Najeeya S. v. Regional Cancer Centre, Government of Kerala Health & Family Welfare Department, and Director of Medical Education

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944** ## **WP(C) NO. 14295 OF 2021** ## **PETITIONER/S:** NAJEEYA S. AGED 62 YEARS EMPLOYEE CODE NO.1110, SANORA, TC 2/978(3) PALOOR LANE, MURINJAPALAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695011. BY ADV S.ABDUL RAZZAK ## **RESPONDENT/S:** 1 REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P. O. BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM - 695011. 2 GOVERNMENT OF KERALA HEALTH & FAMILY WELFARE (J) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3 THE DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM - 695011. BY ADV ATHUL SHAJI ## **OTHER PRESENT:** ATHUL SHAJI **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.11.2022, THE COURT ON 20.01.2023 DELIVERED THE FOLLOWING:** W.P.(C) No.14295 of 2021 -2- ## **JUDGMENT** Dated this the 20[th] day of January, 2023 The petitioner was initially appointed as Laboratory Technician at the Medical College, Kozhikode on 16.3.1983. She later obtained transfer to the Medical College, Thiruvananthapuram on 22.3.1983 and was sanctioned grade promotion as Lab Technician Grade-I with effect from 1.7.1988. In the meanwhile, certain posts borne on the Medical College Service were transferred to the Regional Cancer Centre(RCC) and options were called from the staff in the Medical College Service for filling up the transferred posts. The petitioner exercised her option and was relieved from the Medical Education Department on 31.7.1990 and joined the RCC on 1.8.1990. In 1994, a time bound grade promotion scheme was introduced in the RCC, with a stipulation that the assessment promotions ## W.P.(C) No.14295 of 2021 -3- that had fallen due prior to 30.4.1994 will not stand in the way of granting time bound grade promotions. The petitioner was also granted time bound grade promotion in accordance with the scheme, but only with effect from 21.2.1995, even though she had completed ten years qualifying service on 25.2.1993. The time bound grade promotion system was replaced by the Flexible Complementing and Ladder Promotion (FCP & LP) Scheme as per order dated 28.7.2000. The FC & LP scheme provided for promotion from one grade to another on completion of 7, 14 and 20 years of service. While so, by Ext.P9, the scale of pay of employees in the RCC was made equivalent to the scale in the Sree Chithira Thirunal Institution of Medical Sciences and Technology (SCTIMST). While fixing the petitioner's pay as per Exhibit P9, her date of entry in service as Lab Technician was reckoned as 1.8.1990 instead of 16.3.1983. Aggrieved, the petitioner approached ## W.P.(C) No.14295 of 2021 -4- this Court and in Exhibit P10 judgment this Court directed the 1st respondent to address the petitioner's grievance. Even after Exhibit P10, the petitioner's pay was fixed, reckoning 1.8.1990 as her date of entry in service. But, while implementing the FCP &LP scheme, the 7, 14 and 20 years of service was reckoned with effect from 16.8.1983. From 1.1.2007 the Central Revised Pay Band 9330-34800 and Grade Pay was implemented in the RCC and the petitioner's basic pay in the Central Pay Band was fixed at Rs.17000 + 650 (AI). The said revised pay, with subsequent annual increments every year, was drawn for 11 years, till the petitioner's superannuation on 30.11.2018. The last basic pay thus drawn by the petitioner was Rs.26640. After the petitioner's superannuation, her pay was refixed without notice and the basic pay of Rs.17640 in Exhibit P14 as on 1.7.2007 reduced to Rs.16590. Consequently, the petitioner’s last basic pay of ## W.P.(C) No.14295 of 2021 -5- Rs.26640 got reduced to Rs.25080. In Exhibit P1 pension sanction order also, the petitioner's service of 28 years from August, 1990 to 2018 is reckoned as qualifying service. This writ petition is filed seeking to quash Exhibit P17, P20 and P23 to the extent those orders reckon the petitioner's service only with effect from 1.8.1990 for the purpose of computing her retirement benefits and for a direction to release all consequential arrears of pay and terminal benefits reckoning her continuous service from 1983. 2. The 1[st] respondent has filed a counter affidavit stating that the petitioner had joined the service of the RCC on 1.8.1990 and as per Exhibit R1(a) Government Order, she had the option of getting her pay drawn in the Government as well as her seniority being protected. Accordingly, the petitioner's pay and seniority was promoted as per the Government Order. The ## W.P.(C) No.14295 of 2021 -6- Government had also given her the option of availing the terminal benefits for the service rendered by her in the Government and the petitioner had exercised that option and availed the terminal benefits. The petitioner having thus quit from Government service and having availed the benefits, that service cannot be reckoned for computing the terminal benefits in another institution. Hence, the petitioner's pay was revised _vide_ Exhibit P20 order dated 15.1.2021. From the excess amount drawn by the petitioner, Rs.968688/- was recovered from her gratuity and the petitioner directed to remit the balance amount of Rs.4,45,396/-. 3. The writ petition was initially allowed as per judgment dated 27.05.2022 quashing Exts.P17, P20 and P23 and directing to release arrears of pay and terminal benefits by reckoning the petitioner's service from 16.03.1983 onwards. The first respondent thereafter filed R.P.No.739 ## W.P.(C) No.14295 of 2021 -7- of 2022 seeking review of the judgment primarily on the ground that Ext.P3 document, which was relied on for deciding the writ petition, was not produced in its entirety. Along with the review petition, the full text of Ext.P3 was produced as Ext.R1(b). As the judgment was rendered without considering the full text of Ext.P3, it was decided to consider the contentions afresh and accordingly, the review petition was allowed and the judgment recalled. Thereafter, the writ petition was heard again. 4. Advocate, S.A.Razak appearing for the petitioner contended that even going by the terms of Exhibit R1(b), there is no cessation of service, since the petitioner was appointed at the RCC consequent to bifurcation of posts in the Medical College Service. Specific reference is made to paragraph 3(i) of Exhibit P3 to contend that the Government had assured the employees who had opted for transfer that they will be deemed ## W.P.(C) No.14295 of 2021 -8- to have joined their respective posts in the RCC from the date they had joined the posts originally. It is contended that merely because the different categories of employees are dealt with separately in Ext.R1(b), that does not entail the employees losing the benefit of Clause 3(i). In this regard, it is submitted that Clause 3(viii) of Ext.R1(b) is specific to the effect that the service conditions and the rank and seniority of the categories of staff mentioned as (vi) and (vii) will be determined in accordance with Ext.R1(a) Government order. 5. Relying on Exhibit P4, it is submitted that the petitioner was relieved of her duties in the Medical Education Service with effect from 31.7.1990 and was admitted to duty in the RCC on 1.8.1990. As per Exhibit P5, the petitioner was granted grade promotion reckoning her prior service, but in Exhibit P9 pay fixation statement, the petitioner's entry in service was ## W.P.(C) No.14295 of 2021 -9- wrongly noted as 1.8.1990. The anomaly was corrected while granting the benefit of FCP & LP and the petitioner was sanctioned third FCP with effect from 16.3.2003 and her designation changed as Technical Officer. The benefit thus granted was continued up to her retirement. As such, recovery from the petitioner's retirement benefits by revising her salary, without reckoning her prior service, is patently illegal and against the Apex Court's decision in _**State of**_ ## _**Punjab v Rafiq Masih (White Washer) [(2015) 4 SCC**_ ## _**334].**_ 6. Advocate, Athul Shaji appearing for the RCC and Government Pleader, V.Venugopal contended that the petitioner having quit Government service and having availed the benefits due to her up to such time, has no right to get her past service reckoned for the purpose of computing her retirement benefits in the RCC. It is also -10- ## W.P.(C) No.14295 of 2021 contended that all throughout, the petitioner was aware that she was not entitled to get her past service reckoned, in spite of which the petitioner consciously suppressed that fact and enjoyed the wrong benefits granted to her. To buttress this contention, attention is drawn to Clause 3(i) of Ext.R1(b) itself. It is contended that only the personnel named under Clause 3(i) were deemed to have joined the respective posts in the Regional Cancer Centre from the date they joined those posts originally. The petitioner having joined in the RCC as Lab Technician Grade II falls under Clause 3 (iv) of Ext.R1(d). As per Clause 3(vi) it is clarified that the staff joining the RCC on the basis of the orders in Ext.R1(b) will be deemed to have joined duty in the Regional Cancer Centre service with effect from 01.06.1990. As such, the petitioner is not entitled for any relief. 7. As per Clause 5 of Ext.R1(a), for fixing ## W.P.(C) No.14295 of 2021 -11- the seniority of staff directly recruited through open advertisement from the Medical Education Directorate _vis-a-vis_ the Regional Cancer Centre Staff, the original seniority in the service of Medical Education Directorate will be taken as the criteria. 8. No doubt, the stipulation in Clause 3(i) of Ext.R1(b) is to the effect that the personnel mentioned thereunder and who have already been selected to the post of the RCC on deputation or on leave without allowance or after resignation from the medical education service will be deemed to have joined the respective posts/service from the date of they joined in the posts originally. Those personnel who are entitled for the benefit are listed under Clause 3(i). Further down, it is also mentioned that the seniority and rank of those persons will be determined on the basis of Ext.R1(a) order. Pertinently, Clause 5 of Ext.R1(a) provides for fixing the seniority of ## W.P.(C) No.14295 of 2021 -12- staff directly recruited through open advertisement from the Medical Education Directorate _vis-a-vis_ the Regional Cancer Centre Staff by reckoning the original seniority in the service of Medical Education Directorate as the criteria. Ext.R1(b) also provides for determining the service conditions, rank and seniority of the categories of staff, including category to which the petitioner belong, in accordance with Ext.R1(a) Government order. Therefore, in spite of the separate list of personnel under Clause 3(i) of Ext.R1(b), I find the petitioner to be entitled for the benefit of the Clause. 9. On facts, it is to be noted that the petitioner was appointed in the RCC pursuant to bifurcation of staff in the RCC and Medical Education Department. She was working as Lab Technical Grade-II and had joined at RCC in the same post. There being no break in her service, the date to be reckoned is the date on which she W.P.(C) No.14295 of 2021 -13- joined the post originally, i.e., 16.3.1983. 10. As far as the recovery part is concerned, the legal position is squarely covered by the situations postulated in _**Rafiq Masih**_ _(supra)_ , extracted here under; _“It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a_ ## W.P.(C) No.14295 of 2021 -14- _higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the WP(C).14295/21 9 employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”_ _(Underlining supplied)_ In the result, the writ petition is allowed. Exhibits P17, P20 and P23 are quashed. The respondents are directed to release arrears of pay and terminal benefits by reckoning the petitioner's service from 16.3.1983 onwards. Necessary orders in this regard shall be passed and the amount disbursed, within three months of receipt of a copy of this judgment. As regards the claim for arrears of pay and terminal benefits by reckoning the petitioner's service from 16.03.1983 as per 6[th] and 7[th] Central W.P.(C) No.14295 of 2021 -15- Pay Revisions, petitioner can submit a representation within one month and the same shall be considered and further action taken within three months. Sd/- **V.G.ARUN** **JUDGE** Scl/ W.P.(C) No.14295 of 2021 -16- ## **APPENDIX OF WP(C) 14295/2021** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |Exhibit P1|PHOTOCOPY OF PENSION PAYMENT ORDER ON| ||REPORT DATED 16.06.2018.| |Exhibit P2|PHOTOCOPY OF OF 1ST APPOINTMENT ORDER| ||DATED 24.02.1983.| |Exhibit P3|PHOTOCOPY OF APPOINTMENT BY TRANSFER| ||ORDER DATED 25.05.1990.| |Exhibit P4|PHOTOCOPY OF DUTY JOINED ORDER DATED| ||10.08.1990.| |Exhibit P5|PHOTOCOPY OF 3RD RESPONDENT'S ORDER| ||DATED 15.12.1993 FOR PROMOTION AS| ||LABORATORY TECHNICIAN GR. I.| |Exhibit P6|PHOTOCOPY OF CONSEQUENTIAL PAY| ||FIXATION ORDER DATED 02.02.1994.| |Exhibit P7|PHOTOCOPY OF ORDER DATED 08.03.1997| ||FOR TIME BOUND PROMOTION BY THE 1ST| ||RESPONDENT.| |Exhibit P8|PHOTOCOPY OF G.O.(MS)| ||NO.148/2000/H&FWD DATED 17.06.2000 TO| ||RATIFY PAY SCALE FROM 01.03.1997.| |Exhibit P9|PHOTOCOPY OF PAY FIXATION ORDER DATED| ||14.11.2000 BY THE 1ST RESPONDENT.| |Exhibit P10|PHOTOCOPY OF JUDGMENT DATED 23.01.2004| ||IN WP(C) NO.2851/2004.| |Exhibit P11|PHOTOCOPY OF PAY FIXATION ORDER DATED| ||03.03.2006.| |Exhibit P12|PHOTOCOPY OF PAY RECTIFICATION ORDER| ||DATED 26.05.2006.| |Exhibit P13|PHOTOCOPY OF G.O.(MS) NO.382/2009| ||H&FWD DATED 03.11.2009.| |Exhibit P14|PHOTOCOPY OF PAY RE-FIXATION ORDER| ||30.11.2009.| |Exhibit P15|PHOTOCOPY OF G.O.(MS) 11/2014 DATED| ||08.01.2014 DATED 08.01.2014 FOR| ||NOTIONAL FIXATION OF PAY.| |Exhibit P16|PHOTOCOPY OF 1ST RESPONDENT ORDER N| ||O.RCC/535/2018/ADMN.4 DATED| ||16.11.2018.| |Exhibit P17|PHOTOCOPY OF REVISED PAY FIXATION| -17- ## W.P.(C) No.14295 of 2021 ORDER NO.1110/PAY REVISION/FINC/2019/RCC DATED 23.01.2019 WITH STATEMENT. Exhibit P18 PHOTOCOPY OF ORDER DATED 06.02.2019 FOR LEAVE SURRENDER. - Exhibit P19 PHOTOCOPY OF PETITIONER'S REPRESENTATION DATED 07.12.2020 TO THE 1ST RESPONDENT. - Exhibit P20 PHOTOCOPY OF PAY RE-FIXATION ORDER NO.RCC/980/2020-FIN-C DATED 15.01.2021. Exhibit P21 PHOTOCOPY RTI REPLY DATED 30.04.2021 FROM THE 1ST RESPONDENT. Exhibit P22 PHOTOCOPY OF ORDER NO.1110/ADMN.1/2004/RCC DATED 29.09.2004 WITH RTI REPLY DATED 19.06.2021 FROM 1ST RESPONDENT. Exhibit P23 PHOTOCOPY OF PROVISIONAL PAY FIXATION ORDER NO.RCC/980/2020-FIN-C DATED 22.01.2021. RESPONDENT EXHIBITS Exhibit R1 a TRUE COPY OF THE GO(RT) 392/86/H&FWD DATED 6/2/2987