OP(KAT)380/2018; OP(KAT)427/2018; OP(KAT)430/2018, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941** **OP(KAT).No.380 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OA (EKM) NO.904/2015 DATED 24-032017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN THE OA:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, FOREST AND WILD LIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, 695001** - **2 CHIEF CONSERVATOR OF FOREST(ADMINISTRATION), FOREST HEAD QUARTERS, THIRUVANANTHAPURAM, KERALA-695014.** - **3 ADDITIONAL PRINCIPAL CHIEF FOREST CONSERVATOR (ADMN), VAZHUTHACADE, THIRUVANATHAPURAM, KERALA-695014.** - **BY SRI.ANTONY MUKKATH, SR.GOVERNMENT PLEADER** ## **RESPONDENTS/APPLICANTS IN THE OA:** - **1 V.VIJAYAN VELLATTU HOUSE, MANTHAKKODE, MALAMPUZHA PO, PALAKKAD, KERALA, 678111** - **2 K.M. UNNIKRISHNAN, KOTTICKAL HOUSE, SOPHANAM, KAIPPILLY ROAD, ARINPUR, TRICHUR-680013,KERALA.** - **3 K.MUHAMMED IBRAHIM RAHMATHULLA, KUZHIKANDATHIL HOUSE, SANTHI NAGAR, MANALODI NILAMBUR P.O, MALAPPURAM , KERALA-676505.** OP(KAT)380, 427 & 430/2018 -2- - **4 A.SAYED MUHAMMED, SAYED MANZIL, ARABIC COLLEGE ROAD, PARALI P.O, PALAKKAD, KERALA-678001.** - **5 M.V.VISHAWAMBARAN, MULLAPRAMBIL HOUSE, CHERAI P.O, ERNAKULAM , KERALA-682516.** - **6 V.CHANDRASEKHARAN, CHITHIRA,VADAKUMBAD KOVIL, CHERUVATHUR P.O, KASARGOD, KERALA-673010.** - **7 K.K, KUNHIKANNAN, KANNOTH KANDIYIL HOUSE, MALOOR P.O, MATTANNUR, KANNUR,KERALA-670643.** - **8 A.J.BABY, APPUZHAYIL HOUSE, CHERUKAATTUR P.O, WAYANAD,KERALA -670002.** - **9 T.D.JAGANNATH KUMAR, AMRITHA BHAVAN, KUNTHANY, THOMARIMALA P.O, SULTHAN BATHERI-670110,KERALA,** - **10 V.BABY JOHN, DY.RANGER(RTD),VETTIKAKKUZHIYIL, KADAPLAMATTOM P.O, KOTTAYAM, KEALA-686571.** - **11 P.P.JAMALUDEEN, PUTHEN VEETIL, EDAKUNNAM P.O, KOTTAYAM, KERALA-686512.** - **12 K.A. ABRAHAM, KACHIRACKAL HOUSE, AMARAVATHI P.O, KUMALY, IDUKKI, KERALA-685509.** - **13 A.MURALEEDHARAN PILLAI, MADATHIL HOUSE, PUDINHATTINKARA, NEELESHWARAM P.O, KOLLAM, KOTTARAKKARA -691506,KERALA,** OP(KAT)380, 427 & 430/2018 -3- - **14 E.M.AGASTHY, IIAYADATHU VEEDU, MATHRY P.O, RAMAPURAM, KOTTAYAM-686576,KERALA.** - **15 P.J.VARGHESE, PULLAPPALLIL HOUSE, PARATHODE P.O, KANJIRAPPALLY, KOTTAYAM-686512,KERALA.** **R1-15 BY ADV. SRI.S.KRISHNAMOORTHY** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 22.08.2019, ALONG WITH OP(KAT) NOS.427/2018 & 430/2018, THE COURT ON 20.09.2019 PASSED THE FOLLOWING:** OP(KAT)380, 427 & 430/2018 -4- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941** **OP(KAT).No.427 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OA (EKM) 1906/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 24.5.2018** ## **PETITIONERS/RESPONDENTS IN THE OA:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FOREST AND WILDLIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE CHIEF CONSERVATOR OF FORESTS FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014. 3 THE DIVISIONAL FOREST OFFICER COLLECTORATE P.O., KOTTAYAM - 686002. 4 THE ACCOUNTANT GENERAL (A & E) M.G.ROAD, THIRUVANANTHAPURAM - 695 033. BY SRI.ANTONY MUKKATH, SR.GOVERNMENT PLEADER** ## **RESPONDENT/APPLICANT IN THE OA:** **ASOKAKUMAR K.K., S/O.M.P.KESAVA PILLAI, RETIRED DEPUTY RANGER (GRADE), KIRAN NIVAS, MARIAPPALLY P.O., KOTTAYAM, PIN - 686 013.** **R1 BY ADV. BABU JOSEPH KURUVATHAZHA** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 22.08.2019, ALONG WITH OP(KAT) NOS.380/2018 AND 430/2018, THE COURT ON 20.09.2019 PASSED THE FOLLOWING:** OP(KAT)380, 427 & 430/2018 -5- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 20TH DAY OF SEPTEMBER 2019 / 29TH BHADRA, 1941** **OP(KAT).No.430 OF 2018** **AGAINST THE ORDER/JUDGMENT IN OA (EKM)1900/2017 DATED 24-052018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN THE OA:** **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FOREST AND WILDLIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE CHIEF CONSERVATOR OF FORESTS FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014. 3 THE DIVISIONAL FOREST OFFICER, RANNAI, RANNI P.O., PATHANAMTHITTA DISTRICT - 689 672. 4 THE ACCOUNTANT GENERAL ( A & E) M.G.ROAD, THIRUVANANTHAPURAM - 695 033. BY SRI.ANTONY MUKKATH, SR.GOVERNMENT PLEADER** ## **RESPONDENT/APPLICANT:** **K.SADANANDAN, S/O.KUTTY NARAYANAN, RETIRED DEPUTY RANGER, NOOROMMACKEL HOUSE, SANTHIPURAM P.O., KARUKACHAL, CHANGANASSERY, KOTTAYAM DISTRICT, PIN - 686 545. BY ADV. SRI.S.KRISHNAMOORTHY (B/O) BY ADV. SRI.BABU JOSEPH KURUVATHAZHA** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 22.08.2019, ALONG WITH OP(KAT) NOS.380/2018 AND 427/2018, THE COURT ON 20.09.2019 PASSED THE FOLLOWING:** OP(KAT)380, 427 & 430/2018 -6- ## J U D G M E N T OP (KAT) 380/2018, 427/2018 & 430/2018 [Dated this the 20[th] day of September, 2019] Ashok Menon, J. Identical questions arise for consideration in these three Original Petitions filed by the Government and the Forest Department. Hence, they are taken up together for consideration. 2. OP(KAT) No.380/2018 is filed impugning Order in OA (EKM) No.904/2015 dated 24.3.2017. OP (KAT) No.427/2018 is filed challenging the order in OA(EKM) 1906/2017, while OP(KAT) No.430/2018 is filed against the order in OA (EKM) 1900/2017, both disposed of vide a common order dated 24.5.2018, all on the file of the Kerala Administrative Tribunal (KAT). The respondents in OP(KAT) No.380/2018 are applicants 1 to 15 in the OA. The other two Original Applications have one applicant each. 3. The facts in brief are thus: The 15 applicants in OA (EKM) No.904/2015 and the applicants in OA (EKM) Nos.1900 & 1906 of 2017 are all retired Deputy Rangers/Foresters in the Forest and Wild Life Department. All of them entered the Kerala Forest OP(KAT)380, 427 & 430/2018 -7- Subordinate Service as Forest Guards. The promotional avenues available to the Forest Guards are, first as Foresters, then as Deputy Rangers and thereafter as Rangers. The post of Forester could either be filled by promotion of Forest Guards or by direct recruitment. The post of Deputy Ranger is filled by promotion of Foresters trained in Regional Foresters' School. However, a proviso has been added which states that, provided, Foresters who have put in 15 years of service and are over 35 years of age, shall be exempted from Foresters' training. 4. The post of Ranger is filled by direct recruitment and also by promotion from Deputy Rangers and Foresters trained as Rangers in either the Regional Forest Rangers Colleges, Coimbatore or Dehradun. Promotion can also be granted to Deputy Rangers and Foresters who had not been trained as Rangers but have had training as Foresters. 5. There is no dispute that the applicants in the above mentioned three OAs did not undergo either Foresters' training or the Rangers' training which is the prescribed qualification for promotion to the post of Ranger. On completion of 16 and 23 years of service respectively, the second and third higher grades are OP(KAT)380, 427 & 430/2018 -8- given to the Forest Guards and Foresters, irrespective of whether they get promoted or not. But to get the grades equal to the pay scale of a Deputy Ranger, it is incumbent upon them to undergo the Foresters' training subject to the relaxation of 15 years service and the age of 35. However, no such relaxation is provided for getting the third higher grade on completion of 23 years, equivalent to the pay of a Forest Ranger. The applicants were all given the third higher grade equal to the scale of pay of Rangers ignoring the fact that they have not undergone the Foresters' training. Audit objection was raised and the Government sought the pay of the applicants to be re-fixed and the excess amount paid to them recovered. 6. Some of those who were affected, moved this Court by filing WP (C) No.31584/2007 and this Court directed the Government to reconsider their decision to withdraw the third higher grade granted to the Officers. In pursuance to that, the Government issued an order dated 25.1.2008 (Annexure-A1 in OP(KAT) No.380/2018) granting exemption to those Foresters who had completed 50 years of age from Foresters' training to be promoted to the post of Rangers or be granted the scale of pay equivalent to that of Rangers with OP(KAT)380, 427 & 430/2018 -9- retrospective effect. The Government issued yet another order dated 10.2.2010 (Annexure-A2 in OP(KAT) No.380/2018) clarifying the earlier order dated 25.1.2008 dispensing with recovery of amounts already paid till 25.1.2008 and with certain other directions regarding fixation of pay and pension to those who are affected. 7. The applicants in the three OAs with which we are concerned, do not come within the purview of the aforesaid two Government Orders as they had not completed the age of 50 to earn the exemption. They challenged both the aforesaid orders by filing WP(C) No.21946/2009 which was later transferred to the KAT and renumbered as TA No.3778/2012. It was contended by the applicants that on completion of 23 years, higher grade equal to the scale of pay of Ranger should be given to all of them irrespective of age and that fixing the age of 50 for the entitlement, was discriminatory. The KAT vide order dated 7.11.2014 repelled the challenge against the aforesaid Government Orders and found that there is nothing unconstitutional about granting exemption only to those who have crossed the age of 50. 8. Pursuant to the aforesaid order of the KAT, OP(KAT)380, 427 & 430/2018 -10- the applicants made a representation (Annexure-A4 in OP (KAT) No. 380/2015) to the Government. That representation was rejected by the Government vide order dated 17.9.2015 (Annexure-A5 in OP (KAT) No. 380/2015). It is that order at Annexure-A5 which stands challenged in OA (EKM) No.904/2015. The applicants in OA (EKM) Nos.1900 & 1906 of 2017 have sought prayers to quash the said order and also the order to recover the amount paid in excess from their DCRG. 9. The contention of the applicants was that they were not sent for training by the Chief Conservator of Forests considering the fact that they were exempted from the training for the post of Deputy Rangers having completed 15 years of service and on attained the age of 35 years. It is contended that if they could get the scale of Deputy Ranger or be promoted as Deputy Rangers, they were also entitled to the next grade or get promoted as Forest Rangers since the post of Deputy Ranger was a feeder category for promotion to the post of Rangers. The applicants also would rely on the opinion of the Forest Conservator wherein it was stated that on completion of service of 15 years and on attaining the age of 45 years, the Foresters should be OP(KAT)380, 427 & 430/2018 -11- granted exemption from Foresters' training and need not be sent for that. The age of 45 years was subsequently reduced to 35 years. It is the contention of the applicants that they were never sent for any training, in view of this specific exemption and therefore, they cannot be deprived of their promotion as Forest Ranger or from getting the pay scale of Forest Ranger on completion of 23 years of service. 10. Per contra, the petitioners would contend that qualification prescribed for promotion to the category of Forest Ranger requires training as Ranger or Forester and exemption is granted only to those who attain the age of 50 years. In case the applicants are interested to get promoted as Forest Ranger, necessarily they should have undergone the Foresters' training. Otherwise, they will have to wait till the age of 50 to get that scale or promotion. It is also stated that the two Government Orders dated 25.1.2008 and 10.2.2010 were issued only by way of concession to benefit the Foresters who have not undergone the statutory training. However, by oversight the applicants were granted the higher grade equal to the pay scale of Forest Ranger without their acquiring the Foresters' training. In order to rectify that mistake, OP(KAT)380, 427 & 430/2018 -12- the excess amount drawn by them needs to be recovered. 11. The KAT accepted the argument of the applicants that the post of Deputy Ranger is a feeder category for promotion to the post of Ranger and when exemption is granted in the feeder category post and not extended to the next promotion post, the persons in the feeder category will stagnate which, according to the KAT, was never the intention. 12. In the common order dated 24.5.2018 in OA (EKM) Nos. 1900 & 1906 of 2017, the KAT observed that a decision has been taken to this effect in favour of the applicants in OA (EKM) No.535/2014 extending the benefit to the applicants therein and therefore, the same benefits should be given to the applicants in these three OAs as well. That apart, The KAT also relied on the judgment of the Honorable Supreme Court in State of Panjab and Others v. Rafiq Masih [White Washer] [2015 (4) SCC 334] to hold that no recovery of excess pay drawn could be recovered years after wrong fixation of pay after the retirement of the applicants. Annexure-A5 in OA (EKM) No. 904/2015 was set aside and the recovery also prevented in all the OAs. 13. We heard Adv. Antony Mukkath, learned Senior Government Pleader appearing for the petitioners and OP(KAT)380, 427 & 430/2018 -13- Adv.S.Krishnamoorthy and Adv.Babu Joseph Kuruvathazha learned counsel appearing for the respondents. 14. The Kerala Forest Subordinate Service Rules, 1962 specifically provides that for promotion to the post of Forest Ranger, the Deputy Rangers and Foresters should be trained either as Rangers or as Foresters. Hence, it is a condition precedent for promotion as Rangers. For promotion as Deputy Rangers from among Foresters, it is essential that they should have undergone training in the Regional Foresters School. Exemption is granted only for promotion as Deputy Rangers to Foresters who have put in 15 years of service and completed the age of 35. The argument that the post of Deputy Ranger being a feeder category of Rangers, the exemption granted to Deputy Rangers should be extended also to the post of Rangers is fallacious and is not supported by statutory sanction. It is only by way of Government Order that exemption from training is granted to those who have completed the age of 50. Admittedly, the applicants do not come within that category and therefore, they cannot claim promotion as of right to the post of Ranger. Necessarily, they also cannot claim the grade pay equal to that of the pay of Rangers. All that they are entitled to is an OP(KAT)380, 427 & 430/2018 -14- intermediary grade between the pay scale of Deputy Ranger and Ranger. On completion of the age of 50, the Government would automatically grant them the pay scale eligible to Rangers. We cannot agree with the findings of the KAT. 15. The KAT has held in the common order dated 24.5.2018 in OA(EKM) Nos.1900 and 1906 of 2017 that the facts therein are similar to that in OA (EKM) No.535/2014 and therefore, the same decision is to be taken preventing the Government from recovering the excess amount pay. On going through the order in OA(EKM) No. 535/2014 which is available in the file, we find that it is a case where exemption to those who are eligible on completing the age of 50 was not granted and it was also for granting the grade equal to the pay of Deputy Rangers. Hence, the KAT went wrong in following its judgment in OA(EKM) No.535/2014 to allow OA(EKM) Nos.1900 and 1906 of 2017 vide the common order dated 24.5.2018. That common order also is not sustainable for the reasons we have mentioned earlier. 16. Coming to the embargo in recovering the excess amount paid, relying on the decision of Rafiq Masih (supra), we find that there is no unreasonable delay in claiming the recovery of excess amount paid in the OP(KAT)380, 427 & 430/2018 -15- instant case. More over, admittedly, all the applicants have signed an undertaking to the effect that excess amount paid to them can be recovered in case they are found ineligible. In view of the undertaking given by the applicants which is not disputed by them, they cannot find refuge under the decision of the Hon'ble Supreme Court in Rafiq Masih (supra). [See High Court of Punjab & Haryana v. Jagdev Singh (AIR 2016 SC 3523) ]. In the result, OP (KAT) Nos.380, 427 & 430 of 2018 are allowed and the impugned order dated 24.3.2017 in OA (EKM) No.904/2015 and the impugned common order dated 24.5.2018 in OA (EKM) Nos.1900 & 1906 of 2017 are set aside. No costs. ## **Sd/-** ## **V.CHITAMBARESH** ## **JUDGE** ## **Sd/-** **ASHOK MENON** **JUDGE** jg OP(KAT)380, 427 & 430/2018 -16- ## **APPENDIX OF OP(KAT) 380/2018** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A. ALONG WITH ANNEXURES.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT OF THE 3RD RESPONDENT ALONG WITH ANNEXURES. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 24.3.2017** **EXHIBIT P3 EXHIBIT P4** **TRUE COPY OF THE JUDGMENT DATED 13.6.2014 IN WRIT APPEAL NO.1070/2011.** **EXHIBIT P5** **TRUE COPY OF THE UNDERTAKING SUBMITTED BY THE 2ND RESPONDENT.** **EXHIBIT P6** **TRUE COPY OF THE UNDERTAKING SUBMITTED BY THE 3RD RESPONDENT.** **EXHIBIT P7** **TRUE COPY OF THE UNDERTAKING SUBMITTED BY THE 4TH RESPONDENT.** //TRUE COPY// OP(KAT)380, 427 & 430/2018 -17- # **APPENDIX OF OP(KAT) 427/2018** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE O.A. ALONG WITH ANNEXURES.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT OF THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 24/05/2018 IN OA (E) 1906/17. EXHIBIT P4 TRUE COPY OF THE COMMON JUDGMENT DATED 13/06/2014 IN W.A.1070/11 AND CONNECTED CASES.** //TRUE COPY// OP(KAT)380, 427 & 430/2018 -18- # **APPENDIX OF OP(KAT) 430/2018** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE O.A.ALONG WITH ANNEXURES.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 24/05/2018 IN OA(E) 1900/17. EXHIBIT P4 TRUE COPY OF THE COMMON JUDGMENT DATED 13/06/2014 IN W.A.1070/11 AND CONNECTED CASES.** //TRUE COPY//