Shailaja C. v. State of Kerala, Regional Cancer Centre and Principal Accountant General (Civil and Commercial Audit), Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 ``` ``` W.P.(C) NO.1374 OF 2020 ``` ``` PETITIONER: ``` ``` SHAILAJA C., AGED 65 YEARS, (RETD. OFFICE ASSISTANT SEL. GR.), REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM, RESIDING AT 'MITHUN NIVAS', KAKKODE P. O., IRINCHAYAM, THANNIMOODU, NEDUMANGAD, PIN - 695 561. ``` ``` BY ADV SRI.R.S.SARAT ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ``` ``` 2REGIONAL CANCER CENTRE, REPRESENTED BY ITS DIRECTOR, MEDICAL COLLEGE, THIRUVANANTHAPURAM – 695 011. 3PRINCIPAL ACCOUNTANT GENERAL (CIVIL AND COMMERCIAL AUDIT), KERALA, THIRUVANANTHAPURAM – 695 001. ``` ``` BY ADV SRI.ATHUL SHAJI, SC, REGIONAL CANCER CENTRE (RCC) SRI.TONY AUGUSTINE, GOVERNMENT PLEADER. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 _WPC. 1374/2020_ ## JUDGMENT ( _Dated: 18[th] March, 2024)_ Petitioner was appointed as an office assistant to the 2[nd] respondent on 17.12.1990. The 2[nd] respondent was following a scheme known as the ‘grade promotion or assessment promotion scheme’ to the non-academic staff of the 2[nd] respondent. As per the said scheme, an employee is eligible to be considered for assessment promotion after the expiry of 5 years in the 1[st] grade and thereafter 3 years in the 2[nd] , and 3 years in the 3[rd] grade. 2. Brief facts of the case are as follows: On 18.05.1994, Ext.P2 circular was issued by the 2[nd] respondent whereby the staff members of the 2[nd] respondent were given the option to continue in the grade promotion scheme or to move forward to the new scheme which is a time-bound grade promotion, operational at the end of 10 years, 20 years and 25 years with the change in designation. The petitioner opted to continue with the existing scheme of assessment promotion, and thereafter, she was given 1[st] timebound grade promotion, and her pay was fixed as per Ext.P5 with effect from 01.12.1995 in the scale of pay of 1125-1720. Through Ext.P6 order dated 11.08.1997, the scale of pay of office assistant in the 2[nd] respondent was revised to Rs.1200-2040 from Rs.1050-1660. A condition was attached 3 _WPC. 1374/2020_ to Ext.P6 that they will not be eligible for any time-bound higher grade as presently enjoyed by them on completion of 5 years, but they will be allowed the time-bound higher grade promotion as laid down in G.O.(P) 930/93/(2)/Fin., dated 08.12.1993, which was modified through Ext.P7 and was given effect from 01.03.1992. Giving effect to Ext.P6, Exts.P7, and P8 orders were issued clarifying that office assistants would be entitled to draw salary in the pay scale of 1200-2040 with effect from 01.03.1992. Therefore, the petitioner submitted a representation to the 2[nd] respondent requesting to grant the benefit in Ext.P8. Pending the request, the 2[nd] respondent granted the 1[st] ladder promotion on completion of 8 years with effect from 17.12.1998 by Ext.P10. 3. Therefore, another request was filed on 14.10.1999 requesting to fix the pay on the scale of 1350-2200 with effect from 17.12.1998. The petitioner’s grievance was taken by the executive committee, which met on 12.01.2000 and resolved to refer the matter to the government through Exts.P14, P18, and P20. The 2[nd] respondent requested the 1[st] respondent to sanction the grade promotion. By Ext.P25 G.O.(MS) No.2228/2011/H&FWD dated 10.06.2011, the government 4 _WPC. 1374/2020_ examined the matter and ordered that the petitioner is eligible for a revised scale of pay of 1200-2040 with effect from 01.03.1992 and 1[st] assessment promotion on the scale of pay of 1350-2200 with effect from 01.12.1995 and on completion of 8 years of service, 2[nd] assessment promotion with effect from 01.12.1998 in the scale of pay of 5000-8000. Consequential orders were passed as P26 and P27. In the meanwhile, the 3[rd] respondent issued Ext.P28 letter dated 15.05.2012 to the 1[st] respondent pointing out that the petitioner’s pay fixation on the basis of a time-bound higher grade is wrong and directed for necessary action to rectify it. On receipt of Ext.P28, the 1[st] respondent issued Ext.P29 to the 2[nd] respondent, intimating that a revision, as suggested by the 3[rd] respondent, is essential in fixing the higher grade of the petitioner. The 2[nd] respondent thereafter passed Exts.P30, P31 and P32. On coming to know the refixation, the petitioner submitted Ext.P33 before the 1[st] respondent. 4. A counter affidavit was filed on behalf of the 2[nd] respondent, wherein it was contended that as per Exts.P6 and P7, the pay of the office assistant was revised with effect from 01.03.1992 subject to conditions. The petitioner had received the higher-grade scale of 1200-2040 with effect from 5 _WPC. 1374/2020_ 01.03.1992 and was eligible for a time-bound higher grade only on completion of 10, 20, and 25 years. She is not eligible to claim the first assessment promotion on completion of 5 years on a scale of 1350-2200. The petitioner was fully aware that she is not entitled to get a time-bound higher grade on completion of 5, 8, and 11 years. Neither the 2[nd] respondent nor the executive committee can act against the Government’s orders. The petitioner was wrongly given the ladder promotion from 17.12.1998 on a scale of 4500-8000 without following the condition prescribed in Ext.P6. 5. Ext.R2(a) was produced along with the counter affidavit, which is G.O.(Rt.) No.532/2016/H&FWD dated 18.02.2016, by which the government examined the case of the petitioner and held that Ext.P25 is against Exts.P6 and P7, and therefore Ext.P25 was cancelled, and the 2[nd] respondent was directed to regulate the pay in respect of the petitioner. The petitioner, through an amendment application, challenged Ext.R2(a) by producing it as Ext.P34 in the writ petition. Therefore, prayed for the dismissal of the writ petition. ## 6. The prayers sought in the writ petition are as follows. _(i) Issue a writ of certiorari or any other order, writ or direction in the nature of certiorari quashing Ext:P28, P29 and P30,_ 6 _WPC. 1374/2020_ _(ii) Issue a writ of certiorari or any other order, writ or direction in the nature of mandamus commanding the 2nd respondent to pay to the petitioner arrears of pay after applying the correct pay scale, carrying out appropriate pay fixations as per rules and enhanced retirement benefits accruing there from in terms of the admissions made in Ext:P25 order,_ _(iii) To grant any other relief that the Court may deem fit in the facts and circumstances of the case, and_ _(iv) To issue a writ of certiorari or any other order, writ or direction in the nature of certiorari quashing Ext:P34._ 7. Heard Sri. Sarat R.S, counsel for the petitioner, Sri.Athul Shaji, learned standing counsel and the learned Government Pleader. 8. The petitioner was granted a time-bound higher grade as per Ext.P5. Thereafter, taking into consideration Exts.P6 and P7, the scale was fixed to 1200 – 2040 with effect from 01.03.1992. The executive committee of the 2[nd] respondent resolved to get clarification from the government and in respect of the pay fixation of the petitioner for grant of 1[st] and 2[nd] assessment promotion as a special case in relaxation of the restrictions in G.O.(P)No. 930/93(2)/Fin., dated 08.12.1993. Through a series of letters, the 2[nd] respondent requested the government, and ultimately, by Ext.P25, the request was examined in detail and was ordered that the petitioner be eligible for a revised scale of pay of 1200-2040 with effect from 01.03.1992 and the 1[st] assessment promotion with effect from 01.12.1995 and 2[nd] assessment 7 _WPC. 1374/2020_ promotion with effect from 01.12.1998 and consequently, the same was also refixed. It is thereafter, by Ext.P34, the same has been canceled and directed the 2[nd] respondent to strictly follow the conditions in Exts.P6 and P7 and refix the pay of the petitioner in 1[st] and 2[nd] time-bond higher grade. The 1[st] respondent after granting the benefits to the petitioner as per Ext.P25 on 10.6.2011 by Ext.P34 order dated 18.02.2016 after the retirement of the petitioner on 31.05.2015 without hearing the petitioner has cancelled Ext.P25 and ordered refixation of pay on the basis of Ext.P6 and P7. The government has allowed the petitioner a time-bound higher grade after completion of 5, 8, and 11 years, but the same has been now withdrawn violating all principles of natural justice. 9. The petitioner relies on the judgment of this Court in _Regional Cancer Centre (RCC) and Others v. Ganga Devi C. and Others (2022 (5) KHC 123)_ and contends that the refixation of pay after retirement and recovery of the excess amount allegedly paid to the employees from the terminal benefits based on a rectification committee report is arbitrarily unreasonable and violating the principles of natural justice. He relied on paragraphs 9, 10, 11, & 13 of the judgment. 8 _WPC. 1374/2020_ ## Relevant portions of paragraphs 11 and 13 read as follows: _11. Having considered the rival submissions, we are of the firm view that the action of the appellant in re fixing the pay and attempting to recover the amounts on the basis of unilateral fixation done without notice to the retired employees is plainly illegal and that part of the judgment of the learned single Judge calls for no interference. The reduction in pay and other retiral benefits without notice vitally affects their pecuniary rights and no action could not have been taken without putting them on notice. By no stretch of imagination can the employer be conceded the power to lower the last drawn pay after superannuation. We declare that the said action to be arbitrary, unfair and unreasonable._ _13. The dispute on the actual entitlement ought to have been decided before the retirement when the employer employee relationship subsisted and not thereafter. Since the same was not done, for all purposes the last drawn pay must be reckoned. We have already considered the issue of recovery of the excess payments wrongly paid in our judgment in WA No.310 of 2022, where after considering the decisions in Rafiq Masih and Chandi Prasad Uniyal (supra) it was held that although the employer did have the right to determine and recover excess payments made by mistake or negligence, the question of recovery had to be considered on equitable grounds particularly when it is from Class III or IV employees. In the instant case since no steps were taken before the retirement of the employees, the appellant cannot be permitted to do so relying on the judgment in Chandi Prasad Uniyal (supra). In the present case, the principles noticed in Rafiq Masih (supra) are squarely applicable as rightly held by the learned single Judge and permitting a recovery in such cases would be grossly inequitable. Since we have already held that such a course is impermissible, the direction of the learned single Judge granting liberty to the appellant - RCC to re-fix the pay with notice to the employees has to be set aside._ 10. The counsel for the respondent relied on the judgment of the Division Bench of this court in _Chairman, State Bank of India and Others v._ _Unnikrishnan P. C. and Others (2020 (4) KHC 640)_ and also _Gosain v. Yashpal_ 9 _WPC. 1374/2020_ _Dhir (1993 KHC 181)_ of the Apex Court and contended that after obtaining advantages through a government order, he could not approbate and reprobate. 11. Since Ext.P34 is issued in violation of the principles of natural justice, varying the benefit granted to the petitioner as per Ext.P25, I have no hesitation in quashing Ext.P34 as it is passed without hearing the petitioner. In the result, Ext.P35 is quashed, and the 1[st] respondent is directed to reconsider the issue in the light of the recommendation of the 2[nd] respondent/executive committee as well as the judgment of the Apex Court in _State of Punjab v. Rafiq Masih (2014 KHC 4818)_ , within a period of three months from the date of receipt of the copy of the judgment. _Sd/-_ BASANT BALAJI, JUDGE ss 10 _WPC. 1374/2020_ ``` APPENDIX OF WP(C) 1374/2020 ``` ``` PETITIONER EXHIBITS: ``` ``` Exhibit P34TRUE COPY OF THE GOVERNMENT ORDER BEARING NO. GO (RT) NO.532/2016/H &FWD DATED 18.02.2016 ``` ``` EXHIBIT P21TRUE COPY OF LETTER NO.1062/ADMN-I/2009/RCC DATED 5.4.2010 ADDRESSED TO THE 1ST RESPONDENT. ``` ``` EXHIBIT P30TRUE COPY OF NOTE NO.1062/ADMN.I/2015/RCC DATED 16.5.2015 ISSUED BY THE 2ND RESPONDENT. ``` ``` EXHIBIT P1TRUE COPY OF ORDER NO.21/90/ADMN-I/RCC DATED 17.12.1990, ORDER OF APPOINTMENT ISSUED BY THE 2ND RESPONDENT. ``` - `EXHIBIT P2 TRUE COPY OF CIRCULAR NO.O.C.10/94/ADMIN-II, RCC DATED 18.5.1994 ISSUED BY THE 2ND RESPONDENT.` - `EXHIBIT P3 TRUE COPY OF NOTICE DATED 23.4.1996 ISSUED TO THE APPLICANT.` - `EXHIBIT P4 TRUE COPY OF THE RESOLUTION OF THE ASSESSMENT COMMITTEE DATED 25.4.1996 W.R.T. 1ST TIME BOUND GRADE PROMOTION/ASSESSMENT PROMOTION W.E.F.1.12.1995.` - `EXHIBIT P5 TRUE COPY OF PAY FIXATION ORDER NO.67/95/ADMN-1/RCC DATED 18.6.1996 ON 1ST GRADE PROMOTION/ASSESSMENT PROMOTION.` - `EXHIBIT P6 TRUE COPY OF GOVERNMENT ORDER (RT) 3086/97/HAND FWD DATED 11.8.1997, REVISING THE SCALE OF PAY OF OFFICE ASSISTANTS IN THE 2ND RESPONDENT.` - `EXHIBIT P7 TRUE COPY OF G.O.(RT) 1095/98/H AND FWD DATED 30.4.1998 ISSUED BY THE HEALTH AND FAMILY WELFARE (J) DEPARTMENT, KERALA.` ``` EXHIBIT P8TRUE COPY OF ORDER NO.59/97/AMN.I/RCC DATED 20.10.1998 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P9TRUE COPY OF REPRESENTATION DATED 11.1.1999 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P10TRUE COPY OF ORDER NO.4955/99/ADM.I/RCC DATED 27.7.1999 ISSUED BY THE 2ND RESPONDENT. ``` 11 _WPC. 1374/2020_ ``` EXHIBIT P11TRUE COPY OF REPRESENTATION DATED 14.10.1999 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P12TRUE COPY OF NOTE PREPARED BY THE 2ND RESPONDENT WITH RESPECT TO THE GRIEVANCE OF THE PETITIONER DATED 11.1.2000. ``` ``` EXHIBIT P13TRUE COPY OF THE EXTRACT OF THE MINUTES OF THE EXECUTIVE COMMITTEE OF THE 2ND RESPONDENT DATED 12.1.2000. ``` ``` EXHIBIT P14TRUE COPY OF LETTER NO.245/ADM.I/2000/RCC DATED 7.11.2000, LETTER OF REFERENCE TO THE GOVERNMENT. EXHIBIT P19TRUE COPY OF LETTER NO.17318/J1/2008/H AND FWD DATED 14.5.2008 SENT BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT SEEKING A REPORT ON THE GRIEVANCE OF THE PETITIONER. EXHIBIT P16TRUE COPY OF ORDER NO.5270/FO/RCC/2000 DATED 28.7.2000 GUIDELINES FOR CONVERSION OF THE STATE SCALES OF PAY INTO THE PRE-1996 CENTRAL SCALES OF PAY AND PAY FIXATION RULES. EXHIBIT P17TRUE COPY OF ORDER NO.G.O.(RT) NO.869/2012/H AND FWD DATED 16.3.2012 ACCORDING SANCTION TO IMPLEMENT THE MODIFIED FP/LP SCHEMES TO THE NON-ACADEMIC STAFF OF THE 2ND RESPONDENT ON PAR WITH THE REVISION IN SCTIMST W.E.F.1.4.2011. EXHIBIT P18TRUE COPY OF LETTER NO.1062/ADMN-I/2009/RCC DATED 30.9.2009, FROM THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXHIBIT P20TRUE COPY OF LETTER NO.1062/ADMN-I/2008/RCC DATED 21.7.2008 SENT FROM 2ND RESPONDENT TO THE 1ST RESPONDENT. EXHIBIT P22TRUE COPY OF LETTER NO.17318/J1/2008/H AND FWD DATED 6.11.2010. EXHIBIT P23TRUE COPY OF LETTER NO.1062/ADMIN-I/2009/RCC DATED 21.1.2011. EXHIBIT P24TRUE COPY OF ORDER NO.117/PROM- LP/ADMN.II/RCC DATED 7.6.2010 GRANTING THE PETITIONER 2ND LADDER PROMOTION W.E.F.17.12.2006 TO OFFICE ASSISTANT SELECTION GRADE (RS.6500-10500 PRE-REVISED) EXHIBIT P25TRUE COPY OF G.O.(MS) NO.2228/2011/H AND FWD DATED 10.6.2011 ISSUED BY THE 1ST RESPONDENT ``` 12 _WPC. 1374/2020_ ``` ADMITTING AND DECLARING THE CLAIM OF THE PETITIONER ALBEIT WITH MISTAKEN SCALES. ``` ``` EXHIBIT P26 ``` ``` TRUE COPY OF THE ORDER NO.786/PROM/2011/ADMN- II/RCC DATED 12.7.2011 ISSUED BY THE 2ND RESPONDENT. ``` ``` EXHIBIT P27TRUE COPY OF PAY FIXATION ORDER DATED 24.3.2012 IN FAVOUR OF THE PETITIONER. ``` ``` EXHIBIT P28 ``` ``` TRUE COPY OF COMMUNICATION NO.IAU I/VII/11- 12/14 DATED 15.5.2012 ISSUED BY THE OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL. ``` ``` EXHIBIT P29TRUE COPY OF LETTER NO.21899/J1/2012/H AND FWD DATED 5.10.2013 ISSUED BY THE 1ST RESPONDENT INSTRUCTING THE ADMINISTRATIVE DEPARTMENT TO REVISE THE ORDER GRANTING TBHG PROMOTION TO THE PETITIONER. EXHIBIT P31TRUE COPY OF ORDER NO.1062/PAY REVISION/2015/FinC DATED 21.5.2015 ISSUED BY THE 2ND RESPONDENT. ``` ``` EXHIBIT P32TRUE COPY OF ORDER NO.1062/PAY FIX/2015/RCC DATED 21.5.2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P33TRUE COPY OF THE MERCY PETITION DATED 11.10.02018 SUBMITTED BY THE PETITIONER TO THE HON'BLE MINISTER FOR HEALTH AND FAMILY WELFARE, KERALA. ``` ``` RESPONDENT EXHIBITS: EXHIBIT R2(A)TRUE COPY OF THE G.O. DATED 18.02.2016. ``` ``` PETITIONER EXHIBITS: ``` ``` EXHIBIT P15ORDER NO.RCC/ACTS/NAS/1999-2000 DATED 28.10.1999 ISSUED BY THE 2ND RESPONDENT IMPLEMENTING THE PAY REVISION W.E.F. 1.3.1997 AT PAR WITH SCTIMST. ```