OP(KAT) No. 1 of 2022 (Against the final order in OA(EKM) No. 2194/2019 of the Kerala Administrative Tribunal, Ernakulam Bench)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 OP(KAT) NO. 1 OF 2022** **AGAINST THE FINAL ORDER IN OA(EKM)NO.2194/2019 OF THE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS IN O.A.:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (ERB)DEPARTMENT, GOVERNEMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.** - **2 THE ASSISTANT DEVELOPMENT COMMISSIONER (GENERAL), KASARAGOD, KASARAGOD DISTRICT- 695035.** - **3 THE ACCOUNTANT GENERAL, THIRUVANATHAPURAM-695001.** - **4 THE BLOCK DEVELOPMENT OFFICER, PANOOR, P.O.CHAMPAD, KANNUR DISTRICT-670694.** - **5 THE BLOCK DEVELOPMENT OFFICER, KANJANGAD, P.O. KANJANGAD, KASARAGOD DISTRICT- 671315.** **BY SRI.SAIGI JACOB PALATTY, SENIOR GOVERNMENT PLEADER** **RESPONDENT/APPLICANT IN O.A.:** **P.SASIDHARAN, S/O KRISHNAN, JOINT BLOCK DEVELOPMENT OFFICER(EMPLOYMENT GUARANTEE SCHEME), BLOCK DEVELOPMENT OFFICE, PANOOR, P.O.CHAMPAD, KANNUR DISTRICT-670694, RESIDING AT 'NAVA SHYJAS', KIZHUNNA P.O, THOTTADA,KANNUR DISTRICT- 670007.** **BY ADV. SRI.P.M.PAREETH ADV. SMT.AISWARYA VENUGOPAL** **THIS OP(KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** O. P.(KAT) No. 1 of 2022 ..2.. ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. -------------------------------------------------------------------------- O. P.(KAT) No. 1 of 2022 _(arising out of the impugned order dated 25.1.2021 in O.A.(Ekm) No. 2194/2019 on the file of the KAT, Ernakulam Bench)_ --------------------------------------------------------------------------Dated this the 8[th] day of March, 2022 ## J U D G M E N T ## ALEXANDER THOMAS, J. The prayer in the afore captioned Original Petition (KAT) filed under Articles 226 & 227 of the Constitution of India are as follows: _“.....pleased to set aside Exhibit P3 Order dated 25.01.2021 in OA(E) No.2194/2019 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram by allowing this Original Petition. (sic)”_ 2. The petitioners herein are the respondents in the instant O.A. (Ekm) No. 2194/2019 filed by the respondent herein before the Kerala Administrative Tribunal, Ernakulam Bench. 3. Heard Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners in the O.P./respondents in the O.A. and Sri.P.M.Pareeth, learned counsel appearing for the sole respondent in the O.P./sole applicant in the O.A. before the Tribunal. O. P.(KAT) No. 1 of 2022 ..3.. 4. After hearing both sides, we are of the view that the main matter in issue raised in this Original Petition is covered by the judgment dated 26.11.2021 rendered by the Division Bench of this Court in OP(KAT) No. 166/2021 _(arising out of O.A.(Ekm) No.665/2019 on the file of the KAT, Ernakulam Bench)_ . 5. In the instant case, the original applicant had commenced service as Village Extension Officer Grade II on 3.7.1997, after undergoing pre-service training from 3.1.1997 to 2.7.1997. As per the norms governing the field, the abovesaid pre-service period should not have been taken into account for regulating the pay and allowances of an incumbent like the applicant. However, due to the erroneous approach of the officials concerned, the said pre-service period was also taken into account in fixing the pay and allowances due to the incumbents like the applicant. The abovesaid mistake was discovered very late, and orders of recovery of the alleged excess amounts was made only by the issuance of Anx.A-3 order issued as late as on 28.11.2019. The applicant had thereafter retired from service on attainment of superannuation age on 31.5.2020. Therefore, within a period of hardly 6 months, after the issuance of impugned Anx.A-3 O. P.(KAT) No. 1 of 2022 ..4.. recovery proceedings dated 28.11.2019, the applicant had retired from service on 31.5.2020. 6. This Court had already held in the judgment in OP(KAT) No.166/2021 that the abovesaid action of the authorities concerned in effectuating recovery proceedings so belatedly is highly illegal and arbitrary, and would also be violative of the dictum laid down by the Apex Court in decisions as in _**State of Punjab v. Rafiq Masih (White Washer's case)**_ reported in _**[(2015) 4 SCC 334, para 14]**_ and that the exception carved out by the Apex Court in the decision in _**High Court of Punjab & Haryana v. Jagdev Singh [AIR 2016 SC 3523]**_ will not apply in the instant case. In the case in OP(KAT) No.166/2021 also, it was found that the impugned recovery notices at Anxs.A-1 to A-3 therein were issued just before the retirement of the applicants. Hence, we upheld the stand of the Tribunal to the extent it was ordered that no recovery shall be made in respect of the alleged excess pay and allowances paid to the incumbents therein up to the date of retirement. However, the said verdict of the Tribunal was modified by this Court by holding that the impugned decision should be permitted to operate atleast for correctly fixing the O. P.(KAT) No. 1 of 2022 ..5.. last pay of the incumbents concerned, so as to correctly refix the pensionary benefits, etc. It will be profitable to refer to the contents of paras 15 to 18 of the judgment dated 26.11.2021 rendered by the Division Bench of this Court in OP(KAT) No.166/2021, which read as follows: _“15. We make it clear that there is no question of the petitioners recovering any alleged excess pay and allowances from the original applicants for the respective periods drawn by them prior to their retirement. We have adopted the cut-off date in this case as the date of retirement, only taking into account the short time gap between the date of issuance of impugned recovery notices and the respective dates of the retirement of the applicants._ _16. However, we are apprised by Sri.P.M.Pareeth, learned counsel appearing for the contesting respondents/original applicants that the retirement benefits based on the impugned verdict of the Tribunal has already been given to the respective applicants, and the monthly pension and the DCRG were disbursed and the regular monthly pension are now being paid for the last 2 years on this basis, and that atleast the alleged excess of payments from the pension amounts already paid may not be recovered, etc._ _17. Taking note of these aspects it is ordered that the petitioners may ensure that the corrective measures in respect of payment of monthly pension amounts may be regulated only on a prospective basis from the date of issuance of revised proceedings._ _18. We are not aware as to whether any of these applicants have also received the benefit of commuted value of pension. Those aspects of the matters may be urged by the applicants in their responses to show cause notices or in any other detailed representations in that regard, which they may make before the competent authority concerned, and those fine tuned aspects as to whether pensionary benefits already paid need not be recovered, etc, may be duly considered by the competent authority after affording reasonable opportunity of being heard to the applicants. ”_ 7. Sri.P.M.Pareeth, learned counsel appearing for the respondent herein/original applicant would submit that the last pay of the original applicant herein has already been correctly refixed as per O. P.(KAT) No. 1 of 2022 ..6.. Ext.R-1(a) proceedings dated 11.9.2020 issued by R-4 in the O.A., and that pensionary benefits has also been refixed as per Anx.R-1(b) proceedings dated 14.7.2021 issued by the Accountant General Kerala. Further, because of abovesaid controversy, pension was not initially sanctioned, but has now been later refixed in terms of the lower correctly refixed last pay of the applicant, and the refixed pension and the commuted value of pension have been disbursed to the applicant. But, because of abovesaid controversy, the DCRG, though correctly refixed, has been withheld to await the outcome of this O.P. to ascertain as to whether the excess pay and allowances paid to the applicant prior to his retirement is to be recovered, etc. 8. The respondent herein/original applicant has filed a counter affidavit dated 24.1.2022 producing therewith copies of Exts.R-1(a) & R-1(b) referred hereinabove, and it will be pertinent to refer to the contents of paras 3 to 5 of said counter affidavit dated 24.1.2022, which read as follows: > _“3. It is respectfully submitted that the pay of this respondent/applicant has already been refixed putting in to effect the audit objection reducing the last pay to Rs. 39,500/- in the scale of Rs. 30,700-65400/-. A true photocopy of the proceedings No. A1776/19 dated 11-09-2020 issued by the 4th petitioner/4th respondent in the OA is produced herewith and marked as Exhibit R1(a)._ > _4. On the basis of Exhibit R1(a) the pensionary benefits of the applicant were authorized and all pensionary benefits paid except DCRG which was withheld_ O. P.(KAT) No. 1 of 2022 ..7.. _for the reason that the concerned authority has not issued the non-liability certificate to the treasury in view of the alleged excess pay drawn by the applicant. A true photocopy of the pension payment order No. 1121193516 dated 14-07-2021 issued by the Accountant General Kerala is produced herewith and marked as Exhibit R1(b)._ _5. In view of Exhibit R1(a) and R1(b) what is remaining is the payment of withheld amount of DCRG to the applicant which was already sanctioned by the competent authority. The DCRG is withheld since the alleged excess pay drawn by the applicant for the period from 03-07-97 to 31-05-2020 is shown as liability and hence NLC has not been produced before the treasury by the authority. Therefore it is prayed that the 4th petitioner/4th respondent in the OA may be directed to release the withheld DCRG of Rs. 5,21,400/- to this respondent/applicant with in a time frame.”_ 9. We need not get into these aspects, except to say that the matter in issue is covered by the judgment dated 26.11.2021 rendered by the Division Bench of this Court in OP(KAT) No.166/2021 in the case of similarly situated incumbents. The competent authority among the petitioners, more particularly the 4[th] petitioner, shall immediately ascertain as to the details regarding Exts.R-1(a) & R-1(b), and if the last pay of the applicant has been correctly refixed, etc. There is no question of recovering any excess pay and allowances paid to the applicant for the period prior to his retirement as ordered above. The issue regarding disbursement of the DCRG should be decided on that basis, and decision in that regard shall be duly rendered by the competent authority among the petitioners within 6 weeks from the date of receipt of a copy of this judgment. O. P.(KAT) No. 1 of 2022 ..8.. 10. For the sake of clarity, the Registry will attach a copy of the judgment dated 26.11.2021 rendered in OP(KAT) No.166/2021, as an annexure to this judgment. 11. The impugned final verdict of the Tribunal at Ext.P-3 rendered on 25.1.2021 in the instant O.A.(Ekm) No.2194/2019 will stand modified as above. With these observations and directions, the above Original Petition (KAT) will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- VIJU ABRAHAM, JUDGE MMG O. P.(KAT) No. 1 of 2022 ..9.. ## **APPENDIX OF OP(KAT).NO.1/2022** **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA(E)NO.2194/19 ALONG WITH ANNEXURES.** **EXHIBIT P2 TRUE COPY OF REPLY STATEMENT ALONG WITH ANNEXURES.** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 25.01.2021 IN OA(EKM)2194/19.** **EXHIBIT P4 TRUE COPY OF THE FORM OF OPTION SUBMITTED BY THE APPLICANT DATED 26.07.2006.** **RESPONDENT'S EXHIBITS** **EXHIBIT R1(A) A TRUE PHOTOCOPY OF THE PROCEEDINGS NO.A1776/19 DATED 11-09-2020 ISSUED BY THE 4TH PETITIONER/4TH RESPONDENT IN THE O.A.** **EXHIBIT R1(B) A TRUE PHOTOCOPY OF THE PENSION PAYMENT ORDER NO.1121193516 DATED 14-07-2021 ISSUED BY THE ACCOUNTANT GENERAL KERALA.** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021/5TH AGRAHAYANA,1943** ## **OP(KAT) NO. 166 OF 2021** **AGAINST THE JUDGMENT IN OA (EKM).NO.665/2019 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 TO 6:** - **1 STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (ERB), DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA 695 001.** - **2 ASSISTANT DEVELOPMENT COMMISSIONER (GENERAL), COLLECTORATE, MALAPPURAM, CIVIL STATION P.O., MALAPPURAM, KERALA 676 505.** - **3 ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM 695 001.** - **4 BLOCK DEVELOPMENT OFFICER, WANDOOR P.O., WANDOOR, MALAPPURAM DISTRICT-679 328, KERALA.** - **5 BLOCK DEVELOPMENT OFFICER, KUTTIPPURAM P.O., THOZHUVANNOOR, MALAPPURAM DISTRICT 676 552, KERALA.** - **6 BLOCK DEVELOPMENT OFFICER,PONNANI, P.O. EDAPPAL, MALAPPURAM DISTRICT 679 576 KERALA.** **SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER** ..2.. OP(KAT) No. 166 of 2021 ## **RESPONDENTS/APPLICANTS 1 TO 3:** - **1 SUHARA K., AGED 56 YEARS, D/O.MOHAMMED ALIAS KUNJU BAPPU, JOINT BLOCK DEVELOPMENT OFFICER (RURAL HOUSING), BLOCK DEVELOPMENT OFFICE, WANDOOR P.O., WANDOOR, MALAPPURAM DISTRICT 679 328, RESIDING AT ASSAR, KUNNAPPALLY P.O., MALAPPURAM, KERALA 679 332.** - **2 NALINI P., D/O.RAMAN CHETTIYAR, AGED 56 YEARS, JOINT BLOCK DEVELOPMENT OFFICER (EMPLOYMENT GUARANTEE SCHEME), BLOCK DEVELOPMENT OFFICE, KUTTIPPURAM P.O., THOZHUVANOOR, MALAPPURAM DISTRICT 676 552, RESIDING AT CHOORIATH, KADAMPUZHA P.O., MALAPPURAM, KERALA 676 553.** - **3 T.SASIDHARAN, S/O.VELAYUDHA PANIKKER, AGED 56 YEARS, JOINT BLOCK DEVELOPMENT OFFICER (EMPLOYMENT GUARANTEE SCHEME), BLOCK DEVELOPMENT OFFICE, PONNANI P.O., EDAPAL, MALAPPURAM DISTRICT 679 576, RESIDING AT THOTTATHIL, P.O., THAVANOOR, MALAPPURAM KERALA 679 573.** **BY ADVS.M/S. P.M.PAREETH & M.K.MEHRUNISHA BASIMA** **THIS OP(KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) No. 166 of 2021 ..3.. ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ============================================ OP(KAT) No. 166 of 2021 _[arising out of the impugned final order dated 7.8.2019 in O.A. (Ekm) No. 665 of 2019 on the file of the KAT, Ernakulam Bench]_ ============================================= Dated this the 26[th] day of November, 2021 J U D G M E N T ## ALEXANDER THOMAS, J. Heard Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the petitioners in the O.P./ respondents 1 to 6 in the O.A. and Sri.P.M.Pareeth, learned counsel appearing for the respondents in the O.P./applicants 1 to 3 in the O.A. 2. The respondents in the O.P./applicants 1 to 3 in the O.A. have filed Ext.P-1 Original Application O.A.(Ekm) No. 665/2019 before the Kerala Administrative Tribunal, Ernakulam Bench, with the following prayers: “ _i. An order quashing Annexure A1, A2 and A3 issued by the 2[nd] respondent to the extent the said documents direct refixation of pay of the applicants and recovery of alleged excess pay drawn by them._ _ii. A declaration to the effect that the fixation of pay, grade promotions and ratio promotions already granted to the applicants reckoning their pre-service training period as increment earning service cannot be undone after more than_ OP(KAT) No. 166 of 2021 ..4.. _25 years as per Annexure A1 to A3. iii. A direction to the respondents to compute applicants' pensionary benefits on the basis of the last pay actually drawn by them and to disburse pensionary benefits within a time frame._ _iv. To grant cost._ _v. To grant such other reliefs this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case.”_ 3. The Tribunal, after hearing both sides, has held that the impugned action for recovery initiated by the respondents in the OA on the impugned ground is too late and way belated, and that the principles laid down by the Apex Court in the celebrated decision in _**State of Punjab v Rafiq Masih**_ **(White Washer's case)** reported in _**[(2015) 4 SCC 334]**_ (see para 14) as modified by the Apex Court in _**High Court of Punjab & Haryana v. Jagdev Singh**_ reported in _**[AIR 2016 SC 3523]**_ would squarely apply in this case. Consequently, the Tribunal has interdicted not only the recovery proceedings pertaining to the alleged excess pay and allowances, but also has stated that the pensionary benefits of the applicants should also be paid on the basis of the alleged excess pay and allowances. It is the abovesaid verdict of the Tribunal at Ext.P-3 dated 7.8.2019 in O.A.(Ekm) No.665/2019 that has been challenged at the instance of State of Kerala and the OP(KAT) No. 166 of 2021 ..5.. departmental officers concerned. 4. It is the case of State of Kerala and the departmental officers that as per the Special Rule issued as per G.O.(P) No.88/1977/DD dated 30.6.1997 in respect of the post of Village Extension Officers, though they have to undergo a pre-service training process, the said pre-service training period shall not be counted for probation or for training purpose. Later, the Government has clarified as per G.O.(Rt.) No.3771/2008/LSGD dated 25.10.2008 that the pre-service training period could not be counted for increments and other benefits. It is also the case of the State that the Tribunal has also rendered a decision in O.A.No.1919/2016 on that basis. Further, that the applicants have also duly submitted their undertaking to the effect that they are willing to refund any excess amount found in the audit and they were bound by the above undertaking etc. The three applicants in this case had entered service as Village Extension Officers as early as on 15.1.1993 and 12.03.1996 respectively. They had undergone the pre-service training on the basis of six months, which, in the case of 1[st] and 2[nd] applicants happened to be for the period from OP(KAT) No. 166 of 2021 ..6.. 15.7.1992 to 14.1.1993, and in the case of the 3[rd] applicant, it was from 11.9.1995 to 11.3.1996. However, it appears that the department officers concerned had taken into account the abovesaid pre-service training period of the 3 applicants for all service benefits, and applicants' pay have been fixed taking into account the abovesaid six months pre-service training period, and they were granted time bound higher grade promotions and other attendant benefits as well. 5. At the time of filing of the instant O.A. on 1.4.2019, the 3 applicants were due to retire from service on 30.4.2019 and 31.5.2019 respectively. When the pension papers were forwarded along with service books, objection was raised that the applicants had enjoyed the benefits of reckoning their pre-service training, pay fixation and other benefits, and the respondent authorities had decided to recover the excess amounts by the issuance of Anxs.A-1 to A-3 notices on 15.2.2019, 26.3.2019 & 1.3.2019 respectively. 6. The Tribunal, after hearing both sides, had taken the view that the matter in issue is squarely covered in favour of the applicants as per the dictum laid down by the Apex Court in OP(KAT) No. 166 of 2021 ..7.. celebrated decision in the _**Whitewasher's case**_ supra as modified in the subsequent decision by this Apex Court in _**Jagdev Singh's case**_ supra. On this basis, the Tribunal has taken the considered view that the action for recovery of the excess amount paid to the applicants while they were in service is absolutely unjustifiable and is illegal and wrong. We are also apprised that the applicants were in Class B posts. The Division Bench of this Court in cases as in _**State of Kerala v. Vinod Kumar [2020 (4) KLT 230]**_ and other subsequent decisions as in the judgment dated 28.1.2021 in OP(KAT) No.255/2020 _(arising out of O.A.No.1365/2018)_ ( _**State of Kerala v. Abraham P.Joseph**_ reported in _**2021 (2) KLT 288**_ ) have taken the view that in such cases, the impugned recovery would be highly oppressive and inequitable, going by the dictum laid down by the Apex Court in _**Whitewasher's**_ case supra as modified in _**Jagdev Singh's**_ case supra and further that, though the Apex Court in subsequent decision in _**Jagdev Singh's**_ case supra has modified Clause 3 of para 18 of the earlier decision in _**Whitewasher's**_ case supra. The impact of other clauses of para 18, more particularly clauses 1, 3 & OP(KAT) No. 166 of 2021 ..8.. 4 have only diluted Clause No.2 of para 18 of _**Whitewasher's**_ case supra, in cases where undertaking has been given. But, that the subsequent judgment in _**Jagdev Singh's**_ case supra does not in any manner dilute the efficacy of Clauses 1, 3, 4 & 5 of para 18 of _**Whitewasher's c**_ ase supra. Hence the impugned proceedings have been quashed by the Tribunal. 7. After hearing both sides, we are of the view that the Tribunal was right in holding that the impugned recovery proceedings for the amounts drawn in excess by the applicants at the time when they were in service cannot be faulted with, in view of the above said well settled legal position. 8. The Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the petitioners in the O.P. would submit that in case, this Court has taken the view as supra, then this Court should atleast give liberty to the petitioners herein to take corrective measures to ensure that the mistake is not carried forward to the pensionary benefit of the applicants, and that the petitioners should have the liberty to correctly fix the last pay of the applicants as on the date of retirement of the OP(KAT) No. 166 of 2021 ..9.. incumbents, and then re-compute or revise the pension and gratuity benefits, and that the excess amount thereof could be recovered etc. The impugned proceedings at Anxs.A-1 to A-3 have been issued much prior to the date of retirement of the applicants, and that the issue of long delay and laches cannot be attributed atleast as regards such process/correction of mistake as regards the pensionary benefits are concerned. 9. Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader would also pay serious reliance on the judgment of the Division Bench of this Court rendered on 24.3.2021 in W.A. No.323/2021 _(arising out of WP(C) No. 9256/2019)_ wherein it has been issued in a case dealing with Guruvayoor Devaswom Board. It is pointed out therein that the Division Bench has held that in such cases, though the excess amounts drawn by the incumbents while he was in service could be interdicted in view of the abovesaid legal position in _**Whitewasher's**_ case supra as modified in _**Jagdev Singh's**_ case supra, and so long as the impugned action has been taken by the departmental authorities prior to retirement of the incumbent, then atleast corrective OP(KAT) No. 166 of 2021 ..10.. measures for revising the pensionary benefits by recomputing the last pay of the petitioners. If the mistake has not been committed, and that otherwise permitting a pensioner to enjoy the benefit of the mistake even in the case of pension benefits would amount to permitting the pensioner as well as the family pensioner to enjoy excess benefits from the public without any legal entitlement, and it could be nothing but unjust enrichment. 10. Per contra, Sri.P.M.Pareeth, learned counsel appearing for the respondents in the O.P./applicants in the O.A. would contend that the aforesaid alternate contentions of learned Senior Government Pleader may not be countenanced by this Court, and that the legal principles laid down by the Division Bench of this Court in W.A.No.323/2021 will not apply in the facts and circumstances of this case. 11. We are apprised by the learned Senior Government Pleader that this Court, in an almost identical scenario and that too in relation to excess pay and allowances granted to similarly situated incumbents in the very same department by reckoning the pre-service training period, has rendered judgment dated OP(KAT) No. 166 of 2021 ..11.. 26.3.2021 in O.P.(KAT) No.38/2021 _[arising out of the final order dated 29.10.2019 in O.A.(Ekm) No.674/2019 on the file of the KAT, Thiruvananthapuram Bench]_ wherein it has been held that such corrective measures should be permitted to be done by the official respondents atleast on a prospective basis after the issuance of impugned orders of recovery, especially in the matter of ensuring that such measures are taken to regulate correctly the payment the pensionary benefits, etc. Further, that the Division Bench of this Court had passed final order dated 10.11.2021 dismissing R.P.No.420/2021 which was filed to impugn the abovesaid judgment dated 26.3.2021 in O.P.(KAT) No.38/2021. It may be pertinent to refer to paras 14 & 15 of the judgment dated 26.3.2021 in O.P.(KAT) No.38/2021, which reads as follows: _“14. We are view that at least the petitioners should be permitted to effectuate the impugned orders at Annexure A1 to A3 at least on a reasonable basis but after avoiding hardships to the applicants. We would order that prospective recovery from the pay and allowances of the 2nd and 3rd applicants and the monthly pension of the first applicant could be made by the petitioners for the period from 1.1.2021 onwards._ _15. In the instant case, we are told that the 1st applicant has already retired from service on 28.2.2020 and the 2nd and 3rd applicants are due to retire from the service on 30.4.2023 and 31.5.2022. Accordingly, it is ordered that the competent authority among the petitioners may immediately issue separate show cause notice to each of the applicants and stating therein the details of the mistakes in the increments, pay fixations, time bound grade promotion etc. given to the respective applicants on the basis of the wrong_ OP(KAT) No. 166 of 2021 ..12.. _reckoning of the above said pre service training period and may thereafter fix the last pay of the first applicant on that basis so also the pay of the 2nd and 3rd applications may also be refixed. But before that show cause notice, all requisite details should be given to each of the applicants and the applicants should be given a reasonable opportunity of being heard and that the versions of the applicant as to the correctness or otherwise of such proposed revised pay may also be taken into account and proper decision in that regard may be taken. Thereafter, the petitioners herein will be at liberty to effect recovery of the excess gratuity amount paid to the first applicant who have already retired on 28.2.2020 and recovery of the monthly pension paid to the 1st applicant may be effected for the period from 1.1.2021 onwards. In other words, the recovery of the pay and allowances and the monthly pension for the past period prior to 1.1.2021 may not be recovered from the first applicant. So also similar action may also be finalised in the case of 2nd and 3rd applicants by ordering the recovery of pay and allowances from 1.1.2021 onwards and not for periods prior to that. Necessary orders may be passed for effectuating reduction of pay of the 2nd and 3rd applicants for the period prospectively from 1.1.2021 onwards. The directions and orders of the Tribunal at Ext.P3 will stand modified as above. ”_ 12. It may also be apposite to refer to the contents of the final order dated 10.11.2021 passed by the Division Bench of this Court dismissing R.P.No.420/2021 _[arising out of O.P.(KAT) No.38/2021]_ and paras 4 & 5 thereof, reads as follows: _“4. The pleas of the review petitioners have been opposed by Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the respondents in the review petition/respondents in the O.P. In the impugned judgment under review, we had categorically held in favour of the review petitioners/ respondents in the O.P. that the recovery of the amounts will be for the periods prior to 1.1.2021 in pursuance of the impugned orders of recovery at Anxs.A-1 and A-2, both dated 18.12.2018 and Anx. A-3 dated 22.3.2019. As a matter of fact, we have even held in the judgment under review that the recovery for the period prior to 1.1.2021 would be highly unreasonable and oppressive and the case would be covered in favour of the review petitioners herein/ respondents in the O.P. in view of the dictum laid down by the Apex Court in the celebrated decision in Rafiq Masih's case (White Washer's case) [(2015) 4 SCC 334], as modified by the subsequent judgment of the Apex Court in Jagdev Singh's case [AIR 2016 SC 3523]. Other than that, all what we have ordered is that since the higher benefits of pay have_ OP(KAT) No. 166 of 2021 ..13.. _been given to the review petitioners only on account of patently erroneous methodology, it will be illegal and unjust for the court to interdict the right of the respondent authorities even in effecting recovery on a prospective basis. On this premise, this Court ordered that the pay and allowances, retiral benefits, etc, may be recomputed and recovery, if any, shall be effectuated only for the periods after 1.1.2021. It is trite that an employee can lawfully claim pay and other benefits only which are legally entitled and admissible to him as per the norms. If any additional payments have been made by way of patent mistakes, etc. the same can be recovered subject to the said methodology of recovery being on a reasonable, equitable and nonoppressive manner. Since the impugned orders of recovery have been issued at Anx. A-1, A-2 and A-3, this Court felt that it is highly necessary that recovery may be permitted to be proceeded, at least on a prospective basis and that too, from an posterior date of 1.1.2021 and subject to various directions issued in the impugned judgment under review. The main directions issued by us in the judgment under review are contained in paras 14 and 15 thereof, which read as follows:_ _“14. We are view that at least the petitioners should be permitted to effectuate the impugned orders at Annexure A1 to A3 at least on a reasonable basis but after avoiding hardships to the applicants. We would order that prospective recovery from the pay and allowances of the 2nd and 3rd applicants and the monthly pension of the first applicant could be made by the petitioners for the period from 1.1.2021 onwards._ _15. In the instant case, we are told that the 1st applicant has already retired from service on 28.2.2020 and the 2nd and 3rd applicants are due to retire from the service on 30.4.2023 and 31.5.2022. Accordingly, it is ordered that the competent authority among the petitioners may immediately issue separate show cause notice to each of the applicants and stating therein the details of the mistakes in the increments, pay fixations, time bound grade promotion etc. given to the respective applicants on the basis of the wrong reckoning of the above said pre service training period and may thereafter fix the last pay of the first applicant on that basis so also the pay of the 2nd and 3rd applications may also be refixed. But before that show cause notice, all requisite details should be given to each of the applicants and the applicants should be given a reasonable opportunity of being heard and that the versions of the applicant as to the correctness or otherwise of such proposed revised pay may also be taken into account and proper decision in that regard may be taken. Thereafter, the petitioners herein will be at liberty to effect recovery of the excess gratuity amount paid to the first applicant who have already retired on 28.2.2020 and recovery of the monthly pension paid to the 1st applicant may be effected for the period from 1.1.2021 onwards. In other words, the recovery of the pay and allowances and the monthly pension_ OP(KAT) No. 166 of 2021 ..14.. _for the past period prior to 1.1.2021 may not be recovered from the first applicant. So also similar action may also be finalised in the case of 2nd and 3rd applicants by ordering the recovery of pay and allowances from 1.1.2021 onwards and not for periods prior to that. Necessary orders may be passed for effectuating reduction of pay of the 2nd and 3rd applicants for the period prospectively from 1.1.2021 onwards. The directions and orders of the Tribunal at Ext.P3 will stand modified as above.”_ _5. Further, if the pay fixation is erroneously permitted to continue even for the purpose of determining the last pay of the review petitioners for the purpose of determining their retiral benefits, then it will amount to permitting the review petitioners/respondents in the O.P. to enjoy higher pensionary benefits than that is admissible to them and consequently, such mistakes would be perpetuated even in the case of subsequent grant of family pension, etc. In other words, if the impugned directions in paras 14 and 15 are not issued, at least on a prospective basis, then it will amount to permitting the review petitioners to enjoy benefits, which were not otherwise entitled to them and hence it will amount to the court permitting unjust enrichment. Further very crucially, the amounts involved are to be paid from the public exchequer, which essentially flow from the hard earned money of the tax payers. The pubic exchequer shall not suffer. Hence only to strike a balance between the rival pleas that we have issued the impugned directions at paras 14 and 15 of the judgment under review so as to permit the further process for consideration of recovery as mentioned herein above. We do not find that the said directions are vitiated by any error apparent on the face of record or that the review petitioners have made out other valid grounds for review, viz., production of additional materials, which could not have been produced before the at the earlier point of time, etc. The arguments raised by the review petitioners in these proceedings would virtually amount to making critique on the correctness of those directions on the basis of the merits of the matter. That is not permissible in review and the remedy lies elsewhere. Hence we are constrained to hold that no grounds have been made out for review. Consequently, the review petition will stand dismissed. ”_ 13. Hence, after hearing both sides, we are of the view that the matter in issue raised in this case is essentially covered by the judgment dated 26.3.2021 rendered by the Division Bench of this Court in O.P.(KAT) No.38/2021, apart from the decision of this OP(KAT) No. 166 of 2021 ..15.. Court in the judgment dated 24.3.2021 in W.A.No.323/2021 [arising out of WP(C).No.9256/2019] in relation to the Guruvayur Devaswom Board, etc. In the instant case, the impugned recovery proceedings have been issued as per Anxs.A-1 to A-3 on 15.2.2019, 26.3.2019 & 1.3.2019 respectively, whereas the 3 original applicants/contesting respondents in the O.P. have retired from service on 30.4.2019 & 31.5.2019. So, it can be seen that the impugned recovery notices at Anxs.A-1 to A-3 have been issued before the retirement of the original applicants. Hence, the time gap between the date of issuance of Anxs.A-1 to A-3 notices and the respective dates of retirement of the respective applicants, is quite short. Accordingly, this Court is inclined to order that the corrective measures pursuant to Anxs.A-1 to A-3 notices be enforced atleast for the limited purpose of regulating the correct payment of retirement benefits due to the applicants. Otherwise, if said corrective measures are not permitted by the Court atleast on a prospective basis from the date of issuance of impugned proceedings,the same would amount to permitting the parties like the original applicants to enjoy unjust enrichment, and that too, OP(KAT) No. 166 of 2021 ..16.. out of the funds of public exchequer which is ultimately the tax payers' money. If that is permitted, such unjust enrichment will have serious consequences not only permitting the pensioners prolongment, but also to permit the family pensioners to get the benefit, with the result that the said excess payment should have been made from the public exchequer throughout the lifetime of the pensioners and the family pensioners concerned. Hence, the public interest would warrant that this Court should be alived to the concern that atleast if corrective measures are not permitted on a prospective basis, the same would not be conducive to public interest. Further, the basic perspective in the decisions as in the _**White Washer's**_ case is that belated recovery proceedings will have to be interdicted provided, this unjust, inequitable and apposite, etc and subject to other parameters mentioned in those decisions. 14. Those decisions cannot be cited as an authority that even mistakes which are otherwise patent and manifest, should not be permitted to be corrected atleast on a prospective basis from the date of issuance of the impugned recovery proceedings. What OP(KAT) No. 166 of 2021 ..17.. should be interdicted in appropriate case is enforcement of recovery proceedings for periods in relation to events which have occurred long prior to the date of issuance of the impugned proceedings. In the light of these aspects, it is ordered that the impugned recovery proceedings at Anxs.A-1 to A-3 shall not be enforced for purpose of the recovery of excess pay and allowances drawn by the applicants till the dates of their retirement. However, the petitioners herein will be at liberty to ensure that the proposed measures as per Anxs.A-1 to A-3 would be enforced atleast on a prospective basis, to regulate correctly the retirement benefits that are to be paid to the respective applicants. For that purpose, the competent authority among the petitioners may issue show cause notices to the respective applicants pointing out the alleged mistakes in the fixation of pay and allowances, on account of reckoning of pre-service training period, and should also show the details as to how the last pay of the respective applicants are to be re-fixed, for rectification of abovesaid mistakes. The applicants may also be permitted to give their written submissions in the matter and thereafter the competent authority will afford OP(KAT) No. 166 of 2021 ..18.. reasonable opportunity of being heard to the respective original applicants, and then may take a considered decision as to what exactly should be the correct last pay to be re-fixed in the case of the respect applicants as on their respective dates of retirement, and thereafter, the pension, DCRG etc may be regulated in that manner. 15. We make it clear that there is no question of the petitioners recovering any alleged excess pay and allowances from the original applicants for the respective periods drawn by them prior to their retirement. We have adopted the cut-off date in this case as the date of retirement, only taking into account the short time gap between the date of issuance of impugned recovery notices and the respective dates of the retirement of the applicants. 16. However, we are apprised by Sri.P.M.Pareeth, learned counsel appearing for the contesting respondents/original applicants that the retirement benefits based on the impugned verdict of the Tribunal has already been given to the respective applicants, and the monthly pension and the DCRG were OP(KAT) No. 166 of 2021 ..19.. disbursed and the regular monthly pension are now being paid for the last 2 years on this basis, and that atleast the alleged excess of payments from the pension amounts already paid may not be recovered, etc. 17. Taking note of these aspects it is ordered that the petitioners may ensure that the corrective measures in respect of payment of monthly pension amounts may be regulated only on a prospective basis from the date of issuance of revised proceedings. 18. We are not aware as to whether any of these applicants have also received the benefit of commuted value of pension. Those aspects of the matters may be urged by the applicants in their responses to show cause notices or in any other detailed representations in that regard, which they may make before the competent authority concerned, and those fine tuned aspects as to whether pensionary benefits already paid need not be recovered, etc, may be duly considered by the competent authority after affording reasonable opportunity of being heard to the applicants. The impugned final order of the Tribunal at Ext.P-3 will stand modified and substituted as above. OP(KAT) No. 166 of 2021 ..20.. With these observations and directions, the above Original Petition (KAT) will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- VIJU ABRAHAM, JUDGE MMG OP(KAT) No. 166 of 2021 ..21.. ## **APPENDIX OF OP(KAT).NO.166/2021** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT P1(OA)**|**A**<br>**PHOTOCOPY**<br>**OF**<br>**THE**<br>**ORIGINAL**| |---|---| ||**APPLICATION**<br>**O.A.(EKM)**<br>**NO.665/2019**| ||**ALONG WITH ANNEXURES.**| |**ANNEXURE A1**|**A TRUE PHOTOCOPY OF THE LETTER NO.RD1-**| ||**285/19 DATED 15.2.2019 ISSUED BY THE**| ||**2ND RESPONDENT, ADDRESSED TO 4TH**| ||**RESPONDENT**<br>**IN**<br>**RESPECT**<br>**OF**<br>**1ST**| ||**APPLICANT.**| |**ANNEXURE A2**|**A TRUE PHOTOCOPY OF THE LETTER NO.RD1-**| ||**550/19 DATED 26.3.2019 ISSUED BY THE**| ||**2ND RESPONDENT ADDRESSED TO 5TH**| ||**RESPONDENT**<br>**IN**<br>**RESPECT**<br>**OF**<br>**2ND**| ||**APPLICANT.**| |**ANNEXURE A3**|**A TRUE PHOTOCOPY OF THE LETTER NO.RD1-**| ||**487/19 DATED 1.3.2019 ISSUED BY THE**| ||**2ND RESPONDENT ADDRESSED TO 6TH**| ||**RESPONDENT**<br>**IN**<br>**RESPECT**<br>**OF**<br>**3RD**| ||**APPLICANT.**| |**EXHIBIT P2**|**A PHOTOCOPY OF THE REPLY STATEMENT**| ||**FILED BY THE 2ND PETITIONER**| |**EXHIBIT P3**|**A PHOTOCOPY OF THE ORDER DATED**| ||**7.8.2019 IN O.A.(EKM) NO.665/2019.**| |**EXHIBIT P4,**|**A PHOTOCOPY OF THE FORM OF OPTION AND**| |**EXHIBIT P4(A),**|**STATEMENT OF FIXATION OF THE REVISED**| ||**SCALE OF PAY OF THE 1ST RESPONDENT**| |**EXHIBIT P4(B) AND**|**DATED 8.2.1999, 10.4.2006, 2.5.2011**| |**EXHIBIT P4(C)**|**AND 22.2.2016**| |**EXHIBIT P5,**|| |**EXHIBIT P5(A),**|| |**EXHIBIT P5(B),**|**A PHOTOCOPY OF THE FORM OF OPTION AND**<br>**STATEMENT OF FIXATION OF THE REVISED**| |**EXHIBIT P5(C),**|**SCALE OF PAY OF THE 2ND RESPONDENT**| |**EXHIBIT P5(D),**|**DATED 13.11999, 16.9.2002, 29.5.2006,**<br>**15.7.2008, 26.4.2016 AND 31.7.2018.**| |**EXHIBIT P5(E) AND**|| |**EXHIBIT P5(F)**|| OP(KAT) No. 166 of 2021 ..22.. **EXHIBIT P6, EXHIBIT P6(A), EXHIBIT P6(B) , EXHIBIT P6(C) AND EXHIBIT P6(D)** **A PHOTOCOPY OF THE FORM OF OPTION AND STATEMENT OF FIXATION OF THE REVISED SCALE OF PAY OF THE 3RD RESPONDENT DATED 19.6.1998, 14.1.1999, 25.5.2006, 26.4.2011 AND 1.3.2016.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(A)** **A TRUE PHOTOCOPY OF THE G.O.(RT) NO.1414/2020/LSGD DATED 28.07.2020.**