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2021 DIGILAW 972 (KER)

Markose v. T. VS State of Kerala

2021-10-28

RAJA VIJAYARAGHAVAN V.

body2021
JUDGMENT : 1. By Ext.P6 order impugned in this Writ Petition, the 3rd respondent has ordered that the grant of the scale of Rs. 4000-6090 on the petitioner becoming eligible for First Time Bound Higher Grade (‘TBHG’ for short) on 13.8.1999 was irregular. As a consequence, the 4th respondent was directed to recover the alleged excess payment of salary to the petitioner and to furnish a fresh fixation statement by fixing the scale as Rs. 3350-5275 with effect from 13.08.1999 onwards. 2. Brief Facts of the case are as under: (1) By Ext. P1 order, the petitioner was appointed as attender at the MSS TTI, an aided school under the ownership and management of the 5th respondent, with effect from 1.12.1987. The petitioner was later promoted as Clerk and he was posted at the MGM High School, Puthuppady with effect from 01.11.1989. After working in various schools under the same Corporate Management, he was finally posted to MD Seminary Higher Secondary School with effect from 27.04.2011. While continuing in service as aforesaid, he attained superannuation on 30.4.2021. (2) The petitioner refers to Ext.P2 series and contends that he has cleared all the required tests in tune with Ext.P3 Government Order, which mandates that persons to be promoted as UD Clerks in Aided Schools has to necessarily clear the Account Test (Lower) and tests in Kerala Education Act and the Rules. (3) According to the petitioner, the Government by Ext.P4 order has reiterated that the benefit of higher grade promotion granted to Government employees on completion of 13 years of service in the entry grade as per the Government orders mentioned therein shall be extended to the non-teaching staff of the corresponding grades in Aided Schools, Private Colleges and Private Polytechnics, who come under the scheme of direct payment of salary by the Government on the same terms and conditions specified therein. On the basis of Ext.P4 Government Order, the petitioner on becoming eligible for the FTBG was granted the grade of UD Clerk in the Government Service on the scale of pay Rs. 4000-6090 by the 4th respondent. (4) This was on completion of 10 years of service in the cadre of the clerk. It is contended that the petitioner was thereafter granted the 2nd, 3rd and 4th Time Bound Higher Grade as per Exhibit P5 series orders consequent to the issuance of pay revision orders by the Government. 4000-6090 by the 4th respondent. (4) This was on completion of 10 years of service in the cadre of the clerk. It is contended that the petitioner was thereafter granted the 2nd, 3rd and 4th Time Bound Higher Grade as per Exhibit P5 series orders consequent to the issuance of pay revision orders by the Government. It is contended that the pay fixation consequent to the grant of grades and pay revision orders were subjected to audit by the office of the 3rd respondent from time to time and at no point of time was any objection noted. (5) The petitioner states that he was due to retire on 30.04.2021 and the pension papers were submitted to the 3rd respondent on 12.11.2020 through the office of the Headmaster for sanctioning the terminal benefits. The 3rd respondent has now issued Ext.P6 order stating that the grade which ought to have been granted to the petitioner should have been in the scale of Rs. 3350-5275 with effect from 13.08.1999 and accordingly directions were issued to the 4th respondent to re-fix the salary and grades granted to the petitioner with effect from 13.08.1999 and also to take steps to recover the excess amounts received by the petitioner. Further directions were issued to the 3rd respondent to submit the pension proposal after preparing a revised pay fixation statement and to submit the same before the 3rd respondent. 3. Being aggrieved the petitioner is before this court seeking the following reliefs: (i) To call for the records leading to the issuance of Exhibit P6 proceedings of the 3rd respondent and set aside the same by issuing a Writ of Certiorari. (ii) To declare that the scale of Rs. 4000-6090 granted to the petitioner w.e.f. 13.08.1999 at the time of 1st Time Bound Higher Grade is in order and cannot be altered or modified. (iii) To declare that in view of Exhibit P3, P4, P9, P10, P11, P12, P13, and P14 Government orders petitioner is eligible to get the scale of Rs. 4000-6090 on petitioner becoming eligible for 1st Time Bound Higher Grade. (iv) To declare that petitioner is eligible to get the scale of Rs. 4000-6090 on petitioner becoming eligible for 1st Time Bound Higher Grade as allowed to petitioners juniors, vide Exhibits P15, P16 and P17. 4000-6090 on petitioner becoming eligible for 1st Time Bound Higher Grade. (iv) To declare that petitioner is eligible to get the scale of Rs. 4000-6090 on petitioner becoming eligible for 1st Time Bound Higher Grade as allowed to petitioners juniors, vide Exhibits P15, P16 and P17. (v) To issue Writ of mandamus directing the 3rd respondent to sanction the terminal benefits of the petitioner by adverting to the present salary being drawn by the petitioner and to forward the same to the Accountant General for approval. (vi) To restrain the official respondents from taking any recovery steps form insisting the refund of alleged excess receipt of salary as a precondition for sanctioning the regular pension and other terminal benefits. 4. A counter affidavit has been filed by the 3rd respondent. It is stated that the petitioner was working as Clerk at MD Seminary Higher Secondary School Kottayam, an Aided Educational Institution, coming under the direct payment system of the Government of Kerala. He was initially appointed as Attender with effect from 1.12.1987 and he was later promoted as Clerk with effect from 1.11.1989 by the 5th respondent. It is contended that as per Rule 1 Chapter XXIVA of the Kerala Education Rules, non-teaching staff allowed in an Aided High School are Part-Time Menial, Full-Time Menial, Peon and Clerk. Posts such as Upper Division Clerk, Head Clerk are not provided in aided High Schools and therefore, there is no statutory provision in the Act and Rules for sanctioning promotion to Clerk in aided schools as Upper Division Clerk and Head Clerk on completion of 10 years and 16 years of service. Aided school clerks are entitled to table scales of respective pay revision orders as 1st and 2nd time-bound higher grades. However, they are allowed to enjoy the scale of pay of Junior Superintendent as 3rd time-bound higher grade on completion of 22 years of service. According to the respondent, in view of the above, sanction of 10 years 1st time higher grade in the scale of pay of Rs. 4000-6090 equivalent to that of UD clerk to the petitioner is irregular. He was eligible for the 1st time bound higher grade on completion of 10 years of service on the scale of pay of Rs. 3350-5275. 5. 4000-6090 equivalent to that of UD clerk to the petitioner is irregular. He was eligible for the 1st time bound higher grade on completion of 10 years of service on the scale of pay of Rs. 3350-5275. 5. As the petitioner was due to retire from service on 30.4.2021, the Headmaster of MD Seminary HSS, Kottayam, has forwarded the application for sanctioning pensionary claims to the office of the 3rd respondent on 16.11.2020. On scrutiny, it was found that the petitioner had been granted undue and irregular benefits on account of fixation of pay consequent upon the sanctioning of 1st and 2nd TBHG with effect from 13.8.1999 and 1.8.2006. It is contended that along with the written applications filed by the petitioner, he had also submitted written undertakings to the effect that he shall unconditionally refund the excess payment, if any, of pay and allowances if it was found later that he was not entitled to any such payment or part of it. Ext.R3(c) undertaking, which is dated 22.6.2020, is produced by the respondents to substantiate the aforesaid contention. 6. It is contended that the recovery of excess monetary benefits granted due to irregular sanction of higher grade after the lapse of a long period of time has been addressed in the Government order, which is produced as Ext.R3(b). The Government has clarified that the department has all the legitimate authority to recover the excess payment from an employee at any point of time. It is contended that the action taken by the 3rd respondent while issuing Ext.P6 order is clearly on the basis of rules and regulations and the same does not warrant any interference. 7. Sri. M.A. Fayaz, the learned counsel appearing for the petitioner submitted that the 1st time-bound higher grade was granted on 13.8.1999 after completion of 10 years service in the cadre of Clerk. By the impugned order, passed after about 21 years, the respondents are initiating steps to re-fix the salary and recover the alleged excess amounts paid to the petitioner. It is contended that Ext.P5 series pay revision orders would reveal that the petitioner was sanctioned 2nd, 3rd and 4th time-bound higher grade and at no point of time was any audit objection raised. It is contended that Ext.P5 series pay revision orders would reveal that the petitioner was sanctioned 2nd, 3rd and 4th time-bound higher grade and at no point of time was any audit objection raised. Relying on the principles laid down in State of Punjab vs. Rafiq Masih (White Washer), (2014) 8 SCC 883 , as clarified in High Court of Punjab and Haryana and Others vs. Jagdev Singh, (2016) 14 SCC 267 , it is contended that it would be iniquitous to permit recovery of excess payment made to an employee like the petitioner herein, particularly when the amounts were disbursed strictly in tune with the Government Orders. The learned counsel would then refer to Ext.P10 clarification letter dated 21.2.2002 issued by the Principal Secretary of Government (Finance Department) and it was argued that those clerks working in aided schools who had acquired test qualification is entitled for grant of grades as in the case of clerks in the Government service. Placing reliance on Ext.P9 Government Order, it is contended that the Government has ordered that even in cases where a particular category of post in the normal hierarchy of promotion post is not available in a department, the scale of pay of the normal promotion post only will be allowed as the higher grade. It is further contended that the petitioner is entitled to get his regular pension from 1.5.2021 consequent to his retirement on 30.4.2021 and the objections raised by the respondents are not tenable. Reliance is also placed on Ext.P20 pay revision order which is dated 10.2.2021, wherein it is stated that the non-teaching staff in aided schools, private colleges and polytechnic who come under the scheme of direct payment of salary by Government will be eligible for time-bound higher grade promotion in the scales provided in the tables concerned. However, the clerk in those institutions will be eligible for the scale of pay applicable to the post of Senior Clerk, Head Clerk, Junior Superintendent and Junior Superintendent (HG) on 1st, 2nd, 3rd and 4th TBHG subject to the general conditions. 8. Smt. Nisha Bose, the learned senior Government Pleader, reiterated the contentions in the counter affidavit. Placing reliance on a judgment dated 16.12.2016 of this Court in W.A. No. 1987/2016, it is argued that only if a post of UD Clerk is available, can a higher grade be sanctioned in the pay scale of UD Clerk. 8. Smt. Nisha Bose, the learned senior Government Pleader, reiterated the contentions in the counter affidavit. Placing reliance on a judgment dated 16.12.2016 of this Court in W.A. No. 1987/2016, it is argued that only if a post of UD Clerk is available, can a higher grade be sanctioned in the pay scale of UD Clerk. Reliance is also placed on Ext.R3(b) Government Order, and it is argued that aided school clerks are only entitled to claim the table scales of respective pay revision orders as time-bound higher grades. Finally, reliance is placed on Ext.R3(c) undertaking given by the petitioner and it is submitted that the petitioner had given a written undertaking to the effect that he shall refund the excess payment made to him and in view of the judgment of the Apex Court in High Court of Punjab and Haryana and Others vs. Jagdev Singh, (2016) 14 SCC 267 , the respondents have every authority to effect recovery from the employee. It is also submitted that the reliance placed by the petitioner on Ext.P20 pay revision order dated 10.2.2021 is unsustainable as the revised time bound higher grade scheme will have effect only from 1.4.2021. 9. I have considered the submissions advanced and have perused the records. The question to be considered is whether Exhibit P6 order directing re-fixation of salary and grades granted to the petitioner with effect from 13.8.1999 can be sustained under law and as to whether the respondents can be permitted to recover the alleged excess amounts received by the petitioner. 10. The main contention advanced by the learned Government Pleader is that as per Rule 1 of Chapter XIVA of the KER, the posts sanctioned in an aided school are the posts of Part-Time Menial, Full-Time Menial, Peon and Clerk and that posts of Upper Division Clerk, Head Clerk etc. are not sanctioned. It is also contended that there is no provision in the Act and Rules for promotion of Clerk in Aided Schools as UD Clerk or Head Clerk on completion of 10 years and 16 years of service. At the same time, it is reiterated in the counter that the Clerks are allowed to enjoy the scale of pay of Junior Superintendent as 3rd TBHG on completion of 22 years. 11. At the same time, it is reiterated in the counter that the Clerks are allowed to enjoy the scale of pay of Junior Superintendent as 3rd TBHG on completion of 22 years. 11. Ext.P3 Government Order was issued on 22.6.1973, whereby the Government after examining the possibilities of sanctioning a Higher Grade for the Clerks in aided schools had decided to sanction higher grade to the clerks. Clause (d) of Ext.P3 reads as follows: (d) Account Test (Lower) and the test in K.E. Act and Rules will be insisted on for promotion as U.D. Clerks in aided schools. Those who are now promoted on the basis of the seniority list and who are not having the above test qualifications will be given a period of 2 years from the date of this order, for acquiring them. They will be reverted as L.D. Clerks if they fail to acquire the test qualification with that time. 12. Ext.P2 series would reveal that the petitioner has acquired all the qualifications prescribed in Ext.P3. 13. Ext.P4 is an order passed by the Government on 7.7.1980 based on representations made by service organisations of the employees of the Aided Schools, Private Colleges etc. seeking extension of benefits to the non-teaching staff of Aided Schools, Private Colleges etc. In paragraph No. 2 of the order, it is stated thus: 2. Government, after examining the question in detail, are pleased to order that the benefit of higher grade promotion granted to government employees on completion of 13 years of service in the entry grade as per the Government Orders read above, shall be extended to the non-teaching staff of the corresponding grades in Aided schools, Private Colleges and Private Polytechnics, who come under scheme of direct payment of salary by the Government, on the same terms and conditions specified therein. 14. It is thus luculant from Ext.P4 that the benefit of higher grade promotion granted to Government employees in the stated circumstances has been extended to the non-teaching staff of the corresponding grades in the aided schools. 15. 14. It is thus luculant from Ext.P4 that the benefit of higher grade promotion granted to Government employees in the stated circumstances has been extended to the non-teaching staff of the corresponding grades in the aided schools. 15. In Ext.P9 Government order, which is dated 25.11.1998 issued based on recommendations made by the pay revision committee, it is unequivocally stated that non-teaching staff in Aided Schools, Private colleges and Polytechnics who under the scheme of direct payments of salary by the Government are also eligible for time bound grade promotion subject to the conditions stated in the order. 16. Ext.P10 is a letter issued by the Principal Secretary to the DEO, Kothamangalam, on 21.12.2002, clarifying the grant of TBHG to the clerks in Aided schools. Paragraph No. (iii) of Ext.P10 reads as follows: (iii) Since the post of L.D. Clerk in aided schools are filled up by promoting qualified last grade servants as per provision in the Kerala Education Rules, the entry grade of clerk promoted from Last grade Servants is Last Grade Servant and not clerk. Their eligibility for time bound Higher grade and its scale of pay is fixed with reference to Last Grade Servants. Thus the regular promotion post of Last Grade Servant is L.D. Clerk, U.D. Clerk, Head Clerk, Junior Superintendent etc. Thus the first promotion as L.D. Clerk within 10 years’ service in the Grade Service is equal to the first higher grade of Last Grade Servant and the second higher Grade granted in the scale of pay of U.D. Clerk on completion of 10/8 years’ service in the first promoted post of L.D. Clerk or 20/18 years’ service as Last Grade service and clerk together whichever is earlier is treated as second higher grade. The third higher grade on completion of 23 years service as Last Grade servant and clerk together is admissible in the scale of pay of Head Clerk only and not in the scale of pay of Junior Superintendent as claimed by the Association. 17. The above clarification shows that the last grade servants on getting promotion as Clerk and when they complete 10 years of service are entitled for the scale of pay granted to the petitioner as per Ext.P5 order. The said order also emphasizes that the post of L.D. Clerk, U.D. Clerk, Head Clerk and Junior Superintendent are regular promotion posts of last grade servants. 18. The said order also emphasizes that the post of L.D. Clerk, U.D. Clerk, Head Clerk and Junior Superintendent are regular promotion posts of last grade servants. 18. At this juncture, it would be relevant to take note of Ext.P11 Government Order which is dated 25.3.2006 issued based on the report of the 8th Pay Revision Commission. In paragraph 14 of the order, it is stated thus: 14. Non-teaching staff in aided schools, Colleges and Polytechnics who under the scheme of direct payment of salary by Government are also eligible for time bound grade promotion, subject to these conditions. 19. These orders clearly go against the stand taken by the 3rd respondent in the counter that aided school clerks are only entitled to table scales of respective pay revision and not entitled to the TBHG of promotion posts. 20. I am not impressed with the contention of the learned Government Pleader that Ext.R3(a) judgment of a Division Bench of this Court would go against the case of the petitioner. The said judgment was rendered in the facts of the said case and there was no occasion for their Lordships to take note of Ext.P9 Government Order which states that aided school clerks are entitled for the scale of pay of U.D. Clerks at the time of first Time Bound Higher Grades. 21. Ext.P20 Government order issued based on the recommendations of the 11th Pay Revision Commission also supports the case of the petitioner. The tenor of the order is in line with Exts.P3, P4, P9 and P10 Government Orders. True, its application in the facts of the instant case is vehemently challenged by the learned Government Pleader on the ground that the said order became effective only from 1.4.2021. It would be apposite to consider paragraph No. 16 of the order: “16. Non-teaching staff in Aided Schools, Private Colleges and Polytechnics who come under the scheme of direct payment of salary by Government will be eligible for Time Bound Higher Grade promotions in the scales provided in the Tables concerned. However, Clerks in these institutions will be eligible for the scale of pay applicable to the posts of Senior Clerks, Head Clerks, Junior Superintendent and Junior Superintendent (HG) on 1st, 2nd, 3rd and 4th Time Bound Higher Grade, subject to the general conditions.” 22. However, Clerks in these institutions will be eligible for the scale of pay applicable to the posts of Senior Clerks, Head Clerks, Junior Superintendent and Junior Superintendent (HG) on 1st, 2nd, 3rd and 4th Time Bound Higher Grade, subject to the general conditions.” 22. A perusal of the order would reveal that even without the sanctioned post of U.D. Clerk, Head Clerk, Junior Superintendent and Junior Superintendent (HG), the pay scales applicable to the said post can be granted to aided school clerks on the basis of the earlier Government Orders. This would cut the root of the argument of the learned Government Pleader about the lack of provisions in the Act and Rules for sanctioning promotion to Clerk in Aided schools as U.D. Clerk and Head Clerk. If Ext.P20 can hold the field from 1.4.2021 as contended by the learned Government Pleader, there is no reason why the benefits of the previous orders shall not be extended to the petitioner. 23. In view of the discussion above, I am of the considered opinion that Ext.P6 order cannot be sustained. 24. Even otherwise, I am of the considered opinion that recovery of amounts paid in excess about two decades back and thereafter would be grossly iniquitous. In the case on hand, the petitioner had entered service on 1.12.1987 and had superannuated on 30.4.2021. It was when the pension proposal was submitted to the office of the 3rd respondent on 12.9.2020 for sanction of pension and other terminal benefits that Ext.P6 order was passed on 12.2.2021 on the ground that the 1st Time Bound Higher Grade granted to the petitioner on 13.8.1999 was irregular. After finding so, the 4th respondent was directed to recover the alleged excess payment of salary granted to the petitioner and to furnish a fresh fixation statement by fixing the scale as Rs. 3350-5275 with effect from 13.8.1999. 25. In Rafiq Masih (Supra), the Apex Court had occasion to postulate the situations of hardship that would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of his entitlement. After balancing the conflicting claims and the hardship that is likely to be caused, the Hon’ble Supreme Court had summarised the situations wherein recovery of the amounts by the employers would be impermissible under law. It was held as follows in paragraph No. 18 of the judgment: 18. After balancing the conflicting claims and the hardship that is likely to be caused, the Hon’ble Supreme Court had summarised the situations wherein recovery of the amounts by the employers would be impermissible under law. It was held as follows in paragraph No. 18 of the judgment: 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 on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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. 26. There is no dispute that the petitioner falls in the lower rung of the service and the recovery is being effected for excess payment made initially about two decades back and thereafter. This is not a case wherein the petitioner had knowledge that the payment received was in excess of what was due. There is no case that there was any misrepresentation or fraud on the part of the petitioner. As held by the Apex Court, when payments have been made for a long duration of time, the logic of recovery of the excess amount paid would be iniquitous, arbitrary, violative of Article 14 of the Constitution of India. There is no case that there was any misrepresentation or fraud on the part of the petitioner. As held by the Apex Court, when payments have been made for a long duration of time, the logic of recovery of the excess amount paid would be iniquitous, arbitrary, violative of Article 14 of the Constitution of India. There cannot be any doubt that it would be next to impossible for a person such as the petitioner to bear the financial burden of a refund of payment received wrongfully for a long span of time as he would have spent the emoluments that he would have received for the upkeep of his family under the bona-fide belief that he is entitled to the said amount. In that view of the matter, recovery of amounts ordered as per Ext.P6 at this point of time after the petitioner has retired from service would result in extremely harsh consequences. 27. The reliance placed by the learned Government Pleader on the law laid down in Jagdev Singh (supra), has to fail as even according to the respondents, what was issued by the petitioner as Annexure-R3(c) is an undertaking as per G.O. (P) No. 169/2019/FIN dated 13.12.2019 and the same is dated 22.6.2020. The learned Government Pleader has filed a memo producing the undertakings given by the petitioner and contends that those undertakings were given at the time of grant of higher grades and pay revisions. The question essentially is whether at the time of grant of first time bound higher grade in the scale of UDC on 13.8.1999, any undertaking was given by the petitioner. None of the documents produced by the learned Government Pleader would enable the court to come to a conclusion that such an undertaking was given. A Division Bench of this Court in State of Kerala and Others vs. Vinod Kumar C.R. 2020 (4) KLT 230 , relying on Syed Abdul Qadir and Others vs. State of Bihar and Others, (2009) 3 SCC 475 , Rafiq Masih (supra) and a judgment of another Division Bench of this Court in Kasaragod District Co-Operative Bank Ltd. and Another vs. Radha K.A. 2006 (1) KHC 260 had occasion to observe the failure of the respondents to communicate the objections as regards excess payment within a reasonable time after the grant of benefits would be iniquitous. 28. Resultantly, this writ petition will stand allowed. 28. Resultantly, this writ petition will stand allowed. Ext.P6 will stand quashed and it is held that the scale of Rs. 4000-6090 granted to the petitioner with effect from 13.8.1999 at the time of 1st Time Bound Higher Grade is in order. The 3rd respondent is directed to sanction the terminal benefits due to the petitioner by adverting to the salary last drawn by the petitioner and forward the same to the Accountant General for approval. The respondents are interdicted from initiating any steps to recover the alleged excess receipt of salary as a pre-condition for sanctioning the regular pension and other terminal benefits.