IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 OP.No. 18814 of 2002(M) ----------------------------- PETITIONER(S): --------------- T.S. VIDYADHARAN, AGRICULTURAL OFFICER, KRISHI BHAVAN, ELAVANCHERY, PALAKKAD. BY ADV. MR.M.V.BOSE MR.VINOD MADHAVAN MS.NISHA BOSE RESPONDENT(S): --------------- THE DIRECTOR OF AGRICULTURE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MS.SMITHA SUKUMAR FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 18814 of 2002 ORDERS ON C.M.P.NO.32114 OF 2002 AND I.A.NO.2995 OF 2005 IN O.P.NO.18814 OF 2002 CLOSED. 31.3.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1; COPY OF ORDER DATED 18.6.1997 OF THE RESPONDENT. EXT.P2: COPY OF EXTRACT OF THE RELEVANT PORTIONS OF THE SENIORITY LSIT. EXT.P3: COPY OF THE ORDER DATED 22.6.2002 ALONG WITH ANNEXURE A & B. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 18814 OF 2002 ---------------------------------------- Dated this the 30th day of March, 2009 JUDGMENT The facts of this case are identical with the facts of O.P.Nos.18661 and 21641 of 2002. Those original petitions were disposed of by a learned Judge of this Court by judgment dated 17.1.2005 as follows: 'Since common questions arise, I am disposing of these writ petitions by a common judgment. 2. The prayer in O.P.18661 of 2002 is to quash Exts.P5, P6 and P7 to the extent the petitioners are reverted from the post of Agricultural Officers and they are directed to refund the salary received by them as Agricultural Officers based on Exts.P1 and P2 promotion orders. There is a further prayer to direct the first respondent to fill up 15% of the post of Agricultural Officers by promotion of qualified Agricultural Officers in terms of Exts.P9 to P11 and to accommodate the petitioner as Agricultural Officers in the existing vacancies in the 15% promotion quota. 2. The case of the petitioners is that they entered service as Agricultural Assistants and that there were three grades in the category of Agricultural Assistants based on a ratio on the number of posts of Agricultural Assistants. The grades are Senior Grade Agricultural Assistants, Agricultural Assistants Grade I and Agricultural Assistants Grade II. They are to be in the ratio 20:30:50. Promotion is based on seniority alone. O.P.No.18814/02 2 The sanctioned strength of Agricultural Assistants as on 31.12.1996 is 3075. Hence according to them there should be 615 Senior Grades, 922 Grade I and 1538 Grade II. They were promoted as Agricultural Assistants Grade I before 31.12.1996. For the next higher post of Agricultural officers 15% of the vacancies are reserved for promotion from Agricultural Assistants having atleast three years service as Agricultural Assistant Grade I and who have passed the suitability test. The petitioners have passed the suitability test conducted by the Public Service Commission on 7.12.1991. Accordingly, the first respondent promoted the petitioners. But it appears that respondents 7 and 8 and several seniors to the petitioners in the category of Agricultural Assistant Grade I were not promoted because they had not passed the suitability test by the time the petitioners were promoted. Some of such seniors, according to the petitioners, including respondents 7 and 8 passed suitability test only when results were declared by the Public Service Commission. While continuing as Agricultural officers, the revised list of Agricultural Assistants promoted to Grade I during the period 1.1.1994 to 30.11.2000 was published. The petitioners were not included. It is said that the said list in erroneous because the assessment of vacancies of Grade I was incorrect. Accordingly O.P.35669 of 2000 and 36234 of 2000 were filed challenging the revised list of Agricultural Assistants Grade I. The above Original Petitions were disposed of by Ext.P4 judgment dated 7.11.2001 with the following directions: “(1) 20% of the vacancies of Agricultural Assistants shall be assigned to the Senior Grade Agricultural Assistants in the order of seniority. (2) 30% of the vacancies of Agricultural Assistants shall be Ist Grade and Agricultural Assistants Junior to the Senior Grade Assistants shall be placed in the said 30% and the remaining shall be Grade II. O.P.No.18814/02 3 (3) The 15% of vacancies of Agricultural Officers to be filled by promotion of Agricultural Assistants shall be filled first by accommodating Senior Grade Agricultural Assistants, subject to minimum service of three years in Grade I, and possession of suitability test and the remaining vacancies shall be filled by senior qualified Agricultural Assistants Grade I subject to possession of three years service.” In Exts.P4 and P4(a) seniority lists, respondents 7 and 8 are shown above the petitioners. It is pointed out that only 2762 persons are included as against the cadre strength of 3075 in the category of Agricultural Assistants. On the basis of the said seniority list under Annexure B thereof the petitioners were included in the persons reverted from the post of Agricultural Officers, while respondents 7, 8 and ten others are included in the list of persons who are shown as promotees. By another order dated 28.6.2002 modifying Ext.P5 it is directed that persons reverted from the post of Agricultural Officers shall refund the salary received by them as Agricultural Officers. The petitioners were allotted to Various Districts as Agricultural Assistants and respondents 7 and 8 and ten others were promoted as Agricultural Officers. It is stated that petitioners 1 and 2 are reverted only because they have only three years service as Agricultural Assistants Grade I as on the date of their promotion as Agricultural officers by Ext.P1 or on the dates on which their seniors included in Ext.P8 become qualified in September, 1997. Petitioners 3 to 6 were reverted because they are not included in the list of promotees as Agricultural Assistants Grade I. According to the petitioners, the petitioners are not liable to be reverted from the post of Agricultural Officers even after promotions were ordered in Ext.P8. Counsel contended that the requirement of three years service as Agricultural Assistants Grade I for promotion as Agricultural Officers in the 15% O.P.No.18814/02 4 promotion quota have been modified by orders dated 16.1.1999 and 12.10.1999. As per the same, since 12.10.1999 in regard to the 15% vacancies of Agricultural Officers, it is said that qualification is a total of ten years service as Agricultural Assistants. The petitioners have more than then years service as on 12.10.1999. They have already passed suitability test in the year 1992. The cadre strength is 1211. It is stated that promotion quota will be 180 under the 15% quota and only 140 promotees are in service. It is further contended that the direction to recover the salary in the post of Agricultural Officers is illegal. They were paid salary for the work done in the higher post. There is no misrepresentation. 3. The contentions taken in the other writ petition are almost similar. It is specifically contended therein that the total cadre strength of Agricultural Assistants for preparation of seniority list was 3075. It is further stated that the ratio of 2:3:5 has to be determined on the strength of cadre strength. It is stated that what has been done instead of fixing it on the basis of cadre strength is that the total number of posts were considered as 2762 on the basis of the actual number of incumbents and from that the number of posts of Senior Grade Agricultural Assistants, Agricultural Assistants Grade I and Grade II were worked out. There is of course reference to a number of decisions of this court in support of the contention that the salary paid to an employee, even if as a result of a mistake, cannot directed to be refunded. There is also reference to the ground that based on the cadre strength of Agricultural Officers being 1140 and there being only 140 promotees, it is contended that there ought to be 40 more Agricultural Officers drawn from Agricultural Officers. 4. Counter affidavit has been filed by the Government, wherein they have pointed out that figure of 2672 has been worked out on the basis of the number of actual incumbents. They have also pointed O.P.No.18814/02 5 out that they have strictly followed the directions in the judgment of this Court. It is stated that 180 posts are held by the Agricultural Officers who are promoted from the post of Agricultural Assistants and therefore there is no scope for any further promotees from the Agricultural Assistants within the 15% quota. As regards the cadre strength of 3075, it is stated that the actual number of incumbents in position as on 31.12.1996 as per Ext.P4 is only 2672. 5. Heard learned counsel for the petitioners and the learned Government Pleader. 6. As regards the contention in both the Original Petitions that since there are 1170 posts of Agricultural Officers, there has to be 180 Agricultural Officers from the cadre of Agricultural Assistants within the 15% quota and that there are only 140 persons holding the post, and therefore there could be 40 more promotions from Agricultural Assistants, it can be seen from the counter affidavit that there are already 180 promotees drawn from the cadre of Agricultural Assistants under the 15% quota. There is no reply affidavit filed by the petitioners disputing the figure. No challenge is made to the figure of 180 Agricultural Assistants who are holding the post of Agricultural Officers on promotion under the 15% quota. Complaint of the petitioners in this regard is meritless. I reject the same. As regards the contention that at any rate the petitioners cannot be directed to refund the salary which they drew upon promotion is concerned, I think that the petitioners are entitled to succeed. It cannot be disputed that an employee who was paid emoluments on a certain supposition by the Government, without any fraud or misrepresentation committed by the employee and the employee has enjoyed the salary, unless it comes within the terms of Rule 3C of Part III of the KSR, it cannot be said that the employee can be directed to refund the salary. Accordingly, Ext.P6 in O.P.No.18661 of 2002 and Ext.P5 in O.P.21641 of 2002 directing the O.P.No.18814/02 6 petitioners to refund the excess pay drawn during the period they had worked as Agricultural Officers is quashed. 7. Then the only remaining further question is whether the petitioners are justified in challenging the order by which they are reverted in O.P.18661 of 2002. It cannot be disputed that the cadre strength of the Agricultural Assistants is 3075. It is also not disputed that the Government when it passed orders in pursuance of the judgment of this court, applied the ratio on the actual number of vacancies which were held by the incumbents at 2672. Learned counsel for the petitioners submits that this is erroneous and illegal. It is their contention that if the ratio were applied in regard to the actual cadre strength and not regard to the actual number of vacancies, then many of the petitioners would be entitled to be accommodated as Agricultural Officers. I think that there should be a direction to the respondents to apply the ratio on the cadre strength rather than on the vacancies arrived at on the basis of the actual posts which are held by the officers. This is on the basis that the ratio ought to be applied with regard to the actual cadre strength. Accordingly there will be a direction to the respondents to consider the matter with regard to the cadre strength and pass appropriate orders in accordance with law. Original petitions are disposed of as above’. In so far as the facts in those original petitions are identical to the facts of this original petition, this original petition is also disposed of in terms of that judgment. S. SIRI JAGAN, JUDGE Acd O.P.No.18814/02 7