## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR**
**FRIDAY, THE 02ND DAY OF NOVEMBER 2018/11TH KARTHIKA, 1940**
## **WP(C).No.5469 OF 2013**
## **PETITIONER:**
**T.A.RAJENDRA BABU AGED 56 YEARS JOINT DIRECTOR (RESEARCH), CENTRAL COIR OF RESEARCH INSTITUTE, COIR BOARD, KALAVOOR, ALAPPUZHA.**
**BY ADVS.SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN**
## **RESPONDENT:**
**COIR BOARD POST BOX NO.1752, M.G.ROAD, KOCHI-682 016 REPRESENTED BY ITS SECRETARY.**
**BY ADV.SMT.O.M.SHALINA, CENTRAL GOVERNMENT COUNSEL**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
The petitioner joined the services of the respondent Coir Board as a Scientific Assistant (Engineering) on 4.2.1982. His probation in the said post was declared with effect from 3.2.1984. While the petitioner was working as such, there occurred a vacancy in the post of Senior Scientific Officer in the pay scale of Rs.2200 – 4000. Since the petitioner could not aspire for promotion to the said post, as the post was to be filled up by direct recruitment as per the Rules in force, he was given charge over the said post, and entitled, as per the Rules, to a charge allowance which was quantified at 10% of the scale of pay applicable. Thereafter, the petitioner was given an “officiating promotion” in the same post with effect from 13.7.1995, by Ext.P4 order, and his pay in the post was fixed by Ext.P5 order. Since the respondent Board was contemplating an amendment to the Rules, the officiating promotion granted to the petitioner was extended until further orders by Ext.P6 order.
2. While continuing as such in the officiating post, the post of Joint Director (Research) in the Board fell vacant, and the petitioner was given full additional charge over the said post with effect from 13.4.2005, by Ext.P7 order. His pay was also consequently revised as evident from Ext.P8 order. It would appear that the proposed
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amendment to the Recruitment Rules did not take place, and hence, the petitioner was relieved of his additional charge as Joint Director (Research) with effect from 18.10.2006 [Ext.P10], and immediately thereafter, reverted to his original post of Scientific Assistant (Engineering) by Ext.P9 order dated 20.10.2006.
3. In a later selection process conducted for the post of Senior Scientific Officer, the petitioner applied as a direct recruit for the post, and he was granted age relaxation for enabling him to appear for the selection, taking note of his years of service in the organisation. In the selection process that ensued, he was selected and appointed as Senior Scientific Officer with effect from 6.12.2007 [Ext.P11]. He was thereafter promoted as Joint Director with effect from 8.9.2008 [Ext.P12]. He also received the timely financial upgradation on completion of 24 years of service in the organisation, as evidenced from Ext.P13. While so, by a communication dated 16.11.2012, the petitioner was informed that his pay had been re-fixed by the respondent Board, and through Ext.P15 letter dated 7.2.2013, he was informed that there was an amount of Rs.3,09,208/- that had been drawn by him, in excess, for the period from 13.7.1995 to 31.12.2012, which was proposed to be recovered from him. It was at that stage that the petitioner approached this Court impugning the recovery proceedings proposed against him.
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4. A counter affidavit has been filed on behalf of the respondent, wherein, the stand taken is that, although the petitioner was accommodated in various higher posts such as Senior Scientific Officer and Joint Director (Research), on officiating basis, he was granted pay in a pay scale that did not apply to him. It is stated that, although thereafter, he secured a regular appointment and promotion to the said post, inasmuch as there was no provision to protect his pay in the said posts, while he was officiating in those posts, the amounts drawn by him in those posts had to be seen as excess payments that were to be recovered from him. Exts.P14 and P15 are sought to be justified on the said contention.
5. I have heard the learned counsel for the petitioner as also the learned Central Government counsel for the respondent Board.
6. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find force in the contention of the learned counsel for the petitioner that, while appointing the petitioner to the post of Senior Scientific Officer, and thereafter promoting him to the post of Joint Director (Research), albeit, on officiating basis, the office orders issued to him clearly indicated that his pay in the post had been fixed with the approval of the Chairman of the Board. There is no dispute that it is the pay as
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mentioned in the orders of appointment, appointing him on officiating basis, that he drew while he discharged his duties in the said post. The action of the respondent in now proceeding against him, at this distance of time, cannot be justified in view of the judgment of the Supreme Court in **State of Punjab and Others v. Rafiq Mash (White washer) and Others - [(2015) 4 SCC 334]** . It is also to be noted that the petitioner has since, and during the pendency of the writ petition, retired from the services of the Board with effect from 31.10.2016. Accordingly, I find that Ext.P15 communication, which proposes a recovery of amounts already paid to the petitioner for the period from 13.7.1995 to 8.9.2008, on which date the petitioner was promoted as Joint Director (Research) [Ext.P12], cannot be sustained. The date of promotion of the petitioner as Joint Director [8.9.2008] is relevant in this case, since, Ext.P14 pay re-fixation order issued by the respondent Board indicates that the said order is issued subject to the final outcome of W.P.No.4080/2012 (S-RES), that is pending before the High Court of Karnataka. The learned counsel for the petitioner would clarify that the said writ petition is one that was filed by a junior in service, impugning the promotion of the petitioner as Joint Director with effect from 8.9.2008. Inasmuch as the outcome of that writ petition may have a bearing on the entitlement of the petitioner to the scale of pay under which he drew his salary and other allowances subsequent to 8.9.2008 and till 2012 (the year upto which the
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recovery of alleged excess pay against him was sought), the actual amount due to the petitioner by way of pay, during the said period can be determined only after the said writ petition is decided. Accordingly, while allowing this writ petition, by quashing the recovery proceedings [Ext.P15], to the extent it pertains to the period from 13.7.1995 to 8.9.2008, it is made clear that the respondent may be entitled to withhold only such amounts from the amounts due to the petitioner, as pertain to the period between 8.9.2008 and 31.12.2012. The remaining amount shall be released to the petitioner, forthwith, and at any rate, within a period of one month from the date of receipt of a copy of this judgment.
The writ petition is accordingly allowed to the above extent.
**Sd/A.K.JAYASANKARAN NAMBIAR JUDGE**
**prp/3/11/18**
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**EXHIBIT P1:TRUE COPY OF THE APPOINTMENT ORDER NO.CB/81/ADM/3/13 DATED 11.1.1982 AS SCIENTIFIC ASSISTANT (ENGINEERING) ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P2:TRUE COPY OF THE CERTIFICATE NO.CB/ADM/79/10/2 DATED 26.12.1984 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P3:TRUE COPY OF THE ORDER NO.CB/1991/ADMN/6/5 DATED 16.8.1993 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P4:TRUE COPY OF THE OFFICE ORDER NO.171 DATED 13.7.1995 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P5:TRUE COPY OF THE PAY FIXATION ORDER NO.CB/ADM/91/10/1/VOL.II DATED 5.1.1996 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P6:TRUE COPY OF ORDER NO.88 DATED 8.10.1996 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P7:TRUE COPY OF THE ORDER NO.CB/ADM/01/2/3 DATED 13.4.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P8:TRUE COPY OF THE OFFICE ORDER DATED 13.7.2004 AND ORDER NO.CB/ADM/82/1/7-II DATED 15.6.2005 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P9:TRUE COPY OF THE ORDER NO.94 DATED 20.10.2006 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P10: TRUE COPY OF THE ORDER ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P11: TRUE COPY OF THE ORDER NO.43 DATED 6.12.2007 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P12: TRUE COPY OF THE ORDER NO.92 DATED 8.9.2008 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P13: TRUE COPY OF THE ORDER NO.4 DATED 20.1.2010 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
**EXHIBIT P14: TRUE COPY OF THE PAY RE-FIXATION ORDER NO.CB/ADM/1982/1/7-II DATED 16.11.2012 ISSUED BY THE RESPONDENT TO THE PETITIONER.**
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**EXHIBIT P15: TRUE COPY OF THE NOTICE NO.CB/ACCTS/2011-2012-1/8 DATED 7.2.2013 ISSUED BY THE RESPONDENT.**
**EXHIBIT P16: COPY OF THE ORDER NO.CB/ADMN./95/1/5-II DATED 30.4.2013 ISSUED BY THE RESPONDENT.**
**EXHIBIT P17: COPY OF THE REPLY TO THE AUDIT ENQUIRY ALONG WITH PRESENT STATUS OF THE AUDIT OBSERVATION BY AG, KERALA.**
## **RESPONDENT'S EXHIBITS:**
**EXHIBIT R1(A): TRUE COPY OF THE RECRUITMENT RULE (SERVICE BYE-LAW).**
## **//TRUE COPY//**
**P.S. TO JUDGE**
