Sri P.G. Sanjeev v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944`** ## **`WP(C) NO. 3229 OF 2016`** ## **`PETITIONER:`** ``` SRI.P.G.SANJEEV AGED 55 YEARS S/O.GOPALAN, WORKING AS CLERK (HIGHER GRADE), AT THE SREE NARAYANA GUPTA SAMAJAM HIGH SCHOOL, KARAMUCK, RESIDING AT POTTEKKAT HOUSE, P.O.KANDASSANKADAVU, MAMBILLY, THRISSUR, PIN - 680 613. BY ADVS. J.JULIAN XAVIER JOSE. V.V. (THENGATHARA) ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN - 695 001. 2DEPUTY DIRECTOR OF EDUCATION AYYANTHOLE, THRISSUR DISTRICT, PIN-680001 3DISTRICT EDUCATIONAL OFFICER THRISSUR-680001 4THE HEADMASTER SREE NARAYANA GUPTA SAMAJAM HIGH SCHOOL, KARAMUCK, THRISSUR DISTRICT, PIN-68015. ``` W.P. (C) No.3229 of 2016 2 ``` SMT ANIMA M, GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P. (C) No.3229 of 2016 3 ## **JUDGMENT** This writ petition is filed challenging Ext.P9 communication as per which the respondents, holding that the Time Bound Higher Grade (“TBHG” for the sake of brevity) scales of promotion could be granted only if there is a promotion post in the direct line of promotion, objected to the fixation of pay granted to the petitioner and ordered to recover the amounts paid in excess. It is in the afore circumstances that this writ petition is filed seeking the following reliefs: i) Issue a writ of certiorari or appropriate writ to call for the records leading to Ext.P9 and quash the same. ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to continue to pay the benefits of the Scale of Pay fixed and admitted as evidenced from Exhibits P1 to P8 to the Petitioner in view of Exhibit P10 and P11 clarifications. iii) Declare that the amount received by the petitioner pursuant to the fixation done and authorization as per Exhibits P1 to P8 are not recoverable in view of the Judgment of the Hon’ble Supreme court in (2015) 4 SCC 334. ## 2. Brief facts are as under: The petitioner states that he commenced approved service as a Clerk W.P. (C) No.3229 of 2016 4 on 16.8.1986 at the Sree Narayana Gupta Samajam High School, Karamuck. On completion of ten years of service, the petitioner was granted First TBHG in the year 1996, as is evident from Ext.P1 Pay Fixation Order. On completion of 18 years of service, he was granted 2nd TBHG with effect from 16.8.2004, as is evident from Ext.P3, statement of pay fixation. As is evident from Ext.P5, the 3rd respondent has sanctioned the revised 2nd Higher Grade to the petitioner. On completion of 23 years of service, the petitioner was granted selection grade with effect from 15.8.2009 and the pay was revised, as is evident from Ext.P6. The petitioner relies on Ext.P7 statement of fixation of the pay of selection Grade fixed at the scale of 16180 -19180 sanctioned by the 3rd respondent. On completion of 27 years of service, the petitioner was granted the 4th TBHG, and the scale was refixed. Ext.P8 would reveal that sanction for the 4th TBHG was sanctioned by the 3rd respondent. 3. The petitioner contends that he was served with Ext.P9 objection, which is dated 23.11.2013 issued by the Deputy Director, wherein it is stated that the sanction of Higher Grades to the petitioner was irregular and that the excess amount paid to the petitioner is to be refunded back. The petitioner contends that Ext.P9 is clearly against the Government orders and cannot be sustained. It is on these assertions that this writ petition is preferred seeking W.P. (C) No.3229 of 2016 5 intervention. 4. In the counter affidavit filed by the 2nd respondent, after detailing the service details, it is stated that as per the Government letter No. 88917/PRAC-A3/11/Fin dated 28.12.2011, aided school Clerks who enjoyed direct payment salary scheme are eligible only for table scales in the pay revision order while grading grade scales. The TBHG scales of promotion can be allowed only if there is a promotion post in the direct line of promotion. Ignoring the above criteria, the petitioner was granted higher grades though he was only entitled to table scales of pay. In aided schools, there exists no promotion posts of UDC, Head Clerk, and Junior Superintendent. The petitioner is only eligible for table scales as per relevant pay revision orders against TBHG. It is further stated that as per G.O.(MS) No.216/14(92)Fin dated 11.06.2014, the Government had modified the existing rules to the effect that the existing benefit of TBHG can be granted to clerks in aided schools with effect from 1.7.2004 and 1.7.2009 for the 2004 and 2009 pay revisions. However, those individuals are entitled to monetary benefits only from 11.6.2014. In view of the above, the petitioner is eligible for pay benefits with effect from 11.06.2014, and he is bound to refund the excess salary credited to his account. It is stated that the TBHG sanctioned to the petitioner W.P. (C) No.3229 of 2016 6 is irregular, and in view of the declaration submitted by the petitioner in the grade option form, the petitioner is bound to refund the excess amount. 5. Sri. Julian Xavier, the learned counsel appearing for the petitioner, submitted that the petitioner had attained superannuation on 13.04.2016. However, the entire DCRG to which the petitioner is entitled to, has not been disbursed. The learned counsel submitted that before issuing Ext.P9 order, no opportunity was granted to the petitioner to make his point. According to the learned counsel, Ext.P9 cannot be sustained under law as it goes against Government Orders as well as settled precedents. The learned counsel urged that the petitioner fell into the category of a Last-grade Servant, and when the respondents have no case that the higher grade was granted and amounts were disbursed due to any misrepresentation on the part of the petitioner, no steps could have been taken to recover the excess amount alleged to have been disbursed. Relying on the principles laid down in **State of Punjab v. Rafiq Masih** (White Washer) [(2014) 8 SCC 883], as clarified in **High Court of Punjab and Haryana and Ors. v. Jagdev Singh** [(2016) 14 SCC 267], it is contended that it would be iniquitous to permit recovery of excess payment made to an employee like the petitioner herein, particularly when the amounts were disbursed strictly in tune with the Government W.P. (C) No.3229 of 2016 7 Orders. The learned counsel would then refer to Ext.P10 clarification letter dated 21.12.2002 issued by the Principal Secretary of Government (Finance Department), and it was argued that those clerks working in aided schools who had acquired test qualifications are entitled to grant of grades as in the case of clerks in the Government service. Placing reliance on G.O.(P) No.3000/98/Fin dated 25.11.1998, it is contended that the Government has ordered that even in cases where a particular category of post in the normal hierarchy of promotion posts is not available in a department, the scale of pay of the normal promotion post only will be allowed as the higher grade. Reliance is also placed on G.O.(P) No.27/2021/Fin dated 10.2.2021, wherein it is stated that the non-teaching staff in aided schools, private colleges, and polytechnics which come under the scheme of direct payment of salary by the Government, will be eligible for Time-bound Higher Grade promotion in the scales provided in the tables concerned. However, the clerk in those institutions will be eligible for the scale of pay applicable to the post of Senior Clerk, Head Clerk, Junior Superintendent, and Junior Superintendent (HG) on 1st, 2nd, 3rd and 4th TBHG subject to the general conditions. 6. Smt. Nisha Bose, the learned senior Government Pleader, reiterated the contentions in the counter affidavit. Placing reliance on a W.P. (C) No.3229 of 2016 8 judgment dated 16.12.2016 of this Court in W.A.No.1987/2016, it is argued that only if a post of UD Clerk is available can a higher grade be sanctioned in the pay scale of UD Clerk. The Government Pleader contended in view of the judgment of the Apex Court in **High Court of Punjab and Haryana and Ors. v. Jagdev Singh** [(2016) 14 SCC 267], the respondents have every authority to effect recovery from the employee. It is also submitted that the reliance placed by the petitioner on the pay revision order dated 10.2.2021 is unsustainable as the revised Time-Bound Higher Grade scheme will have effect only from 1.4.2021. Reliance is also placed on the declaration dated 16.8.2013 submitted by the petitioner undertaking to refund the excess amount, if any, received by the petitioner. 7. I have considered the submissions advanced and have perused the records. By the impugned order, the senior grade granted to the petitioner in terms of the 1997 pay revision order stands reviewed on the ground that the scale of promotion post can be granted only if there is a promotion post, and there being none, the petitioner was eligible only for the table scale of the Time Bound Higher Grade. 8. G.O.(MS)No.413/80/(212)Fin is an order passed by the Government on 07.07.1980 based on representations made by service W.P. (C) No.3229 of 2016 9 organizations of the employees of the Aided Schools, Private Colleges, etc. seeking extension of benefits to the non-teaching staff of Aided Schools, Private Colleges, etc. In paragraph No.2 of the order, it is stated thus: 2. Government, after examining the question in detail, are pleased to order that the benefit of higher grade promotion granted to government employees on completion of 13 years of service in the entry grade as per the Government Orders read above, shall be extended to the non teaching staff of the corresponding grades in Aided schools, Private Colleges and Private Polytechnics, who come under scheme of direct payment of salary by the Government, on the same terms and conditions specified therein. 9. In G.O.(P) No.3000/98/Fin dated 25.11.1998 issued based on recommendations made by the pay revision committee, it is unequivocally stated that non-teaching staff in Aided Schools, Private colleges and Polytechnics who under the scheme of direct payments of salary by the Government are also eligible for time-bound grade promotion subject to the conditions stated in the order. 10. At this juncture, it would be relevant to take note of G.O.(P) No.145/2006/Fin. dated 25.3.2006, issued based on the report of the 8th Pay Revision Commission. In paragraph 14 of the order, it is stated thus: 14. Non-teaching staff in aided schools, Colleges and Polytechnics who under the scheme of direct payment of salary by Government are also eligible for W.P. (C) No.3229 of 2016 10 time bound grade promotion, subject to these conditions. 11. These orders clearly go against the stand taken by the 3rd respondent in the counter that aided school clerks are only entitled to table scales of respective pay revision and not entitled to the TBHG of promotion posts. 12. Pay revision order dated 10.2.2021 issued based on the recommendations of the 11th Pay Revision Commission also supports the case of the petitioner. True, its application in the facts of the instant case is vehemently challenged by the learned Government Pleader on the ground that the said order became effective only from 1.4.2021. It would be apposite to consider paragraph No.16 of the order. “16. Non-teaching staff in Aided Schools, Private Colleges and Polytechnics who come under the scheme of direct payment of salary by Government will be eligible for Time Bound Higher Grade promotions in the scales provided in the Tables concerned. However, Clerks in these institutions will be eligible for the scale of pay applicable to the posts of Senior Clerks, Head Clerks, Junior Superintendent and Junior Superintendent (HG) on 1st, 2nd, 3rd and 4th Time Bound Higher Grade, subject to the general conditions.” 13. A perusal of the order would reveal that even without the sanctioned post of U.D. Clerk, Head Clerk, Junior Superintendent and Junior W.P. (C) No.3229 of 2016 11 Superintendent (HG), the pay scales applicable to the said post can be granted to aided school clerks on the basis of the earlier Government Orders. 14. Even otherwise, I am of the considered opinion that recovery of amounts paid in excess years back would be grossly iniquitous. In the case on hand, the petitioner had entered service on 16.08.1986 and had attained superannuation on 13.4.2016. 15. In **Rafiq Masih** (Supra), the Apex Court had occasion to postulate the situations of hardship that would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of his entitlement. After balancing the conflicting claims and the hardship that is likely to be caused, the Hon’ble Supreme Court had summarised the situations wherein recovery of the amounts by the employers would be impermissible under law. It was held as follows in paragraph No. 18 of the judgment. 18. 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 W.P. (C) No.3229 of 2016 12 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 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 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. 16. There is no dispute that the petitioner falls in the lower rung of the service and the recovery is being effected for excess payment made initially about at the time of the first, second, third and fourth TBHG. This is not a case wherein the petitioner had knowledge that the payment received was in excess of what was due. There is no case that there was any misrepresentation or fraud on the part of the petitioner. As held by the Apex Court, when payments have been made for a long duration of time, the logic of recovery of the excess amount paid would be iniquitous, arbitrary, and violative of Article 14 of the Constitution of India. There cannot be any doubt W.P. (C) No.3229 of 2016 13 that it would be next to impossible for a person such as the petitioner to bear the financial burden of a refund of payment received wrongfully for a long span of time as he would have spent the emoluments that he would have received for the upkeep of his family under the bonafide belief that he is entitled to the said amount. 17. The respondents have placed on record the declarations submitted by the petitioner on 16.8.2013 to justify the direction to refund the excess amount that was paid to the petitioner. A Division Bench of this Court in **State of Kerala and Ors v. Vinod Kumar C.R.** [2020 (4) KLT 230], relying on **Syed Abdul Qadir & ors. v. State of Bihar & ors.** [(2009) 3 SCC 475], **Rafiq Masih** (supra) and a judgment of another Division Bench of this Court in **Kasaragod District Co-operative Bank Ltd. and another v. Radha K.A** [2006 (1) KHC 260] had occasion to observe the failure of the respondents to communicate the objections as regards excess payment within a reasonable time after the grant of benefits would be iniquitous. The very same view has been taken by a Division Bench of this Court in the judgment dated 8.8.2022 in W.A No. 65 of 2022 as well. In view of the discussion above, the petitioner is entitled to succeed. Ext.P9 will stand quashed. It is held that the respondents are not entitled to W.P. (C) No.3229 of 2016 14 reopen the fixation done as per Exhibits P1 to P8. The pensionary and other benefits, including the balance DCRG, shall be disbursed to the petitioner, expeditiously, in any event, within 8 weeks from the date of receipt of this judgment. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P. (C) No.3229 of 2016 15 ## **`APPENDIX OF WP(C) 3229/2016`** ``` PETITIONER’S EXHIBITS: ``` ``` EXHIBIT P1PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY OF THE HIGHER GRADE DATED 23.09.1996 SANCTIONED AND ACCORDED BY THE 3RD RESPONDENT. EXHIBIT P2PHOTOCOPY OF THE REVISION OF PAY DATED 18.02.1999 SANCTIONED AND ACCORDED BY THE 3RD RESPONDENT. EXHIBIT P3PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY DATED 21.11.2005 SENIOR GRADE (2ND HIGHER GRADE)(COMPLETION OF 18 YEARS OF SERVICE) SANCTIONED AND ACCORDED BY THE 3RD RESPONDENT. EXHIBIT P4PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY DATED 08.08.2006 IN THE REVISED SCALE OF PAY. EXHIBIT P5PHOTOCOPY OF THE KDIS/B6/7626/2006 DATED 11.09.2006 SANCTIONED BY THE 3RD RESPONDENT (REVISED SECOND HIGHER GRADE) TO THE PETITIONER. EXHIBIT P6PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY DATED 08.03.2010 IN THE SELECTION GRADE (23 YEARS OF SERVICE) SANCTIONED BY THE 3RD RESPONDENT. EXHIBIT P7PHOTOCOPY OF THE STATEMENT OF FIXATION OF PAY OF THE SELECTION GRADE FIXED AT THE SCALE OF RS.16180-19180 SANCTIONED AND ACCORDED BY THE 3RD RESPONDENT DATED ``` W.P. (C) No.3229 of 2016 16 ``` 11.08.2011. ``` ``` EXHIBIT P8PHOTOCOPY OF THE B6/6830/2013 DATED 8/2013 FOR THE GRANT OF 4TH TIME BOUND HIGHER GRADE PROMOTION SANCTIONED BY THE 3RD RESPONDENT. EXHIBIT P9PHOTOCOPY OF THE OBJECTION DATED 23.11.2013 OF THE 2ND RESPONDENT. EXHIBIT P10PHOTOCOPY OF THE CLARIFICATION LETTER NO.92248/PRC.A3/02/FIN. DATED FINANCE (A) DEPARTMENT, 21-1202002 ISSUED BY THE UNDER SECRETARY FOR THE GENERAL EDUCATION DEPARTMENT ADDRESSED TO THE GENERAL SECRETARY OF THE KERALA AIDED SCHOOL NON-TEACHING STAFF ASSOCIATION. ``` ``` EXHIBIT P11PHOTOCOPY OF THE G.O.(MS)NO.216/14(192)/FIN DATED THIRUVANANTHAPURAM 11.06.2014 ISSUED BY THE SECRETARY, FINANCE EXPENDITURE. ```