WP(C) Nos. 22071/2012 & Connected Cases (M.R. Geetha; V. Prem Kumar; S.S. Dayal; G. Santosh Kumar; S. Radhakrishna Pillai v State of Kerala & Others)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 22071 OF 2012`** ## **`PETITIONER:`** ``` M.R.GEETHA TECHNICAL ASSISTANT GRADE-II, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM. ``` ``` BY ADVS. SRI.KRB.KAIMAL (SR.) SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCIENCE AND TECHNOLOGY DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. ``` ``` 2THE KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY AND ENVIRONMENT, REPRESENTED BY ITS MEMBER SECRETARY, SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004. ``` ``` 3THE JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, REPRESENTED BY ITS REGISTRAR, PALODE, THIRUVANANTHAPURAM-695 562. ``` ``` BY ADVS. SRI.GEORGE ZACHARIAH,SC,KSCSTE SRI.C.K.KARUNAKARAN SC FOR (TBGARI) ``` ``` SRI.ARUN AJAY SHANKAR – SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.06.2023, ALONG WITH WP(C).20728/2012, 21868/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 20728 OF 2012`** ## **`PETITIONER:`** ``` V.PREMKUMAR ASSISTANT PUBLIC RELATIONS OFFICER, JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN AND RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM-695562, RESIDING AT 'DEVAM', THOTTAKKADU, PONGUMMODE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011. ``` ``` BY ADVS. DEEPU LAL MOHAN S.LEENA ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCIENCE, TECHNOLOGY AND ENVIRONMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.` - `2 KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY AND ENVIRONMENT` ``` REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT, SASTRA BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004. ``` - `3 JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN & RESEARCH` ``` 3 ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ``` INSTITUTE, KERALA, PALODE, THIRUVANANTHAPURAM-695562, REPRESENTED BY ITS DIRECTOR. ``` ``` 4THE DIRECTOR JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN & RESEARCH INSTITUTE, KERALA, PALODE, THIRUVANANTHAPURAM-695562. ``` ``` BY ADVS. SRI.C.K.KARUNAKARAN, SC, FOR TBGARI SRI.GEORGE ZACHARIAH, SC, KSCSTE ``` ``` SRI. ARUN AJAY SHANKAR – SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.06.2023, ALONG WITH WP(C).22071/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ``` 4 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 21868 OF 2012`** ## **`PETITIONER:`** ``` S.S. DAYAL S/O.SADASIVAN, MEILING, WINNERS NAGAR, PEROORKADA, THIRUVANANTHAPURAM, PRESENTLY WORKING AS PUBLIC RELATION OFFICER, JAWAHARLAL NEHRU TROPICAL GARDEN AND RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM 695 562. ``` ``` BY ADV SRI.K.P.SUJESH KUMAR ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCIENCE, TECHNOLOGY & ENVIRONMENTAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.` - `2 KERALA STATE COUNCIL FOR SCIENCE TECHNOLOGY ENVIRONMENT` - `REPRESENTED BY ITS EXECUTIVE VICE PRESIDENT, SASTRA BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 004.` - `3 JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN RESEARCH INSTITUTE` - `KERALA, PALODE, THIRUVANANTHAPURAM 695 562, REPRESENTED BY ITS DIRECTOR.` ``` 5 ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ``` 4THE DIRECTOR JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN & RESEARCH INSTITUTE, KERALA, PALODE, THIRUVANANTHAPURAM 695 562. ``` ``` BY ADVS. SRI.GEORGE ZACHARIAH,SC,KSCSTE SRI.C.K.KARUNAKARAN, SC, FOR TBGARI ``` ``` SRI.ARUN AJAY SHANKAR – SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.06.2023, ALONG WITH WP(C).22071/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ``` 6 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 5[TH] DAY OF JUNE 2023 / 15TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 22152 OF 2012`** ## **`PETITIONER:`** ``` 1G.SANTHOSH KUMAR TECHNICAL ASSISTANT, DIVISION OF ETHNOMEDICINE & ETHNOPHARMOCOLOGY, JAWHARLAL NEHRU TROPICAL BOTANIC GARDEN & RESEARCH INSTITUTE, PALODE, THIRUVANANTHAPURAM - 695 562. ``` ``` 2S.RADHAKRISHNA PILLAI TECHNICAL ASSISTANT, DIVISION OF ETHNOMEDICINE & ETHNOPHARMOCOLOGY, JAWHARLAL NEHRU TROPICAL BOTANIC GARDEN & RESEARCH INSTITUTE PALODE, THIRUVANANTHAPURAM - 695 562. ``` ``` BY ADVS. SRI.BINU PAUL SRI.SHAJI THOMAS SRI.T.V.VINU ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, SCIENCE & TECHNOLOGY DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. ``` - `2 KERALA STATE COUNCIL FOR SCIENCE` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ``` 7 ``` ``` TECHNOLOGY & ENVIRONMENT, REPRESENTED BY ITS SECRETARY, SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004. ``` ``` 3JAWAHARLAL NEHRU TROPICAL BOTANIC GARDEN RESEARCH INSTITUTE, REPRESENTED BY ITS REGISTRAR, PALODE, THIRUVANANTHAPURAM - 695 562. ``` ``` BY ADVS. SRI.GEORGE ZACHARIAH,SC,KSCSTE SRI.C.K.KARUNAKARAN, SC, FOR TBGARI ``` ``` SRI.ARUN AJAY SHANKAR – SR. GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.06.2023, ALONG WITH WP(C).22071/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 8 ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ## **JUDGMENT** [WP(C) Nos.22071/2012, 20728/2012, 21868/2012, 22152/2012] Impugned order dated 24.08.2012 affecting all the petitioners in these present writ petitions reducing the pay scales from the post granted to them on account of promotion based upon the objection on audit of Accountant General are under challenge in these present writ petitions. 2. Prime grievance of the writ petitioners are that on the basis of the promotion granted to them without affording an opportunity of hearing, impugned order dated 24.08.2012 has been passed. They have been appointed and holding different posts. The reasoning assigned in the impugned order was on account of non existence of the posts. Principles of natural justice have been violated with impunity. Even otherwise, it is settled law that in the absence of any misrepresentation and in view of the bonafides, excess amount paid to the petitioners cannot be recovered with the drop of the hat in the manner and mode as has ``` 9 ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** been done. In support of the contention **State of Punjab and Others** v. **Rafiq masih (White Washer)** has been relied. 3. On the other hand, learned Government Pleader did not deny the fact that the order impugned do not reflect any opportunity of hearing but the fact remains that the posts did not exist and that would not be averse in case the order is passed to afford an opportunity of hearing. 4. I have heard the learned counsel for the parties and appraised the paper books. 5. Impugned order dated 24.8.2012 do not reflect that the affected parties were given any opportunity of hearing. Writ petitions stand admitted since 2012. It is settled law that if the benefits granted to the employees are not based upon misrepresentation, with bonafide and there is fault of the official respondents, benefit derived cannot be recovered in view of the ratio decidendi culled out in **State of Punjab and Others** v. **Rafiq masih (White Washer).** In my view, it would not be appropriate to direct the respondents to revisit the issue by ``` 10 ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** affording an opportunity of hearing, except few petitioners, as the counter affidavit of the respondents do not reveal any misrepresentation of petitioners. Impugned orders are quashed, writ petitions are allowed. **Sd/AMIT RAWAL JUDGE** nak ``` 11 ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ## **`APPENDIX OF WP(C) 20728/2012`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1THE PHOTOCOPY OF THE ORDER OF APPOINTMENT NO.TBGRI/AD.0/390/92 (17) DATED 16.09.1992 OF THE 3RD RESPONDENT ``` - `Exhibit P2 THE PHOTOCOPY OF THE PROCEEDINGS OF THE REGISTRAR OF THE 3RD RESPONDENT NO.BG3/340/98 PALODE DATED 31.12.1998` - `Exhibit P3 THE TRUE COPY OF THE RELEVANT PAGES OF TEH FINAL REPORT OF THE COMMITTEE ON RECTIFICATION IRREGULARITIES INT EH PAY FIXATION OF THE ADMINISTRATIVE AND TECHNICAL STAFF OF TBFRI DATED 30.08.2009` - `Exhibit P4 THE PHOTOCOPY OF THE CIRCULAR NO.TBGRI/DR/166/2010 DATED 07.06.2010 ISSUED BY THE 4TH RESPONDENT` - `Exhibit P5 THE PHOTOCOPY OF THE OFFICE ORDR NO.TBGRI/DR/170/2010 DATED 08-06-2010 ISSUED BY THE 4TH RESPONDENT` - `Exhibit P6 THE PHOTOCOPY OF THE REPRESENTATION DATED 30.06.2010 (WITHOUT ANNEXURES) SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT` ``` Exhibit P7THE PHOTOCOPY OF THE REMARKS ON THE GRIEVANCES OF STAFF AGAINST THE PAY FIXED BY THE RECTIFICATION COMMITTEE SUBMITTED BY THE 4TH RESPONDENT BEFORE TH 2ND RESPONDENT ``` ``` 12 ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ``` Exhibit P8THE PHOTOCOPY OF THE LETTER NO.TBGRI/DR/296/2010 DATED20.09.2010 BY WHICH EXT.P7 REMARKS OF THE TBGRI ON THE GRIEVANCES OF STAFF AGAINST EXT.P3 REPORT WAS FORWARDED TO THE 2ND RESPONDENT ``` ``` Exhibit P9THE PHOTOCOPY OF THE ORDER NO.JNTBGRI/ESTT.2/61(5)/2012 DATED 24.08.2012 OF THE 4TH RESPONDENT ISSUED TO THE PETITIONER. ``` ``` 13 ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ## **`APPENDIX OF WP(C) 22152/2012`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF THE NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DATED 26.10.1997` - `EXHIBIT P2 TRUE COPY OF THE ORDER NO.BG3/103/98 DATED 10.06.1998 OF THE 3RD RESPONDENT` - `EXHIBIT P3 TRUE COPY OF THE ORDER NO.BG3/97 DATED 18.12.1997` - `EXHIBIT P4 TRUE COPY OF THE REPORT DATED 11.02.1999 OF THE ANOMALY COMMITTEE` - `EXHIBIT P5 TRUE COPY OF THE GAZATTE NOTIFICATION DATED 12.06.2001 OF THE KERALA PUBLIC SERVICE COMMISSION` - `EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDR (P).NO.82/99/STED DATED 02.08.1999 TOGETHER WITH THE RELEVANT PORTION OF THE REPORT ANNEXED TO IT AS ACCEPTED BY THE GOVERNMENT` - `EXHIBIT P7 TRUE COPY OF THE G.O.(P).NO.3000/98 FIN DATED 25.11.1998` - `EXHIBIT P8 TRUE COPY OF THE G.O.(P) NO.145/06/FIN DATED 25.03.2006` - `EXHIBIT P9 TRUE COPY OF THE ORDER NO.A1 8863/06 DATED 30.03.2006 ISSUED BY THE 3RD RESPONDENT` ``` 14 ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ``` EXHIBIT P10TRUE COPY OF THE ASSESSMENT PROMOTION & PAY FIXATION ISSUED TO THE 1ST PETITIONERS ``` ``` EXHIBIT P11TRUE COPY OF THE ASSESSMENT PROMOTION & PAY FIXATION ISSUED TO THE 2ND PETITIONER ``` ``` EXHIBIT P12TRUE COPY OF THE ORDER DATED 24.08.2012 ISSUED TO THE 1ST PETITIONER ``` ``` EXHIBIT P13TRUE COPY OF THE ORDER DATED 30.07.2012 ISSUED TO THE 2ND PETITIONER ``` ``` EXHIBIT P14TRUE COPY OF THE FINAL REPORT DATED 30.07.2009 TOGETHER WITH THE RELEVANT PORTION OF RE-FIXATION S, PERTAINING TO THE PETITIONERS ``` ``` EXHIBIT P15TRUE COPY OF THE REPRESENTATION DATED 04.06.2010 SUBMITTED BY THE 2ND PETITIONER ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ``` 15 ``` ## **`A PPENDIX OF WP(C) 21868/2012`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE OFFICE MEMORANDUM REGARDING THE SELECTION OF PETITIONER AS GRADE IN TBGRI DATED 10.08.1992 ``` ``` EXHIBIT P2TRUECOPYOFTHEPROCEEDINGS NO.BG3/340/98 DATED 31/12/1998 OF THE REGISTRAR OF THE THIRD RESPONDENT EXHIBIT P3TRUE COPY OF THE RELEVANT PAGES OF THE FINAL REPORT OF THE COMMITTEE ON RECTIFICATION OF IRREGULARITIES IN THE PAY FIXATION OF THE ADMINISTRATIVE AND TECHNICAL STAFF OF TBFRI DATED 30.08.2009 ``` - `EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO.TBGRI/DR/166/2010 DATED 7/06/2010 ISSUED BY THE FOURTH RESPONDENT` ``` EXHIBIT P5TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT DATED 18/06/2010 ``` - `EXHIBIT P6 TRUE COPY OF THE OFFICE ORDER NO.TBGRI/SR/170/2010 DATED 8/06/2010 ISSUED BY THE FOURTH RESPONDENT` ``` EXHIBIT P7TRUE COPY OF THE REPRESENTATION DATED 2/07/2010 SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ## **`16`** ``` EXHIBIT P8TRUE COPY OF THE REMARKS ON THE GRIEVANCES OF STAFF AGAINST THE PAY FIXED BY THE RECTIFICATION COMMITTEE SUBMITTED BY THE FOURTH RESPONDENT BEFORE THE SECOND RESPONDENT ``` ``` EXHIBIT P9TRUECOPYOFTHE LETTER NO.TBGRI/DR/296/2010 OF THE FOURTH RESPONDENT EXHIBIT P10TRUECOPYOFTHE ORDER NO.JNTBGRI/ESTT.2/61(23)/2012DATED 24.08.2012 OF THE FOURTH RESPONDENT ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ``` 17 ``` ## **`APPENDIX OF WP(C) 22071/2012`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE MARK LIST NO.18028/JULY 1987 ISSUED TO THE PETITIONER BY THE PRINCIPAL OF THE INDUSTRIAL TRAINING INSTITUTE FOR WOMEN, KAZHAKUTTOM EXHIBIT P2TRUE COPY OF THE NATIONAL TRADE CERTIFICATE ISSUED TO THE PETITIONER BY THE STATE COUNCIL FOR VOCATIONAL TRAINING EXHIBIT P3TRUE COPY OF THE ORDER NO.A1/5821/06 DATED 1.2.2006 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4TRUE COPY OF THE G.O.(P)NO.82/99/STED DATED 2.8.1999 ISSUED BY THE 1ST RESPONDENT TOGETHER WITH THE RELEVANT PORTION OF THE REPORT ANNEXED TO IT EXHIBIT P5TRUE COPY OF THE ANNEXUER -ITO THE 1998 PAYREVISIONORDERIN G.O.(P)NO.3000/98/FIN DATED 25.11.1998 EXHIBIT P6TRUE COPY OF THE ANNEXURE-I TO STATE PAY REVISION ORDER G.O(P)NO.145/06/FIN DATED 25.3.2006 EXHIBIT P7TRUE COPY OF THE ORDER NO.A 1/8863/06 DATED 30.03.2006 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P8TRUECOPYOFTHEORDER NO.TBGRI/ESTT/2/72/2011 DATED 1.9.2011 ``` ## **`WP(C)NO.22071/2012 & Conn. Cases`** ## **`18`** ## `ISSUED BY THE 3RD RESPONDENT` ``` EXHIBIT P9TRUE COPY OF THE ORDER NO.TBGRI/ESTT- 2/193/2011 DATED 25.10.2011 ISSUED BY THE 3RD RESPONDENT ``` ``` EXHIBIT P10TRUECOPYOFTHE ORDER NO.JNTBGRI/ESTT.2/61(20)2012DATED 24.08.2012 ISSUED BY THE 3RD RESPONDENT EXHIBIT P11TRUE COPY OF THE REPORT DATED 30.8.2009 OF THE COMMITTEE ON RECTIFICATION OF IRREGULARITIES IN THE PAY FIXATION OF THE ADMINISTRATIVE AND TECHNICAL STAFF OF THE 3RD RESPONDENT TOGETHER WITH THE RELEVANT PORTION OF RE-FIXATIONS, PERTAINING TO THE PETITIONER. ``` ``` EXHIBIT P12TRUE COPY OF THE REPRESENTATION DATED 6.9.2012 SUBMITTED BY THE PETITIONER TO THE DIRECTOR OF THE 3RD RESPONDENT ```