High Court of KeralaDivision BenchDisposed of

W. P. (C) No. 766 of 2017

Case / Petition Number:W. P. (C) No. 766 of 2017

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • S. Manikumar
  • Shaji P. Chaly
Judgment Date
2022-08-02
Court Decision / Holding
Writ petition disposed of. The Court held that the recovery of excess pension payments would be iniquitous or arbitrary in several circumstances and sustained the Lok Ayukta’s finding that recovery would violate natural justice. It restricted its disposal to the recovery aspect and left open the possibility of adjusting pay/pension entitlements through appropriate proceedings, noting that pay-scale revisions would require separate consideration. The Division Bench thereby upholds the Lok Ayukta’s non-recovery directive while clarifying that the recovery aspect cannot be enforced in the present petition.
Final Disposition
Disposed of

Parties to the Case

Appellants / Petitioners

  • State of Kerala represented by Principal Secretary to Government, Finance Department, Secretariat, Thiruvananthapuram
  • Director of Treasuries, Thiruvananthapuram
  • District Treasury Officer, Thiruvananthapuram

Respondents

  • K.M Rabia Bi
  • N.M. Kamal
  • N.M. Asha
  • Kerala Lok Ayukta Office represented by its Secretary

Legal Representation & Advocates

Counsels for Petitioners

  • • M. R. Sreelatha, Special Government Pleader

Counsels for Respondents

  • • S.S. Hussain
  • • Praveen Vyasan

Case Synopsis & Summary

Being aggrieved by the Kerala Lok Ayukta's order in Complaint No. 679 of 2013 dated 13.11.2014, the petitioners (State of Kerala and Treasury authorities) challenged Ext. P1 in WP(C) No. 766 of 2017 before this Court. The Lok Ayukta had held that the action to reduce the complainant’s pension and to recover alleged excess payments was violative of natural justice, and directed the Government to reconsider the matter within three months after hearing the complainant and after consulting the Principal Accountant General (A&E), Kerala. The petitioners argued Ext. P1 was unsustainable, pointing to modifications introduced by Government Orders (GO) in 2012 and contending that the Lok Ayukta’s powers under Section 12 of the Lok Ayukta Act do not authorize a mandatory, time-bound implementation. The respondents contended that the Lok Ayukta’s directions were within its remit and that the Government had acted in accordance with pension rules after hearing; they relied on government orders reflecting changes to pension fixation. The Kerala High Court, comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly, held that recovery of excess pension could be iniquitous or arbitrary in many circumstances and upheld the Lok Ayukta’s finding on natural justice. It disposed of the writ petition, restricting the ruling to the recovery issue, and noted that pay-scale revisions require separate consideration under existing precedents.

Provisions of Law Cited

Section 12 of the Kerala Lok Ayukta ActArticle 14 of the Constitution of India

Legal Doctrines & Maxims

  • Natural justice
  • Equity and judicial discretion
  • iniquitous/arbitrary conduct
  • Article 14 (equal protection of laws)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that Ext. P1 order directing recovery is unsustainable and ultra vires since the Lok Ayukta cannot issue a positive, time-bound directive to implement its recommendations. They urged that the matter involves modifications to GO (P) Nos. 87/2011 and 551/2012 and that the Lok Ayukta’s Section 12 powers do not authorize coercive, fixed-time directions. They highlighted the Action Taken Report (Ext. P7) showing changing government positions and contended that reconsideration and hearing procedures were mishandled. They pressed that the pension-revision issue pertains to a separate, ongoing process and should not be resolved by recovery orders under the Lok Ayukta’s impetus.

Contentions of Respondents

The respondents contended that the Lok Ayukta’s directions fall within its remit under the Act, and the government’s actions, after hearing the complainant, were consistent with pension rules. They argued that GO modifications (e.g., GO 551/2012) clarified applicability of revised pension to incumbents and that the Action Taken Report was properly explanatory. They maintained that the Lok Ayukta’s recommendation to reconsider within a specified period is a legitimate procedure to ensure justice and avoid arbitrary action, and that the petition challenges should be resolved with due respect to the complainant’s rights and the government’s financial commitments.

Cited Precedents (8)

Case NameCitationTreatmentExplanation
State of Punjab and Others v. Rafiq Masih (White Washer) and Others[(2015) 4 SCC 334]Mentioned OnlyCited as part of a precedential backdrop on recovery of excess payments but not central to the final ruling.
Syed Abdul Qadir v. State of Bihar(2009) 3 SCC 475PositiveUsed to formulate the core test that recovery depends on whether the payment was made iniquitously or arbitrarily; emphasized the equity-based approach.
Shyam Babu Verma v. Union of India(1994) 2 SCC 521PositiveCited for the principle that recovery after a long duration can be iniquitous and arbitrary, violating Article 14.
Col. B.J. Akkara v. Government of India(2006) 11 SCC 709PositiveIllustrates the equitable relief against recovery and identifies circumstances where recovery is permissible or not.
Sahib Ram Verma v. Union of India(1995) Supp. 1 SCC 18PositiveSupports precaution against recovery where the employee acted under genuine belief or where error was due to administrative fault.
Purshottam Lal Das v. State of Bihar(2006) 11 SCC 492Mentioned OnlyListed among precedents; relevant to broader context but not centrally relied upon for the decision.
Punjab National Bank v. Manjeet Singh(2006) 8 SCC 647Mentioned OnlyReferenced in discussion of related recovery principles; not a central operative authority.
Bihar SEB v. Bijay Bahadur(2000) 10 SCC 99Mentioned OnlyCited as part of the general authority on recoveries; not a controlling ratio in this decision.

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Extracted Judgment Text

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W. P. (C) No. 766 of 2017 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944 WP(C) NO. 766 OF 2017** ## **PETITIONER/S:** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.PIN.695001.** - **2 THE DIRECTOR OF TREASURIES KRISHNA BUILDINGS, POWER HOUSE ROAD, THIRUVANANTHAPURAM.PIN.695036.** - **3 THE DISTRICT TREASURY OFFICER DISTRICT TREASURY, THIRUVANANTHAPURAM.PIN.695001.** **BY ADV SMT. M. R. SREELATHA, SPECIAL GOVERNMENT PLEADER** ## **RESPONDENT/S:** - **1 K.M RABIA BI AGED 65 YEARS, W/O LATE. DR. N.M. MOHAMMED ALI, RESIDING AT HARITHAGIRI, KANJIRAMPARA PO, THIRUVANANTHAPURAM DISTRICT.PIN.695030.** - **2 N.M. KAMAL S/O LATE DR. N.M.MOHAMMED ALI, RESIDING AT HARITHAGIRI, KANJIRIAMPARA PO, THIRUVANANTHAPURAM DISTRICT, PIN.695030.** - **3 N.M. ASHA D/O LATE DR.N.M. MOHAMMED ALI, RESIDING AT HARITHAGIRI, KANJIRAMPARA PO, THIRUVANANTHAPURAM DISTRICT. PIN. 695030.** - **4 THE KERALA LOK AYUKTA OFFICE OF THE KERALA LOK AYUKTA, LEGISLATIVE COMPLEX, THIRUVANANTHAPURAM DISTRICT.PIN. 695030. REPRESENTED BY ITS SECRETARY.,** - **BY ADVS.** - **SRI.S.S.HUSSAIN SRI.PRAVEEN VYASAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. P. (C) No. 766 of 2017 -2- ## **J U D G M E N T** S. Manikumar, C. J. Being aggrieved by the order of Kerala Lok Ayukta in complaint No. 679 of 2013 dated 13.11.2014, the Principal Secretary to the Government, Finance Department, Thiruvananthapuram, Director of Treasuries, Thiruvananthapuram, and District Treasury Officer, Thiruvananthapuram, the respondents in the complaint before Lok Ayukta, have preferred the instant writ petition. 2. Short facts leading to the filing of the writ petition are as under:- According to the writ petitioners, by Ext. P1 order dated 13.11.2014 in complaint No. 679 of 2013, petitioners are directed to redress the grievance of the complainant, in accordance with G.O.(P) No. 87/2011/Fin. dated 28.02.2011. Petitioners have submitted that Ext. P1 order is unsustainable, in view of the facts those were brought to the notice of the Kerala Lok Ayukta, the 4[th] respondent, through Ext. P7 Action Taken Report dated 21.02.2015, which was admittedly not W. P. (C) No. 766 of 2017 -3- challenged by the complainant in Ext. P2 complaint, or subsequently by the complainant, even though the complainant had filed Ext. P8 objection dated 30.03.2015. 3. Before the Lok Ayukta, in complaint No. 679 of 2013, complainant has sought for the following reliefs:- “(i) Call for the records leading to the recovery of arrears of pension of Rs.91,081/- (Rupees ninety one thousand and eighty one only) and deduction of monthly pension of Rs.3,267/(Rupees three thousand two hundred and sixty seven only) and set aside the same. (ii) Declare that the complainant is entitled for the basic pension of Rs.24,099/- per month with effect from 1.8.2011 as fixed by the Ext. P4 order of the 3[rd] respondent. (ii) Direct the 3[rd] respondent to refund the amount of Rs.24,534/ to the complainant which was arbitrarily and illegally recovered from the complainant.” 4. Lok Ayukta, by order dated 13.11.2014 in complaint No. 679 of 2013, held thus:- “37. Having gone through the documents produced by the complainant to establish the truth of the above facts pleaded by W. P. (C) No. 766 of 2017 -4- him, we are convinced that extra ordinary grounds exist to grant him adequate reliefs. Such an action is called for to meet the ends of justice. We hope that the Government will consider the case of the complainant in the right perspective, that is to say, in a just and reasonable manner. Issue No.(vi) is answered accordingly. ## 38. To sum up, our findings and recommendations are: (i) Action to reduce the pension and to recover the alleged excess paid is violative of the principles of natural justice and is unsustainable on that ground alone. (ii) The said action is wrong and vitiated for non application of mind and omission to take into account relevant orders while being influenced by irrelevant considerations. (iii) Extra ordinary grounds exist to grant reliefs to the complainant as found in paragraph 37 of this order. (iv) The entire matter calls for immediate reconsideration by the first respondent after consulting the Principal Accountant General (A&E), Kerala and after affording opportunity of being heard to the complainant. And - (v) A period of three months is fixed for completing the above action and for issuing fresh orders.” 5. Being aggrieved by the directions issued by the Lok Ayukta, respondents in complaint No. 679 of 2013 before the Lok Ayukta, have W. P. (C) No. 766 of 2017 -5- preferred the instant writ petition, contending inter alia that the finding in Ext. P1 to the effect that the Principal Accountant General (A&E) has not called for the views of the Government in the Finance Department or those of the Treasury Officers are unwarranted, since it was subsequently brought to the notice of the Lok Ayukta, the 4[th] respondent, that the Government have modified para 3.3. of G.O.(P) No. 87/2011/Fin. dated 28.02.2011 vide G.O.(P) No. 551/2012/Fin. Dated 09.10.2012, and thus the communication as evidenced by Ext. P2 dated 17.10.2012, wherein it is clarified that revised pension sanctioned to the complainant and similarly situated persons was not in order, was made in tune with the modified Government Order issued by the Government, which was produced along with Ext. P7 Action Taken Report dated 21.02.2015, and the issue of Ext. P10 order of the 4[th] respondent, without adverting to G.O.(P) No. 551/2012/Fin. dated 09.10.2012, is highly improper. 6. Petitioners have further contended that the scope and jurisdiction of the Lok Ayukta, the 4[th] respondent, as contemplated under Section 12 of the Act, is to submit a report by way of recommendation to the competent authority, which squarely shows that W. P. (C) No. 766 of 2017 -6- the 4[th] respondent is not vested with any absolute power to adjudicate the issue and give a positive direction to implement its direction within a time frame. Therefore, the recommendation in Ext. P1 in the nature of a positive direction is in ultra vires of the powers of the 4[th] respondent. 7. It is also contended that the Lok Ayukta, the 4[th] respondent, ought to have noticed that the Government have taken a conscious decision to rectify the Government Order dated 28.02.2011 and modified para 3.3 therein through the issue of Government Order dated 09.10.2012, whereby it was clarified that only the incumbents, who are in the Medical Service Department as on 01.07.2009, are eligible for the benefit as per Government Order dated 28.02.2011. Thus the claim put forward by the complainant cannot be entertained. 8. The Secretary to the Government, Finance Department, Thiruvananthapuram, the 1[st] petitioner herein, has filed an Action Taken Report dated 21.02.2015 before the Lok Ayukta, which reads thus:- “As per the orders of Hon'ble Lok Ayukta in Complaint W. P. (C) No. 766 of 2017 -7- No. 679/2013 D, Government is directed to reconsider the entire matter, consulting Principal Accountant General and after hearing the complainant, Dr. N. M. Muhammed Ali. Accordingly, the complainant was heard on 07.02.2015. It is noted that consequent to the 9[th] pay revision, Government have issued pension revision orders vide G.O(P) No. 87/2011/Fin dated 28.02.11 (copy enclosed) giving date of effect from 01.07.2009 and due to the agitation from the side of serving doctors, the starting pay of doctors were revised vide G.O(P) No. 582/11(27)/Fin dated 29.11.2011 (Copy enclosed) without revising scale of pay and it is only applicable to doctors in service as on 01.07.2009 and not to pensioners. Misinterpreting that this change is applicable to pensioners and based on para 3.3 of G.O dated 28.02.11, Dr. N M Muhammed Ali approached the Hon'ble Lok Ayukta contending that he is entitled for upward revision of pension. As Government have modified para 3.3 of G.O (P) 87/11/Fin dated 28.02.11 by G.O (P) No. 551/12/Fin dated 09.10.12 (copy enclosed) ensuring 50% of the "minimum of revised scale" instead of 50% "minimum pay of revised scale" to all pensioners who have maximum qualifying service and the GO dated 29.11.2011 is not applicable to pensioners, Dr. N M Muhammed Ali is not eligible for the upward revision of pension as requested. The Principal Accountant General is consulted and he is also of the view that the petitioner is eligible for a basic pension of Rs. 20,832/- in the revised scale of Rs. 44640-58640 based on his qualifying service and not for a basic pension of Rs. 24099 as claimed by the petitioner. The dictum of Hon'ble Lok Ayukta to W. P. (C) No. 766 of 2017 -8- revise the basic pension of Dr. Muhammed Ali on his complaint is against the spirit of orders issued in G.O (P) No. 551/12/Fin dated 09.10.2012 and will have far reaching consequences as there will be a flow of complaints on similar cases resulting heavy financial commitment on State's exchequer. In the above circumstances, Government is not in a position to revise the basic pension of Dr. N. M. Muhammed Ali and decided to file writ OP before the Hon'ble High Court against the order of Hon'ble Lok Ayukta passed on 13.11.2014 in Complaint No. 679/2013 D.” 9. Complainant has filed an objection dated 30.03.2015 to the Action Taken Report, seeking to reject the Action Taken Report dated 21.02.2015 filed by the 1[st] petitioner herein. 10. With respect to recovery of amount paid in excess to the employee, without any fault of the employee, in **State of Punjab and Others v. Rafiq Masih (White Washer) and Others [(2015) 4 SCC** **334]** , the Hon'ble Apex Court held as under:- “11. For the above determination, we shall refer to some precedents of this Court wherein the question of recovery of the excess amount paid to employees, came up for consideration, and this Court disallowed the same. These are situations, in which W. P. (C) No. 766 of 2017 -9- High Courts all over the country, repeatedly and regularly set aside orders of recovery made on the expressed parameters. 12. Reference may first of all be made to the decision in Syed Abdul Qadir v. State of Bihar, (2009) 3 SCC 475, wherein this Court recorded the following observation in paragraph 58: “58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp. (1) SCC 18, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521, Union of India v. M. Bhaskar, (1996) 4 SCC 416, V. Ganga Ram v. Director, (1997) 6 SCC 139, Col. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709, Purshottam Lal Das v. State of Bihar, (2006) 11 SCC 492, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 and Bihar SEB v. Bijay Bahadur, (2000) 10 SCC 99.” 13. First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir’s case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, W. P. (C) No. 766 of 2017 -10- if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee. 14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as W. P. (C) No. 766 of 2017 -11- under: “11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330- 560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.” It is apparent, that in Shyam Babu Verma’s case (supra), the higher payscale commenced to be paid erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the payscale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India. 15. Examining a similar proposition, this Court in Col. B.J. Akkara v. Government of India, (2006) 11 SCC 709, observed as under: “28. Such relief, restraining back recovery of excess payment, is granted by courts not because of W. P. (C) No. 766 of 2017 -12- any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.” A perusal of the aforesaid observations made by this Court in Col. B.J. Akkara’s case (supra) reveals a reiteration of the legal position recorded in the earlier judgments rendered by this Court, inasmuch as, it was again affirmed, that the right to recover would be sustainable so long as the same was not iniquitous or arbitrary. In the observation extracted above, this Court also recorded, that recovery from employees in lower rung of service, would result in extreme hardship to them. The apparent explanation for the aforesaid conclusion is, that employees in lower rung of service would spend their entire earnings in the upkeep and welfare of their family, and if such excess payment is allowed to be recovered from them, it would cause them far more hardship, than the reciprocal gains to the employer. We are W. P. (C) No. 766 of 2017 -13- therefore satisfied in concluding, that such recovery from employees belonging to the lower rungs (i.e., Class-III and ClassIV - sometimes denoted as Group ‘C’ and Group ‘D’) of service, should not be subjected to the ordeal of any recovery, even though they were beneficiaries of receiving higher emoluments, than were due to them. Such recovery would be iniquitous and arbitrary and therefore would also breach the mandate contained in Article 14 of the Constitution of India. 16. This Court in Syed Abdul Qadir v. State of Bihar (supra) held as follows: “59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counteraffidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” W. P. (C) No. 766 of 2017 -14- Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir’s case (supra), that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee’s retirement, or within one year of the date of his retirement on superannuation. 17. Last of all, reference may be made to the decision in W. P. (C) No. 766 of 2017 -15- Sahib Ram Verma v. Union of India, (1995) Supp. 1 SCC 18, wherein it was concluded as under: “4. Mr. Prem Malhotra, learned counsel for the appellant, contended that the previous scale of Rs 220-550 to which the appellant was entitled became Rs 700-1600 since the appellant had been granted that scale of pay in relaxation of the educational qualification. The High Court was, therefore, not right in dismissing the writ petition. We do not find any force in this contention. It is seen that the Government in consultation with the University Grants Commission had revised the pay scale of a Librarian working in the colleges to Rs 700-1600 but they insisted upon the minimum educational qualification of first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science. The relaxation given was only as regards obtaining first or second class in the prescribed educational qualification but not relaxation in the educational qualification itself. 5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.” It would be pertinent to mention, that Librarians were equated W. P. (C) No. 766 of 2017 -16- with Lecturers, for the grant of the pay scale of Rs.700-1600. The above pay parity would extend to Librarians, subject to the condition that they possessed the prescribed minimum educational qualification (first or second class M.A., M.Sc., M.Com. plus a first or second class B.Lib. Science or a Diploma in Library Science, the degree of M.Lib. Science being a preferential qualification). For those Librarians appointed prior to 3.12.1972, the educational qualifications were relaxed. In Sahib Ram Verma’s case (supra), a mistake was committed by wrongly extending to the appellants the revised pay scale, by relaxing the prescribed educational qualifications, even though the concerned appellants were ineligible for the same. The concerned appellants were held not eligible for the higher scale, by applying the principle of “equal pay for equal work”. This Court, in the above circumstances, did not allow the recovery of the excess payment. This was apparently done because this Court felt that the employees were entitled to wages, for the post against which they had discharged their duties. In the above view of the matter, we are of the opinion, that it would be iniquitous and arbitrary for an employer to require an employee to refund the wages of a higher post, against which he had wrongfully been permitted to work, though he should have rightfully been required to work against an inferior post. 18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based W. P. (C) No. 766 of 2017 -17- on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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 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.” 11. Giving due consideration to the grounds of challenge and the submissions made, we are of the view that the complainant is entitled to the benefit of the said judgment, thus making the recovery of excess W. P. (C) No. 766 of 2017 -18- amount initiated, bad and illegal. This we say because, if the amounts are recovered, it would cause hardship and serious prejudice to the complainant / party respondents. 12. As rightly contended by Ms. Sreelatha M. R., learned Special Government Pleader, the issue with respect to revision of pay scale, has attained finality. She has further contented that though Action Taken Report dated 21.02.2015 has been filed, in terms of the directions issued in complaint No. 679 of 2013 dated 13.11.2014, the same has not been accepted by the Lok Ayukta. 13. In such a view of the matter, it is always open to the parties before the Lok Ayukta, to seek for appropriate directions, as regards fixation of pay and entitlement of the pensioners, corresponding to the said pay scale. 14. Be that as it may, the judgment in this writ petition is restricted only to the aspect of recovery, which we make it clear, should not be done, especially in view of the judgment of the Hon'ble Apex Court referred to above. Directions issued by Kerala Lok Ayukta dated 13.11.2014 in W. P. (C) No. 766 of 2017 -19- complaint No. 679 of 2013, in so far as the finding that the recovery of alleged excess pension paid is violative of the principles of natural justice, is sustained. Accordingly, instant writ petition is disposed of. Sd/- **S. MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 766 of 2017 -20- ## **APPENDIX OF WP(C) 766/2017** ## **PETITIONER EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 13.11.2014 IN COMPLAINT NO.679/2013 FILED BEFORE THE LOK AYUKTA.** **EXHIBIT P2 A TRUE COPY OF THE COMPLAINT NO.679/2013 DATED 3.6.2013.** **EXHIBIT P3 A TRUE COPY OF THE STATEMENT FILED BY THE PETITIONERS HEREIN DATED 1.8.2013.** **EXHIBIT P4 A TRUE COPY OF THE ADDL. DOCUMENTS AS EXTS .P6, P7 & P8 ALONG WIH I.A.NO.442/2014 DATED 1.2.2014. EXHIBIT P5 A TRUE COPY OF THE ADDL.DOCUMENTS AS EXTS.P9 ALONG WITH I.A.NO.512/2014 DATED 26.2.2014. EXHIBIT P6 A TRUE COPY OF THE ADDL.DOCUMENTS AS EXTS.P10 T OP15 ALONG WITH I.A.NO.744/2014 DATED 28.5.2014. EXHIBIT P7 A TRUE COPY OF THE ACTION TAKEN REPORT DATED 21.2.2015. EXHIBIT P8 A TRUE COPY OF THE OBJECTION DATED 3.3.2015. EXHIBIT P9 A TRUE COPY OF THE I.A.NO.1187/2015 DATED 17.6.2015, EXHIBIT P10 A TRUE COPY OF ORDER DATED 13.1.2016.**