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2018 DIGILAW 572 (KER)

Jaya v. , W/o Sathyarajan VS State of Kerala

2018-07-16

A.M.BABU, C.T.RAVIKUMAR

body2018
JUDGMENT : RAVIKUMAR, J. 1. This Original Petition carries a challenge against the order dated 25.9.2012 in O.A.1451/2012 passed by the Kerala Administrative Tribunal. The petitioner herein was the applicant therein. The OA was filed seeking to set aside Annexures-A11 and A14 and also the following reliefs :- (i).To declare that the applicant is entitled to get her pay fixed in the post of Assistant Professor (redesignated as Associate Professor) with effect from 7.8.2007. (ii).To declare that the exception to Rule 23(a) Part I KSR is unconstitutional, illegal and ab initio void. (iii).To issue a direction to the respondents to treat the applicant on probation in the post of Associate Professor with effect from 7.8.2007 and declare her probation on the basis of that. (iv).To issue a direction to the respondents to fix the pay of the applicant in the post of Associate Professor with effect from 7.8.2007 and disburse all consequential benefits on the basis of that. 2. As can be seen from the reliefs sought for, as extracted above, the petitioner had also challenged the constitutionality of Exception given under Rule 23(a) of Part I of the Kerala Service Rules (for short 'KSR'). The said challenge was repelled and the Tribunal found no merits in the OA and consequentially dismissed it. It is in the said circumstances that this Original Petition is filed. 3. We have heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 4. A narration of the facts is necessary for a proper disposal of this Original Petition. The petitioner is an Assistant Professor in Civil Engineering under the Technical Education Department. She commenced her career as a Senior lecturer and thereafter she was promoted as Assistant Professor w.e.f. 7.8.2007. Though she was promoted w.e.f 7.8.2007, she could not join duty on 7.8.2007 as at that relevant period she was on deputation viz, doing Ph.D under the Quality Improvement Programme (QIP) in the Institute of Technology, Madras. She could join duty in the promoted post only on 25.8.2008. Immediately on her joining duty in the cadre of Assistant Professor the Accountant General, the 4th respondent requested the Director of Technical Education, the 2nd respondent to intimate the date from which the immediate junior of the appellant joined in the Department so as to fix her pay in the promoted post, as per Annexure-A8 (in Ext.P2 herein). Immediately on her joining duty in the cadre of Assistant Professor the Accountant General, the 4th respondent requested the Director of Technical Education, the 2nd respondent to intimate the date from which the immediate junior of the appellant joined in the Department so as to fix her pay in the promoted post, as per Annexure-A8 (in Ext.P2 herein). It was also requested to take action to regularise the absence of the appellant from 29.7.2008 to 24.8.2008. Thereafter the 4th respondent fixed the pay of the appellant in the post of Assistant Professor from 7.8.2007, as per Annexure-A9 (in Ext.P2) though she had not joined duty on 7.8.2007. While so, the 2nd respondent, as per communication dated 30.9.2010 directed the appellant to correct the performa submitted for declaration of probation by changing the date of joining the post of Assistant Professor given by her as 7.8.2007 to 25.8.2008. In such circumstances, the appellant submitted Annexure- A10 (in Ext.P2) before the first respondent requesting to consider 7.8.2007 as her date of joining the post of Assistant Professor for the purchase of declaration of probation. Later, by Annexure-A11 (in Ext.P2 herein) communication she was informed that she was eligible for fixation of pay in the promoted post of Assistant Professor only with effect from the date on which she had actually assumed charge in the said post. Pursuant to Annexure-A11 the appellant submitted Annexure- A13 representation to the first respondent. Consequently, Government had issued Annexure-A14 intimating the petitioner that she would not be entitled to get the benefit of Exception under Rule 23(a) of Part-I KSR as in between the relevant period, viz. 7.8.2007 to 25.8.2008 none of her juniors was promoted and joined duty in the cadre of Assistant Professor. As noticed hereinbefore, it is feeling aggrieved by Annexures A11 and A14 (in Ext.P2 herein) that the above mentioned OA was filed and it was dismissed as per Ext.P3 order dated 25.9.2012. Nonetheless, Ext.P3 itself would reveal that after ordering for its dismissal O.A.No.1451/2012 was again posted in the list 'to be spoken to' on 8.10.2012, at the instance of the appellant herein. After hearing the appellant on 8.10.2012 the Tribunal ordered thus :- “The appellant brought to our notice that though she has been promoted as Assistant Professor with effect from 7.8.2007, she apprehends that she may not get seniority in that cadre with effect from the said date. After hearing the appellant on 8.10.2012 the Tribunal ordered thus :- “The appellant brought to our notice that though she has been promoted as Assistant Professor with effect from 7.8.2007, she apprehends that she may not get seniority in that cadre with effect from the said date. This apprehension is voiced relying on Annexure-A16 proceedings of the Accountant General wherein it is stated that the date of promotion as Assistant Professor is postponed to 25.8.2008”. 5. Evidently, paragraph 2 of the order dated 8.10.2012 would reveal that the appellant herein had voiced an apprehension that she might not get seniority in the cadre of Assistant Professor with effect from 7.8.2007 based on Annexure-A16 proceedings of the 4th respondent carrying a statement to the effect that the date of promotion of the appellant as Assistant Professor was postponed to 25.8.2008. 6. In the contextual situation, we may hasten to add that we could not find any document marked as Annexure-A16. Ext.P2 is the copy of the O.A.No.1451/2012 and going by the same, the documents produced therewith were marked as Annexures-A1 to A15, before the Tribunal. At the same time paragraph 13 of Ext.P3 order dated 8.10.2012 would reveal that the Tribunal had declared that the statement made by the Accountant General's office in Annexure-A16 dated 12.9.2012 that the appellant's promotion as Assistant Professor was posted to 25.8.2008 would not affect her rights as only the appointing authority has got the power to prepone or postpone promotion granted to the appellant. After making such a declaration it is further stated thus :- “Subject to the above, it is ordered that the order we have pronounced on 25.9.2012 will be the order in this Original Application”. 7. It is a fact besides non-availability of a document marked as Annexure-A16 no challenge was also made in the O.A against any such proceedings dated 12.9.2012 as revealed from Ext.P2, the copy of the O.A. It is also relevant to note in this context that in this Original Petition also no mention whatsoever has been made with respect to any such proceedings of the 4th respondent. The learned counsel on both sides also could not give any satisfactory explanation on these aspects. Be that as it may, it is evident that as per that part of Ext.P3 dated 8.10.2012 the Tribunal had concluded that its earlier order pronounced on 25.9.2012 would be the order in O.A.No.1451/2012. The learned counsel on both sides also could not give any satisfactory explanation on these aspects. Be that as it may, it is evident that as per that part of Ext.P3 dated 8.10.2012 the Tribunal had concluded that its earlier order pronounced on 25.9.2012 would be the order in O.A.No.1451/2012. As noticed earlier, as per order dated 25.9.2012 O.A.No.1451/2012 was dismissed. It is in these circumstances that the appellant had confined his challenge only against Ext.P3 order dated 25.9.2012. 8. A perusal of the impugned order would reveal that the Tribunal had taken into consideration the challenge against the constitutionality of the Exception given under Rule 23(a) of Part-I, KSR, in the light of a Division Bench decision of this Court in Pankajaksy & Others v. George Mathew & Others ( 1987 (2) KLT 723 ) and repelled the same. We will firstly consider the contention of the appellant that her challenge against the said Exception was not considered on merits properly by the Tribunal. 9. A scanning of the contentions, unsuccessfully raised before the Tribunal, as evident from the impugned order, the pleadings in the Original Application, and also in the above Petition would reveal that the claim of the petitioner that she is entitled to retain the service benefits granted w.e.f. 7.8.2007 as also the challenge against 'Exception' under Rule 23(a) of Part-I, KSR, are founded on Rule 12(7)(iii) of Part I, KSR. In the contextual situation it is relevant to refer to Rule `12(7)(iii) of Part I KSR and the same reads thus:- 12(7)(iii) - A course of instruction or training which an officer undergoes specially ordered by Government to be treated as duty. 10. Obviously, Rule 12(7)(iii) of Part-I, KSR is only an enabling provision to treat the period of absence of a Government Servant as on duty, provided the course of instruction or training was undertaken by orders of Government. Nevertheless, it does not speak of deal with the situation governing fixation of pay if the officer concerned while undergoing course of instruction or training obtains promotion to a higher post in regular line. 11. In the contextual situation it is relevant to refer to Annexure-A5 which is the order deputing the petitioner for higher studies under QIP for Ph.D. Evidently as per the same, she was permitted to draw salaries from the head of account specifically mentioned therein under Faculty Development. 11. In the contextual situation it is relevant to refer to Annexure-A5 which is the order deputing the petitioner for higher studies under QIP for Ph.D. Evidently as per the same, she was permitted to draw salaries from the head of account specifically mentioned therein under Faculty Development. There can be no doubt with respect to the position that permission so granted was to draw the salary attached to the post which the petitioner was holding at the time of deputation. The petitioner was not then working as Assistant Professor and in fact she was deputed under Annexure-A5 while she was working as Lecturer in Civil Engineering. It is worthy to refer to Anneuxure-A4 (in Ext.P1) in this context. It would reveal that she was deputed to Ph.D programme for three years under QIP and that she would be treated as on deputation and salary and allowances would be paid during the said period. In such circumstances, there can be no doubt with respect to the position that in terms of the provisions under Rule 12(7)(iii), the period of course or training thus underwent could be reckoned as duty in the post of Lecturer in Civil Engineering and not in any other post. Admittedly, the appellant had undertaken the course in question by orders of Government, as can be seen from Annexures-A4 and A5. A perusal of Annexure-A5 would reveal that the petitioner was specifically permitted to draw salary attached to the post which she was holding at the time of deputation in terms of the provisions under Rule 12(7)(iii) of Part I KSR. How can the said provision be construed as one enabling such a deputationist undergoing the training or course right to draw the pay attached to the higher post to which he or she was promoted while undergoing that course or training, without joining the promoted post. Unhesitatingly, we would answer that question in the negative in view of the specific provisions under Rule 23(a) of Part-I KSR and the 'Exception' there under. 12. For a proper understanding of the position it is apropos to refer firstly to Rule 23(a) of Part-I, KSR. Unhesitatingly, we would answer that question in the negative in view of the specific provisions under Rule 23(a) of Part-I KSR and the 'Exception' there under. 12. For a proper understanding of the position it is apropos to refer firstly to Rule 23(a) of Part-I, KSR. It reads thus:- 23(a) Subject to any exceptions specifically made in these rules, an Officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. If the charge is transferred afternoon, the transfer does not affect pay and allowances until the next day. (Emphasis added) 13. Thus it is obvious from Rule 23(a) that an officer shall begin to draw the pay and allowances attached to his tenure of a post only with effect from the date he assumes the duties of that post. The petitioner attempted to canvass the position that the post held by him was not a 'tenure post', relying on the definition of the said term. We have no hesitation to hold it as a cavil as the term employed in Rule 23(a) is not 'tenure post', but it is 'tenure of a post'. A bare reading of Rule 23(a) would reveal that the said term is used to indicate the 'length of time of holding of the post concerned'. This is evident from the fact that going by Rule 23(a) he would cease to draw them as soon as he ceases to discharge such duties. Now, we will consider whether any exception was made specifically to the said rule. Exception was added to Rule 23(a) of Part-I, KSR by G.O.(P) 434/65/Fin dated 17.11.1965 and it was published in Kerala Gazette No.46 dated 30.11.1965. Evidently the 'exception' was added to Rule 23(a) to alleviate the grievance of seniors sent on deputation to a course of instruction or training on orders of Government if such an officer is promoted to a higher post in the regular line during such course of instruction or training and in the meanwhile a junior is also granted promotion and such junior assumed charge in the higher post before the senior turns up for joining duty in the higher post. Needless to say that in such eventuality a strict application of the provision under Rule 23(a) would work out prejudicial to the said senior officer inasmuch as his junior would begin to draw the pay attached to that promoted earlier than him. In such circumstances, by application of the Exception the senior could also begin to draw the pay attached to that promoted post from the date his junior assumes charge of the higher post, without joining the promoted post. But for the said 'exception', in the light of Rule 23(a) of Part-I, KSR the senior would have to wait till his joining the promoted post to come over to the higher pay attached to that higher post. This is evident from the 'Exception' specifically made under Rule 23(a) which reads thus :- Exception :- An officer deputed for a course of instruction or training which is ordered to be treated as duty, if promoted to a higher post in the regular line during such course of instruction or training, may draw the pay thereof, without joining it, the benefit of promotion being given from the date his junior assumes charge of the higher post. 14. There is no dispute with respect to the position that Annexures A11 and A14 were issued strictly in tune with the provisions under Rule 23(a). True that in Annexure-A14 the appellant was intimated that no situation to apply the 'Exception' to Rule 23(a) of Part-I, KSR occurred as none of her juniors got promoted and assumed charge in the said higher post between the period 7.8.2007 and 25.8.2008. The relevancy of the aforesaid dates is that it was w.e.f. 7.8.2007 that the appellant was promoted as Assistant Professor and it was on 25.8.2008 that she joined duty in that promoted post. Certainly, if any of her junior was promoted and assumed charge in the said higher post during the period when the petitioner was undergoing the Ph.D programmed under QIP she would have become eligible for the benefit of the 'Exception' and the Exception is incorporated only to apply in such situations. When no such situation had arisen, what would apply is the main provision viz, Rule 23(a) of Part I KSR. When no such situation had arisen, what would apply is the main provision viz, Rule 23(a) of Part I KSR. When it is applied such an Officer would and could begin to draw pay and allowances attached to the higher post in the regular line only with effect from the date he assumes charge of that promoted post. In such circumstances, it can only be held that what was done under Annexures-A11 and A14, is only in conformity with Rule 23(a) of Part-I, KSR. On a careful analysis of the provisions under Rule 12(7)(iii) and Exception to Rule 23(a) of Part I KSR, we do not find any conflict between them and they would operate in different situations and subjects, as held hereinbefore. We do not find any error or illegality, in the aforesaid circumstances, in the finding of the Tribunal on the aforesaid lines. 15. The Tribunal had also considered whether there is any merit in the challenge against constitutionality of the 'Exception' to Rule 23(a) made by the petitioner. It appears that the realisation of the fact that Annexures-A11 and A14 are in conformity with Rule 23(a) of Part-I, KSR made the appellant to make such a challenge. To consider the said challenge, the Tribunal had relied on Pankajaksy's case (supra). Very rightly paragraph 12 therein was referred to by the Tribunal to consider the same and it reads as follows :- Thus, the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act. (2), it is opposed to the Fundamental rights; (3) it is opposed to other plenary laws. To ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c) whether is “unreasonable” to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules. 16. We have carefully gone through the pleadings of the petitioner raised to mount challenge against the Exception to Rule 23(a) of Part I, KSR. 16. We have carefully gone through the pleadings of the petitioner raised to mount challenge against the Exception to Rule 23(a) of Part I, KSR. On a careful consideration of the pleadings of the appellant in the light of the decision in Pankajaksy's case (supra), we do not find any reason at all to disagree with the conclusions arrived at by the Tribunal. According to us, a rightful conclusion in the light of the pleadings and in the light of the decision in Pankajaksy's case was arrived at by the Tribunal. The mere fact that the appellant was given the right to draw pay and allowances attached to the post of Assistant Professor only with effect from 25.8.2008 and not from 7.8.2007 cannot be a ground to challenge the exception to Rule 23(a) of Part-I, KSR. A conjoint reading of Rule 23(a) of Part-I, KSR and 'Exception' thereto, would reveal that the said 'exception' is certainly intra vires and not ultra vires. Rule 23(a) itself starts with the clause 'subject to any exceptions specifically made in these rules'. When the 'exception' was added to alleviate the grievance of senior hands, as mentioned hereinbefore arising out of strict application of Rule 23(a) the mere statement that it is 'ultra vires' would not make it so. The only ground raised in this Original Petition to challenge 'Exception' added to Rule 23(a) is ground 'G' and in fact, it is reiteration of the contention raised before the Tribunal and it reads thus :- “The Tribunal ought to have considered the vires of the exception contained in Rule 23(a) of Part-I of the KSR on merits. The Tribunal ought to have noticed that the exception contained in Rule 23(a) of Part- of KSR is totally arbitrary, unreasonable and is liable to be struck down as unconstitutional.” 17. In the O.A the appellant herein had raised ground 'D' to challenge the same. Going by the same, the contention of the appellant is that part of the exception to Rule 23(a) i.e, “the benefit of promotion given from the date of his junior assumes charge of the higher post” is an illegal and unconstitutional provision. In the O.A the appellant herein had raised ground 'D' to challenge the same. Going by the same, the contention of the appellant is that part of the exception to Rule 23(a) i.e, “the benefit of promotion given from the date of his junior assumes charge of the higher post” is an illegal and unconstitutional provision. The exception, if read as a whole would reveal that it is actually intended to grant benefit to an officer in any service governed by the provisions under KSR sent on deputation to a course of instruction or training, under orders of Government and obtains promotion to a higher post in the regular line while undergoing such a course of instructions or training in the situation specifically contemplated there under. It is to be noted that a successful challenge against the said 'Exception' would create in such a situation where Rule 23 (a) alone would apply under all circumstances and in such eventuality it would certainly go against the interests of senior officers promoted while undergoing a course of instruction or training, under orders of Government. That apart, no ground whatsoever to sustain the challenge against 'Exception' under Rule 23(a) of Part-I, KSR was made out by the petitioner to hold it as arbitrary, discriminatory or unconstitutional. Evidently, no challenge was made against Rule 23(a) of Part-I, KSR and the challenge is made only against the 'Exception' to the said rule brought in to protect the interest of a senior officer in the specified situation. In such circumstances, we are of the firm view that the challenge against it was rightly repelled by the Tribunal. 18. The Tribunal had also considered the question whether the petitioner could be permitted to retain the amounts received. Evidently it is by a mistake that the petitioner was paid in excess. When due to a mistake an employee had received payment in excess and when the said error is sought to be corrected it has to be permitted to be emended, unless it is forbidden. Can it be challenged on the ground that no specific provision is available to seek for recovery ? The Tribunal has relied on a Division Bench decision of this Court reported in Santhakumari v. State of Kerala ( 2005 (4) KLT 649 ) to repel the claim of the petitioner against the recovery. 19. Can it be challenged on the ground that no specific provision is available to seek for recovery ? The Tribunal has relied on a Division Bench decision of this Court reported in Santhakumari v. State of Kerala ( 2005 (4) KLT 649 ) to repel the claim of the petitioner against the recovery. 19. The learned senior counsel appearing for the petitioner relies on the decisions of the Hon'ble Apex Court in Sate of Punjab and Others v. Rafiq Masih (White Washer) [AIR (2015) SC 696]. The petitioner is an Assistant Professor in Civil Engineering under the Technical Education Department. The steps to effect recover of excess amount paid to him due to error was taken more than six years ago and he is still in service. We have no doubt that in the facts and circumstances of the case explained hereinbefore, the petitioner cannot rely on Rafiq Masih's case (supra) to contend that he is entitled to retain the amount paid to him in excess. The petitioner cannot be heard to contend that the said decision of the Hon'ble Apex Court prohibits recovery of excessively paid amount to an employee under all circumstances. It is a case where the petitioner knew that he is not legally entitled to the amount received in excess in view of position of law under Rule 23(a) of Part-I, KSR. It is in a bid to retain the amount at any cost that he, without any bona fides, mounted challenge against the Exception to Rule 23(a) of Part-I, KSR realising fully that it virtually goes in favour of a senior officer in the circumstances contemplated there under and in its absence, even such an officer would also entitle to draw the pay and allowance attached to the promoted post only from the date he assumes duties of that post. We are of the view, in such circumstances, it is legally permissible to recover the said excessively paid amount, in terms of the decision in Santhakumari's case. We do not find any reason to hold that the order passed by the Tribunal is infected with any illegality or irregularity warranting interference in exercise of the power of judicial review under Article 226/227 of the Constitution of India. Hence, this Original Petition must fail and accordingly it is dismissed.