IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 OP.No. 30855 of 2002(W) ----------------------- PETITIONER(S): --------------- B.N.SHIRAS, ASSISTANT MANAGER (PRODUCTION, PLANNING AND CONTROL) CENTRE FOR DEVELOPMENT OF IMAGING TECHNOLOGY(C-DIT) CHITRANJALI STUDIO COMPLEX, THIRUVALLOM, THIRUVANANTHAPURAM-27. BY ADV. SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.S.D.ASOKAN RESPONDENT(S): --------------- 1. CENTRE FOR DEVELOPMENT OF IMAGING TECHNOLOGY (C-DIT), CHITRANJALI STUDIO COMPLEX, THIRUVALLOM, THIRUVANANTHAPURAM-27, REPRESENTED BY ITS DIRECTOR. 2. MR.ACHUTH SANKAR S.NAIR, DIRECTOR, CENTRE FOR DEVELOPMENT OF IMAGING TECHNOLOGY (C-DIT), CHITRANJALI STUDIO COMPLEX, THIRUVALLOM, THIRUVANANTHAPURAM-27. 3. THE REGISTRAR, CENTRE FOR DEVELOPMENT OF IMAGING TECHNOLOGY(C-DIT) CHITRANJALI STUDIO COMPLEX, THIRUVALLOM, THIRUVANANTHAPURAM-27. ADV. SRI.K.HARILAL FOR R3 SRI.C.S.AJITH PRAKASH, SC, C-DIT FOR R1 AND 3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.30855/2002 ORDER ON CMP NO.52155/2002 IN OP NO.30855/2002 & CMP NO.55031/2002 IN CMP NO.52155/2002 IN OP NO.30855/2002 DISMISSED. 29/10/2009 SD/- (ANTONY DOMINIC, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF QUALIFICATION AND THE SCALE OF PAY PRESCRIBED FOR THE POST OF JUNIOR EXECUTIVE (MANAGEMENT SERVICES) P2 : COPY OF NOTIFICATION PUBLISHED BY C-DIT IN THE DESHABHIMANI DAILY. P3 : COPY OF ORDER NO.C-DIT/01/JEMS/96 DATED 1/1/97 ISSUED BY R3. P4 : COPY OF HUMAN RESOURCES INVENTORY AS ON 30/6/98 PREPARED BY C-DIT. P5 : COPY OF MINUTES (RELEVANT PORTION) OF THE 33RD MEETING OF THE EXECUTIVE COMMITTEE. P6 : COPY OF PROCEEDINGS NO.C-DIT/01/PRO/99/1243 DATED 22/1/99 ISSUED BY C-DIT. P7 : COPY OF PROCEEDINGS NO.C-DIT/01/PRO/99/1310 DATED 7/12/99 ISSUED BY R3. P8 : COPY OF PROCEEDINGS NO.C-DIT/PRO/2000/1319 DATED 31/1/2000 ISSUED BY C-DIT. P9 : COPY OF PROCEEDINGS NO.C-DIT/01/PRO/2000/1335 DATED 24/3/2000 ISSUED BY C-DIT. P10 : COPY OF ORDER NO.C-DIT/3/ADMN./02. DATED 4/10/2002 ISSUED BY R3. P11 : COPY OF NOTE DATED 5/10/2002 SUBMITTED BY THE PETITIONER. P12 : COPY OF COMMUNICATION NO.C-DIT/3/ADMN./02 DATED 7/10/2002 ISSUED BY R3. P13 : COPY OF REPLY TO SHOW CAUSE NOTICE DATED 11/10/2002 SUBMITTED BY THE PETITIONER TO R3. P14 : COPY OF PROCEEDINGS NO.C-DIT/3/ADMN/02/73 DATED 17/10/2002 ISSUED BY R3. OP NO.30855/2002 P15 : COPY OF ORDER NO.C-DIT/01/PRO/2000/1315 DATED 29/1/2000 ISSUED BY THE C-DIT. P16 : COPY OF ORDER DATED 18/02/2000 IN CMP NO.8562/2000 IN OP NO.5132/2000 OF THIS HONOURABLE COURT. P17 : COPY OF ORDER NO.C-DIT/01/PRO/2000/1318 DATED 29/1/2000 ISSUED BY C-DIT. P18 : COPY OF ORDER DATED 08/02/2000 IN CMP NO.6763/2000 IN OP NO.4163/2000 OF THIS HONOURABLE COURT. RESPONDENT'S EXHIBITS R3(a) : COPY OF RELEVANT PAGE NO.41 OF THE REPORT ON THE LOCAL AUDIT OF THE ACCOUNTS OF C-DIT TRIVANDRUM FOR THE PERIOD 1996-97 UNDER SECTION 14 OF THE CAG'S (DPC) ACT, 1971. R3(b) : COPY OF LETTER DATED 07/11/2002 SENT BY SR.AUDIT OFFICER, OFFICE OF THE ACCOUNTANT GENERAL TO R3. R3(c) : COPY OF ORDER GO(MS) NO.30/87 DATED 6/12/87 ISSUED BY the SCIENCE, TECHNOLOGY AND ENVIRONMENT (A) DEPARTMENT. R3(d) : COPY OF ORDER GO(MS) NO.14/90/CAD DATED 11/5/1990 ISSUED BY THE CULTURAL AFFAIRS (A) DEPARTMENT. R3(e) : COPY OF REPRESENTATION DATED 19/12/1998 FILED BY ONE REJI V. MATHEW AND OTHERS BEFORE R3. R3(f) : COPY OF REPRESENTATION DATED 03/12/2001 FILED BY C.V.VELAYUDHAN NAIR AND OTHERS BEFORE R3. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- O.P. No.30855 of 2002 --------------------------------- Dated, this the 29th day of October, 2009 J U D G M E N T Ext.P2 is a notification issued by the 1st respondent inviting applications for the post of Junior Executive (Management Services), specifying scale of pay at Rs.2200-4000. The petitioner applied in response to Ext.P2. He was selected and was appointed on contract basis. Accordingly, he joined the service and was serving the respondents. 2. The Accountant General during the course of the audit for the year 1996-97 raised an objection, a copy of which is Ext.R3 (a). In the audit objection, it was pointed out that the petitioner was appointed in the scale of pay of Rs.2200-4000 with effect from 13/01/1997, and that going by the pattern of scale of pay prescribed for Junior Executive, the eligible scale of pay was only Rs.2000-3200. On this basis, the Accountant General suggested a review, and suitable action to rectify the mistake. It would appear that the said objection of the Accountant General was on the basis O.P.No.30855/2002 -2- of Ext.R3(c) Government Order dated 06/12/1987 by which the Government directed that Research and Development Centres like the 1st respondent should strictly adopt the directions therein, while prescribing pay and service conditions of scientific and non- scientific staff. As per this order, it was specified that in respect of non-scientific staff, such employees shall not be given more financial benefits than what are provided to similar State Government employees. According to the Accountant General, if this Government Order is implemented, the scale of pay permissible to the petitioner's post was Rs.2,000-3200. 3. As is seen from Ext.P5, the reply given to the Accountant General, the respondents sought to justify the scale of pay given to the petitioner contending that the post was equivalent to Scientists grade, and therefore, the petitioner was eligible for the scale of pay as fixed. This contention was reiterated by the 1st respondent at different stages. However, finally, in the Executive Committee meeting held on 03/09/2002, it was decided to review the scale of pay given to the petitioner. Accordingly, he was issued Ext.P10 show cause notice, and on receipt thereof, the petitioner submitted O.P.No.30855/2002 -3- Ext.P13 reply. The matter was considered and finally by Ext.P14 proceedings dated 17/10/2002, the scale of pay of Rs.2200-4000 was cancelled, and the petitioner was fixed in the scale of pay of Rs.2000-3200. It was also ordered that the excess amount paid to the petitioner will be adjusted against the arrears due to him on revision of pay as well as DA. It is on receipt of Ext.P14, this original petition was filed. It is to be mentioned that in the meanwhile, the petitioner, who commenced the service as a contract appointee, was regularised in the service by Ext.P9 order dated 24/03/2000, and he was receiving pay in the revised scale. 4. The main contention of the petitioner is that the respondents invited applications specifying scale of pay of Rs.2200- 4000, and having appointed the petitioner specifying the scale of pay, it is not open to them to fix him in a scale, which is lower to what was offered in Ext.P2. The learned counsel also placed reliance on the Apex Court judgment in U.P.State Cement Corporation Ltd. And Others v. B.K.Tiwari 1998(2) SCC 542. 5. Another contention is that the petitioner's brother had registered a police complaint against a private company, and that in O.P.No.30855/2002 -4- connection with the investigation into that case, the Police had questioned certain other officials of the respondent, and as a result of which, the respondents had harboured ill will against the petitioner. 6. On the other hand, the case set up by the respondents is that this was a case of correction of a mistake. According to them, scale of pay which can be given to the employees of the 1st respondent, has to be consistent with Ext.R3(c) Government Order dated 06/12/1987. It is stated that in compliance with the said order, they could have only offered scale of pay of Rs.2000-3200, and that by a mistake, the petitioner was offered and fixed in the scale of pay of 2200-4000. It is stated that this mistake was pointed out by the Accountant General in Ext.R3(a), and finally on realising the mistake, that was sought to be corrected. It is also pointed out that before correcting the mistake, natural justice has also been fully complied with by issuing show cause notice, and giving the petitioner an opportunity to file his objections in the matter. 7. It cannot be disputed that the offer of employment made O.P.No.30855/2002 -5- to the petitioner was in the scale of pay of Rs.2200-4000. However, such offer was made overlooking the binding direction of the Government as contained in Ext.R3(c). Facts show that this was pointed out by the Accountant General in Ext.R3(a) audit objection, and it therefore discloses a case where a mistake was committed by the 1st respondent in offering a higher scale of pay to the petitioner. Once the case of the 1st respondent that it was on account of a mistake, that they had offered the higher scale of pay to the petitioner, is accepted, this Court should uphold the competence of the 1st respondent to correct the mistake. In that view of the matter, the review as reflected in Ext.P14 cannot be said to be illegal, especially when the same has been done after issuing notice to the petitioner, and affording him an opportunity to make representation in the matter as well. Therefore, I do not find anything wrong in reviewing the scale of pay as applicable to the petitioner. 8. However, Ext.P14 order proceeds to say that the excess amount received by the petitioner will be adjusted against the arrears due to him on revision of pay and revision of DA. Although, it may be true that the petitioner has received amount in excess of O.P.No.30855/2002 -6- what was eligible to him, such amount happened to be paid to him only on account of pay offered to him in the scale fixed by the respondents themselves. The petitioner is not responsible for the mistake that is committed. In such circumstances, I see absolutely no justification in the decision of the 1st respondent, to adjust the excess amount received by the petitioner towards the arrears of pay and D.A. Therefore, that part of Ext.P14, where the excess amount is sought to be adjusted towards arrears of pay and D.A., cannot be sustained and is set aside. This original petition is, therefore, disposed of quashing Ext.P14 to the extent it orders adjustment of the excess amount received by the petitioner towards arrears of pay and D.A. In all other respects, Ext.P14 will stand confirmed. This original petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg