IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 WP(C).No. 25657 of 2007(D) ---------------------------------- PETITIONER(S): ------------------- K.SUDHA CHANDRAN, (RETIRED ADMINISTRATIVE OFFICER, KERALA STATE LIBRARY COUNCIL), ARDRA, HOUSE NO.J-42, JANVILLA LANE, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM-10. BY ADVS. SRI.M.C.CHERIAN SRI.M.A.THOMASKUTTY SMT.ASHA CHERIAN SRI.P.M.SANEER RESPONDENT(S): --------------------- 1. KERALA STATE LIBRARY COUNCIL, REPRESENTED BY ITS SECRETARY, KERALA STATE LIBRARY COUNCIL OFFICE, PALAYAM, THIRUVANANTHAPURAM-33. 2. SECRETARY, KERALA STATE LIBRARY COUNCIL, PALAYAM, THIRUVANANTHAPURAM-33. 3. DIRECTOR OF LOCAL FUND AUDIT, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. R1,2 BY ADV. SRI.P.V.SURENDRANATH R3 & R4 BY GOVT. PLEADER SMT.SMITHA SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 25657/2007 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER NO.209/05 DATED 30/06/1995OF THE 1ST RESPONDENT. P2: COPY OF THE ORDER NO.210/05 DATED 30/06/1995 OF THE PRESIDENT OF THE 1ST RESPONDENT COUNCIL. P3: COPY OF VERIFICATION REPORT DATED 01/06/2001 OF THE 3RD RESPONDENT. P4: COPY OF ORDER NO.938/2007 DATED 28/06/2007 OF THE 2ND RESPONDENT. P5: COPY OF THE ORDER/LETER DATED 20/06/1995 OF THE GOVERNMENT TO THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: R1(a):COPY OF THE G.O.(MS)NO.18/07/H.EDN. DATED 14/02/2007 FIXING AND SANCTIONING THE PAY SCALE OF ADMINISTRATIVE OFFICER AND THE DEVELOPMENT OFFICER IN THE SCALE OF RS.7200/11400. R1(b):COPY OF THE LETTER NO.11827(i)/PEN.1/98 DATED 30/06/1998. R1(c):COPY OF THE G.O.(Rt)NO.348/2002/H.EDN. DATED 27/03/2002 IN RESPECT OF THE SOMASEKHARA KURUP. R1(d):COPY OF THE LETTER NO.19758 A2/06/H.EDN. IN RESPECT OF THE K.U. JOSEPH. R1(e):COPY OF THE LETTER NO.24607/A3/98/H.EDN. DATED 26/09/1998. R1(f):COPY OF THE GOVERNMENT LETTER NO.26545/A2/03/H.EDN. DATED 24/11/2006. R1(g):COPY OF THE ORDER OF THE DIRECTOR OF LOCAL FUND DATED 28/05/2007. R1(h):COPY OF THE JUDGMENT IN WP.28723/2006 DATED 19/03/2008. /TRUE COPY/ P.A. TO JUDGE. svs S.SIRI JAGAN, J. --------------------------------------- W.P.(C) No. 25657 of 2007 --------------------------------------- Dated this the 24th day of June 2011. JUDGMENT Petitioner was promoted to the post of Administrative officer of the first respondent Kerala State Library Council, by order dated 30.6.1995 in the scale of pay of Rs. 3000- Rs.5000. In the 1997 pay revision order, the scale of pay of Rs. 3000- 5000 was revised to Rs. 10,000- 15,150 and consequently, the petitioner’s pay was also fixed in the revised scale of pay of Rs. 10000-15150. Petitioner retired from service on 31.7.2001. Retirement benefits of the petitioner was also calculated and disbursed on the basis of average pay drawn by him in the scale of pay of Rs. 10000-15150/-. Subsequently, 2nd respondent through Ext.P4 informed the petitioner W.P.(C) No. 25657 /2007 2 that the Government has declined to sanction the scale of pay of Rs.3000-5000 for Administrative Officer and the scale of pay sanctioned by the Government is only Rs.2500- 4000. Therefore, the petitioner’s salary has been refixed both in the pre-revised scale of pay as well as in the revised scale of pay. The corresponding revised scale of pay for the pre-revised scale of pay of Rs.2500- 4000, as per the 1997 pay revision order is Rs. 7800-12975. Consequently, the pay received by the petitioner in excess of the pay fixed in the scales of pay sanctioned was ordered to be refunded. It is in the above circumstances, the petitioner has filed this writ petition seeking following reliefs: “(i) issue a writ of certiorari of any other appropriate writ, order or direction setting aside Ext.P4 order. (ii) to declare that the fixation of pay of the petitioner made in the scale of Rs.3000-5000 w.e.f.1.7.1995 and in the scale of Rs.10,000-15150 w.e.f 1.3.1997 and the fixation of W.P.(C) No. 25657 /2007 3 pensionery benefits on the basis of the above pay are legal and valid and not liable to be varied by the respondents; (iii) to declare that the respondents are not entitled to recover any amounts from the pensionary benefits of the petitioner. (iv) to issue a writ of mandamus or other appropriate writ, direction or order directing respondents 1 and 2 to release to the petitioner the withheld portion of 25% of DCRG sanctioned in Ext.P3 together with reasonable interest; (v) to issue a writ of mandamus or other appropriate writ, direction or order directing respondents 1 and 2 to continue to pay to the petitioner the pension sanctioned in Ext.P3 with periodical revisions thereon. (vi) issue any other appropriate writ order, or direction, which this Hon'ble Court may deem fit and proper under the circumstances of the case”. 2. The contention of the petitioner is that, the scale of pay of Rs. 3000-5000 was fixed by the first respondent for the petitioner’s post for which no Government sanction is necessary. Therefore, on the ground that government did not sanction the said W.P.(C) No. 25657 /2007 4 scale of pay, petitioner’s scale of pay cannot be reduced. The respondent has produced along with their counter affidavit Ext.R1(a) judgment, which holds that for sanction of additional posts and fixing scale of pay for such posts, government sanction is necessary. Confronted with that judgment the learned counsel for the petitioner submits that in any event, in so far as the petitioner has not in any away contributed to the mistake committed by the first respondent, the excess pay drawn by the petitioner cannot be recovered from him. The petitioner relies on the decision of the Supreme Court reported in Syed Abdul Qadir and Others vs. State of Bihar and others (2009 3 SCC 475). 3. The first respondent has filed counter affidavit taking the contention that at the relevant time, the first respondent was under the bona fide impression that for creating the post of Administrative Officer and fixing scale of pay Rs.3000-5000/- for W.P.(C) No. 25657 /2007 5 the said post, no government sanction was necessary. That impression was on the basis of Ext.P5 Government Order wherein government themselves informed the first respondent that since the State Library Council is a statutory authority, who can take a decision as per law, separate government approval is not necessary in the matter. But when Ext.P1 was forwarded to the Government, the Government did not grant sanction. Sanction was granted for the same by Ext. R1(a) Order dated 14.2.2007 fixing the scale of pay applicable to the post of Administrative Officer as Rs. 7200- 11975. Therefore, the petitioner’s pay had to be revised in accordance with the government orders which resulted in the impugned proceedings is the contentions raised. The respondents also submit that an identical question was considered by another learned Single Judge at this Court in respect of another post namely Development Officer which was W.P.(C) No. 25657 /2007 6 also sanctioned by Ext.P1 order on identical scale of pay, in which the learned Judge accepted the case of the respondents that approval of the Government was necessary in view of the statutory rules applicable. According to the respondents, there is nothing wrong in the action of the respondent in recovering the excess pay drawn by the petitioner. 4. I have considered the rival contentions in detail. 5. I am surprised to find that the respondents are relying on Ext. R1(a) passed on 14.2.07 which does not even refer to Ext.P1 at all. Petitioner has in fact retired from the service of the respondent in 2001. If that be so, I do not understand the relevance of Ext.R1(a) passed on 14.2.2007 for deciding the case of the petitioner. Whatever that be Ext.P1 is admittedly the reorganization of the staff pattern referred to in Ext.P5. Ext.P5 is a letter W.P.(C) No. 25657 /2007 7 dated 20.6.1995 from the Government to the Secretary of the first respondent. It reads as follows:- 'Sir, Sub:-Implementation of recommendation suggested by PARD in their work study report – reg:- Ref:- Your Lr.No. B1/973/95/ dated 24.5.1995. Inviting attention to the reference cited, I am to inform you that since the State Library Council is a statutory Authority who can take decision as per the law separate Government approval is not necessary on the matter. The work study report is also returned.' The respondents thus admit that it is pursuant to Ext.P5, the petitioner was granted scale of pay of Rs.3000- 5000. Therefore, at the relevant time both the Government as well as the first respondent was under the bona fide impression that for implementation of Ext.P1, no sanction is necessary from the government. Until the date of retirement of the petitioner there was no change in the situation. It is thus six years after the petitioner’s W.P.(C) No. 25657 /2007 8 retirement that excess amounts are sought to be recovered on the basis of Ext. R1(a) which came into being only on 14.2.2007 which does not refer to Ext.P1 at all. As such I do not think that the petitioner has in any way contributed to the situation. 6. It is the respondent's case that instead of the scale of pay of Rs. 3000-5000 the petitioner was entitled only to Rs. 2500-4000 as on 1.7.1995. The revised scale of pay corresponding to the scale of pay of Rs. 2500-4000 as per the 1997 Pay Revision is Rs.7800-12975. It cannot therefore be disputed that, the petitioner is entitled to at least those scales of pay. But for the purpose of retirement benefits, the respondents themselves have decided to adopt the scale of pay of the petitioner as Rs.7800-12975, although that scale is not the one applicable to the post of Administrative Officer now, in view of the subsequent orders W.P.(C) No. 25657 /2007 9 especially Ext. R1(h) judgment of this court in respect of the corresponding post of Development officer. But it is to be noted that even in Ext.R1(h) judgment, ultimately for the purpose of the petitioner therein this court adopted the scales of pay of Rs. 2500-4000 and Rs. 7800-12975. 7. The next question arising is as to whether the excess salary paid to the petitioner and excess pensionery benefits paid to the petitioner in the meanwhile can be recovered from him. It is not disputed before me that the petitioner is not in any way responsible for the imbroglio. Exts.P1 and P5 shows that both the Government and the Library council were under the bona fide impression that Ext.P1 adoption of staff pattern by the first respondent is valid. That impression continued even after the petitioner retired from service. 8. In such circumstance, I do not think that the petitioner cannot be mulcted with the liability W.P.(C) No. 25657 /2007 10 to refund such huge sum of money. In fact, the Supreme Court has in the case of Syed Abdul Qadir (supra) held as follows in para 57 onwards. “There are several precedents of the Supreme Court where relief has been granted against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. The excess amount that has been paid to the appellant teachers, was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. The Finance Department of the W.P.(C) No. 25657 /2007 11 respondent State has admitted that it was a bona fide mistake. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the respondent Government. It has also been brought to the Court's notice that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, recovery of the amount that has been paid in excess to the appellant teachers is prohibited. Amount that has already been recovered has to be refunded to the employees concerned. These directions would also apply to those similarly situated teachers who have not moved the court”. A Division Bench of this Court has also held a similar view in Narayanan v. State of Kerala, 2008 (3) KLT 188. 9. In this case, this court passed the following interim order on 12.9.2007. “Admit. Standing counsel takes notice to R1 and R2. Govt.Pleader takes notice to R3 and R4. There will be a stay of recovery of any excess amount, sought to be recovered from the petitioner, consequent on W.P.(C) No. 25657 /2007 12 the re-fixation of the pension and reduction in the DCRG amount found admissible pursuant to Ext.P4, until further orders. It is made clear that the reduction in the pension made operative under Ext.P4 will continue. It is also made clear that any amount towards DCRG withheld by the respondents can be continued to be retained by them until further orders”. 10. In the peculiar facts and circumstances of the case, following the judgments in Syed Abdul Qadir Case (supra), and Narayanan's case (supra), I hold that no other amount shall be recovered except what has already been recovered or withheld from the DCRG till the date of the above interim order from the petitioner. However, the refixation of pension would stand. The writ petition is disposed of as above. S.SIRI JAGAN JUDGE al