State of Kerala represented by Secretary to Government, Finance Department, Government Secretariat, Thiruvananthapuram; Director of Technical Education, Fort PO, Thiruvananthapuram; Superintendent Government Technical High School, Kurichi, Changanassery, Kottayam, Kerala v. Murali Chandra Bose V.M.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 31ST DAY OF OCTOBER 2017/9TH KARTHIKA, 1939** **OP(KAT).No. 268 of 2017 (Z)** **----------------------------** ## **AGAINST THE ORDER/JUDGMENT IN OA 675/2016 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 06-01-2017** **PETITIONER(S)/RESPONDENTS IN O.A:** **--------------------------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR OF TECHNICAL EDUCATION FORT PO, THIRUVANANTHAPURAM.** **3. SUPERINTENDENT GOVERNMENT TECHNICAL HIGH SCHOOL, KURICHI, CHANGANASSERY, KOTTAYAM, KERALA. 686535.** ## **BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH** ## **RESPONDENT(S)/APPLICANT IN O.A:** **-------------------------------** **MURALI CHANDRA BOSE V.M** **S/O MADHAVAN PILLAI, WORKSHOP FOREMAN HIGHER GRADE (RETD) TECHNICAL HIGH SCHOOL, ITHITHANAM PO, CHANGANASSERY, KOTTAYAM DISTRICT-686535, RESIDING KRISHNA KRIPA HOUSE, MANCHADIKKARA, CHANGANASSERY PO, KOTTAYAM, KERALA.686101.** ## **R1 BY ADV. SRI.P.M.PAREETH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 25.8.2017, THE COURT ON 31.10.2017 DELIVERED THE FOLLOWING:** ## **OP(KAT).No. 268 of 2017 (Z)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 PHOTOCOPY OF THE ABOVE O.A (EKM) 675/2016 ALONG WITH ANNEXURES.** **EXHIBIT P2 PHOTOCOPY OF THE REPLY STATEMENT,** **EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 6.1.2017 IN O.A (EKM) NO.675/2016.** **RESPONDENT(S)' EXHIBITS** **----------------------NIL** **TRUE COPY** **P.A TO JUDGE** ## **SMM** ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **------------------------------------------------------** **O.P(KAT)No.268 of 2017** **-----------------------------------------------------Dated this the 31[st] day of October, 2017** ## **JUDGMENT** ## **Shircy V, J.** The correctness and sustainability of Ext.P3 verdict of KAT, Thiruvananthapuram in O.A.No.675/2006 dated 06.01.2017 is under challenge in this petition by the respondents therein. 2. The applicant commenced his service as a Workshop Instructor in the Department of Technical Education on 20.02.1984. When he completed 10 years service he was granted 1[st] higher grade in the scale of Rs.1520-2660 with effect from 20.02.1994. Subsequently, he was promoted as Workshop Foreman with effect from 22.10.1999 in the very same scale of Rs.1520-2660. The 2[nd] higher Grade in the post of Workshop Instructor was given on completion of 18 years of service in the scale of Rs.6675-10550. Thereafter, he was granted higher grade 2 O.P(KAT)No.268 of 2017 on completion of 23 years of service in the scale of Rs.11070-18450 with effect from 20.02.2007. On introduction of 2009 pay revision, his pay was refixed to the corresponding scale of Rs.19240-34500 as he exercised his option on 01.02.2010.Thereafter the 2[nd] respondent Department cancelled the higher grade granted to him on completion of 23 years on the ground that he is entitled only to two Higher Grades as per the revision of 2004. He then filed representations before the Department and subsequently approached the Tribunal and the same was allowed directing the Department to pass an order on his representation within three months. Thereafter Annexure A8 order was passed upholding his claim but granted a lesser scale of pay of Rs.18740-33680 instead of Rs.19240-33680. Annexure A9 is the consequential statement of fixation of pay. Challenge in the O.P is with regard to Annexure A8 and Annexure A9. The reliefs sought for are as follows:- 3 O.P(KAT)No.268 of 2017 “i) An order quashing Annexure A8 to the extent the said document directs to refix the pay of the applicant in 2009 pay revision in the lesser scale of Rs.1874033680/- w.e.f. 1.2.2010 instead of the eligible scale of Rs.19240-34500/-. ii) An order setting aside Annexure A9. iii) A direction to the respondents to refix the pay of the applicant in the scale of Rs.19240-34500/- as on 1.2.2010, and in the scale of pay of Rs.36,600-79,200/w.e.f. 01.02.2015 and to compute his pensionary benefits accordingly and to disburse the arrears of pay and pensionary benefits forth with. 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 by the impugned order set aside Annexure A8 to the extent it modified the pay scale of the applicant from Rs.19240-34500 to Rs.18740-33680 and Annexure A9 the consequential order . 4. We heard the learned Counsel for the petitioners/Department and the learned Counsel for the applicant. 4 O.P(KAT)No.268 of 2017 5. Admittedly, the applicant joined the Technical Education Department as a Workshop Instructor on 20.02.1984 and retired as Workshop Foreman on superannuation on 31.05.2015. His 1[st] higher grade on completion of 10 years of service in the scale of Rs.15202660 was with effect from 20.02.1994. His promotion as Workshop Foreman was on 22.10.1999, but the scale of pay was the same, ie; Rs.1520-2660. The 2[nd] higher grade in the scale of Rs.6675-10550 was granted with effect from 20.02.2002 on completion of 18 years of service. Later as per Annexure A1 the 3[rd] higher grade on completion of 23 years of service in the scale of Rs.11070-18450 was ordered with effect from 20.02.2007. When 2009 pay revision was granted, his pay was revised on exercising his option in the scale Rs.19240-34500. Annexure A2 is the statement of fixation of pay. As per Annexure A3 Government modified the scale of Workshop Instructor from Rs.7990-12930 to Rs.8390-13270 with retrospective effect from 1.7.2004. 5 O.P(KAT)No.268 of 2017 Subsequently the third higher grade granted to him on completion of 23 years was cancelled as per Annexure A4 stating that the pay revision of 2006 permits only two time bound higher grades (8 and 15) with modified scale of pay starting from Rs.8390-13270. By Annexure A4 he was also directed to repay the excess amount. Though he approached the Department to cancel the order it remained pending before the authorities. Feeling aggrieved he challenged the order before the Tribunal (O.A.(Ekm)No.479/2015) and obtained an order directing the Department to dispose of his representation after affording an opportunity of being heard within a time frame. The Department thereafter issued Annexure A8 order holding that the modification of 2004 pay revision on 30.6.2012 after issuance of 2009 pay revision order, caused hardship to the persons who enjoyed the time bound higher grade benefits and hence, it was not justifiable to cancel the higher grade pay granted on completion of 23 years of service. But at the same time it 6 O.P(KAT)No.268 of 2017 was held that in 2009 pay revision his eligible scale was Rs.18740-33680 and hence directed to re-fix the pay in the said scale. It is pertinent to note that on completion of 23 years he was granted the 3[rd] higher grade in the scale of pay of Rs.11070-18450. As per 2009 revision, the corresponding scale was Rs.19240-34500 as he exercised his option on 1.02.2010 as evident by Annexure A2. Of-course in 2004 pay revision, the scale of workshop instructor was modified as Rs.8390-13270 from Rs.799012930 with effect from 01.07.2004 as evident by Annexure A3. 6. According to the learned Counsel for the Department as per 2004 pay revision only two time bound higher grades are there but by mistake the scale of Rs.11070-18450 has been fixed and the actual scale of pay can only be Rs.9590-16650 which corresponds to Rs.18740-33680 in the 9[th] pay revision and considering his hardship the 23[rd] years time bound higher grade granted was restored. Still then the eligible scale was 7 O.P(KAT)No.268 of 2017 fixed as Rs.18740-33680 was the grievance of the applicant and so he approached the Tribunal with the application to modify the extent of the order alone in Annexure A8 that adversely affected him. Annexure A8 was passed on 21.11.2015 after his retirement from service on superannuation on 31.05.2015. Annexure A9 fixing the pay in the scale of Rs.18740-33680 on the basis Annexure A8 was on 19.01.2016. 7. The Apex court in _**State of Punjab and Ors. v. Rafiq Masih (White Washer) and Ors. (2015 4 SCC 334)**_ held that the right of Employer to recover amount paid in excess is impermissible in law only in the following situations. “(i) Recovery from the employees belonging to Class III and Class IV 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 8 O.P(KAT)No.268 of 2017 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.” So also in _**High Court of Punjab and Haryana & Ors. vs. Jadadev Singh [(2016) 14 SCC 267]**_ it has been held that the principle enunciated in proposition (ii) will not apply to employees who furnished undertaking while opting for revised pay that he would refund the excess amount received. Here of-course recovery order was cancelled by Annexure A8 itself. So the Tribunal is perfectly justified in setting aside the offending part in Annexure A8 modifying the scale as Rs.18740-33680 instead of Rs.19240-34500 as on 01-02-2010 and in the scale of pay of Rs.36,600-79,200 with effect from 01.02.2015 (Revised Scale of pay-2014) as well Annexure A9 the consequential order. Therefore, his 9 O.P(KAT)No.268 of 2017 pensionary benefits have to be computed accordingly. Hence, this Original Petition which is filed without any merits is liable to be dismissed and we do so. Dismissed. **P.R. RAMACHANDRA MENON JUDGE** **SHIRCY.V JUDGE** smm