Kerala High Court
State Of Kerala vs Kumari Claramma Sebastian on 5 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
OP(KAT) NO. 264 OF 2021
AGAINST THE ORDER IN TA 5919/2012 OF KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS IN T.A:
1 STATE OF KERALA
REP.BY THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001
2 THE DISTRICT COLLECTOR
WAYANAD, PIN 673 121
3 THE DISTRICT COLLECTOR
KASARAGOD, PIN 671 121
4 THE ACCOUNTANT GENERAL OF KERALA (A&E)
THIRUVANANTHAPURAM, PIN 695 019
SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER
RESPONDENTS/APPLICANTS IN T.A:
1 KUMARI CLARAMMA SEBASTIAN
AGED 60 YEARS, D/O.LATE M.V.SEBASTIAN, RETIRED
TAHSILDAR, RESIDING AT 'MALLAPPALLIL', PALLIKUNNU P.O.,
KALPETTA, WAYANAD, PIN 673 121
2 K.RAVI
AGED 61 YEARS
S/O.LATE K.S.DAMODARAN, RETIRED TAHSILDAR, RESIDING AT
'VISHNU NIVAS', KALPETTA P.O., MUNDERI, WAYANAD,
PIN 673 121
O.P (KAT) No.264 of 2021
2
3 K.R.NARAYANI
AGED 60 YEARS
W/O.BALAKRISHNAN, RETIRED PROJECT MANAGER,
RESIDING AT 'MULLACKAL HOUSE', PUZHKUDY P.O.,
KALPETTA, PIN 673 121
BY ADV ESM.KABEER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P (KAT) No.264 of 2021
3
ALEXANDER THOMAS & A.BADHARUDEEN, JJ.
=========================================
O.P (KAT) No.264 of 2021
[arising out of the final order dated 11.04.2019
in T.A No.5919/2012 on the file of the KAT, TVM Bench]
=========================================
Dated this the 05th day of October, 2021
JUDGMENT
Alexander Thomas, J.
Respondents 1 to 3 herein, had earlier filed Writ Petition (Civil),
W.P(C) No.20775/2011 before this Court with the following prayers
[see page No.18 of the paper book of the O.P] :
"(i) To call for the records relating to Exhibits P1 to P7 and to
issue a writ of Certiorari quashing the original of Exhibit
P6 and P7 and all other consequential proceedings thereto.
(ii) To declare that petitioners are entitled to the benefits of
Exhibit P2 Government Order and the consequential
higher grade granted to them from 01/03/97 as revealed
from Exhibits P1, P3 and P5.
(iii) To issue a writ of mandamus or any other writ, order or
direction directing the respondents to permit the
petitioners to submit/re-option based on the Government
Orders.
(iv) Any other reliefs also may be granted in order to meet out
justice considering the circumstances of this case."
2. The abovesaid writ proceedings was transferred to the
Kerala Administrative Tribunal, after the establishment of the said
O.P (KAT) No.264 of 2021
Tribunal, in accordance with the provisions contained in the
Administrative Tribunal's Act, 1985. The Tribunal, thereafter has
re-numbered the case as Transferred Application, T.A No.5919/2012.
3. After hearing both sides, the Tribunal has rendered the
impugned Annexure-A4 final order dated 11.04.2019 in T.A
No.5919/2012, wherein it has been held that though the applicants are
not entitled for the financial benefit that they have received, they are
entitled to succeed, in view of the legal principles laid down by the
Apex Court in the celebrated Rafiq Masih's case (White Washer's
case) [(2015) 4 SCC 334], as modified by the subsequent judgment of
the Apex Court in Jagdev Singh's case [AIR 2016 SC 3523] and
hence, recovery of the alleged excess pay was interfered with by the
Tribunal. However, the Tribunal in para 6 of Annexure-A4 final order,
has upheld the steps taken by the departmental authorities for
re-fixation of pay consequent to the rectification of the mistake.
4. Being aggrieved by Annexure-A4 final order as above, the
official respondents (State of Kerala & Ors.) in the said T.A, has filed
the instant original petition before this Court under Articles 226 & 227
of the Constitution of India, with the following prayers [see page No.7
of the paper book of the O.P] :
O.P (KAT) No.264 of 2021
"1. To set aside the Annexure A4 Order of the Kerala
Administrative Tribunal in Annexure A1 T.A No.5919/2012, and
2. To declare that Respondents are not eligible to retain the excess
amount paid to them, on their request as Time Bound Higher
Grade and that the same is to be recovered from them.
3. Any other Order or direction as this Honourable Court may
deem fit and proper in the facts and circumstances of the case."
5. Heard Sri.B.Unnikrishna Kaimal, learned Senior
Government Pleader appearing for the petitioners in the
O.P/respondents in the T.A and Sri.E.S.M.Kabeer, learned counsel
appearing for the respondents in the O.P/petitioners in the T.A.
6. The applicants 3 in number, had retired from service of the
revenue department of the State Government as Tahsildar & Deputy
Tahsildar. They have challenged the audit objections at Exts.P-6 & P-7
against the time bound higher grade granted to them w.e.f 01.03.1997 and
the consequential steps taken by the departmental authorities for re-
fixation of pay, after rectification of the mistake.
7. As per the O.A, the applicants had initially entered service as
Lower Division Clerks on 24.12.1985, 06.09.1985 & 06.09.1985 respectively
and later, they were promoted as Upper Division Clerks (UDCs) on
19.08.1988, 19.05.1988 & 19.05.1988 respectively. The pay revision was
then introduced by the Government as per G.O(P) No.
1672/2001/(116)/Fin. dated 22.12.2001 and the incumbents
were entitled to claim higher grade on completion
O.P (KAT) No.264 of 2021
of eight years of service in the post of UDC. On the basis of the
contentions of the applicants that, they had completed eight years of
service as UDC and that they are entitled for the higher grade and
based on the request, the said higher grade was sanctioned to them as
per Exts.P-1, P-3 & P-5 orders w.e.f 01.03.1997. Consequential
monetary benefits are also released to them. It is long thereafter, that
the audit objections were raised as per Exts.P-6 & P-7 against the
grant of the higher grade. The Tribunal has noted that the orders were
issued in favour of the applicants in August, 2002, was objected to by
the audit wing only in 2006. The Tribunal has noted that based on the
then general pay revision order G.O(P) No.3000/1998/Fin. dated
25.11.1998, the applicants were eligible for higher grade on completion
of 10 years of service and such higher grade was sanctioned to them.
But it was noted that they are not entitled for re-option in terms of
Ext.P-2 G.O dated 22.12.2001. Hence, the Tribunal has found that the
orders granting higher grade to the applicants w.e.f 01.03.1997, cannot
be sustained. The Tribunal has upheld on merits, the stand of the
department. However, the Tribunal has held that in view of the long
delay in ordering the recovery, the impugned recovery proceedings are
liable for judicial interdiction, in the light of the legal principles laid
O.P (KAT) No.264 of 2021
down by the Apex Court in White Washer's case supra & Jagdev
Singh's case supra. However, the Tribunal has clearly held in para
No.6 of Annexure-A4 order that, the consequential steps taken by the
departmental authorities for re-fixation of the pay consequent to the
rectification of the mistake, is not liable for any interference. Though
the learned Senior Government Pleader has stated a contention before
the Tribunal as well as before this Court that, in view of the
subsequent judgment of the Apex Court in Jagdev Singh's case
supra, the recovery proceedings may not be interfered with, in view of
the undertakings given by them for refund of any excess amounts.
8. After hearing both sides, we are of the view that the
Tribunal has rightly held that the recovery proceedings are to be
interdicted, in view of the legal principles laid down by the Apex Court
in White Washer's case supra, as modified in Jagdev Singh's
case supra. The Apex Court in White Washer's case (Rafeeq
Masih's case) supra [(2015) 4 SCC 334], has held as follows in para
No.18 thereof :
"18. It is not possible to postulate all situations of hardship, which
would govern employees on the issue of recovery, where payments
have mistakenly been made by the employer, in excess of their
entitlement. Be that as it may, based on the decisions referred to
herein above, we may, as a ready reference, summarise the
following few situations, wherein recoveries by the employers,
would be impermissible in law:
O.P (KAT) No.264 of 2021
(i) Recovery from employees belonging to Class-III and Class-IV
service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to
retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been
made for a period in excess of five years, before the order of
recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been
required to discharge duties of a higher post, and has been paid
accordingly, eventhough he should have rightfully been required
to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion,
that recovery if made from the employee, would be iniquitous or
harsh or arbitrary to such extent, as would far outweigh the
equitable balance of the employer's right to recover."
9. In a subsequent decision, the Apex Court has held in
Jagdev Singh's case supra [AIR 2016 SC 3523] para No.9 thereof,
as follows :
"9. The submission of the respondent, which found favour
with the High Court, was that a payment which has been made in
excess cannot be recovered from an employee who has retired
from the service of the State. This, in our view, will have no
application to a situation such as the present where an
undertaking was specifically furnished by the officer at the time
when his pay was initially revised accepting that any payment
found to have been made in excess would be liable to be adjusted.
While opting for the benefit of the revised pay scale, the
respondent was clearly on notice of the fact that a future
refixation or revision may warrant an adjustment of the excess
payment, if any, made."
10. In para No.10 of the judgment in Jagdev Singh's case
supra, the Apex Court has extracted para.18 of the judgment in White
O.P (KAT) No.264 of 2021
Washer's case supra [(2015) 4 SCC 334] and thereafter, it has been
held in para No.11 of Jagdev Singh's case supra by the Apex Court
as follows :
"11. The principle enunciated in Proposition (ii) above
cannot apply to a situation such as in the present case. In the
present case, the officer to whom the payment was made in the
first instance was clearly placed on notice that any payment
found to have been made in excess would be required to be
refunded. The officer furnished an undertaking while opting
for the revised pay scale. He is bound by the undertaking."
11. So, the effect of the judgment of Jagdev Singh's case
supra [AIR 2016 SC 3523] on the judgment in White Washer's case
supra [(2015) 4 SCC 334], has been considered by a Division Bench of
this Court in the judgment in State of Kerala & Ors. v. Vinod
Kumar C.R [(2020) 4 KLT 230] and in para No.7 thereof, the
Division Bench of this Court has held as follows :
"7. .......... .......... ......... On a reading of both Rafiq Masih and
Jagdev Singh, it is difficult for us to accept the contention of the
learned Government Pleader that Jagdev Singh is a complete
departure from the principles laid down in Rafiq Masih. From a
reading of paragraphs 10 and 11 of Jagdev Singh, it appears to
us that the Supreme Court had only clarified that in the case of
recovery from retired employees or employees who are due to
retire within one year of the order of recovery, there would be no
bar in ordering recovery, if the employee concerned had executed
an undertaking agreeing to refund any excess payment. We
cannot read Jagdev Singh as having laid down the proposition
that in every case where there is an undertaking as aforesaid,
recovery can be ordered from the employee concerned whatever
be the point of time that such payment was made. We cannot
overlook the fact that there is not even a suggestion in Jagdev
Singh that in the event of there being an undertaking to refund
excess pay, none of the situations envisaged as items (i) to (v) of
O.P (KAT) No.264 of 2021
Rafiq Masih can be pressed into service."
12. It can thus be seen that the Apex Court has not interfered
with the directions contained in para No.18 of the judgment in White
Washer's case supra regarding clauses 1, 3, 4 & 5 of para No.18
thereof. So merely because clause No.2 of para No.18 of the judgment
of the Apex Court in White Washer's case supra, has been diluted
and modified, still the applicants herein are entitled to succeed in view
of the legal principles enumerated in the other clauses of para No.18 of
White Washer's case supra, which has not been in any manner
modified or interfered with in Jagdev Singh's case supra. The
applicants are admittedly then holding the post of UDC, which is a
class-III post and the time lag between the date of grant of the benefit
and the date of recovery proceedings is quite long and inordinate and
has not been explained. It is not known as to why the audit has taken
such a long time to discover the mistakes in that regard. Hence, no
interference is called for in the considered verdict of the Tribunal.
However, we make it clear that, we have not in any manner interfered
with the other finding of the Tribunal in para No.6 of Annexure-A4
that, the re-fixture of the pay has not been interfered with by the
Tribunal, etc. However, we make it clear that, no further recovery
O.P (KAT) No.264 of 2021
shall be made from the applicants, as already ordered by the Tribunal
in Annexure-A4.
With these observations and directions, the above Original
Petition, will stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A.BADHARUDEEN, JUDGE
vgd
O.P (KAT) No.264 of 2021
APPENDIX OF OP(KAT) 264/2021
PETITIONERS' ANNEXURES
ANNEXURE A1 A TRUE COPY OF THE T.A.NO.5919/2012
ALONG WITH EXHIBIT P1 TO EXHIBIT P7
BEFORE THE KERALA ADMINISTRATIVE
TRIBUNAL
EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS DATED
27.8.2002 BY THE TAHSILDAR, VYTHIRI TO
THE DISTRICT COLLECTOR, WAYANAD
EXHIBIT P2 TRUE COPY OF GO(P) NO.1672/2001/
(116)/FIN. DATED 22.12.2001
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED
27.8.2002
EXHIBIT P4 TRUE COPY OF THE REQUEST MADE BY THE 3RD
PETITIONER TO THE DISTRICT COLLECTOR,
WAYANAD
EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED
26.8.2002 OF THE TAHSILDAR
EXHIBIT P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE
AUDIT OBJECTION OF THE 1ST PETITIONER
EXHIBIT P7 TRUE COPY OF THE RELEVANT EXTRACT OF THE
AUDIT OBJECTION OF THE 2ND PETITIONER
ANNEXURE A2 A TRUE COPY OF THE INTERIM ORDER DATED
1.9.2011
ANNEXURE A3 A TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE 2ND RESPONDENT ALONG WITH
ANNEXURE R2(A) AND R2(B) DATED 13.4.2012
RESPONDENTS' ANNEXURES
ANNEXURE R2(A) TRUE COPY OF THE PROCEEDINGS NO.K6-
12007/08(1) & 12007/08(2) DATED
O.P (KAT) No.264 of 2021
28.7.2008
ANNEXURE R2(B) TRUE COPY OF THE GOVERNMENT LETTER
NO.58352/C2/08/REV. DATED 10.8.2009
ANNEXURE A4 TRUE COPY OF THE FINAL ORDER OF THE
KERALA ADMINISTRATIVE TRIBUNAL DATED
11.4.2019
