IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 WA.No. 2407 of 2006() -------------------------------- AGAINST THE ORDER IN RP.330/2006 Dated 20/10/2006 .................... APPELLANT - PETITIONER: ------------------------------------ M.KAMALAKSHI AMMA, ATHIRA, VADAKEVILA P.O., KOLLAM. BY ADV. SRI.S.MOHANDAS RESPONDENTS - RESPONDENTS: -------------------------------------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE H.Q., THIRUVANANTHAPURAM. 3. SUPERINTENDENT OF POLICE, KOLLAM. 4. ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2008, THE COURT ON 11/06/2008 DELIVERED THE FOLLOWING: vsv J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.No.2407 of 2006 ===================== Dated this the 15th day of July, 2008. JUDGMENT Ravindran,J. This Writ Appeal arises from the order passed by the learned Single Judge on R.P.No.330 of 2006 in W.P.(C)No.796 of 2004. The writ petitioner is the appellant. The brief facts of the case are as follows: 2. The appellant retired from service as Woman Circle Inspector of Police on 31.5.2002. She filed the Writ Petition challenging Ext.P7 order dated 11.11.2003 issued by the Superintendent of Police, Kollam after her retirement from service, whereby, Ext.P3, the order fixing her pay with effect from 1.7.1974, made as early as on 23.1.1992 was cancelled and her pay refixed, resulting in recovery of the excess salary paid to her. The appellant also prayed for a direction to the respondents to release the DCRG and to revise the retirement benefits payable to her based on the basic pay fixed in Ext.P4 and to disburse the arrears thereof with interest. 3. By G.O.(P) 459/89/Fin dated 23.10.1989, the State Government permitted government employees to exercise re-option in respect of the 1973, 1978 and 1983 pay revisions. The last date fixed for exercise of the re-option was 31.12.1989. The appellant exercised her re-option in terms of the said government order. The re-option was accepted and thereupon the WA 2407//06 -: 2 :- Superintendent of Police, Kollam re-fixed the appellant's pay by Ext.P3 order dated 23.1.1992. When Ext.P3 was issued, the appellant was working as Woman Head Constable. Ext.P3 discloses that pursuant to the acceptance of the re-option, the appellant remitted the excess emoluments drawn by her on 22.11.1991 in the District Treasury, Kollam. The appellant was thereafter promoted as Woman Circle Inspector of Police by order dated 30.4.2002 issued by the Director General of Police. On promotion as Woman Circle Inspector of Police, the appellant was placed in the scale of pay of Rs.6500- 10550 and her basic pay was fixed at Rs.7375/-. After the appellant retired from service, by Ext.P1 proceedings dated 14.8.2002, a sum of Rs.1,30,680/- was sanctioned to her as D.C.R.G. Thereafter, by Ext.P7 proceedings dated 11.11.2003, the fixation of pay earlier made by Ext.P3 was cancelled and her pay was refixed. This was done on the basis of an audit objection. The appellant thereupon filed the Writ Petition challenging Ext.P7 and seeking the following reliefs: "i) to issue a writ of certiorari or order or direction to the 3rd respondent calling for the records leading to Ext.P7 and to quash the same. ii) to declare that no recovery can be effected by the respondents from the petitioner and that she is entitled to get the pay fixed by Ext.P3 dt. 23.1.92. iii) to issue a writ of mandamus to the 3rd respondent to release the DCRG amount of Rs.1,30,680 with 10% interest thereof from 14.8.2002 till date of payment. iv) to direct the respondents to revise the retiral benefits WA 2407//06 -: 3 :- of the petitioner from 1.6.2002 reckoning the basic pay of Rs.7375 fixed by the 4th respondent by Ext.P4 and to disburse the consequential benefits with 10% interest from 1.6.2002 till date of payment." 4. The third respondent - Superintendent of Police filed a counter affidavit resisting the Writ Petition wherein it was contended that Ext.P7 was issued under Rule 3C of Part III K.S.R., in view of the audit objection to the fixation of pay in Ext.P3. It was contended that the re-option exercised by the appellant pursuant to G.O.(P) 489/89/Fin dated 23.10.1989 was not accepted by the Accountant General. It was also contended that Ext.P7 was issued to rectify the anomaly in Ext.P3 and that fixation of the appellant's pay in the category of Woman Naik was not in order since the pre-revised scales of pay of Rs.210-340 and 215-370 merged into the scale of pay of Rs.310- 490 with effect from 1.7.1978 as per the 1978 pay revision order. By judgment delivered on 4.10.2005 the learned Single Judge disposed of the Writ Petition with the following directions: "2. Having heard counsel for the petitioner and the Special Govt. Pleader appearing for the respondents, I find that the above contention of the petitioner merits consideration. Therefore, there shall be a direction to the respondents to recalculate the average emoluments taking into account the service particulars shown in Ext.P8 for the period from 1.10.2001 to 2.5.2002, the basic pay drawn by the petitioner for the above period being Rs.6000/-; and from 3.5.2002 to 1.6.2002, the basic pay drawn by the petitioner for the said period being Rs.7375/-. On the basis of the average WA 2407//06 -: 4 :- emoluments the pensionary benefits due to the petitioner shall be recalculated and appropriate orders issued sanctioning the amount thus determined by the appropriate authority. Needless to state that the additional amount found due to the petitioner on such recalculation shall be paid to her as early as possible. Time for determining the revised pensionary benefits will be three months on receipt of a copy of this judgment and payment of arrears of pensionary benefits on account of such revision will be two months thereafter." 5. The respondents filed R.P.No.330 of 2006 seeking a review of the judgment in the W.P.(C)No.796 of 2004. In the Review Petition, they contended as follows: "4. It is submitted that as per the 1978 Pay Revision Order, the pre-revision scale of Rs.210-340 and Rs.215-370 were merged into one scale of Rs.310-490 with effect from 01.07.1978. The Police personnel who got promotion as Naik after 01.07.1978 were not eligible for fixation of pay under Rule 28A. It is submitted that for the 1983 Pay Revision, the petitioner has not exercised option for the revised scale of Police Constable of Rs.640-1000. In the absence of option, her pay was to be fixed in the scale of Rs.640-1000 with effect from 01.07.1983 and in the revised scale of Rs. 825-1290 with effect from 01.10.1988. This incorrect fixation of pay in the 1988 Pay Revision had affected 1998 Pay Revision also later resulted in Ext.P2 Audit Objection. 5. It is submitted that the fixation of pay of the petitioner was found to be erroneous from 01.10.1988, during the audit by the Accountant General and the Department was directed to revise the pay and rectify the mistake. Accordingly, WA 2407//06 -: 5 :- the Superintendent of Police revised the fixation as per proceedings No.DO.514/03/Q dated 01.11.2003, with a direction to recover the excess pay. On revising the pay based on the direction of the Accountant General, she is eligible for Rs.1800/- on 01.10.1996 as against Rs.2100 + 30 allowed. She opted 1997 Pay Revision with effect from 01.03.1997. Hence, she is eligible for pay with effect from 01.03.1997 as follows: 01.03.1997 : 5375 (4600-100-5000-125-5750-150-8000) 01.10.1997 : 5500 01.10.1998 : 5625 01.10.1999 : 5750 01.10.2000 : 5900 (scale modified to 5000-8150) 16.10.2000 : (Scale modified to 5500-9075) 16.10.2000 : 5800+100 01.10.2001 : 5950+100. " As regards fixation of the appellant's pay in the post of Woman Circle Inspector of Police, the respondents contended as follows: "6. It is submitted that the petitioner had promoted as Circle Inspector of Police with effect from 03.05.2002 in the scale of pay of Rs.6500-10550 and she is eligible only for Rs.6500/- on promotion as Circle Inspector of Police with effect from 03.05.2002 based on the pay revised as suggested by the Accountant General. The pay fixed at Rs.7375/- from 03.05.2002 was based on an erroneous fixation in the non- gazetted cadre, though direction was given by Accountant General to rectify the fixation as early as on 1997, the Department had not taken timely action till 2003. The Accountant General fixed the pay at Rs.7375/- based on the WA 2407//06 -: 6 :- entries in the service book. This mistake was subsequently corrected by the Accountant General. 6. Accordingly, revised pay slip was issued on 07.01.2004 fixing the pay of the petitioner as Rs.6500/-. However, the petitioner did not produce the revised pay slip. On the other hand, she had produced the incorrect pay slip issued by the Accountant General, based on the erroneous pay fixation as Ext.P4 showing the last pay as Rs.7375/-. It is submitted that based on the erroneous pay slip issued by the Accountant General, this Hon'ble Court was pleased to direct the Review Petitioners to re-calculate the average emoluments taking pay of Rs.7375/- for the period from 03.05.2002 to 01.06.2002. It may be noted that the revised pay fixed upto 03.05.2002 for calculating pensionary benefits in Ext.P8 is admitted. Based on that pay, she is eligible for a basic pay of Rs.6500/-, on getting promotion as Circle Inspector of Police with effect from 03.05.2002 on applying Rule 28 A of Part I K.S.R. for fixation of pay. It is submitted that if the directions of this Court is implemented, she has to be paid pension at a higher rate than that for which she is eligible and there will be a loss to the exchequer. It is submitted that the admissible pay of Rs.7375/- shown in Ext.P4 is not correct." 6. The Review Petition came up for admission on 20.10.2006. In the Review Petition, apart from pointing out that the fixation of the appellant's pay in the category of Woman Naik was not in order, the respondents also contended that a revised pay slip was issued on 7.1.2004 fixing the appellant's pay in the category of Woman Circle Inspector of Police, that her basic pay as on 3.5.2002 was to be fixed at Rs.6500/- and that the earlier WA 2407//06 -: 7 :- fixation at Rs.7375/- was erroneous. On 20.10.2006, when the Review Petition came up for admission, the learned Single Judge passed the following order: "3. It is stated in the review petition that the emoluments due to the petitioner for the period from 3.5.2002 to 1.6.2002 are not liable to be worked out taking into account the basic pay as Rs.7375/- because, after the issuance of Ext.P8, which is the extract of the pension book of the petitioner, the fourth respondent - Accountant General had issued revised pay slip to the petitioner on 7.1.2004 fixing the basic pay at Rs.6500/-. But this aspect could not be brought to the notice of this Court at the time of the disposal of the writ petition and that has led to the issuance of directions as stated above. 4. The respondent-writ petitioner has filed counter affidavit. There is no denial of the fact that the revised pay slip was issued on 7.1.2004 fixing the pay of the petitioner at Rs.6500/- and hence Ext.P8 stood modified to that effect. If the petitioner had received the pay slip before WP(C) 796/2004 was disposed of, that fact ought to have been brought to the notice of this Court, so as to enable this Court to take a just decision. 5. Revised pay slip issued by the Accountant General on 7.1.2004 has neither been challenged by the petitioner nor set aside by any competent authority. Hence the factual position is that the basic pay of the petitioner for the period from 3.5.2002 to 1.6.2002 is Rs.6500/- and not Rs.7375/- as wrongly stated in the judgment under review. 6. I am satisfied that the above error in the judgment WA 2407//06 -: 8 :- cannot be allowed to stand and that the relevant portion of the judgment requires appropriate modification. Review petition is allowed. Paragraph 2 of the judgment in so far as the basic pay drawn by the petitioner for the period from 3.5.2002 to 1.6.2002 shall stand modified by substituting the figure '6500/-' in the place of the figure '7375/-'. Ordered accordingly." 7. The writ petitioner has in this Writ Appeal canvassed the correctness of the order passed by the learned Single Judge in the Review Petition. 8. We heard Sri.S.Mohandas, the learned counsel appearing for the appellant and Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents. One of the reasons put forward by the respondents for issuing Ext.P7 is that the appellant's pay in the category of Woman Naik was erroneously fixed in Ext.P3 and the said erroneous fixation of pay affected the pay fixation in the subsequent pay revisions also. By Ext.P3, the pay of the appellant in the category of Woman Naik as on 1.10.1978 was refixed at Rs.274/- in the scale of pay of Rs.215-370. Increments were granted raising her pay to Rs.282/- with effect from 1.10.1979, to Rs.290/- with effect from 1.10.1980 and to Rs.298/- with effect from 1.10.1981 in the scale of pay of Rs.215-370. The only ground on which the fixation of the appellants pay in the category of Woman Naik with effect from 1.10.1978 was objected to is that the pay scales of Rs.210-340 and Rs.215-370 merged with the scale of pay of Rs.310-490 with effect from 1.7.1978 as per the 1978 pay revision order. It is contended that in view of the merger of the scales of pay as WA 2407//06 -: 9 :- above, those police personnel who got appointment as Naik after 1.7.1978 are not eligible for fixation of pay under Rule 28A of Part I of the K.S.R., and therefore the fixation of the appellant's pay in Ext.P3, applying Rule 28A is erroneous. The second ground put forward is that, though in the 1983 pay revision introduced by G.O.(P) 515/85/Fin dated 16.9.1985, the scale of pay of Police Constable was revised as Rs.640-1000 with effect from 1.7.1983, the appellant did not opt for the revised scale of pay. Therefore, it is contended that her pay has to be fixed in the scale of pay of Rs.640-1000 with effect from 1.7.1983 and in the revised scale of pay of Rs.825-1290 with effect from 1.10.1988. It is further contended that this incorrect fixation of pay in the 1988 pay revision has affected the pay revision effected in 1992 as well. 9. A comparison of fixation made in Exts.P3 and P7 would show that by Ext.P3, the basic pay of the appellant was fixed at a lower stage in the time scale of pay. A reading of Ext.P3 would show that the appellant was promoted as Woman Naik in the scale of pay of Rs.215-370 by order dated 22.9.1978 and she joined duty on 26.9.1978. Prior to her promotion as Woman Naik, the appellant was a Police Constable drawing salary in the scale of pay of Rs.210-340 and by Ext.P3 her pay as on 1.10.1977 in that category was fixed at Rs.258/-. When she was promoted as Woman Naik on 22.9.1978, the scale of pay of Woman Naik was Rs.215-370. As matters stood on 22.9.1978, the scale of pay of Police Constable was Rs.210-340 while the scale of pay of Woman Naik was Rs.215-370. The appellant, who WA 2407//06 -: 10 :- was in service as Police Constable in the scale of pay of Rs.210-340 was promoted as Woman Naik in the scale of pay of Rs.215-370. As on 22.9.1978, the post of Woman Naik was a post carrying a higher time scale of pay and therefore, in the category of Woman Naik her pay was fixed in the higher time scale of Rs.215-370. It was applying Rule 28A of Part I of the K.S.R. that her pay as Woman Naik was fixed in the scale of pay of Rs.210- 340 with effect from 1.10.1978. It was only by G.O.(P)860/78/Fin dated 16.12.1978 that with effect from 1.7.1978 the scales of pay of Rs.210-340 and the Rs.215-370 merged into the scale of pay of Rs.310-490. There is no dispute that the pay of the appellant as on 1.10.1977 in the category of Police Constable was rightly fixed at Rs.258/- in the scale of pay of Rs.210- 340. After G.O.(P)459/69/Fin dated 23.10.1989 was issued the appellant exercised re-option in respect of the 1978 pay revision and opted for fixation of pay in the category of Woman Naik with effect from 1.10.1981 in the revised scale of pay of Rs.310-490 which by virtue of G.O.(P)860/78/Fin dated 16.12.1978 became the scale of pay of Police Constable as well as Woman Naik. The stand taken by the respondents is that the pay of the appellant ought to have been fixed in the scale of pay of Rs.310-490 with effect from 1.7.1978. We fail to understand how the fixation of pay at a lower stage in a lower time scale of pay would be against the interests of the State Government. If the pay of the appellant is fixed in the scale of pay of Rs.310-490 she would have drawn higher emoluments on 1.10.1978 in the category of Woman Naik. In our opinion, this aspect of the matter has not WA 2407//06 -: 11 :- been gone into when Ext.P7 order was passed. The attempt now made, more than 11 years after the the pay of the appellant in the post of Woman Naik was fixed by Ext.P3 as early as on 23.1.1992, to disturb the fixation on the plea that the scale of pay of Rs.210-340 applicable to Police Constable and Rs.215-370 applicable to Woman Naik prior to the issue of G.O.(P)860/78/Fin dated 16.12.1978 merged into one scale of pay of Rs.310-490 with effect from 1.7.1978, is in our opinion plainly arbitrary and illegal. 10. We shall now deal with the contention that though the scale of pay of Police Constable was revised to Rs.640-1000 with effect from 1.7.1983, the appellant did not choose to opt for the revised scale of pay and therefore her pay as on 1.7.1983 had to be fixed in the scale of pay of Rs.640-1000. By G.O.(P)459/89/Fin dated 23.10.1989, all state government employees were given a chance to exercise option in respect of the 1973, 1978 and 1983 pay revisions. The appellant availed that opportunity and exercised her option and it was accepting that option that in Ext.P3 her pay as on 1.7.1983 was fixed. There is no challenge to the method of fixation of the appellant's pay as on 1.7.1983; but the fixation of her pay as on 1.10.1988 is objected to, again for the reason that she did not opt for the scale of pay of Rs.640- 1000 when the 1983 pay revision was introduced. We fail to see any logic in the said reasoning as well. By G.O.(P) 459/89/Fin dated 23.10.1989, the appellant and other state government employees got a further opportunity to exercise their option in respect of the 1983 pay revision as well. The said government order was issued to enable those who had not initially exercised WA 2407//06 -: 12 :- their option in the 1983 pay revision, to exercise their option. The respondents have no case that the appellant is not entitled to the benefit of the government order dated 23.10.1989. If the plea of the respondents is accepted, it would virtually defeat the very purpose for which G.O.(P) 459/89/Fin dated 23.10.1989 was issued. Since there is no objection to the method of fixation of the appellants pay as on 1.7.1983, fixation of the appellant's pay as on 1.10.1988 in the maximum of the scale of pay of Rs.825-1290, cannot also be disputed. A fortiori, the fixation in the subsequent pay revisions also cannot be taken exception to. We therefore overrule the said contention as well. 11. We also notice that after the learned Single Judge disposed of the Writ Petition by judgment delivered on 4.10.2005, the Superintendent of Police, Kollam had issued proceedings No.A4(a)30005/2002 dated 13.2.2006 (Annexure I produced by the appellant along with the counter affidavit filed by her in I.A.No.1553 of 2006 in R.P.No.330 of 2006) giving effect to the directions issued by the learned Single Judge. By the said proceedings, the appellant's pay in the category of Woman Naik as on 1.10.1978 was fixed applying the scale of pay of Rs.215-370 at Rs.274/-. The respondents have not objected to the fixation of pay in Annexure I. By Annexure I, the pay of the appellant in the category of Woman Sub Inspector of Police was fixed at Rs.7100/- as on 1.10.2001. She was promoted as Woman Circle Inspector of Police by order passed on 30.4.2002 and she jointed duty on 3.5.2002. Therefore, her pay as on 3.5.2002 in the category of Woman Circle Inspector WA 2407//06 -: 13 :- of Police has to be fixed based on the fixation of pay in the category of Sub Inspector of Police in Annexure I. 12. Six years have passed after the appellant retired from service. The appellant was not put on notice or heard before Ext.P7 was passed upsetting the pay fixation made more than 11 years back. It is following the fixation of pay made as per Ext.P3 that the appellant's pay was fixed in the subsequent pay revisions. In our opinion, the respondents were not justified in issuing Ext.P7 cancelling Ext.P3, long after the appellant retired from service. Ext.P7 was issued in gross violation of the principles of natural justice. The appellant was not given an opportunity to state her case and to show that the grounds stated for cancelling Ext.P3 are not tenable. Ext.P7 is therefore bad on that count as well. We therefore declare that the appellant would be entitled to have her pay as on 3.5.2002 frixed in the post of Woman Circle Inspector of Police based on the pay which she was entitled to in the lower post of Woman Sub Inspector of Police as on that date, as fixed in Annexure I. We also hold that the appellant would be entitled to payment of terminal benefits on that basis. We accordingly direct the respondents to give effect to Annexure I order dated 13.2.2006 issued by the Superintendent of Police, Kollam and on that basis to fix and pay the terminal benefits that she is entitled to. Steps in that regard shall be taken and disbursement of arrears made within two months from today. Needless to say, the appellant would also be entitled to interest at 6% per annum on the DCRG payable to her with effect from 1.8.2002, till the date of payment. WA 2407//06 -: 14 :- The Writ Appeal is allowed of as above. No costs. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 26/6 WA 2407//06 -: 15 :- See page 12 (x) Add Even going by Ext.P7 and the pleadings in the counter affidavit filed by the respondents and also the contentions in the Writ Petition, Ext.P7 was issued because of a mistake committed on 23.1.1992. Rule 3C empowers the State Government to authorise recovery of excess payments made to an officer by mistake within a period of four years before his retirement, which is detected within a period of four years after his retirement. In the instant case even assuming that there was a mistake, the mistake occurred on 23.1.1992, which was more than a decade prior to the appellant's retirement from service. G.O.(P)459/89/Fin dated 23.10.1989.