T. J. Radhakrishnan v State of Kerala, Kerala Forest Development Corporation Limited and Controller and Accountant General (Audit), Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 10TH DAY OF MARCH 2017/19TH PHALGUNA, 1938** **WP(C).No. 17249 of 2011 (E) ----------------------------** **PETITIONER(S): -------------** **T.J.RADHAKRISHNAN, AGED 62 YEARS, S/O. K.JANARDHANA KURUP, RETIRED DIVISIONAL MANAGER GRADE - 1, KERALA FOREST DEVELOPMENT CORPORATION LIMITED, KOTTAYAM - 686 003, RESIDING AT"LAVANYA", T.C. 6/2471, GURUJI ROAD, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM - 692 013.** ## **BY ADV.SRI.B.HARISH KUMAR** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, FORESTS AND WILD LIFE (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE KERALA FOREST DEVELOPMENT CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, REGISTERED OFFICE, AARANYAKAM, KARAPUZHA, KOTTAYAM - 686 003.** **3. THE CONTROLLER AND ACCOUNTANT GENERAL (AUDIT) KERALA, THIRUVANANTHAPURAM - 695 001.** **R1 & R3 BY SMT.MABLE C.KURIAN, GOVERNMENT PLEADER R2 BY SRI.V.G.ARUN, SC R2 BY SRI.T.R.HARIKUMAR, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC17249/11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1 : COPY OF MEMORANDUM AND ARTICLES OF THE SECOND RESPONDENT COMPANY.** - **P2 : COPY OF NOTIFICATION GO(P) NO.383/75/AD DATED 16.12.1975 ISSUED BY R1.** - **P3 : COPY OF THE ABOVE GOVERNMENT ORDER TOGETHER WITH SERVICE RULES OF R2.** - **P4 : COPY OF ORDER NO.9D/1/1 DATED 11.6.1979 ISSUED BY R2.** - **P5 : COPY OF PROCEEDINGS NO.E1-1544/87 DATED 20.7.1987 OF R2.** - **P6 : COPY OF GO(MS)NO.69/90/F&WLD DATED 26.07.1990 ISSUED BY R1.** - **P7 : COPY OF PROCEEDIGNS NO.E1-1544/87 DATED 03.09.1991 ISSUED BY R2.** - **P8 : COPY OF GO(MS)NO.3/97/F&WLD DATED 13.02.1997 ISSUED BY R1.** - **P9 : COPY OF GOVERNMENT PAY REVISION ORDER DATED 25.09.1993.** - **P10 : COPY OF PROCEEDING NO.E1-1026/90 DATED 17.02.1998 OF R2.** - **P11 : COPY OF GO(MS) NO.40/2000/F&WLD DATED 14.06.00 ISSUED BY R1.** - **P12 : COPY OF ORDER NO.E1/825/1983 DATED 24.02.2005 ISSUED BY R2.** - **P13 : COPY OF KERALA FOREST SERVICE RULES ISSUED IN GO(P)NO.429/PD DATED 5.11.66.** - **P14 : COPY OF LETTER NO.E1-5459/99 DATED 8.7.04 ISSUED BY R2.** - **P15 : COPY OF LETTER NO.E1-5459/99 DATED 13.07.06 SUBMITTED BY R2.** - **P16 : COPY OF LETTER NO.13982/D2/05/F&WLD DATED 1.11.07 ISSUED BY R1.** - **P17 : COPY OF LETTER NO.E1-5459/99 DATED 20.11.08 ISSUED BY R2.** - **P18 : COPY OF LETTER NO.E1-5459/99 DATED 15.10.1999 ISSUED BY R2.** - **P19 : COPY OF LETTER NO.13952/D2/05/F&WLD DATED 08.12.09 ISSUED BY R1.** - **P20 : COPY OF LETTER NO.E1/5459/99 DATED 18.6.10 ISSUED BY R2.** - **P21 : COPY OF LETTER NO.7478/D2/10/F&WLD DATED 6.9.10 ISSUED BY R1.** - **P22 : COPY OF MEMO NO.E1/5459/99 DATED 26.3.11 ISSUED BY R2.** **//TRUE COPY//** **PA TO JUDGE.** jg-18/3 ## DEVAN RAMACHANDRAN, J. ------------------------------------------WP(C) No.17249 of 2011 ------------------------------------------Dated this the 10[th] day of March, 2017 ## J U D G M E N T - 1.Petitioner retired from the services of the second respondent Company as a Divisional Manager. While he was in service, he was granted a grade promotion in the year 1997 as per Ext.P10 order. This grade promotion was effected by the Company, adopting the ratio for such grade promotion as was available in the Kerala Forest Service Rules, thus making it applicable to the Company, but without consequential amandments. - 2.The pay grades were approved by the Government as per Ext.P11 order, but an audit objection was raised on the ground that the grant of grade promotions to persons like the petitioner was irregular, since before such grades were adopted or such promotions effected, the concurrence of the Government had not been sought for or obtained. Based on these objections, proceedings were initiated against the petitioner for recovery of certain amounts alleging that these amounts were paid to him irregularly. The petitioner has WPC17249/11 -2- impugned this action for recovery, namely Ext.P12 order, in this writ petition. 3. I have heard the leanred counsel for the petitioner, Sri.B.Harish Kumar, and learned standing counsel for the second respondent Company and the learned Government Pleader for respondent Nos.1 and 3. 4.The controversy in this case is because the petitioner, who was working as a Divisional Manager, was granted a grade promotion and designated as Divisional Manager Gr.I. This promotion was granted by the second respondent by adopting the ratio of 1:3 for such grade promotions as was available in the Kerala Forest Service Rules. There would have been no difficulty but for the fact that the third respondent took an objection that this grant of grade promotion had been done without the concurrence of the Government, since it also entails a large financial commitment for the Government. The audit seems to have made the objection based on clause 40(i) of the Articles of Association of the second respondent WPC17249/11 -3- Company wherein the appointment to the post of General Manager and posts carrying a salary of more than Rs.2250/per month required prior approval of the Governor. According to the audit, the appointment of the petitioner as Divisional Manager Gr.I was in the nature of promotion to a post which never existed earlier. In short, the audit objection appears to be that the post of Divisional Manager Gr.I is a new post created without the concurrence of His Excellency the Governor and that, therefore, it is irregular. 5.The learned counsel appearing for the petitioner says that the grade promotion can never be considered to be a post that was freshly created. According to him, the post of Divisional Manager was always available and that all that was done by Ext.P10 was to give the benefit to one of them of a higher grade on the basis of the ratio that was available in the Kerala Forest Service Rules. He asserts that, therefore, there is no creation of a post but only the grant of a grade in an existing post. He maintains, therefore, that no concurrence from the Government, as is required under Clause 40(i) of the Articles of WPC17249/11 -4- Association of the Company, was required. 6.I see that counter affidavits have been placed on record by respondent Nos.1 and 3. The third respondent has averred as follows: “It is submitted that in the Forest Department Assistant Conservators of Forest are eligible for promotion to senior grade in the ratio of 1:3 as per GO(P)480/89 dated 1.11.89. The Board of Directors of the Corporation in its 105th meeting dated 21.11.97 (Resolution No.848) proposed that the ratio of 1:3 for Divisional Managers in the Corporation as applicable to the Assistant Conservators of Forest of Forest Department and ratio of 1:1 for the Assistant Managers in the Corporation as applicable to the Rangers of the Forest Department in terms of GO(P) 480/89 Fin dated 1.11.89 be approved and a suitable draft amendment of Service Rules be prepared and presented to the Board. No such amendment as proposed was placed before the board. However, promotions on the above line were effected. Such promotions effected were not in WPC17249/11 -5- conformity with the Service Rules of the Corporation and was irregular. Further the scale of pay proposed to the Divisional Managers Grade I was 12600-15600 and prior approval of Governor should have been obtained before effecting appointments to that post as per Articles of Association of the Company.” 7.It is, from the above, includable that the respondents maintain that the post of Divisional Manager Gr.I is a new post and not merely a grade promotion in the post of Divisional Manager. The learned Government Pleader brings my attention to Ext.P15 document wherein the Company has also applied to the Government for ratification of the creation of the posts of Divisional Manager Gr.I. The learned Government Pleader thus asserts that the Company was aware that what has been done by Ext.P10 was the creation of a new post and not merely the grant of grade promotion. She says that this was luculent because the post of Divisional Manager Grade I entertains the much higher scale of pay than that of Divisional Manager. WPC17249/11 -6- 8. On a conspectus of all the pleadings and submissions made at the bar, I am of the view that the petitioner, who had been granted the benefits validly and under proper acknowledgment by the Company, cannot be now prejudiced by an order to his detriment to recover the amounts that were paid to him on the ground of the audit objection. I am fortified my view on the basis of the judgment of the Honourable Supreme Court of India in State of Punjab v. Rafiq Masih [(2015) 4 SCC 334], wherein the Honourable Supreme Court of India has declared the law succinctly that when benefits have already been paid to an employee, for no fault of theirs and without any vitiating circumstances attributable to them, the same cannot be withdrawn merely because subsequently such grant is found to be irregular. The facts of this case fall within the parameter of the declaration of law made by the Honourable Supreme Court of India. I have, therefore, no hesitation in holding that no recovery can be made from the petitioner, in the peculiar facts and circumstances of this case. - 9.However, the issue as to whether the petitioner was entitled to WPC17249/11 -7- the grade promotion in spite of the Company not having obtained the concurrence of the Government is not an issue that I propose to consider conclusively here. I deem it appropriate that if the petitioner is so desirous, he can move a proper representation before the competent secretary of the Government making his claim for such grade promotion, so that the amounts withheld from him while making payment to him can be now claimed by him. I deem it necessary because it is essentially a question of facts as to whether the higher grade post of Divisional Manager Gr.I in the Service Rules is applicable to the second respondent Company and as to whether the Company was authorised to grant higher grade without the concurrence of the Government. This Court, acting under Article 226 of the Constitution of India, will not be justified in delving into such issues which are essentially in the realm of facts or, at best, mixed questions of law and facts. I deem it appropriate that these are left to the appropriate authorities. 10.Under such circumstances, I order this writ petition quashing WPC17249/11 -8- Exts.P12, P21 and P22 to the extent to which recovery of amounts are ordered against the petitioner and grant liberty to the petitioner to move an appropriate representation before the competent secretary of the Government seeking any further claim based on his grand promotion. If such a representation is made within a period of thirty days from the date of receipt of a copy of this judgment, the competent secretary will be obligated by the terms of this judgment to consider the same and pass necessary orders adverting to all relevant factors, materials and documents that may be placed before him, but without in any manner being constrained, trammelled or influenced by what is stated in this judgment. This shall be done within a period of three months from the date of receipt of such representation. Until such a decision is taken and in the meanwhile, the second respondent is directed to immediately pay to the petitioner all eligible salary, but without taking into account the grade promotion granted to him, as expeditiously as possible, not later than two months from the date of receipt of a copy of this WPC17249/11 -9- judgment. Obviously, his eligibility to obtain salary based on his grade promotion would depend upon the decision to be taken by the competent secretary of the Government as afore. This writ petition is thus ordered. (DEVAN RAMACHANDRAN, JUDGE) jg-10/3