W.P.(C).6804/2021; W.P.(C).12165/2021; W.P.(C).12885/2021 – In the High Court of Kerala at Ernakulam

W.P(C).6804, 12165 and 12885 of 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 WP(C) NO. 6804 OF 2021** ## **PETITIONER/S:** USHA J. AGED 61 YEARS EMPLOYEE CODE 1112, TECHNICAL OFFICER (RETD), THAZHATHAYIL, MRA 40, MARAPPALAM, PATTOM P.O., THIRUVANANTHAPURAM-695004. BY ADV S.A.RAZZACK ## **RESPONDENT/S:** 1 REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695011. 2 GOVERNMENT OF KERALA, HEALTH AND FAMILY WELFARE (J) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUAVNANTHAPURAM-695001. BY ADV SHRI.ATHUL SHAJI, SC, REGIONAL CANCER CENTRE (RCC) ## **OTHER PRESENT:** GP PARVATHY KOTTOL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2021, ALONG WITH WP(C).12165/2021, 12885/2021, THE COURT ON 23.12.2021 DELIVERED THE FOLLOWING: W.P(C).6804, 12165 and 12885 of 2021 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 WP(C) NO. 12165 OF 2021** ## **PETITIONER/S:** GEETHA.S AGED 62 YEARS EMPLOYEE CODE 1086,NURSING SUPERINTENDENT GR.II,DIVYASREE-TC 13/193,MOSQUE LANE HOUSE NO.68, KESAVADASAPURAM,PATTOM.P.O, THIRUVANANTHAPURAM-695004. BY ADV S.A.RAZZAK ## **RESPONDENT/S:** 1 REGIONAL CANCER CENTRE (RCC) REPRESENTEDBY THE DIRECTOR,RCC,P.O.BOX 2417,MEDICAL COLLEGE CAMPUS,THIRUVANANTHAPURAM-695011. 2 GOVERNMENT OF KERALA, HEALTH AND FAMILY WELFARE(J)DEPARTMENT, REPRESENTED BY ITS SECRETARY,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. BY ADV SHRI.ATHUL SHAJI, SC, REGIONAL CANCER CENTRE (RCC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2021, ALONG WITH WP(C).6804/2021 AND CONNECTED CASES, THE COURT ON 23.12.2021 DELIVERED THE FOLLOWING: W.P(C).6804, 12165 and 12885 of 2021 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 23[RD] DAY OF DECEMBER 2021 / 2ND POUSHA, 1943 WP(C) NO. 12885 OF 2021** ## **PETITIONER/S:** PRESANNA KUMARI.S AGED 62 YEARS EMPLOYEE CODE 1085, CRA 105, KAMBIKKAKAM, ANAYARA P.O., THIRUVANANTHAPURAM-695 029 BY ADV S.ABDUL RAZZAK ## **RESPONDENT/S:** 1 REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC P.O. BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM-695 011 2 GOVERNMENT OF KERALA, HEALTH & FAMILY WELFARE (J) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 BY ADV SHRI.ATHUL SHAJI, SC, REGIONAL CANCER CENTRE (RCC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2021, ALONG WITH WP(C).6804/2021 AND CONNECTED CASES, THE COURT ON 23.12.2021 DELIVERED THE FOLLOWING: W.P(C).6804, 12165 and 12885 of 2021 4 ## **COMMON JUDGMENT** In all these proceedings, writ petitioners were employed in the non-academic cadre of the Regional Cancer Centre (RCC), Thiruvananthapuram. The facts disclose that the writ petitioner in W.P(C).No.6804 of 2021 joined the service of RCC as Laboratory Technician in 1985. On attainment of the age of superannuation, she retired on 30.11.2019. In the case of writ petitioner in W.P(C).No.12165 of 2021, she was appointed on 02.01.1985 as Staff Nurse and retired on 31.05.2019. In W.P(C).No.12885 of 2021, the writ petitioner joined on 24.07.1990 as Staff Nurse and retired on 31.05.2020. 2. The petitioners were granted their pay scale and the first assessment promotion on completion of the term period. While so, Time Bound Grade Promotion (TBGP) scheme was introduced in 1994 by a circular dated 18.05.1994. They were paid on the basis of the above pay scale. G.O.No.148/2000/H&FWD dated 17.06.2000 was issued to ratify that pay revision ordered by the first respondent RCC. Subsequently, Time Bound Grade Promotion system was replaced by Flexible Complementing and Ladder Promotion (FCP & LP) scheme as per first respondent's order No.5270/FD/RCC dated 28.07.2000. The above pay scale of Time Bound Grade Promotion with effect from 01.03.1997 was based on a study report of a One Man Commission 5 W.P(C).6804, 12165 and 12885 of 2021 appointed by the RCC. It seems that, in the meanwhile, on the basis of certain complaints regarding anomalies in the above proposal, RCC constituted a Three Men Committee to make proposals on the issue of rectification of anomalies in the various categories on implementation of pay scale as provided above. The anomalies were pointed out by the Three Men Committee. On the basis of the recommendations of the Three Men Committee, noting the anomalies, the pay scale of the employees were revised. Objections were submitted by the petitioners regarding the anomalies. With effect from 01.01.2006, the 6[th] Central Pay Band was implemented for the RCC non-academic staff by G.O(M.S).No.382/2009/H&FWD dated 03.11.2009. The monetary benefits under the 6[th] CPC however was made available to accrue only from 01.01.2007. 3. According to the writ petitioners, after their retirement, Provisional Pay Fixation Order was made, reducing their emoluments. There was substantial delay in finalizing the terminal benefits such as full pension, DCRG and Leave Surrender salary. Thereafter, all the above writ petitioners were issued with provisional pension payment orders as well as consolidated statements for recovery of amounts ordered to be recovered from the petitioners. Aggrieved by the above, writ petitioners have approached this Court. 4. It seems that, in relation to the writ petitioner in W.P(C).6804, 12165 and 12885 of 2021 6 W.P(C).No.6804 of 2021, provisional pension was fixed by Ext.P19 dated 23.09.2020. By Ext.P22 dated 07.01.2021, a sum of Rs.12,54,680/- was proposed to be recovered from the writ petitioner. In the case of the writ petitioner in W.P(C).No.12165 of 2021, pay was fixed after rectification of anomalies by Ext.P13 order on 04.02.2020. Ext.P14 therein was a statement for recovery of a sum of Rs.6,26,014/-. In W.P(C).No.12885 of 2021, by Ext.P15 therein dated 02.03.2021, provisional pension was fixed. By Ext.P16 dated 21.01.2021, recovery was proposed for a sum of Rs.3,15,288/-. 5. Aggrieved by the recovery proceedings, writ petitioners have approached this Court by filing the above writ petitions. The reliefs sought in the writ petitions were to quash the proceedings of the RCC dated 05.12.2016, proceedings of the RCC fixing the statement, proceedings of RCC, by which, amounts were ordered to be paid and recovery was sought to be deducted and finally, provisional settlement of amounts due and ordering recovery of the amounts from the concerned writ petitioners. 6. Respondents appeared for the RCC and filed separate counter affidavits. It was stated in the counter affidavit that, on the introduction of Sree Chitra Thirunal Institute for Medical Sciences and Technology Scales, One Man Commission prescribed scale of pay. Though each of the petitioners were entitled for lesser pay, the pay was W.P(C).6804, 12165 and 12885 of 2021 7 wrongly fixed by treating an invalid scale sanctioned by the Director. It was stated that the introduction of the time bound grade on the basis of the decision of the executive committee was without Government permission and ultra vires the power of the executive committee and hence not legally valid. Time bound grade sanctioned to the petitioners by the Director without common sanction was not legally correct. The Three Men Committee, that was constituted, found that the pay scale was wrongly fixed in the case of employees and the Government directed RCC to rectify all irregularities pointed out by the Three Men Committee. The pay scales were fixed and attempts were made to recover the excess amount paid to them by various proceedings. This faced stiff opposition from the employees who did not permit recovery of any nature. Hence, it could not immediately be enforced. The Government later directed the RCC to rectify the irregularity and to recover the money. Hence, the process which was initiated much earlier could not be taken to its logical conclusion because of the stiff resistance from the employees. The claim challenging the above proceeding was not sustainable, it was contended. 7. Heard the learned counsel for the petitioners, learned counsel for the respondents and the learned Government Pleader. 8. There is no dispute that, there is anomaly occurred. Essentially, anomaly occurred due to the introduction of the pay scale W.P(C).6804, 12165 and 12885 of 2021 8 on the basis of a decision taken by the administrative committee. However, it is evident that, it did not have legal sanction. 9. This was pointed out by the Three Men Committee, which was accepted by the Government. There are several documents before this Court, which indicate that, the issue arose due to the implementation of the order of the Director without consent. Even though it was vehemently contended by the learned counsel for the respondents that the petitioners were aware that, they were drawing salary at wrong rate, there is nothing on record to indicate whether the decision of the Director was sanctioned without the sanction of the Government was within the knowledge of the petitioners. Normally, it is not a factor which should within the knowledge of the employees. There is also nothing on record to show that, at any point of time, employees were informed about the excess payment and necessary bond should be executed by them. 10. In fact, learned counsel for the respondents heavily relied on the bond executed by each of the writ petitioners which were produced along with the counter affidavit. It seems that, in the case of writ petitioner in W.P(C).No.12165 of 2021, though, the petitioner retired on 31.05.2019, an undertaking was got obtained by her thereafter on 07.11.2019. The pay fixation was much thereafter on 04.02.2020. On the other hand, in the case of writ petitioner in W.P(C).No.12885 of W.P(C).6804, 12165 and 12885 of 2021 9 2021, though the writ petitioner therein retired on 31.05.2020, bond was executed on 11.05.2020 prior to her retirement. However, the provisional pension was passed on 02.03.2021. 11. Vehemently opposing the prayers, learned counsel for the respondents contended that, petitioners were drawing salary on a wrong pay scale, which had no sanction of law. The fact that, they were drawing excess salary was within their knowledge. Even though, proceedings for recovery were initiated much earlier, there were strong opposition from the petitioners, which led to a stalemate. However, as mentioned earlier, this is not substantiated by any material. On the other hand, it seems that, provisional pension was fixed after the retirement and calculations were also made much after the retirement. 12. The learned counsel for the petitioners vehemently relied on the decision of the Honourable Supreme Court in **Stae of Punjab and Others v. Rafiq Masih (White Washer) [2014 KHC 4488]** and **State of Punjab and Others v. Rafiq Masih (White Washer) [2014 KHC 4818]** . 13. In the above cases, the supreme court laid down instances, wherein, recovery of payments made mistakenly by the employer in excess of their entitlement, will not be possible in specified cases mentioned therein. In clause (ii) it was stated that the recovery from retired employees or who are due to retire within one year of the order W.P(C).6804, 12165 and 12885 of 2021 10 of recovery cannot be made. It seems that, the above decision was subject matter of a subsequent decision in **High Court of Punjab and Haryana and Others v. Jagdev Singh [2016 KHC 6515]** wherein, the Supreme Court held that, though it approved the **White Washer's** case, it was noticed that the **White Washer** may not apply in that case, since the officer to whom the payment was made at the first instance was clearly placed on notice that, any payment found to have made in excess would have to be refunded. The officer also furnished an undertaking while opting for the revised pay scale. It was held that, in the light of that undertaking, he was bound by the undertaking. 14. Even though in these cases also, RCC was relying on certain affirmations made by the concerned employees, it cannot come to the help of RCC. It seems that, at no point of time of introducing the scheme, management put the employees to notice that, in case of excess payment, it would have been returned. In fact, the payment of excess payment, if any, as alleged, continued for some time and only much later, it was noticed that, there was excess payment. Even the recovery proceedings were initiated after the retirement of the concerned employees. Having considered this, I am inclined to allow these writ petitions. It is declared that the first respondent/RCC is not entitled to recover the excess amount allegedly paid to the petitioner by virtue of Ext.P22 in W.P(C).No. 6804 of 2021, Ext.P14 in W.P(C).6804, 12165 and 12885 of 2021 11 W.P(C).No.12165 of 2021 and Ext.P15 in W.P(C).No.12885 of 2021. Writ Petitions are allowed to the above extent. Sd/- **SUNIL THOMAS** **JUDGE** Sbna/ W.P(C).6804, 12165 and 12885 of 2021 12 ## **APPENDIX OF WP(C) 12165/2021** - PETITIONER EXHIBITS Exhibit P1 PHOTOCOPY OF PPO ON REPORT DATED 30-10-2019 Exhibit P2 PHOTOCOPY OF G.O.(MS)NO.148/2000/H&FWD DATED 17-6-2000 - Exhibit P3 PHOTOCOPY OF G.O.(MS)NO.382/2009 H&FWD DATED 30.11.2009 - Exhibit P4 PHOTOCOPY OF 1ST RESPONDENT PAY FIX ORDER DATED 02.12.2009 - Exhibit P5 PHOTOCOPY OF 1ST RESPONDENT'S PAY FIX ORDER DATED 18.12.2010 - Exhibit P6 PHOTOCOPY OF PROMOTION ORDER DATED 18-42012 - Exhibit P7 PHOTOCOPY OF 1ST RESPONDENT'S PAY FIX ORDER DATED 29.8.2013 - Exhibit P8 PHOTOCOPY OF G.O.(MS)NO.11/2014 DATED 08.01.2014. - Exhibit P9 PHOTOCOPY OF PAY FIXATION ORDER NO.1086/PAY REVISION/FIN-C/2016/RCC DATED 31.5.2016 - Exhibit P10 PHOTOCOPY OF PAY FIX ORDER NO.1086/FINC/2016/RCC DATED 22-7-2016 - Exhibit P11 PHOTOCOPY OF PROMOTION ORDER DATED 05.02.2018 - Exhibit P12 PHOTOCOPY OF REPRESENTATION DATED 30.11.2020 TO 1ST RESPONDENT - Exhibit P13 PHOTOCOPY OF REVISED PAY FIXATION ORDER NO.1086/PAY FIXATIO-REVISED/FIIN C/2020/RCC DT 04.02.2020 W.P(C).6804, 12165 and 12885 of 2021 13 Exhibit P14 PHOTOCOPY OF RECOVERY STATEMENT DATED 04.07.2020 Exhibit P15 PHOTOCOPY OF ORDER/NOTE NO.RCC/592/2020FIN-E DATED 13-7-2020 FOR RECOVERY Exhibit P16 PHOTOCOPY OF ORDER/NOTE NO.RCC/592/2020FIN-E DATED13-7-2020. W.P(C).6804, 12165 and 12885 of 2021 14 ## **APPENDIX OF WP(C) 12885/2021** PETITIONER EXHIBITS Exhibit P1 PHOTOCOPY OF G.O(MS) NO.148/2000/H & FWD DATED 17.6.2000 Exhibit P2 PHOTOCOPY OF PROMOTION ORDER DATED 03.5.2001 Exhibit P3 PHOTOCOPY OF PROMOTION ORDER DATED 23.6.2001 Exhibit P4 PHOTOCOPY OF G.O.(MS) NO.382/2009/H & FWD DATED 03.11.2009 Exhibit P5 PHOTOCOPY OF PROMOTION ORDER DATED 17.12.2008 Exhibit P6 PHOTOCOPY OF PROMOTION ORDER DATED 15.6.2012 Exhibit P7 PHOTOCOPY OF G.O (MS) 11/2014 DATED 08.01.2014 Exhibit P8 PHOTOCOPY OF PAY FIXATION ORDER NO.1085/PAY REVISION/2014/FIN-C DATED 30.12.2014 Exhibit P9 PHOTOCOPY OF REVERSION ORDER NO.786/IIIFCP/HN/2017/ADMN.VI/RCC DATED 11.01.2018 Exhibit P10 PHOTOCOPY OF REVERSION ORDER NO.786/IIIFCP/HN/2017/ADMN.VI/RCC DATED 11.05.2018 Exhibit P11 PHOTOCOPY OF PAY FIXATION ORDER NO.1085/FIN-C/FCP III/2018/RCC DATED 23.5.2018 Exhibit P12 PHOTOCOPY OF PAY FIXATION ORDER NO.1085/FIN-C/FCP III/2018/RCC DATED W.P(C).6804, 12165 and 12885 of 2021 15 23.5.2018 Exhibit P13 PHOTOCOPY OF PPO ON REPORT DATED 11.6.2020 Exhibit P14 PHOTOCOPY OF PAY FIXATION ORDER NO.RCC/819/2020-FIN C DATED 02.01.2021 Exhibit P15 PHOTOCOPY OF REDUCED PPO ON EXT P14 DATED 02.01.2021 Exhibit P16 PHOTOCOPY OF DCRG ORDER/NOTE NO.RCC/819/2020-FIN-E DATED 21.01.2021 Exhibit P17 PHOTOCOPY OF ORDER/NOTE NO.RCC/811/2020FIN-E DATED 21.01.2021 W.P(C).6804, 12165 and 12885 of 2021 16 ## **APPENDIX OF WP(C) 6804/2021** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|PHOTOCOPY OF PROVISIONAL PENSION ORDER| ||DATED NIL AND ISSUED IN JUNE 2020.| |EXHIBIT P2|PHOTOCOPY OF PETITIONERS REPRESENTATION| ||DATED 28.09.2020 TO 1ST RESPONDENT.| |EXHIBIT P3|PHOTOCOPY OF PROMOTION ORDER DATED| ||21.01.1991.| |EXHIBIT P4|PHOTOCOPY OF PROMOTION ORDER DATED| ||18.05.1994.| |EXHIBIT P5|PHOTOCOPY OF CIRCULAR DATED 18.05.1994.| |EXHIBIT P6|PHOTOCOPY OF GRADE PROMOTION ORDER NO.67/96| ||DATED NIL 1996.| |EXHIBIT P7|PHOTOCOPY OF G.O(MS)NO.148/2000/H&FWD DATED| ||17.06.2000.| |EXHIBIT P8|PHOTOCOPY OF 1ST RESPONDENTS PAY REVISION| ||ORDER NO.5270/FD/RCC DATED 28.07.2000.| |EXHIBIT P9|PHOTOCOPY OF PETITIONERS PAY FIXATION ORDER| ||DATED 14.11.2000 WITH SERVICE BOOK ENTRY.| |EXHIBIT P10|PHOTOCOPY OF III FCP ORDER NO.786/PROM/2006| ||DATED 31.01.2006 BY R1.| |EXHIBIT P11|PHOTOCOPY OF THE PAY FIXATION ORDER DATED| ||03.04.2006.| |EXHIBIT P12|PHOTOCOPY OF G.O.(MS)11/2014 DATED| ||08.04.2014.| |EXHIBIT P13|PHOTOCOPY OF 1ST RESPONDENTS ORDER| ||NO.1112ADMN.IV/2016/RCC DATED 05.12.2016.| |EXHIBIT P14|PHOTOCOPY OF G.O(MS)NO.382/2009 H & FWD| W.P(C).6804, 12165 and 12885 of 2021 17 DATED 03.11.2009. EXHIBIT P14(A) PHOTOCOPY OF PAY FIXATION ORDER DATED 01.12.2009. - EXHIBIT P15 PHOTOCOPY OF 1ST RESPONDENTS REPORT DATED 07.02.2017 TO 2ND RESPONDENT. - EXHIBIT P16 PHOTOCOPY OF 1ST RESPONDENTS REPORT DATED 14.01.2020 TO 2ND RESPONDENT. EXHIBIT P17 PHOTOCOPY OF 2ND RESPONDENTS LETTER DATED 06.09.2020. - EXHIBIT P18 PHOTOCOPY OF REPRESENTATION DATED 11.11.2020 TO THE 1ST RESPONDENT & AD. - EXHIBIT P19 PHOTOCOPY OF PROVISIONAL PAY FIXATION ORDER NO.RCC/769/2020/FIN C DATED 23.09.2020. - EXHIBIT P20 PHOTOCOPY OF NOTE NO.RCC/769/2020-FIN-E DATED 02.01.2021 FOR RETIREMENT GRATUITY. - EXHIBIT P21 PHOTOCOPY OF NOTE NO.RCC/592/2020-FIN-E DATED 02.01.2021 FOR LEAVE SURRENDER. - EXHIBIT P22 PHOTOCOPY OF 1ST RESPONDENTS RECOVERY STATEMENT DATED 07.01.2021. - EXHIBIT P23 PHOTOCOPY OF GO(MS)NO.76/2021/H&FWD DATED 26.02.2021.