IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WP(C).No. 28904 of 2006(N) --------------------------------------- PETITIONER(S): ----------------------- 1. MARITA JOSEPH, ANUGRAHA, HOUSE NO.413, SANKAR NAGAR, P.O.KAIMANAM, THIRUVANANTHAPURAM-40. ( RTD. STENOGRAPHER, K.S.E.B. TRIVANDRUM) 2. L. INDIRA BAI, AISWARYA, T.C.8/1220, THIRUMALA P.O., VALIYAVILA, THIRUVANANTHAPURAM.(STENOGRAPHER, REGIONAL PERSONAL OFFICER , KSEB., TRIVANDRUM. BY ADVS. MR.ELVIN PETER P.J. MR.S.RAMESH MR.NAVEEN.T MR.C.X.ANTONY BENEDICT SMT.POOJA SURENDRAN MR.PRADEEP KRISHNA RESPONDENT(S): ------------------------- KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 BY ADV.MR. K.S.ANIL, SC, KSEB FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2009 , COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.28904/2006 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER DT. 8.5.72 OF THE K.S.E.BOARD. P2:- COPY OF THE CIRCULAR DT. 29.11.91 OF THE KSE BOARD. P2(a):- RELEANT EXTRACT OF THE PROVISIONAL GRADATION LIST OF STENOGRAPHERS GR.I. P3:- COPY OF THE JUDGMENT IN OP. 1082/79 DT. 5.2.82. P4:- COPY OF THE JUDGMENT DT. 10.10.86 IN W.A. NO.322/82 OF THIS HONOURABLE COURT. P5:- COPY OF THE ORDER DT. 26.7.76 ALONG WITH THE RELEVANT EXTRACT OF ANNEXURE A ISSUED BY THE K.S.E.BOARD. P6:- COPY OF THE CIRCULAR DT. 9.10.90 ISSUED BY THE KSE BOARD. P6(a):- RELEVANT EXTRACT OF THE PROVISIONAL GRADATION LIST OF STENOGRAPHERS GR.I ATTACHED TO EXT.P6. P7:- COPY OF THE ORDER DT. 9.10.90 ISSUED BY THE K.S.E. BOARD. P8:- COPY OF THE ORDER DT. 30.9.97 ALONG WITH THE APPROVED SENIORITY LIST OF STENOGRAPHER GR.II ISSUEDBY THE K.S.E.BOARD. P9:- COPY OF THE SENIORITY LIST PREPARED IN ACCORDANCE WITH SUGGESTIONS A & B. P10:- COPY OF THE JUDGMENT DT. 20.10.05 IN OP. NO.4729/98 OF THIS HONOURABLE COURT. P11:- COPY OF THE ORDER DT. 20.6.06 OF THE K.S.E.BOARD. /TRUE COPY/ P.S. TO JUDGE tss (C.R) P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C)No. 28904 OF 2006 ......................................................................... Dated this the 18th February, 2009 J U D G M E N T The seniority of the petitioners who were originally recruited as L.D. Typists in the respondent-Board and were later promoted to the higher cadre of Junior Personal Assistant, which is the re- designated post of Stenographer (Selection Grade) based on the test qualification was stated as shattered and unsettled by Ext. P8 issued by the Board allegedly in compliance with the directions given by the Apex Court as per the decision-Kerala State Electricity Board vs. N. Sukesen and others [ (1996) 9 Supreme Court Cases 397] which, hence, was sought to be intercepted by filing O.P.No. 4729 of 1998, leading to Ext.P10 judgment directing the respondent-Board to look into the aspect and pass final orders as specified. 2. In furtherance to Ext. P10 verdict, the respondent- Board considered the matter and issued Ext.P11 order whereby Ext.P8 was upheld, simultaneously explaining the scope and ambit of the same specifying that pursuant to the re-fixation of W.P.(C)No. 28904 OF 2006 2 the seniority bringing the petitioners to a lower position in the ladder, the salary already disbursed to them by virtue of their earlier promotion had to be recovered as excess payment. The petitioners who retired from the service with effect from 30.06.2006 and 31.01.2006 respectively, have challenged the sustainability of the proceedings of the respondent-Board contending that the impugned orders are beyond jurisdiction in so far as they exceed the mandate given by the Honourable Supreme Court as per the decision reported in (1996) 9 SCC 397 (cited supra), which was cited as the basis for passing the impugned orders. 3. The petitioners commenced their service under the Board as L.D. Typists on 26.10.1970 and 05.03.1971 respectively and by virtue of the test qualification they got promoted to the higher post of Stenographer Gr.II, Stenographer Gr.I and Stenographer Selection Grade (which is re-designated as Junior Personal Assistant). At the time of granting promotion to the petitioners, test qualification was essential as per the relevant Board orders and for the very W.P.(C)No. 28904 OF 2006 3 same reason, the petitioners could march over the seniors who did not have such test qualification, to be promoted. Subsequently, the Board took a policy decision to dispense with the test qualification, whereupon, the senior persons came before this court by filing O.P.No.1082 of 1979 for re-fixation of their seniority stating that it should be reckoned with effect from the date of their provisional promotion. This led to Ext. P3 judgment which was subsequently challenged by some other aggrieved persons (other than the petitioners herein) by filing W.A. No.322 of 1982 and it was finalised as per Ext. P4 judgment, where some additional observation (which is stated as not sought for) was also made. Pursuant to the above verdict, the respondent/Board considered the matter and issued Ext.P7 seniority list where the petitioners herein were given placement at Sl.Nos.43 and 44 in accordance with the settled seniority of the petitioners as being enjoyed by them for more than two decades. 4. While so, the respondent-Board allegedly in implementation of the direction of the Apex Court as per the decision reported in 1996 (9)SCC 397, ( with regard to the integration W.P.(C)No. 28904 OF 2006 4 of Board Secretariat Establishment and General Establishment), issued Ext.P8, shifting the petitioners to a lower position (at Sl.Nos.28 and 29) on comparison with Smt.D.Sukumari Amma (Sl.No.10) who had all along been much junior to the petitioners. The respondent also published Ext.P9 showing the position of the petitioners and Sukumari Amma under two different Heads ( stated as prepared in accordance with the suggestions A and B) based on the verdict of the Apex Court. Under the list A, the petitioners were shown at Sl.Nos.9 and 10, over and above D. Sukumari Amma, who was placed at Sl.No.14. Under the list B, the petitioners were brought down as shown in Ext. P8 itself. It is stated that between the two suggestions A and B, the Board gave approval to suggestion 'B' and accordingly, the long settled seniority position of the petitioners was unsettled bringing D. Sukumari Amma, who was junior to the petitioners for more than 2 ½ decades above them. 5. Aggrieved by Exts. P8 and P9 proceedings, the petitioners filed O.P.NO.4729 of 1998. After hearing both the sides, this court found that the directions given by the Apex W.P.(C)No. 28904 OF 2006 5 Court in the concerned judgment ( viz., the decision reported in 1996 (9) SCC 397 were to be properly looked into by the respondent afresh and accordingly, it was disposed of, which led to Ext.P11 order passed by the Board. 6. The main grievance of the petitioners is that Ext. P11, in so far as it has unsettled their seniority of more than 2 ½ decades, that too after the retirement of the petitioners is not correct or legal. It is further contended that the direction contained in Ext.P11 for reverting the petitioners, allegedly pursuant to the decision of the Apex Court as referred to above and to recover the amount already paid to them in the promoted post stating it as excess payment, is not within the four walls of law and never contemplated in the verdict passed by the Supreme Court. 7. To have a better analysis of the factual and legal position, it is very much necessary to understand the dictum in (1996) 9 SCC 397; paragraph No.8 of which is extracted below: “Shri Iyer's main concern was that the aforesaid W.P.(C)No. 28904 OF 2006 6 principle of inter se seniority , if sustained, would result in reversion of the persons who had got accelerated promotion in the Secretariat Service. This was illustrated by the learned counsel by drawing our attention to equation of posts as finding place at p.66 of the paper book of CA NO. 3974 of 1990, wherein the post of Assistant Secretary of the Secretariat Establishment has been shown as equal to Assistant Accounts Officer -the next post below whom in the General Establishment being of Senior Superintendent. Learned counsel contended that the aforesaid principle would require reversion of the Assistant Secretary of the Secretariat Service to Senior Superintendent of the General Establishment as the latter may be senior to the former if the ranking at the time of the initial recruitment alone was to be taken into consideration. According to us, however, this is not the correct reading of the principle inasmuch as that only speaks about fixation of relative seniority and does not visualise any reduction in rank or reversion. It may be that the following of 1985 principle would make the Assistant Secretary of W.P.(C)No. 28904 OF 2006 7 the illustration junior to the Senior Superintendent, but that would not require the Assistant Secretary to be demoted to the post of Senior Superintendent.” It is obvious from the above discussion made by the Apex Court that the plea mooted before the Apex Court that the principle of inter se seniority, if sustained, would result in reversion of the persons, who had got accelerated promotion in the Secretariat Service, was held as not correct, observing that it only speaks about fixation of relative seniority and does not visualise any reduction in rank or reversion. The Apex Court observed that the principle would make the Assistant Secretary of the illustration junior to the Senior Superintendent, but that would not require the Assistant Secretary to be demoted to the post of Senior Superintendent. No where in the said decision is any observation that the department had to revert the persons concerned and to effect recovery of any amount from them . As such, this court finds it very difficult to agree with the proposition made by the Board that Exts.P8 and P11 orders W.P.(C)No. 28904 OF 2006 8 were issued “in conformity” with the directions given by the Honourable Supreme Court. 8. The learned counsel for the petitioners cited a series of decisions of the Apex Court as well as of this Court to sustain the contention that after giving promotion to the petitioners and after paying the salary in the promoted post for quite long , it is not correct or proper to have the monetary benefits withdrawn and recovered, particularly when the petitioners were at no fault in any circumstances. In support of the said plea, the learned counsel placed reliance on the decisions-viz., Padmanabha Pillai vs. University of Kerala & Others (1982 KLT 503), Usuvathunnisa vs. Asst. Educational Officer (1990 (2) KLT 530), State of Kerala v. Radhamony Amma (1990 (1) KLT 602), Satyapalan v. Deputy Director of Education (1998 (1) KLT 399), and Sreedharan vs. Union of India (2002 (1) KLT 444). The point specifically considered and discussed in the decision reported in 2002 (1) KLT 444 (cited supra), was as to the permissibility of reduction of pay of a retired Government servant with effect from a date long before his date of W.P.(C)No. 28904 OF 2006 9 superannuation. After considering the relative merits and demerits, it was answered by this court against the Government/department and the said decision is squarely applicable to this case, since the reduction of pay is sought to be effected with effect from a date long before the date of superannuation. 9. The learned counsel appearing for the respondent sought to sustain the action of the Board mainly placing reliance on the decision reported in Santhakumari vs. State of Kerala ( 2005(4) KLT 649), whereby the decision rendered by the single Judge in Sivankutty Nair vs. Secretary to Government ( 2005 (3) KLT 512 ) was overruled and it was held that the Government was entitled to effect recovery even in circumstances where no fault or lapse was attributable to the employee. But the factual position in the said case is entirely different as discernible from the discussion in paragraph Nos.4 and 5. 10. Referring to the Ruling No.2 of Rule 60 of Part I K.S.R., it was held by this court that, it is a 'statutory provision' W.P.(C)No. 28904 OF 2006 10 binding not only on the departmental officials who had paid the amount but also the recipient of the amount. After extracting the ruling, it has been further observed that 'Ruling No.2' specifically mentions that a teacher is entitled to take only casual leave during the extended period of service, otherwise the teaching staff shall be retired from service from the date of application of leave. It was overlooking the said statutory provision, that the petitioner therein was allowed to draw excess amount due to a mistake and since the employee was equally bound by the statutory provisions, this Court observed that the employee should have refused to accept such excess payment and having failed to do so, he was liable to re-pay the payments effected and accepted contrary to the statutory provisions. The position was further made clear in paragraph No.5 of the above verdict which is extracted below for convenience of reference: “In our view, if an employee has received any amount contrary to a statutory provision the mistake is mutual since the administration as well as the employee is bound by the statutory provision. Paying and receiving the W.P.(C)No. 28904 OF 2006 11 amount contrary to the statutory provision is illegal. When a mistake is mutual that has to be shared by both the parties. Law would nullify such an action if the parties are mistaken on the same fact situation. In a case where the mistake is mutual, both the parties act on the same mistaken assumption. Person who pays the amount is on the legitimate belief that the person who receives the amount is entitled to receive it and the person who receives the amount is on the belief that he is entitled to receive the same. Mistake in such a situation, in our view, is mutual. Consequently same has to be set right in public interest unless there is statutory bar in recovering the amount.” 11. In the case involved in 2005(4) KLT 649 (cited supra) payment of amount was contrary to the specific statutory provisions, though there was no fault on the part of the concerned employee who simply accepted the amount as paid by the department. Similarly, in the case involved in Joy vs. D.E.O.,Kothamangalam (2007(3) KLT 446), cited by the learned counsel for the respondent, the excess payment W.P.(C)No. 28904 OF 2006 12 happened to be made on the basis of a wrong interpretation of the concerned order. There is black and white difference between the above cases and the case in hand in so far as in the instant case, the petitioners were enjoying the seniority for more than 2 ½ decades and they were promoted on the basis of their accepted and settled seniority and the test qualification acquired by them. It was on a fine morning that the respondent as if it were a revelation, turned up and passed the impugned orders purportedly in implementation of the directions given by the Apex Court in the decision reported in (1996)9 SCC 397, reverting the petitioners and holding that the alleged excess payment in the promoted post was liable to be recovered from them. There is absolutely no merit or bonafides in the steps taken by the respondent in so far as the dictum contained in (1996)9 SCC 397 does not speak about any reversion or recovery of any amount, but for re-fixation of the seniority. That apart, the legal position as declared by the Division Bench of this court in 2002 (1) KLT 444, and the other judgments cited in support thereof, do very much come to the rescue of the W.P.(C)No. 28904 OF 2006 13 petitioners making it clear that no recovery can be effected from them, unlike the case involved in 2005(4) KLT 649 (cited supra). 12. In the result, the petitioners succeed and hence the impugned order (Ext.P11) is quashed as not sustainable in so far as the petitioners are concerned. The respondent is hereby directed to release the outstanding amount due to the petitioners in furtherance to their retirement from service on superannuation as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of the judgment. The Writ Petition is allowed as above. The parties shall bear their costs. P.R. RAMACHANDRA MENON, JUDGE. lk