IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 WP(C).No. 29007 of 2005(S) -------------------------- OA.797/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- K.K.KUNHAN, AGED 60 YEARS, S/O.KOMAN, UPPER DIVISION CLER, (ACP), DIRECTORATE OF CASHEW NUT AND COCOA DEVELOPMENT, KERA BHAWAN, KOCHI-11, RESIDING AT UNNIKRISHNA, PRASANTHINAGAR, KALLEKULANGARA, PALGHAT. BY ADV. SRI.T.C.GOVINDA SWAMY RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF AGRICULTURE, (DEPARTMENT OF AGRICULTURE & CO-OPERATION), KRISHI BHAVAN, NEW DELHI. 2. THE DIRECTOR, DIRECTORATE OF CASHEW NUT AND COCOA DEVELOPMENT, MINISTRY OF AGRICULTURE, KERA BHAVAN, KOCHI-11. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WP(C) 29007/2005) PETITIONER'S EXTS. EXT.P1 A TRUE COPY OF THE ORDER IN O.A.797 OF 2003 DATED 20.9.2005 RENDERED BY THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. EXT.P2 A TRUE COPY OF THE NOTICE OF RECOVERY BEARING NO.ES-87/A04/0102 DATED 30.9.2005 ISSUED BY R2. EXT.P3 A TRUE COPY OF MEMORANDUM NO.1(i)-E-III(A)/67 DATED 30TH AUGUST, 1972. EXT.P4 A TRUE COPY OF THE ORDER DATED 11.3.1996 ISSUED BY R2. EXT.P5 A TRUE PHOTOCOPY OF ILLUSTRATION CONTAINED IN PAGES 177-179 OF SWAMY'S COMPILATION OF PAY RULES MADE EASY. EXT.P6 A TRUE COPY OF THE OA NO.797/2003 LESS ANNEXURES A2 AND A11. EXT.P7 A TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS DATED 23RD MARCH, 2005. RESPONDENT'S EXTS. EXT.R1(a) TRUE COPY OF THE ORDER NO.1/10/89-ESTT(PAY-I) DT. 22.10.1990 ISSUED BY THE GOVERNMENT OF INDIA. EXT.R1(b) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DT.19.6.1995. EXT.R1(c) TRUE COPY OF THE RELEVANT PROVISIONS OF (PAGE 195) SWAMY'S PAY RULES MADE EASY DT. NIL. EXT.R1(d) TRUE COPY OF THE LETTER DT.16.7.2001 ISSUED BY THE INTERNAL AUDIT WING. EXT.R1(e) TRUE COPY OF THE ORDER DT. 12.1.2005 ISSUED BY THE DIRECTORATE OF CASHEW AND COCOA DEVELOPMENT. EXT.R1(f) TRUE COPY OF THE RELEVANT EXTRACTS OF SWAMYS INTERPRETATIONS ON SERVICE RULES DT. NIL. EXT.R1(g) TRUE COPY OF RELEVANT EXTRACT OF PROVISO TO FR.22 ((FR.22(I)(b) OF SWAMY'S FUNDAMENTAL RULES DT. NIL. lgk K.BALAKRISHNAN NAIR & K SURENDRA MOHAN, JJ ........................................... WP(C).NO. 29007 OF 2005 ............................................ DATED THIS THE 5TH DAY OF JANUARY, 2009 JUDGMENT The petitioner was the applicant in O.A.797 of 2003. Ext.P6 is the copy of memorandum of original application filed by him before the CAT, Ernakulam Branch. The order impugned in that O.A was Annexure A10. By the said order, his objection regarding refixation of his pay on the basis of Audit objection and recovery of excess amount was rejected. 2. The petitioner was an L.D.Clerk working under the respondents. At the relevant time, the scale of pay of L.D. Clerk was Rs.950- 1500. He was promoted on regular basis to the post of U.D.Clerk on 2.5.1994 carrying the scale of pay of Rs.1200- 2040. He submits he has various spells of service in the U.D.Cadre. On promotion, his pay was rightly fixed under Rule 22(1)(b) of the Fundamental Rules. While granting increment the various spells of his service in the higher post of U.D.clerk, was not reckoned, and the same was against the mandate of Rule 26(a) of the Fundamental Rules. Though initial pay was fixed and increments were granted as claimed by him in his representation, it was unilaterally refixed. Later, on the direction WP(C) 29007/2005 2 of CAT, the petitioner was issued with a fresh notice and after taking into consideration the objection filed by him, the present impugned order, Annexure 10 was passed. The objections raised by the petitioner, including the one relying on Rule 26(a) of the Fundamental Rules were rejected and the impugned order was upheld by the CAT. Hence this writ petition challenging Ext.P1 order as per which the above said O.A was dismissed. 3. The petitioner has no grievance regarding the fixation of pay under Rule 22(1)(b) of the Fundamental Rules. His grievance is regarding the non-reckoning of the service rendered by him in the post of U.D.C during various spells for the purpose of grant of increment. He relies on Ext.P3 to substantiate his claim. The said Ext.P3 contains an illustration how various spells of adhoc service in the promoted post will be counted for granting an increment during the next spell of promotion, on completion of twelve months adhoc service. 4. In this case, we notice from Annexure R3 produced along with Ext.P7 reply statement filed by respondents herein before CAT that after 1.1.1986 and before 2.5.1994 petitioner served in the higher post of U.D.C only for a period of three months between 6.9.1993 to 6.12.1993. The said period is not sufficient WP(C) 29007/2005 3 for the grant of an increment in the post of U.D.C. So, we hold that the claim of the petitioner relying on Rule 26(a) of the Fundamental Rules is unsustainable in law. 5. Learned counsel for the writ petitioner finally submitted that the pay has been fixed and granted by the competent authority and the petitioner has received and expended it in good faith and at this stage, he cannot be asked to refund the excess salary received. It is also pointed out that an objection was taken by respondents regarding the fixation of his pay for the first time only in 1999. In other words, on their own volition, respondents paid the salary to him from 2.5.1994 to 15.7.1999. Only thereafter, the courts interdicted and the pay was protected. So, learned counsel would point out that the excess payment made between 2.5.1994 and 15.7.1999 should not, at any rate, be recovered. The Assistant Solicitor General appearing for the official respondents submitted that the pay was fixed on the representation of the petitioner and as soon as the irregularity was detected by the audit party, steps were taken to reduce the same. There is no inordinate delay from the part of respondents and therefore the recovery is justified. 6. Regarding recovery of excess salary paid, there are WP(C) 29007/2005 4 several apparently conflicting decisions of this court and the Apex Court. Each decision is rendered based on the particular facts of that case. In other words, there is no universal rule that whenever excess salary is sought to be recovered, the same has to be interdicted by the courts. In this case, we notice that the excess salary happened to be paid from 2.5.1994, but within five years the same was detected and action was taken to recover the same. Steps taken by the respondents is to safeguard public money and thereby safeguard public interest. We feel that the said action of respondents cannot be described as without jurisdiction. This court can interfere with the recovery of excess salary, if only it is shown to be ultra vires or contrary to any statutory provision. We find no such ground has been made out against the recovery in this writ petition. In the result, writ petition fails. It is dismissed. K.BALAKRISHNAN NAIR, JUDGE K SURENDRA MOHAN, JUDGE lgk/-