High Court of KeralaSingle Judge2020-03-05Writ petition dismissed.

Sudhakaran P. v. State of Kerala and Others

Case / Petition Number:WP(C).No.12359 OF 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. ASHA
Judgment Date: 2020-03-05
Court Decision / Holding: The writ petition is dismissed. The petitioner’s pay fixation and the recovery of excess salary are upheld, with the undertaking binding the petitioner to refund, and with reliance on Ann. R1A as supportive precedent for recovery in similar circumstances.
Final Disposition: Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

Sudhakaran P.

Respondents

State of Kerala represented by Secretary to Government, Department of Motor Vehicles, Secretariat, Thiruvananthapuram - 695 001
Director of Technical Education, Thiruvananthapuram - 695 001
Joint Director, Regional Directorate of Technical Education, Kozhikode – 673 002
The Principal, Swamy Nithayananda Polytechnic College, Kanhangad – 671 315, Kasaragod

Legal Representation & Advocates

Counsels for Petitioners

• Sri Kaleeswaram Raj

Counsels for Respondents

• Rekha C. Nair, Senior Government Pleader (Sr.GP)

Case Synopsis & Summary

Sudhakaran P., petitioner in WP(C).No.12359 of 2011, challenges Exts.P9, P10 and P11—orders refixing his pay and recovery of excess salary after a pay revision in 2004. He began as Demonstrator in Automobile Engineering (1990), then transfer to Workshop Instructor (1993). A first-time bound higher grade in the scale 5000-8150 was sanctioned on completion of 10 years of service (effective 17.01.2001) based on his option, subject to Joint Director of Technical Education’s approval, which was accorded (Ext.P4 and Ext.P3). Later, after acquiring a B.Tech in Mechanical Engineering, his pay was fixed at 7200 in the 7200-11400 scale (Ext.P6, with effect from 28.05.2004). He was promoted as Lecturer in 2007 in the 11910-19350 scale (Ext.P7). The Joint Director’s 02.11.2010 letter objected to the fixation of pay in the higher Lecturer scale on acquisition of the qualification, and the Principal issued Ext.P10 (17.01.2011) to refix pay as per the 2006 pay revision and Ext.P11 fixation statement. A sum of Rs. 1,40,190 was found as excess salary for recovery. The petitioner contends there should be no recovery as he did not cause the erroneous fixation; the fixation was proper on his B.Tech qualification. He relies on judgments (Rafiq Masih, Jagdev Singh, Ann. R1A) asserting protection against recovery after a long period. The respondents justify re-fixation and recovery, citing the absence of a direct line to Lecturer post and the undertaking given for refund. The court ultimately dismisses the petition, upholding recovery in light of undertaking and the absence of illegality in the orders.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that there was no illegality in the impugned pay fixation and recovery; He asserts that pay fixation to the Lecturer scale was based on acquiring a qualification (B.Tech) and appointment to Lecturer is by transfer, not by direct promotion; He argues that the excess payment drawn due to erroneous fixation should not be recovered after several years, particularly because he had undertaken to refund if audits objected. He relies on State of Punjab v. Rafiq Masih (White Washer) and Jagdev Singh, and theAnn. R1A judgment to claim protection against recovery, arguing five-year limitations and other constraints. He also claims the pre-2004 pay structure and abolition of the Assistant Lecturer post affected eligibility for higher-grade promotion and the time-bound higher grade fixation. The petitioner contends that recovery would be inequitable, and the undertaking should bar recovery. He cites judicial precedents from this court and the apex court in support of his position.

Contentions of Respondents

The respondents justify Exts.P9, P10 and P11 as a valid re-fixation based on the employee’s option and undertakings. They argue that Lecturer posts are not in the direct line of promotion and that appointment to Lecturer occurs by transfer; Therefore, fixation in the Lecturer scale from 28.05.2004 is erroneous only if there is no regular promotion post. They rely on the undertaking given by the petitioner and on a Division Bench decision (Ann. R1A) upholding recovery in similar cases. They contend that recovery is permissible as per the pay revision orders (2006) and that Rafiq Masih’s five-year restriction is not absolute, especially where an undertaking exists and audits reveal irregularities. They rely on the Jagdev Singh judgment to support the proposition that recovery can follow where undertakings are furnished and where the retirement or imminent retirement does not bar recovery. They emphasize there is no fault in the re-fixation and the consequent recovery of excess pay.”},

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Punjab and Others v. Rafiq Masih (White Washer)	2015 (4) SCC 334	Partly Overruled / Limited	Cited for general principles on recovery and time limits; however, the Kerala High Court ultimately allows recovery due to the petitioner’s undertaking, thereby limiting the applicability of the five-year safeguard.
State of Punjab and Haryana v. Jagdev Singh	2016(14) SSC 267	Mentioned Only	Cited to indicate that undertakings can support recovery in cases involving retirees, but the court clarifies this case applies only to Clause 2 of para 12 and does not dictate a general rule.
Ann. R1A judgment (Division Bench, Kerala HC)	—	Positive	Cited to support the recovery, where a similar case with an undertaking upheld recovery; used to bolster the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **WP(C).No.12359 OF 2011(T)** ## **PETITIONER:** **SUDHAKARAN P.** **ASSISTANT MOTOR VEHICLES INSPECTOR, REGIONAL TRANSPORT OFFICE, KASARAGOD - 671 001.** **BY ADV. SRI. KALEESWARAM RAJ** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF MOTOR VEHICLES, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM - 695 001.** - **3 JOINT DIRECTOR, REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, KOZHIKODE – 673 002.** - **4 THE PRINCIPAL, SWAMY NITHAYANANDA POLYTECHNIC COLLEGE, KANHANGAD – 671 315, KASARAGOD.** **SMT. REKHA. C. NAIR, SRGP.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.12359 OF 2011** **2** ## **JUDGMENT** Petitioner's grievance is against Exts.P9, P10 and P11 orders by which his pay is revised and refixed. 2. The petitioner was initially appointed as a Demonstrator in Automobile Engineering in an aided Polytechnic College as per Ext.P1 order dated 12.11.1990, in the scale of pay of Rs.1050-1830. He was given transfer appointment as Workshop Instructor in Automobile Engineering Department as per Ext.P2 order dated 22.05.1993. As per Ext.P4 order, the first time bound higher grade promotion was sanctioned to the petitioner on completion of 10 years of service in the entry grade, in the scale of pay at Rs.5000-8150 with effect from 17.01.2001 on the basis of the option submitted by the petitioner in Ext.P3 subject to the approval of the Joint Director of Technical Education. It was approved by the Joint Director **WP(C).No.12359 OF 2011** **3** as per endorsement dated 13.09.2004. It is stated that the scale of pay of Rs.5000-8150 was the next scale of pay above that of Assistant Lecturer. The post of Assistant Lecturer was already abolished by that time. Petitioner submits that he was not having the qualification for appointment to the post of Lecturer at that time. He acquired qualification viz. B.Tech in Mechanical Engineering subsequently and thereupon his pay was fixed at Rs.7200 as per Ext.P6 order dated 12/2015 in the scale of pay of Rs.7200-11400, as admissible to Lecturers with effect from 28.05.2004. Thereafter as per Ext.P7 order dated 22.05.2007 he was promoted as Lecturer in Automobile Engineering in the scale of pay Rs.11910-19350 with effect from 05.03.2007. While so the Joint Director issued Ext.P9 letter dated 02.11.2010 to the Principal of the Polytechnic College objecting to the fixation of pay in respect of petitioner with effect from 28.05.2004 in the scale of Rs.7200-11400 on acquiring B.Tech Degree. It was stated that the appointment to the post of Lecturer is by transfer **WP(C).No.12359 OF 2011** **4** and therefore petitioner was not eligible for the scale of pay admissible to that of Lecturer as the time bound higher grade. It was therefore directed to refix the higher grade with effect from 28.05.2004. On the basis of Ext.P9 letter the Principal of the College issued Ext.P10 order dated 17.01.2011 refixing the pay of petitioner in the revised scale in accordance with the pay revision order issued on 25.03.2006. His pay was fixed at Rs.10070 in the revised scale of 8390-13270 with effect from 01.07.2004 based on his option. On promotion as Lecturer his pay was fixed at Rs.11910 in the revised scale of pay of Rs.11910-19350. A sum of Rs.140190 was found as excess salary drawn by the petitioner on account of erroneous re-fixation of pay. As per Ext.P11 proceedings the petitioner's pay was there upon fixed in the scale of pay Rs.5000-8150 which was revised as 8390-13270 consequent to pay revision ordered in 2006 with effect from 01.07.2004. Petitioner challenges these orders. 3. According to the petitioner there cannot be any **WP(C).No.12359 OF 2011** **5** recovery as he was not responsible for the erroneous fixation of pay and hence for the excess pay drawn. It is also the contention that his pay was fixed in the higher scale only on acquisition of the qualification of B.Tech Degree, which is the qualification required for appointment to the post of Lecturer. Therefore according to him fixation of his pay was correctly done. Relying on various judgments of this court and the apex court the petitioner challenges the orders of re-fixation and recovery. 4. First respondent has filed a counter affidavit justifying the re-fixation and recovery ordered. It is stated that the petitioner was granted first time bound Higher Grade on completion of 10 years service in the scale of pay of Rs.5000-8150 on the basis of the option and after obtaining an undertaking from him on 17.01.2001. It is stated that the promotion post of Demonstrator/Workshop Instructor was Assistant Lecturer. After its abolition the petitioner was not entitled to be granted the scale of pay of Lecturer, even if he acquired qualification for that post, as **WP(C).No.12359 OF 2011** **6** appointment to that post is made by transfer from various categories in accordance with the Special Rules. It is stated that a qualified incumbent will be given the scale of pay of the regular promotion post in the direct line of promotion as time bound higher grade. But the post of Lecturer is not the promotion post in direct line of promotion and hence the fixation of his pay in the scale of pay of Lecturer with effect from 28.05.2004 as the time bound higher grade was found erroneous. It is stated that In the light of the declaration furnished by the petitioner undertaking refund of excess pay in the event of any objection being raised against the fixation of pay in audit, steps were taken to re-fix the pay and recover the excess pay drawn by petitioner on account of erroneous fixation of pay. The respondents also rely on the judgment of the Division Bench of this court in the judgment in W.A.12009/2009 in support of the action, where such recovery, on the basis of undertaking was upheld. 5. On consideration of the contentions on either **WP(C).No.12359 OF 2011** **7** side it is seen that the petitioner was working as a Workshop Instructor in a Polytechnic College. Even though it was a feeder category for appointment as Assistant Lecturer, the post of Assistant Lecturer was abolished, before the petitioner became eligible for higher grade. It is pointed out that there is no regular promotion post in the direct line promotion for the post of Workshop Instructor, which the petitioner was holding. As per the pay revision orders a higher grade will be granted in the scale of pay attached to the promotion post in case there is a regular promotion post in the direct line of promotion. In the present case it is pointed out that there is no regular promotion post in the direct line for a Workshop Instructor and at any rate Lecturer is not the promotion post in the direct line of promotion. Appointment to the post of Lecturer is made by transfer from various feeder categories. Therefore petitioner was not entitled to get his pay fixed in the scale of pay attached to the post of Lecturer as his 1[st] time bound higher grade and the fixation **WP(C).No.12359 OF 2011** **8** of his pay was contrary to the orders governing grade promotions. Therefore there was nothing wrong in re-fixing the pay of the petitioner, when pay fixation was found to be erroneous. In such circumstances re-fixation of pay cannot be said to be illegal or incorrect. 6. Regarding recovery from pay the learned counsel for the petitioner relied on the judgment in Apex Court **State** _**of Punjab and Others v. Rafiq Masih (White Washer)**_ [2015(1) KLT 429(SC)] : [2015 (4) SCC 334]. Pointing out Clause 3 of paragraph 12 of the judgment where the apex court laid down the parameters where recovery is impermissible, learned counsel for the petitioner points out that the re-fixation was ordered after a period of five years of granting the benefit to the petitioner. It is pointed out that Ext.P6 order fixing the pay was issued in 2005. The approval for the fixation of pay in the higher scale of Rs.7200-11400 from 01.07.2004, is seen granted on 01.02.2005. Directions for re-fixation and recovery are issued in Ext.P9 letter dated 02.11.2010. **WP(C).No.12359 OF 2011** **9** Therefore it is pointed that in view of Clause 3 of paragraph 12 of the judgment recovery is not permissible after a period of five years. 7. Learned Government Pleader points out that the said judgment is not applicable in a case where the employee has furnished an undertaking agreeing for refund, in the event of any objections by the audit/ detection of any mistake. Petitioner is bound by the same as and when the mistake is detected and the respondents are entitled to recover the same. The petitioner has not denied the fact that he has furnished undertaking. The learned Government Pleader relies on the judgment of _**High Court of Punjab and Haryana and Others v. Jagdev Singh**_ [2016(14) SSC 267], where it was held that recovery can be made from those who retired from service or are due to retire within within one year, when they have submitted undertaking agreeing for refund in the event of it being found erroneous. 8. The contention of the learned counsel for the **WP(C).No.12359 OF 2011** **10** petitioner is that the judgment in Jagdev Singh's case applies only to Clause 2 of paragraph 12 of the judgment which related to recovery from employees who retired from service and that the Apex court has not disturbed any of the other conditions under which the recovery was found inadmissible in the judgment in **Rafiq Masih (Washer)'s** case. Therefore according to him respondents are not entitled to recover the excess payment made. I am unable to accept the contention that even on the face of undertaking agreeing for refund the excess pay cannot be recovered or that such recovery can be made only from those who retired from service or who are due to retire from service. 9. In the present case the recovery proceedings were initiated before the next pay revision itself and at a time when the petitioner was having several years of service left for retirement. Apart from that the Division Bench of this court has in Ann. R1A judgment upheld the recovery in a similar case where undertaking was **WP(C).No.12359 OF 2011** **11** furnished. In the light of the undertaking furnished by the petitioner it cannot be said that the excess pay drawn by the petitioner who had agreed for recovery of the same cannot be recovered. Therefore I do not find any illegality in the orders impugned. Accordingly, the writ petition is dismissed. **Sd/P.V.ASHA JUDGE** SPR **WP(C).No.12359 OF 2011** **12** ## **APPENDIX OF WP(C) 12359/2011** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 12.11.1990.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 25.05.1993.** **EXHIBIT P3 TRUE COPY OF THE FORM OF OPTION FOR HIGHER SCALE DATED 05.07.2004. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 07.08.2004.** **EXHIBIT P5 TRUE COPY OF G.O (MS) NO.158/98 DATED 21.12.1998. EXHIBIT P6 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 22.05.2007.** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 12.05.2008. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 02.11.2010.** **EXHIBIT P10 TRUE COPY OF THE ORDER DATED 17.01.2011.** **EXHIBIT P11 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY.** **RESPONDENT'S/S EXHIBITS: NIL.**