IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 OP.No. 32509 of 2001(T) ----------------------- PETITIONER: ---------------- KURIAKOSE JACOB, INSTRUCTOR GRADE II ( CIVIL) MAR ATHANACIOUS COLLEGE OF ENGINEERING, KOTHAMANGALAM. BY ADV. SRI.KRB.KAIMAL SRI.B.UNNIKRISHNA KAIMAL RESPONDENTS: ------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT HIGHER EDUCATION (J) DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, TRIVANDRUM. 3. THE JOINT DIRECTOR OF TECHNICAL EDUCATION, KOTHAMANGALAM. 4. THE SECRETARY, M.A. COLLGE ASSOCIATION & CHAIRMAN GOVERNING BODY, M.A. COLLEGE OF ENGINEERING, KOTHAMANGALAM. 5. THE PRINCIPAL, M.A. COLLEGE OF ENGIEERING, KOTHAMANGALAM. BY GOVERNMENT PLEADER SRI.T.T. MAHMOOD THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 32509 of 2001 ORDERS ON I.A.NOS.3251, 8943 OF 2005, C.M.P.NOS. 53009/01 AND 10361/03 IN O.P.NO.32509/2001 DISMISSED. 06.02.2008 SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF ORDER NO.B1-1751/86 DT. 24/11/1986 ISSUED BY R4. EXT.P2: COPY OF ORDER NO.B1-1287/95 DT. 15/9/1996 ISSUED BY R4. EXT.P3: COPY OF LETTER NO.A2/1497/97/DT. 24/3/99 OF R3 ADDRESSED TO R5. EXT.P4: COPY OF LETTER NO.DP4/44990/97 DT 20/1/99 OF R2 ADDRESSED TO R3. EXT.P5: COPY OF ORDER NO.B1-1287/95 DT. 20/4/1999 ISSUED BY R4. EXT.P6: COPY OF REPRESENTATION DT. 29/11/1999 SUBMITTED BY THE PETITIONER TO R2. EXT.P7: COPY OF THE LETTER NO.23551/J3/99/H.EDN. DT. 5/7/2001 OF R1 ADDRESSED TO R2. EXT.P8: COPY OF ORDER NO.A2/1983/2001/L.DIS. DT. 4/10/2001 ISSUED BY R3 TO R5. EXT.P9: COPY OF THE RELEVANT PORTION OF PAY REVISION ORDER G.O.(P)NO.480/89/FIN. DT. 1/11/1989. EXT.P10: COPY OF THE GOVT. LETTER NO,24430/J2/97/H.EDN. DT. 1/8/1998 ADDRESSED TO R2. EXT.P11: COPY OF ORDER NO.DP.2/29577/97/DT. 13/1/1999 ISSUED BY R2. 3RD RESPONDENT'S EXHIBITS ANNEXURE-A: COPY OF THE LETTER DATED 17.8.07 OF R3. ANNEXURE-B: COPY OF THE LETTER DATED 4.9.07 OF R5. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.32509 OF 2001 ---------------------------------------- Dated this the 6th day of February, 2008 JUDGMENT The petitioner is an Instructor Gr.II (Civil Engineering) in M.A. College of Engineering, Kothamangalam. He was appointed as such on 15.9.1976. His scale of pay was Rs.825-1430 prior to 1985 pay revision. The 1985 pay revision came into force with effect from 1.7.1985. The pay revision order provided for two higher grades for those persons, who continue in service without any promotions, that is 10 years' higher grade and 20 years' higher grade. The 10 years' higher grade was available to an employee in the scale of pay of the next higher post in the hierarchy, if the employee possessed the qualifications prescribed for that higher post. If the employee was not qualified to be promoted to the next higher post, the petitioner would get only the next higher scale of pay as provided in the pay revision order. The petitioner possessed the qualifications for promotion to the post of Instructor Gr.I, as per the special rules applicable to private Engineering College which in turn makes the service rules O.P. No.32509/01 2 applicable to Government Engineering Colleges applicable to private College staff also. There was no post of Instructor Gr.II in Civil Engineering Branch in M.A. College, Kothamangalam. The petitioner became eligible for 10 years' higher grade on 15.9.1986. He was not given the 10 years' higher grade in the scale of pay of the next higher post namely Instructor Gr.I, but was only granted the next higher scale of Rs.1050-2000 as provided in the Pay Revision Order. Thereafter in 1988 and 1993 subsequent pay revision orders came into force. The petitioner’s scale of pay was revised corresponding to the scale of pay as applicable to the scale of pay the petitioner was enjoying. Later, the revised scale of pay granted to the petitioner was sought to be revised on the basis of Clause (ix) of Ext.P9 Government order, which stipulated that the persons enjoying time bound higher grades in various posts in accordance with the existing pattern will be given only the specified scales of pay indicated in the order and not the corresponding scales of their present time bound grades unless ordered otherwise. The scale of pay corresponding to the scale of pay of Rs.1050-2000 being enjoyed by the petitioner was Rs.1330-2555. But going by O.P. No.32509/01 3 Clause (ix) referred to above, the petitioner was eligible for only the scale of pay of Rs.1220-2150. By Exts.P7 and P8, the petitioner’s scale of pay was ordered to be reduced to Rs.1220-2150 and the excess pay received by the petitioner was directed to be recovered. The petitioner is challenging Exts.P7 and P8 in this original petition. 2. The petitioner raises two contentions. First is that after having allowed the petitioner to enjoy the revised scale of pay for so many years, it would be unjust to recover the excess salary already received by him for no fault of his. The second contention raised is that even assuming that the scale of pay can be reduced on the basis of Clause (ix) of Ext.P9, in order to mitigate the hardship caused to the petitioner, his claim for next higher grade as applicable to the next higher post of Instructor Gr.I should be considered. 3. The learned Government pleader would submit that both the requests of the petitioner cannot be granted. According to him erroneous fixation of pay pursuant to pay revision orders can be recovered because the revision itself is on the basis of an undertaking by the petitioner that in the event of any erroneous fixation, he would refund the excess O.P. No.32509/01 4 pay received. Regarding the other contention he would submit that in the 1985 pay revision order, the grant of higher grade was regulated by the following provision: “(viii) The higher grade to be sanctioned for a category in the normal course will be the scale of pay of the next promotion post in the direct line of promotion subject to the requirement of qualification. In the case of persons not possessing the requisite academic qualification for promotion to such promotion post, an appropriate scale of pay will be fixed as higher grade by Government. For the purpose of fixing the higher grade for a category, the question whether the promotion post for it is filled up wholly or only partly by promotion will be immaterial. In cases where there are no promotion posts, appropriate higher grade will be fixed by Government.” (underlining supplied) According to him where there are no promotion posts appropriate higher grade would be applicable only as fixed by the Government. In this case since there is no post of Instructor Gr.I in M.A. College of Engineering and since the appropriate higher grade fixed by the Government is only in the scale of pay of Rs.1220-2150, the petitioner can only aspire for that scale of pay. 4. In answer to this contention, the counsel for the petitioner would submit that the words ‘in cases where there are no promotion posts’ appearing in the above provision O.P. No.32509/01 5 contemplates only a situation where no promotion posts are prescribed in the special rules for the service as a whole and not in the particular College where the employee is working. He would further submit that as is evident from Exts.P10 and P11 another employee named Smt. N. Bhasurangi working in TKM College of Engineering, Kollam where also there is no post of Instructor Gr.I available, higher grade as applicable to the scale of pay of Instructor Gr.I was granted. The only answer of the Government pleader to the same is that the same is erroneous. 5. I have considered the rival contentions in detail. As far as the contention regarding recovery of excess pay granted to the petitioner is concerned, I do not think that his contention can be sustained in view of Clause (ix) of Ext.P9. Further he has availed of the pay revision after submitting a declaration to the effect that any excess pay received by him on account of the fixation would be refunded. It is settled law that where there is a rule for recovery of excess pay then the Government is entitled to recover the same notwithstanding passage of time. 6. But in the present situation, since there is no fault O.P. No.32509/01 6 on the part of the petitioner in the fixation of pay, I think that in the interest of justice the petitioner’s second contention should be considered for mitigating the hardship that would be caused to him on account of recovery of such huge sum from him notwithstanding the delay in claiming the same. It is not disputed before me that the petitioner has the qualification prescribed for promotion to the post of Instructor Gr.I as per the rules applicable. It is also not disputed that in such case, the higher grade in the scale of pay of Instructor Gr.I is available to a person, who has completed 10 years service as Instructor Gr.II. The issue revolves on the question of application of the last sentence in Clause (viii) quoted above, ie as to whether when there is no promotion post of Gr.I in the petitioner’s College he can aspire for the higher grade in the scale of pay applicable to Instructor Gr.I. I am of opinion that the petitioner can. The pay revision order has been issued not with each College in contemplation. The same is issued for the entire service as per the special rules. It is not disputed before me that University Statutes applicable to the employees of private Engineering Colleges contains a post of Instructor Grade I which is a promotion post for Instructor Gr.II. Of O.P. No.32509/01 7 course the M.A. Engineering College does not have the post of Instructor Gr.I as per the staff pattern fixed for the College. According to me that fact does not take away the right of the petitioner to get the higher scale of pay applicable to Instructor Gr.I as higher grade, simply because the College does not have a Gr.I post. According to me, the words ‘in cases where there are no promotion posts’ is applicable only to cases where there are no posts to which a particular employee can be promoted at all. It is quite possible that the M.A. College of Engineering may get a Gr.I post in future, if the conditions for the same are satisfied. Therefore the interpretation as above would be the more correct interpretation in the facts and circumstances of the case. Further a different interpretation would result in discrimination since in other Colleges and in other departments of MA College itself where there is a post of Gr.I Instructor sanctioned, similarly situated Instructors Gr.II would be getting higher scale of pay than the petitioner. As such, the petitioner has become entitled to 10 years' higher grade in the scale of pay applicable to Instructors Gr.I in accordance with the 1985 pay revision and corresponding revised scale of pay in accordance O.P. No.32509/01 8 with subsequent pay revisions. The petitioner’s pay shall be refixed accordingly and only the balance amount shall be recovered from him pursuant to Exts.P7 and P8. Orders in this regard shall be passed by the competent among the respondents within a period of two months from the date of receipt of a copy of this judgment. Interim order dated 1.3.2005 would be in force till orders are passed as above. Original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P. No.32509/01 9