OP.No. 36571 of 2001 (D)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2015-09-14
Court Decision / Holding: Writ petition allowed; Ext.P3 would stand set aside.
Final Disposition: Writ petition allowed.

Parties to the Case

Appellants / Petitioners

K.K. Subramanian, Senior Grade Typist, G.C.D.A., Cochin – 20

Respondents

G.C.D.A., represented by its Secretary, Cochin – 20
K.A. Abdul Hajeed, Senior Grade Typist, G.C.D.A., Cochin – 20

Legal Representation & Advocates

Counsels for Petitioners

• Smt. V.P. Seemandini (Sr.)
• Sri. T.R. Rajesh

Counsels for Respondents

• Sri M.V. Bose
• Sri M.V. Joseph
• Sri C.A. Majeed

Case Synopsis & Summary

This Original Petition, filed by K.K. Subramanian, challenges the recovery of amounts paid to K.A. Abdul Hajeed while he held a higher post due to a disputed seniority list. The dispute originated from a provisional seniority fixation that placed Abdul Hajeed above Subramanian, leading to petitions and appeals culminating in a Supreme Court order (Ext. P1) allowing Abdul Hajeed’s seniority over the petitioner and certain others. Although the Supreme Court’s order did not direct payment of salary in the higher post, the G.C.D.A. re-fixed seniority accordingly and paid the second respondent in the higher post for a period during which the controversy persisted. Consequently, Ext. P3 sought recovery from Subramanian for the excess pay drawn. The petitioner contends that recovery is inappropriate since his continuance in the higher post resulted from the erroneous seniority fixation by the employer and because he cannot be penalized for an outcome of that misfixation. He relies on the doctrine enshrined in State of Punjab v. Rafiq Masih (White Washer) (2015) 4 SCC 334, which prohibits recovery where an employee is wrongfully required to discharge duties of a higher post and paid accordingly. The court ultimately holds that no recovery can be effected from the petitioner; Ext. P3 is set aside and the writ petition is allowed.

Legal Doctrines & Maxims

No work, no pay
Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the recovery extorted against him arises from a post-pendency misfixation of seniority and not from a valid directive to repay. He asserts that Ext. P3 seeks recovery for pay drawn during a period when he was dutifully serving in a higher post due to the disputed seniority and that, under the principles articulated in Rafiq Masih, recovery is impermissible where the employee was wrongfully required to discharge duties in a higher post and paid accordingly. The reliance on the no-work-no-pay principle supports the claim that the petitioner cannot be asked to reimburse the excess amounts.

Contentions of Respondents

The respondents contend that once the Supreme Court redirected the seniority structure (Ext. P1) and payments were made for the higher post, there is a justifiable basis for retrospective salary fixation and recovery. They argue that the petitioner’s continued draw in the higher post without proper entitlement resulted from the misalignment of seniority by the employer and that the court should uphold a recovery mechanism unless barred by a higher principle. They emphasize the need to maintain financial discipline and the integrity of pay fixation processes.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab and others v. Rafiq Masih (White Washer) and others	(2015) 4 SCC 334	Positive	The judgment relies on the Rafiq Masih principle that recovery is not permissible when an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 14TH DAY OF SEPTEMBER 2015/23RD BHADRA, 1937** ## **OP.No. 36571 of 2001 (D)** ## **-------------------------** ## **PETITIONER(S):** **---------------------** **K.K.SUBRAMANIAN SENIOR GRADE TYPIST G.C.D.A, COCHIN - 20** **BY ADVS.SMT.V.P.SEEMANDINI (SR.) SRI.T.R.RAJESH** ## **RESPONDENT(S):** **----------------------------** **1. G.C.D.A., REPRESENTED BY ITS SECRETARY COCHIN – 20** **2. K.A. ABDUL HAJEED, SENIOR GRADE TYPIST G.C.D.A, COCHIN - 20** **R,R2 BY ADV. SRI.M.V.BOSE R,R1 BY ADV. SRI.M.V.JOSEPH R,R.1 BY ADV. SRI.JIMMY GEORGE R BY SRI.C.A.MAJEED** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP.No. 36571 of 2001 (D)** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1 COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT DT.7.8.01.** **EXT.P2 COPY OF THE ORDER DT.12.9.01 PASSED BY THE 1ST RESPONDENT.** **EXT.P3 COPY OF THE PROCEEDINGS DT.12.11.01 ISSUED BY THE 1ST RESPONDENT'** **EXT.P4 COPY OF THE REPRESENTATION DT.19.11.01 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** ## **RESPONDENTS EXHIBITS: NIL** ## **// TRUE COPY //** **P.A TO JUDGE.** ## **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== O.P No.36571 of 2001 - D** **====================== Dated this the 14[th] day of September, 2015** ## **J U D G M E N T** The petitioner is aggrieved with the fact that the petitioner has been proceeded with for recovery of amounts, he has allegedly drawn in excess; for reason of his having continued in a higher post, when he was not entitled to be so appointed to the higher post. The entire controversy arose with the 2[nd] respondent challenging a seniority list issued by the 1[st] respondent. Admittedly, the petitioner and the 2[nd] respondent were initially appointed as Lower Division Typist Gr.II in the 1[st] respondent. The petitioner, by direct recruitment through the P.S.C and the 2[nd] respondent by promotion from Last Grade Servant. The seniority dispute was with respect to their respective positions as Lower Division Typists. 2. The 2[nd] respondent was appointed as a L.D. Typist **2** O.P No.36571 of 2001 - D on 27.03.1981. The petitioner was appointed so on 20.09.1986. A provisional seniority list was published, in which the 2[nd] respondent was placed on the top and the petitioner at rank No.2. The petitioner hence filed a representation against such fixation of seniority on the ground that the 2[nd] respondent did not have the essential qualification for appointment to the post, at the time of his initial appointment. 3. The G.C.D.A finding favour with the petitioners representation realigned the seniority putting the petitioner in the 1[st] position and two others at the second and third serial numbers; with the 2[nd] respondent placed behind them. The 2[nd] respondent challenged the same unsuccessfully in a writ petition and writ appeal. However, the SLP filed before the Hon'ble Supreme Court was allowed in favour of the 2[nd] respondent, as per Ext.P1. In the meanwhile, the petitioner continued in the higher post based on the seniority fixed by the 1[st] respondent. **3** O.P No.36571 of 2001 - D The Hon'ble Supreme Court having allowed the claim of the 2[nd] respondent, seniority was re-fixed and the 2[nd] respondent is said to have been paid the entire salary even for the period, in which he did not work in the higher post. The 2[nd] respondent has retired. The amounts drawn by the petitioner in the higher post, is sought to be recovered by Ext.P3 on the ground that two persons cannot be allowed pay in the single post. 4. Admittedly the petitioner had worked in the higher post while the controversy with respect to the seniority was pending before this Court and the Hon'ble Supreme Court. The 2[nd] respondent's claim for seniority over the petitioner was allowed by Ext.P1 judgment. However, the direction was only to re-fix the seniority by preparing and publishing a fresh seniority list showing the 2[nd] respondent as senior to the petitioner and the two other persons, who were respondents in Ext.P1. There was no direction as such to pay the salary in the higher post to **4** O.P No.36571 of 2001 - D the 2[nd] respondent for the period in which he was kept out of such higher post. 5. The G.C.D.A thought it fit to grant the 2[nd] respondent pay in the higher post, when the pay fixation was made; in accordance with the direction for preparation of a fresh seniority list as per Ext.P1. In fact the pay fixation should have been notional and the 2[nd] respondent ought to have been granted the pay only from the date on which the 2[nd] respondent was allowed to work in the higher post on the basis of the orders of the Hon'ble Supreme Court; on the principle of “no work no pay”. Especially since, there was no direction to promote the 2[nd] respondent with retrospective effect or to fix pay his back wages in the higher post. 6. The petitioner who has worked in the said post discharging the duties assigned to the higher post, cannot be made liable for reimbursing the pay drawn in the higher post. **5** O.P No.36571 of 2001 - D The issue with respect to the recovery would be squarely covered by the principle laid down as to when it shall not be made, stated in v. **State of Punjab and others Rafiq Masih (white washer) and others [(2015) 4 SSC 334]** clause (iv), of paragraph 18, which is extracted hereunder: 18 (iv): Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. 7. In such circumstance, no recovery can be effected from the petitioner. The petitioner's continuance in the higher post was only on account of the wrong fixation of seniority, by the employees, which was set aside by the Hon'ble Supreme Court. However, even the interim order staying the recovery specifically noticed that the petitioner's down-scaling to a lower post can be allowed from the date on which the 2[nd] respondent has been promoted to the higher post. That order would also be **6** O.P No.36571 of 2001 - D made absolute, especially noticing that the petitioner also does not challenge the said 'down-scaling'. Ext.P3 would stand set aside. The writ petition would stand allowed. **Sd/K. VINOD CHANDRAN, JUDGE** SB // true copy // p.a to Judge.