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2002 DIGILAW 685 (KER)

P. Jayasree v. State of Kerala

2002-10-18

G.SIVARAJAN

body2002
Judgment :- The question that arises for consideration in this case is as to whether the pay drawn by the petitioners while in the High Court service as Assistant Grade I can be reckoned for the purpose of fixing their pay in the post of Assistant Grade II on their appointment as such in the Government Secretariat pursuant to the advise made by the Kerala Public Service Commission. To put it briefly, the question is as to the scope and applicability of Rule 37 (b) of Part I of the Kerala Service Rules (for short "the K.S.R."). 2. Both the petitioners were initially appointed as Assistant Grade II in the High Court of Kerala on 10-2-1986 and 4-10-1985 respectively. They were also promoted as Assistant Grade I on 16-12-1988 and on 11-1-1988 respectively. While continuing as such they applied to the post of Assistant Grade II in the Secretariat. Pursuant to the advise made by the Public Service Commission the petitioners were appointed as Assistant Grade II in the Secretariat and they joined the Secretariat Service on 30-6-1990 and 7-7-1988 respectively. The scale of pay of Assistant Grade II and Assistant Grade I in the High Court service is the same as in the Secretariat service. Their pay in the post of Assistant Grade II un the Secretariat Service was fixed in terms of Rule 37(b) of Part I Kerala Service Rules. The petitioners were subsequently promoted as Assistant Grade I in the Secretariat service in October 1992 and in December, 1990 respectively. While so the Accountant General. Kerala (second respondent herein) on conducting audit in the Secretariat noted in enquiry report Nos. 29 and 22 respectively (Exts. P1 and P2) that the fixation of the petitioners" pay in the post of Assistant Grade II in the Secretariat was irregular. Based on the audit report the petitioners were asked to file their objections and they submitted Exts.P3 and P4 replies respectively. The first respondent Government, however as per orders dated 28-5-1993(Exts P5 and P6) respectively took the view that the employees of the High Court are not under the control of the State Government and therefore their service cannot be considered as Government service. The first respondent Government, however as per orders dated 28-5-1993(Exts P5 and P6) respectively took the view that the employees of the High Court are not under the control of the State Government and therefore their service cannot be considered as Government service. It was accordingly held that the pay protection allowed to the petitioners in the post of Assistant Grade II in the Government Secretariat by applying Rule 37(b) of K.S.R. taking into account the service rendered in the High Court as Government service is not correct. The excess pay drawn on account of wrong fixation in leave salary, promotion, increments, etc. have been worked out which came to Rs.17,692/- in the case of the first petitioner and Rs.23,373/- in the case of the second petitioner. It was also ordered that the said amount will be recovered in 58 monthly instatlments at the rate of Rs.300/- in the case of the first petitioner and Rs.400/- in the case of second petitioner. Petitioners being aggrieved by Exts. P5 and P6 memos have filed this original petition. 3. The stand taken by the petitioners is that the service in the High Court and the service in the Secretariat are public service and service in the affairs of the state; the appointments to the High Court Service are made by the Hon'ble the Chief Justice of the High Court; consultation with the Public Service commission is obligatory only if the Governor specifies so by rules to that effect; the Governor of the State has not made any rule for consultation with the Public Service Commission; the pay and allowances, pension, etc. payable to the servants of the High Court is charged upon consolidated fund of the State and any rule with regard to the pay and allowance shall have the approval of the Governor of the State. It is also their case that the staff pattern is also the same, that the rates of pay are also governed by the same recommendations of State Pay Commission and therefore the conditions of service with regard to pay fixation, rate of pay, etc. are one and the same for the High Court staff and the State Secretariat. 4. The first respondent Government has filed a counter affidavit. are one and the same for the High Court staff and the State Secretariat. 4. The first respondent Government has filed a counter affidavit. Apart from denying certain dates of promotion it is stated that the decision in Chief Justice, A.P. v. L.V.Dikshitulu (AIR 1979 SC 193) held that members of the staff of the High Court are members of the civil service of a State with in the purview of Articles 310(1) and 311(1) "but not persons" serving under the Government of a State within the meaning of Article 320(3)(c). It is further stated that under Article 309 of the Constitution the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to a public service and posts in connection with the affairs of Union or of any State whereas under clause (2) of Article 229 the Chief Justice is the sole authority for fixing the salaries etc. and of controlling the High Court employees. The employees of the High Court are thus taken away from the purview of Article 309. It is stated that the employees of the High Court are not under the control of the Government and hence their services in the High Court cannot be considered as Government service. It is further stated that appointment and other service conditions of the staff of High Court are governed by the High Court Service Rules whereas the personnel in the Government Service are governed by the Kerala State and Subordinate Services Rules. The scale of pay of Assistant Grade II in the Secretariat in Rs 865-1450/- and the basic pay is fixed at Rs. 950/-on initial appointment. But the pay of the petitioners was wrongly fixed at Rs. 1190/- on 30-6-1990 and at Rs. 820/- on 7-7-1988 respectively and that the mistake could be detected only while the audit party has pointed out the same. 950/-on initial appointment. But the pay of the petitioners was wrongly fixed at Rs. 1190/- on 30-6-1990 and at Rs. 820/- on 7-7-1988 respectively and that the mistake could be detected only while the audit party has pointed out the same. It is pointed out that the benefit under rule 37(b) part I K.S.R. is available only to such persons working in other departments under the State Government; if a person officiating in a post under the State Government service is appointed to another post carrying a higher time scale, his pay is fixed as per Rule 37(b) part I K.S.R., that the fixating given in the case of the petitioners was not in order since they were working in the service of the High Court, outside the control of the state Government and that there are no rules or orders enabling service in the High Court or autonomous bodies to be reckoned as Government service. 5. Sri. K.A.Abraham, learned counsel for the petitioners, based on the averments made in the original petition, contended that High Court service is also civil service of the State and therefore when they are appointed as Assistant Grade II in the Government Secretariat the pay drawn by them in the post Assistant Grade I in the High Court service has to be to the reckoned for fixation of pay in the post Assistant Grade I in the High Court service has to be reckoned for fixation of pay in the post of Assistant Grade II in the Government Secretariat and to protect the difference as personal pay. The counsel further submitted that at any rate, even if the fixation under Rule 37(b) of Part I K.S.R. is made erroneously since the same was not on account of any suppression of fact or misrepresentation by the petitioners the benefits already obtained cannot be taken away retrospectively. 6. Learned Government Pleader for respondents submitted that the High Court service and the Government service are two different services and that the High Court service can never be treated as Government service for applying the provisions of K.S.R. on its own force. 6. Learned Government Pleader for respondents submitted that the High Court service and the Government service are two different services and that the High Court service can never be treated as Government service for applying the provisions of K.S.R. on its own force. He further submitted that though the High Court service is also a part of the civil service of the State within the purview of Articles 310 and 311(i) it cannot be treated as Government service within the meaning of Article 320 (iii) (c) and further that the High Court service is outside the purview of Article 309 of the Constitution. The Government Pleader accordingly submitted that Rule 37(b) of Part I K.S.R. has no application and that the fixation of pay made by the first respondent in the post of Assistant Grade II in the Secretariat is erroneous and is liable to be set right. 7. In order to appreciate the rival contentions made by the parties, it is necessary to refer to the relevant provisions of the Kerala Service Rules. Part I of the Kerala Service Rules deals with pay, leave, joining time etc.. Rule 2 of part I K.S.R. provides that subject to the provisions of Rule 3 the rules shall apply to every person in the whole time employment of the Government (except contingent and work establishment). Rule 3 of part I K.S.R. specifically says that these rules shall not apply to (a) persons for whose appointment and conditions of employment special provision is made by or under any law for the time being in force and (b) persons in respect of whose conditions of service, pay and allowances, pension, leave or any of them, special provision has been made by agreement entered into before these rules were made or entered into thereafter in pursuance of the provisions of Rule 8. The proviso thereto says that in respect of any matter not covered by the provisions special to him, his service or his post, these rules shall apply to any person coming within the scope of clauses (a) and (b) above, to whom but for those clauses the rule would otherwise apply. The proviso thereto says that in respect of any matter not covered by the provisions special to him, his service or his post, these rules shall apply to any person coming within the scope of clauses (a) and (b) above, to whom but for those clauses the rule would otherwise apply. Rule 37 of Part I K.S.R. clause (b) thereof says that in the case of officiating appointments other than those contemplated in the above rule, the officer's officiating pay in the new appointment shall be fixed at his officiating pay in the previous appointment if it is a stage in the new scale or at the next lower stage, if it is not a stage in the new scale, the difference being treated as personal pay to be absorbed in future increases. It is manifest from the provisions of files 2 and 3 of Part I K.S.R. that the K.S.R. supplies on its own force only to whole time Government servants excepting those in contingent and work establishment and that in respect of those Government servants for whose appointment and conditions of employment special provisions is made by or under any law for the time being in force K.S.R. will not apply. The provisions of rule 37 of Part I K.S.R. construed in the background of the provisions of Rules 2 and 3 thereof leaves no doubt that it will apply only in a case where a Government servant holding a permanent or officiating post is appointed to another post in the Government service. 8. The petitioners were admittedly working as Assistant Grade I in the High Court service at the time of their appointment to the Government service - the Government Secretariat service on the advice of the Kerala Public Service Commission. The service conditions of the members of the Kerala High Court Service are governed by the provisions of the Kerala High Court Service Rules issued by the Hon'ble the Chief Justice under Article 229 of the Constitution of India with the approval of the Governor of Kerala so far as the Rules relating to salaries, allowances, leave and pension. The appointment, promotion, disciplinary proceedings, etc. of a member of the said service are made in accordance with the aforesaid Rules. The Chief Justice is the head of the department as regards the members of the service. The appointment, promotion, disciplinary proceedings, etc. of a member of the said service are made in accordance with the aforesaid Rules. The Chief Justice is the head of the department as regards the members of the service. The State Government has no control over the matters covered by the Rules issued by the Chief Justice. Rule 35 of the said Rules provides, inter alia. that the Kerala service Rules, the Government Servants" Conduct Rules and the Rules regulating the pay of the services for the time being in force applicable to the officers under the rule making control of the Governor or Government of Kerala as the case may be, shall subject to these rules, govern the members of the service in the matter of their pay, allowances, leave, leave salary, pension and other conditions of service. It also provides that except with regard to salaries, allowances, leave and pension, the Chief Justice shall exercise the powers vested in the Governor, or the Government under any of the aforesaid rules. It further provides that the Chief Justice shall specifically issue orders sanctioning the grant of the scales of pay and allowances to the members of the service in accordance with those sanctioned by the Government. 9. From the aforesaid provisions of the High Court Service Rules 1970 it is clear that so far as the members of the High Court services are concerned their conditions of service, pay and allowances, pension, leave or any of them are governed by the provisions of the Kerala High Court Service Rules. It is also clear that the Kerala Service Rules issued by the Governor in exercise of the powers vested in him under Article 309 of the Constitution is not applicable to the members of the High Court Service on its own force. The provisions of the Kerala Service Rules, Kerala State and subordinate services Rules, Government Servants" Rules etc. are made applicable to the members of the High Court Service only by adoption of the said Rules by Rule 35 of the Kerala High Court Service Rules. In other words, the Kerala Service Rules in its own force has no application to the members of the High Court Service and that it is only by virtue of Rule 35 of the Kerala High Court Service Rules the provisions of the Kerala Service Rules apply to the said members. In other words, the Kerala Service Rules in its own force has no application to the members of the High Court Service and that it is only by virtue of Rule 35 of the Kerala High Court Service Rules the provisions of the Kerala Service Rules apply to the said members. This being the position in law Rules 37(b) of art I K.S.R. will not apply to the members of the Kerala High Court service when they are appointed in the services of the State Government on the advice of the Kerala Public Service Commission. 10. The contention of the petitioners, as already noted, is that the qualification prescribed for appointment to the post of Assistant Grade II in the High Court Service and to the post of Assistant Grade II in the Government Secretariat are one and the same, viz., graduation, that the scales of pay of the said two posts are also identical, that both the members of the High Court service and the members of the Secretariat service are governed by the provision of the Kerala Service Rules and that the members of the High Court Service are also holding public offices and as such they are persons appointed to public service and posts in connection with the affairs of the State. 11. The Supreme Court in Chief Justice, A.P. v. L.V.A. Dikshitulu (AIR 1979 SC 193) in the context of the provisions of Article 371-D, clause (3), sub clauses (a), (b), (c) and the provisions of the Andhra Pradesh Administrative Tribunal Order 1975 D/-19-5-1975 considered the question as to whether the phrase "Civil Service of the State" will take in the members of the staff of the High Court or of the Subordinate Judiciary and held that the posts held by the High Court staff or by the Subordinate Judiciary were advisedly excluded from the purview of clause(3) of Article 371-D. So there is no merit in the contention of the petitioners that the members of the High Court Service have to be treated as members of the civil service of the State. 12. As already noted the provisions of the Kerala Service Rules by its own force apply only to Government Servants. The members of the High Court Service can never be treated as members of the Government service. 12. As already noted the provisions of the Kerala Service Rules by its own force apply only to Government Servants. The members of the High Court Service can never be treated as members of the Government service. The provisions of the Kerala Service Rules have been made applicable to the members of the Government service. The provisions of the Kerala Service Rules have been made applicable to the members of the High Court Service only by Rule 35 of the Kerala High Court Service Rules issued by the Chief Justice. In order to apply Rule 37 (a) and (b) of Part I K.S.R. the appointments contemplated therein must be from one post in the Government service to another post in the Government service. Admittedly the said situation did not arise in this case. As such the first respondent was not justified in fixing the pay of the petitioners on their appointments as Assistant Grade II in the Government Secretariat on the advice of the Kerala Public Service Commission by supplying Rule 37(b) of Part I K.S.R. 13. In the instant case the first respondent has applied the provisions of Rule 37(b) of Part I K.S.R. while fixing the pay of the petitioners in the post of Assistant Grade II in the Secretariat and had protected the difference in the pay as personal pay by reckoning the salary drawn by the petitioners while in the service of the High Court. The petitioners were also availing the benefits of such fixation from 30-6-1990 and 7-7-1988 respectively till is was withdrawn as per order dated 28-5-1993 (vide Exts. P5 and Ext.P6). Petitioners by then had drawn Rs. 17,692/- and Rs. 23,373/- respectively as excess pay. Here, it must be noted that the first respondent happened to issue the impugned orders only on the basis of the mistake pointed out by the second respondent in his audit report (Enquiry report Nos. 29 and 22). P5 and Ext.P6). Petitioners by then had drawn Rs. 17,692/- and Rs. 23,373/- respectively as excess pay. Here, it must be noted that the first respondent happened to issue the impugned orders only on the basis of the mistake pointed out by the second respondent in his audit report (Enquiry report Nos. 29 and 22). The contention of the petitioners is that even if the fixation of the pay made by applying the provisions of Rule 37(b) of Part I K.S.R. is found to be erroneous having regard to the fact that such fixation was made bona fide by the first respondent applying Rule 37(a) of Part I K.S.R. and since the petitioners did not contribute anything in the formation of such belief by the first respondent the benefits which they had availed cannot be taken away at a distance time by recovering the excess payment already made. This court. This court in Stantley v. State of Kerala (2002(2) KLT 431) had occasion to consider a similar situation. The petitioners in that case were working as teachers in Government schools. Prior to the commencement of the Government service they had approved service in aided school. That service was not counted for increment to be drawn in Government service. The petitioners made representation before the Government pointing out a Government order by which the Government permitted grant of service benefits taking into account the service put in aided schools. The Government informed that the said order was later cancelled. The Government directed recovery of the amount drawn illegally. The petitioner challenged the same in the writ petition. This court observed that the increment payable in a particular time scale for Government servant is governed by Rules 31, 32 and 33 of Part I of Kerala Service Rules, that the said Rules do not provide for counting of aided school service for granting increment after commencement of Government service in the respective time scale and that no rule is pointed out to enable such counting of service rendered in aided school. The court held that increment is a financial benefit payable to a servant from the public exchequer that it can be granted only if law permits, that the provisions of Rules 31,32 and 33 of Part I K.S.R. do not allow to reckon the aided school service for the purpose of grant of increment after commencement of Government service, that naturally no amount can be drawn by the petitioners from the public exchequer when the rule does not permit and that merely because Government committed irregularity by passing the orders, petitioners do not get any right nor can they contend that there is discrimination. How the court observed that the amount, if any, paid on misunderstanding of the provisions by the authorities cannot be recovered. 14. In the present case also the petitioners were paid amounts in excess of their entitlement by the wrong fixation of their pay in the post of Assistant Grade II in the Secretariat reckoning the pay drawn by them while in the High Court service. This is highly irregular and illegal since the provisions of Part I K.S.R. in the matter of fixation of pay did not apply to the case on hand. Therefore the orders at Exts. P5 and P6, in so far as the first respondent has taken the view that the pay protection allowed in the post of Asst. Grade II in the Secretariat to both the petitioners as per Rule 37(b) Part I K.S.R. taking into account the service rendered in the High Court as Government service rendered in the High Court as Government service is not correct are valid and justified and no interference is called for. Similarly the direction that the pay of the petitioners is modified in accordance with the instructions contained in the audit objections is also justified and calls for no interference. 15. However, it is noticed that this court and the Supreme Court are taking the view that in cases where it is found that erroneous excess payments happened to be made bona fide but by wrong interpretation / understanding of a statutory provision/Government order and not on account of any mis-representation made by the concerned employee the excess amount paid till the date of the rectification order may not be recovered. 16. 16. This court in Aleyamma v. Dy.Director of Education (O.P.No. 4792 of 1980 judgment dated 15-6-1982)(1982 KLT SN 45 (Case No. 70) was concerned with the case of a teacher who was sanctioned higher scale of pay by the competent officer on a wrong understanding of the relevant Government orders. The court noticed that the order was made by the competent officer, bona fide, the petitioner did not supply any wrong information on the basis of which the officer was misled and both the parties have acted bona fide at all times. In the above circumstances, it was held that to be called upon to refund amounts paid in terms of an order made by a competent officer particularly after a lapse of several years, not only causes hardship but it is in principle unjust and wrong. It was also observed that every person has to right to place his trust in orders made by a competent authority unless the order is vitiated by fraud or interest in favour of the third parties are adversely affected. Similar views have been taken by this count in Mohammedkutty v. State of Kerala (1989 (2) KLT 155), Mohan v. Strate of Kerala (1991(2) KLT SN 22 (Case No.33) and in the decision in Stantley's case discussed earlier. The Supreme Court also in Sahib Ram v. State of Haryana and others(1995 Suppl.(1) SCC18) observed that the principal of the college where the appellant was working as a Librarian allowed him revised pay scale purporting to act under a Government order. The Government directed the principal to withdraw the said scale of pay. While rejecting the challenge against the said order the Supreme Court noted that since the date of relaxation the appellant had been paid his salary on the revised scale and observed as follows: "However, it is not on account of any mis-representation made by the appellant that the appellant that the benefit of the higher pay scale was given to him but by wrong constitution 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." 17. Following the principles laid down in the said decisions, whole upholding Exts. Under the circumstances the amount paid till date may not be recovered from the appellant." 17. Following the principles laid down in the said decisions, whole upholding Exts. P5 and P6 memos of the first respondent I direct the respondents not to recover the excess payment made till the date of the said memos from them salary of the petitioners. However, the respondents are free to recover excess payment, if any, made thereafter from the salary of the petitioners in which case the first respondent will grant some instalment facility. The original petition is allowed to the above extent.