2012 direction directing expeditious finalization of the policy and potential retrospective relief if permissible by final Rules support the petitioner's stance. Since the Special Rules were only finalised in 2013, the petitioner asserts that recovering sums after retirement would be unjust and contrary to the equities highlighted by subsequent Supreme Court authority. The writ petition seeks dismissal of recovery proceedings and retention of the higher grade already paid, arguing that equity requires non-recovery where delay was Government-caused.

Contentions of Respondents

The respondents defend the Government’s stance that promotions and pay scales must follow the finalised Special Rules. They rely on the 2003 decision that, until the Special Rules were finalised, the 6675-10550 scale could not be granted and only the next grade (Rs. 5000-8150) would be permissible. They contend that allowing retrospective or post-retirement relief would undermine the promoted policy and create a disparity among employees; the Government’s delay in finalising the rules has been acknowledged, but the relief sought by the petitioner could undermine the policy framework. They point to the Supreme Court’s guidance on equity and argue for adherence to the policy while considering any permissible retrospective relief within the rules. The respondents ultimately seek dismissal or at least a considered course consistent with the final policy.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab and others v. Rafiq Mash (White Washer) and others	(2015) 4 SCC 334	Positive	The High Court relied on this Supreme Court decision to hold that it would be inequitable to order recovery of salary where the Government's delay in finalising the promotion policy caused the issue, thereby supporting the petitioner's position.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 26TH DAY OF SEPTEMBER 2017/4TH ASWINA, 1939** **WP(C).No. 27064 of 2011 (G)** **----------------------------** **PETITIONER :** **----------** - **N. MURALEEDHARAN THAMPI** **SENIOR PRODUCTION SUPERVISOR, KERALA STATE, HNDLOOM DEVELOPMENT CORPORATION LTD.,THIRUVANANTHAPURAM REGION, THIRUVANANTHAPURAM, (SREMURALI, TC 38, 3059(1)NEAR TAMIL HIGHR, SECONDRY SCHOOL, CHALI.P.O** **BY ADVS.SRI.K.SASIKUMAR SRI.S.KANNAN** **RESPONDENTS :** - **-----------** **1. KERALA STATE HANDLOOM DEVELOPMENT CORPN. CORPORATION LTD., KANNUR, REPRESENTED BY, ITS MANAGING DIRECTOR.** **2. REGIONAL MANAGER, KERALA STATE HANDLOOM DEVELOPMENT CORPORATION LTD., THIRUVANANTHAPURAM REGION, THIRUVANANTHAPURAM.** **3. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **R1 & R2 BY ADVS. SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.E.K.NANDAKUMAR** **R3 BY GOVERNMENT PLEADER SMT.PRINCY XEVIER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 27064 of 2011 (G)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **----------------------** **EXHIBIT P1: A TRUE COPY OF THE JUDGMENT DATED 11/6/2001 IN OP.3211/2001. EXHIBIT P2: A TRUE COPY OF THE PROCEEDING DATED 26/6/2001 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3: A TRUE COPY OF THE LETTER DATED 29/4/2002 FORWARDED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P4: A TRUE COPY OF THE LETTER DATE 22/7/2003 FORWARDED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P5: A TRUE COPY OF THE ORDER DATED 19/11/2003 PASSED BY THE 3RD RESPONDENT. EXHIBIT P6: A TRUE COPY OF THE ORDER DATED 16/12/2003 IN WPC.39662/2003. EXHIBIT P7: A TRUE COPY OF THE GOVERNMENT ORDER NO.518/2006/ID DATED 22/5/2006. EXHIBIT P8: A TRUE COPY OF THE PROCEEDINGS DATED 28/5/2006 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P9: A TRUE COPY OF THE PROCEEDINGS DATED 13/6/2007 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P10: A TRUE COPY OF THE PROCEEDINGS DATED 29/7/2008 OF THE 1ST RESPONDENT. EXHIBIT P11: A TRUE COPY OF THE NOTICE DATED 17/12/2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P12: A TRUE COPY OF THE ORDER DATED 13/1/2009 ISSUED BY THE 3RD RESPONDENT.** ## **WP(C).No. 27064 of 2011 (G)** ## **----------------------------** **EXHIBIT P13: A TRUE COPY OF THE ORDER DATED 4/3/2010 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P14: A TRUE COPY OF THE G.O.NO.338/10 DATED 18/3/2010 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P15: A TRUE COPY OF THE REPRESENTATION DTD.14/5/2010 FORWARDED BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P16: A TRUE COPY OF THE NOTICE DATED 24/9/2010 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P17: A TRUE COPY OF THE REPLY DATED 29/9/2010 FORWARDED BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P18: A TRUE COPY OF THE ORDER DATED 30/9/2010 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P19: COPY OF THE GO(RT)NO.1088/2011/ID DT 1/9/2011. EXHIBIT P20: COPY OF THE PROCEEDINGS DT 29/11/2011 ISSUED BY THE R1. RESPONDENTS' EXHIBITS : --------------------EXT.R3 : COPY OF THE GOVERNMENT ORDER G.O(MS) NO.143/2013/ID DT 18/12/2013.** **//TRUE COPY//** **P.S. TO JUDGE** **bp** **A.MUHAMED MUSTAQUE, J.** ========================= **W.P.(C).No.27064/2011** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 26[th] day of September, 2017 ## **J U D G M E N T** 1. The petitioner entered the service of the Kerala State Handloom Development Corporation Ltd., Kannur on 14/10/1981 as Quality Control Inspector and he retired from the service as Senior Production Supervisor on 30/9/2010. The Corporation is a Public Sector Undertaking. The Corporation in the year 1992 had sent the draft Special Rules to the Government for approval. However, that was finalised only in the year 2013. In the meanwhile, taking note of the revised pay and allowances given to the State Government employees with effect from 1/3/1997, the Corporation decided to grant 2[nd] time bound higher grade to the QCIs who had completed 18 years of service in the scale of pay of Rs.6675-10550/-. That was subject to the implementation of the revised promotion policy as referred in the Special Rules. The Corporation, vide Exhibit P3, ``` WPC 27064/2011 ``` ## **-:2:-** dated 29/4/2002, made a request to the Government as to whether they could grant 2[nd] time bound higher grade on completion of 18 years of service in the next promotion scale of pay of Rs.6675-10550/-. The Government by Exhibit P5 dated 19/11/2003 took the following decision: “The promotion post of Assistant Manager (Production) is from the feeder category of Senior production Supervisor/Supervisor (Textiles Processing) as per the special rule which is pending with the Govt. Before finalisation of the special rules, employees cannot be given the scale of pay of the promotion post that is Rs.6675-10550/- but only eligible for the next scale of pay from the second higher grade ie. 5000-8150/-.” 2. The above decision of the Government was challenged before this Court by some Senior Production Supervisors and Quality Control Inspectors, in W.P.(C). No.39662/2003 and connected cases. Therein, this Court passed an interim order on 16.12.2003 as follows: “...Sri.Sukumar, Counsel appearing for the petitioner submits that implementation of Ext-P10 may result in a downgradation of scale. If that comes to happen, that ``` WPC 27064/2011 ``` ## **-:3:-** shall only be provisional and subject to further orders to be passed in this writ petition...” 3. In the meanwhile, another employee, namely, G.Sukumari Amma approached the Government with a representation to grant her time bound higher grade on completion of 18 years of service in the scale of pay of Rs.6675-10550/-. She was granted the scale of pay as requested in the representation. Thereafter, the Government, noting that some other claimants have also come forward, reviewed the decision taken in favour of Sukumari Amma by Ext.P14. 4. In the meanwhile, the petitioner, who was drawing the scale of pay as above, based on the interim order of this Court, retired from service. It appears that recovery was ordered from him as evident from Ext-P16. Aggrieved by such action, the petitioner approached this Court. It is to be noted that the writ petition filed as W.P.(C). No. 39662 of 2003 was taken alongwith connected matters and disposed of by a common judgment dated 4.7.2012. Therein, this court passed the following directions: “The Government of Kerala shall consider the ``` WPC 27064/2011 ``` ## **-:4:-** question of grant of approval to the proposed revised promotion policy as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. The Government shall also decide as to whether, in the facts and circumstances of the case, the promotion policy is to be implemented with retrospective effect. If the Government decides to approve the promotion policy and if the approval is with respect retrospective effect from date prior to the date when the petitioner became entitled to the second higher grade, the petitioners shall be given appropriate reliefs regarding grant of scale of pay applicable to the next higher post as second time bound higher grade retrospectively." 5. Therefore, as it is clear, the issue relating to scale of pay given to the petitioner based on grade promotion was left to the discretion of the Government while approving the Special Rules and as the Special Rules came into force only in the year 2013, no doubt, any promotion policy will have to be governed by the Special Rules. The Special Rule is not the subject matter of challenge in this writ petition. In such circumstances, as far as the petitioner is ``` WPC 27064/2011 ``` ## **-:5:-** concerned, the question to be considered is whether recovery is possible at this distance of time even based on the approval of Special Rules. It is to be noted that the petitioner was enjoying the scale of pay until his retirement. The payment effected was not on account of any mistake committed by the officers of the Corproration. The scale of pay if at all given was based on the decision taken by the Corporation. The draft Special Rules were pending approval before the Government since 1992 onwards and that was approved in the year 2013. The reduction in the scale of pay was stayed by this Court vide interim order in W.P.(C). No.39662/2003. While disposing W.P.(C).No.39662/2003 and connected cases, this Court did not order recovery from the petitioners therein in case, any reduction of scale of pay occurs consequent upon approval of promotion policy. Therefore, the only question to be considered is whether it is proper to order recovery based on subsequent approval of promotion policy. 6. All that this court can say is that the delay in this matter is attributable to the delay in taking decision on the Special Rules. The petitioner as of now has retired from service. He enjoyed the ``` WPC 27064/2011 ``` ## **-:6:-** higher grade scale of pay as ordered in Ext.P2 for around nine years. In such circumstances and in the light of the decision of the Hon'ble Supreme Court in **State of Punjab and others v. Rafiq Mash (White Washer) and others [(2015) 4 SCC 334],** this Court is of the view that it is too iniquitous to order recovery from the petitioner as the delay in approving the proposal for promotion policy is only attributable to the Government. It is to be noted that while approving the Special Rules nothing has been stated about the promotion effected already. Therefore, the petitioner having already retired from service of the Corporation and nothing stated by the Government while approving Special Rules about the promotions already effected pending approval of Special Rules, it is not proper to order recovery from the petitioner. Therefore it is ordered that no recovery shall be effected on the basis of the Special Rules from the petitioner. The writ petition is accordingly, disposed of. It is made clear that any other aspect of Special Rules would govern the petitioner as well; and this Court has now only entered into the dispute relating to recovery from the petitioner; and in any other matters relating to the Special Rules, ``` WPC 27064/2011 ``` ## **-:7:-** it would have an impact on the service of the petitioner, the petitioner is free to take up that matter in appropriate manner. No costs. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ms