Venugopalan C.K. v. Accountant General (A&E), Kerala; Chief Judicial Magistrate, Thalassery; Registrar (Subordinate Judiciary), High Court of Kerala; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 14TH DAY OF DECEMBER 2017/23RD AGRAHAYANA, 1939** **WP(C).No. 22057 of 2015 (R) ----------------------------** ## **PETITIONERS:** **-----------** **1. VENUGOPALAN C.K.,** - **S/O.KUNCHI KANNAN NAMBIAR, ANJALI, P.O MUNDALUR, KANNUR - 670 622.** **2. K. NALINI,** - **W/O.VASU, VELANDY HOUSE, P.O. THIRUVANGAD, THALASSERY, KANNUR DISTRICT, 670 103.** **3. P.C.PADMALATHA, W/O.RAGHAVAN, MAVILAKANDY, SREEPADMAM, P.O. PALLIKUNNU, KANNUR DISTRICT - 670 004.** **BY ADVS.SRI.K.M.SATHYANATHA MENON SRI.A.SANTHOSHKUMAR SMT.KAVERY S THAMPI** **RESPONDENTS:** - **-------------** **1. THE ACCOUNTANT GENERAL (A&E), KERALA M.G ROAD, POST BOX NO.695 039, THIRUVANANTHAPURAM-695 009.** **2. THE CHIEF JUDICIAL MAGISTRATE, OFFICE OF THE CHIEF JUDICIAL MAGISTRATE, THALASSERY, KANNUR DISTRICT-670 103.** **3. THE REGISTRAR (SUBORDINATE JUDICIARY), HIGH COURT OF KERALA, ERNAKULAM KOCHI 682 031.** **4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **R1, R2 & R4 BY ADV. GOVERNMENT PLEADER R3 BY ADV. SRI.ELVIN PETER P.J.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 22057 of 2015 (R) ----------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1.**|**COPY OF THE REVISED PENSION PAYMENT ORDER DATED 29.4.11 IN**| ||**RESPECT OF IST PETITIONER.**| |**EXHIBIT P1(A).**|<br>**COPY OF THE REVISED PENSION PAYMENT ORDER DATED 12.3.12 IN**| ||**RESPECT OF 2ND PETITIONER.**| |**EXHIBIT P1(B).**|<br>**COPY OF THE REVISED PENSION PAYMENT ORDER DATED 26.11.11 IN**| ||**RESPECT OF 3RD PETITIONER.**| |**EXHIBIT P2.**|**COPY OF THE THE COMMUNICATION NO.P7/PEN-A/334/PP/07-08 DATED**| ||**11.9.12 OF THE IST RESPONDENT IN RESPECT OF IST PETITIONER.**| |**EXHIBIT P2(A).**|<br>**COPY OF THE COMMUNICATION NO.P2/2/1250081745 DATED 10.10.12 OF**| ||**THE IST RESPONDENT IN RESPECT OF 2ND PETITIONER.**| |**EXHIBIT P2(B).**|<br>**COPY OF THE COMMUNICATION NO.P4/PEN.A/148/B/05-06/348 DATED**| ||**4.10.12 OF THE IST RESPONDENT IN RESPECT OF 3RD PETITIONER.**| |**EXHIBIT P3.**|**COPY OF THE JUDGMENT DATED 6.1.14 IN WPC 27757 OF 2012.**| |**EXHIBIT P4.**|**COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 17.3.14.**| |**EXHIBIT P5.**|**COPY OF THE ORDER DATED 13.10.14 OF THE 2ND RESPONDENT.**| |**EXHIBIT P6.**|**COPY OF THE ORDER NO.C5-17239/2015 DATED 1.4.15 OF THIS**| ||**HONOURABLE COURT.**| |**EXHIBIT P7.**|**COPY OF THE LETTER NO.16999/L1/13/HOME DATED 20.6.14 OF THE**| ||**4TH RESPONDENT.**| |**RESPONDENT(S)'**|**EXHIBITS**| |**-----------------------**|| |**NIL**|| ||**TRUE COPY**| ||**P.S. TO JUDGE**| **EL** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.22057 of 2015-R ------------------------------------------- _Dated this the 14[th] day of December, 2017_ ## _**JUDGMENT**_ The 1[st] and 2[nd] petitioners retired from service on 31.10.2007 and 31.5.2006 respectively, while working as Junior Superintendents in Judicial First Class Magistrate Courts in Kannur and Thalassery. The 3[rd] petitioner retired from service on 30.06.2005 while working as Bench Clerk. They had rendered 30, 24 and 25 years of service respectively as on the date of retirement. 2. They were promoted as Bench Clerks from the post of U.D.Clerk. Bench Clerk was in the scale of pay of Rs.7990-12390, which was revised as Rs.8390-13270, as per G.O.(Ms).37/2009(121)/Fin. dt.17.1.2009, w.e.f 1.7.2004. As the petitioners had already retired from service, by the time the revision of pay was ordered, they submitted representations requesting for its benefit. Based on their request their pay and pensionary benefits were revised as per Exts.P1, P1(a) and P1(b) orders and payment was also effected as per these orders. While so, the Treasury Officers issued communications Exts.P2, P2(a) and P2(b) dt.11.9.2012, W.P(C) No.22057 of 2015-R 2 10.10.2012 and 4.10.2012 respectively revising and reducing the pay fixed in the case of the petitioners. The petitioners thereupon challenged those orders in W.P(c).No.27757 of 2012 and this Court as per Ext.P3 judgment dated 6.1.2014 directed the 2[nd] respondent to pass fresh orders after issuing them show cause notice or after hearing the petitioners. 3. Thereafter, the 2[nd] respondent, after hearing the petitioners, issued Ext.P4 order on 17.3.2014 stating that the petitioners were not eligible for a fixation under Rule 28A of Part I KSR in view of paragraph 48 and clause 11 of Annexure III to the pay revision order issued on 25.3.2006. Even though the petitioners submitted a review petition, it was rejected by the 2[nd] respondent as per Ext.P5 order dated 13.10.2014. The petitioners submit that the action of the respondents in withdrawing the benefits given to them after their retirement is illegal and that they are entitled to get their pay and pension restored. 4. The 1[st] respondent filed a counter affidavit stating that the pensionary benefits were authorised by the office of the Accountant General on the basis of the sanction accorded by the Chief Judicial Magistrate. The revised pension proposal in respect of the 1[st] petitioner was forwarded and revised authorisations were issued on 6.5.2011, March, 2012 and W.P(C) No.22057 of 2015-R 3 25.11.2011 respectively. Thereafter, on 10.8.2012 the 2[nd] respondent informed the 1[st] respondent that the revision ordered by it was erroneous in the light of G.O(MS) No.37/2009/(121)/Fin. dt.17.1.2009 which was issued as an erratum to G.O(P).No.145/2006/Fin. dt.25.3.2006. On verification, the 1[st] respondent found that the observation of the 2[nd] respondent was correct and therefore the Treasury Officers were directed to cancel the revised authorisation. The petitioners had already availed the 2[nd] time bound higher grade even before their regular promotion as Bench Clerk and therefore the refixation of their pay under Rule 28A was not in order, in the light of the Government order dated 17.1.2009. 5. The 3[rd] respondent filed a statement stating that the scale of pay of Bench Clerks was revised from 7990-12390 to 8390-13270 by way of erratum as per Ext.R3(1) Government order dated 17.1.2009. This revision was ordered w.e.f 1.7.2004. The pay of the petitioners in the post of Bench Clerk was already fixed in the scale of 7990-12390 in accordance with the 8[th] pay revision order. When revision was effected, their pay was refixed in the higher time scale allowing fixation of pay under Rule 28A, overlooking the fact that Ext.R3(1) was only an erratum to the pay revision order of 2004 from the date of effect of the said pay revision order. The revised pension 4 W.P(C) No.22057 of 2015-R papers were forwarded based on refixation of the pay of the petitioners. 6. The petitioners were promoted to the post of Bench Clerk when they were holding the post of U.D Clerk (Hr.Gr.). The pay scales of the U.D Clerk (Hr.Gr) and that of the Bench Clerk, which is the promotion post, are having one and the same. Therefore, when a U.D Clerk (Hr.Gr.) is promoted as Bench clerk, benefit of fixation is not permissible. When the pay was revised as Rs.8390-13270 w.e.f 1.7.2004, the scale of pay of Rs.7990-12390 ceased to exist. There was no upgradation of the post or change in the duties and responsibilities for granting the benefit of fixation under Rule 28A. All the petitioners had worked as Bench Clerks of the CJMs' court. The petitioners were already granted promotion as U.D Clerk (Hr.Gr.) and their pay was fixed in the revised scale of Rs.7990-12390 granting 28A fixation. They were granted the benefit of fixation on their promotion as Bench Clerk also, even though a fixation under Rule 28A was not permissible. The 1[st] petitioner was granted the benefit of fixation on 2.2.2007 when he was promoted as Bench Clerk. His pay was already fixed in the scale of Rs.7990-12390 on promotion as U.D Clerk (Hr.Gr.). When that scale of pay was revised, the scale of pay of U.D Clerk (Hr.Gr.) was also liable to be corrected as 8390-13270. In the case of the 2[nd] petitioner, W.P(C) No.22057 of 2015-R 5 she was granted the higher grade of U.D Clerk on 2. 6.2003 even before the pay revision order came into effect on 1.7.2004. When the erratum was issued, the benefit of fixation under 28A was granted to her on 1.7.2004 while changing the scale of pay from Rs.7390-12390 to Rs.8390-13270. Similarly, in the case of the 3[rd] petitioner also the promotion as U.D Clerk (Hr.Gr.) was on 1.9.1996 when her pay was fixed under Rule 28A. Thereafter, when she was promoted as Bench Clerk on 21.9.2005, after fixing her pay in the scale of Rs.7990-12390 as per the pay revision order, the pay of the Bench Clerk was corrected as Rs.8390-13270 based on the erratum order. When she was granted regular promotion as Bench Clerk on 21.9.2005 her pay was fixed granting fixation benefit. The grant of the benefit of fixation to the U.D Clerks (Hr.Gr.) on their promotion as Bench Clerks of CJMs court is unwarranted. In the above circumstances, the orders Ext.P2 series issued were correct and proper. Their representations and review petitions were considered and were rejected seeing that there was nothing wrong in the fixation of their pay. The amount drawn by the petitioners on account of the irregular granting of fixation was recovered from the petitioners. Orders were issued on 29.4.2011, 12.3.2012 and 26.11.2011 and the orders revising the benefit were issued on 11.09.2012, W.P(C) No.22057 of 2015-R 6 10.10.2012 and 4.10.2012 respectively. Recovery was ordered within 2 years from the date of sanction of revised pension. Under Rule 117 A of KSR, when the final amount granted to the pensioner is found to be in excess, the pensioner is liable to refund the excess amount. On promotion from time bound higher grade to regular promotion post, no benefit of fixation is permissible either under Rule 28A or Rule 37B. Therefore, the petitioners are not entitled to any reliefs as there was only a rectification of the mistake which was found out immediately, or refund of the amount already recovered. 7. I have heard both sides. 8. In order to examine the claim of the petitioners for retention of the higher rate of pension, which was revised, it is necessary to examine the orders based on which their pay and pension was revised. The final revision of their pension was based on the request of the petitioners for revision of pay and pension based on the order passed on 17.01.2009, referred as Ext.R3(1). The said order only corrects the scale of pay of Bench Clerks revised as per the 8[th] pay revision order issued in G.O.(P)No 145/06/Fin dated 25.03,2006. The scale of pay of Bench Clerks of District Court/CJM/MACT and certain other posts with the same scale of pay, were 7 W.P(C) No.22057 of 2015-R placed in a higher scale, seeing that the revision ordered in the order dated 25.03.2006 was not sufficient. The relevant portion of the order dated 17.01.2009, revising the scale of pay, referring to the pay revision order ## dated 25.03.2006, reads as follows: “As per the Government order read above, the post of Head Clerk and its equated posts carrying a Pre-revised scale of Rs.4600-7125 were assigned a revised scale of pay of Rs.8390-13270. However, certain posts which were interchangeable with the post of Head Clerk were assigned a lesser scale of Rs.7990-12930. Government have examined this case and are pleased to issue the following errata to the Government Order read above. This order shall have effect from 1.7.2004. |Sl.<br>No.|Designation|Department|Page<br>No.|Existing<br>revised scale|Corrected<br>revised scale| |---|---|---|---|---|---| |1|x|x|x|x|x| |2|Central Nazir, Bench<br>Clerk, District Court/CJM<br>Court Bench Clerk-MACT|Judiciary|155|7990-12930|8390-13270| |3|||||| |4|||||| |5|||||| 9. On consideration of the rival contentions, it is clear that the pay of the petitioners was fixed granting the benefit of fixation even on a correction of the scale of pay admissible to them. From the counter affidavit filed by the respondents it is clear that the petitioners' pension was revised erroneously without taking into consideration that the benefit of fixation under Rule 28A is not admissible in the absence of any of the conditions 8 W.P(C) No.22057 of 2015-R provided in Rule 28A when there was only a correction carried out for the pay scale by way of the erratum of the pay revision order issued in 2009, with effect from the date of effect of the 8[th] pay commission revision. 10. The petitioners got the benefit of fixation when they got promotion as U.D Clerk (Hr.Gr.). The scales of pay of U.D Clerk (Hr.Gr.) as well as that of the Bench Clerk are one and the same. Therefore, they were not entitled to any benefit again on their promotion as Bench Clerk or while fixing their pay consequent to the pay revision orders. The relevant provision Rule 28A reads as follows: “: “28A. Notwithstanding anything contained in these rules, where an Office holding a post in a substantive, temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity to another post carrying a higher timescale of pay, his initial pay in the higher time-scale of pay shall be fixed at the stage next above the pay notionally arrived at in the lower timescale of pay by increasing the actual pay, drawn by him in the lower time- scale by one increment. xxxxxx.” Clause 11 of Annexure 3 to the pay revision order issued on 25.03.2006 ## provides that “ On getting regular promotion from a time bound higher grade post to a higher scale or the same scale of pay, pay will be fixed as provided for in clause 48 of the Government Order in terms of Rule 30 I.e there will be no change in pay and the next increment will be allowed on the due date of increment in the lower time bound grade post.” ## Clause 48 of the pay revision order provides: “In all cases of regular promotions from time bound grades to posts carrying the 9 W.P(C) No.22057 of 2015-R same or higher time scale of pay, pay in the promoted scale will be fixed in terms of Rule 30, Part I KSR i.e without any fixation or change in pay.xxx” 11. Thus the benefit of fixation is permissible only when there is a promotion from lower pay scale to higher pay scale. When the petitioners were promoted as Bench Clerks they were already drawing the pay in the pay scale of UD Clerk (Higher Grade), which is the same as that of Bench Clerk. Therefore, a fixation as contemplated in Rule 28A was not required. No promotion was involved when their pay scale was revised by way of the erratum notification. Therefore, no fixation was necessary on that revision. 12. In these cases the erroneous fixation was corrected at the earliest opportunity. Orders were issued granting them the benefit on 29.4.2011, 12.3.2012 and 26.11.2011 and the orders revising the benefit were issued on 11.09.2012, 10.10.2012 and 4.10.2012 respectively. Rule 117A of Part III KSR permits recovery of the excess payments made on account of erroneous fixation of pension. Rule 3c read with Rule 117 A of Part III KSR provides that if the final pension granted to an officer is found afterwards to be in excess of one's entitlement under the rules, pensioner shall be liable to refund such excess amount to the Government. Only condition is that a notice should be issued to the pensioners. In case they do not remit it within the stipulated time of two months, the excess amount can 10 W.P(C) No.22057 of 2015-R be adjusted by short payment of pension in future in instalments. Petitioners could not substantiate their entitlement at higher rates, in the explanations. No provision of law is pointed out in the writ petition also which enables them to get their pay fixed with benefit of fixation under Rule 28A Part I KSR when they got promotion as Bench Clerk in the same scale of pay which they were drawing as UD Clerk Higher Grade or thereafter on correction of the pay scale by the erratum notification. The circumstances of the cases where recovery is governed by statutory rules are not covered by the judgments of the Apex Court including the decision in **State of Punjab v. Rafiq Masih (White Washer)** [2015 (1) KLT 429 (SC)]. In the above circumstances, I do not find any illegality in the impugned action of the respondents. The writ petition is therefore dismissed. **==> picture [59 x 11] intentionally omitted <==** _**(P.V.ASHA, JUDGE)**_ _rtr/_