P. Raghavan vs State of Kerala and Others

A.M. Shaffique, J.—1. This writ appeal has been filed by the petitioner in W.P.(C) No. 15384 of 2005 challenging the judgment dated 20.1.2016, by which, the learned Single Judge dismissed the writ petition. The writ petition has been filed challenging Exts.P7, P9, P11 and P12 and the petitioner sought for a direction that the time bound higher grade granted to him in terms of Ext. P5 has to be confirmed.

Short facts as has been stated in the writ petition are; the petitioner was originally in employment of Kerala State Housing Board and later, he got employment in Kerala Water Authority. The petitioner had approached this Court in an earlier occasion by filing an original petition and by a common judgment dated 13.8.1998 in O.P. No. 11018 of 1994 and connected cases, this Court directed the Kerala Water Authority (KWA) to consider the fixation of pay, taking into consideration Rules 28, 28A and 37 of Part I KSR and also the observations made in the judgment. That was a case, in which, the petitioners claimed that they were entitled for protection of their pay while they were working in Government service and later, they were appointed in the KWA on the advice of the Public Service Commission (PSC). According to the petitioner, pursuant to the said judgment, orders were passed by the KWA fixing the pay of the petitioner in terms of the said judgment and later, by order dated 5.7.2001, produced as Ext. P5, the petitioner was granted higher grade with effect from 15.9.1999. While granting the higher grade, the KWA also took into consideration the period of service of the petitioner as Ist Grade Draftsman in the Kerala State Housing Board during the period from 15.9.1989 to 17.11.1994. Audit objection was raised stating that the petitioner''s prior service in the Kerala State Housing Board (KSHB) as Draftsman Grade I from 15.9.1989 to 17.11.1994 should not have been taken into consideration for granting higher grade in the KWA. Ext. P7 is the said objection, which was prepared during the period from 3.5.2002 to 7.5.2002 and Ext. P8 dated 29.3.2003 is the answer given by the Executive Engineer. However, the audit objection was confirmed as per letter dated 11.11.2003 issued by the Resident Audit Officer to the Executive Engineer, the relevant portion of which is stated as under:--

"In resolution No. 529-, Kerala Water Authority decided to allow the benefit to protection of pay only, to the employees who had previous service in other autonomous bodies and appointed in KWA in between 1-4-1984 and 13-8-1998. However, no decision was taken by the Authority to reckon the service in other autonomous bodies prior to joining in KWA for granting Time Bound Higher Grade granted w.e.f. 15-9-1999 by reckoning his previous service in K.S.H.B. is not in order. Fixation of pay may therefore be regularised accordingly and excess payment of salary may be recovered."

The Auditor reported that fixation of pay has to be regularised accordingly and excess payment of salary may be recovered. The petitioner challenged the same by filing W.P.(C) No. 39185 of 2003. The learned Single Judge by judgment dated 5.1.2004 directed the matter to be reconsidered and until such time, the proposed recovery was kept in abeyance. Based on the said direction issued by this Court, Ext. P11 came to be passed on 23.3.2005, wherein, it is stated as under:--

"With reference to your letters cited, I am directed to inform you that as per rules relating to time bound higher grade scheme, service reckoned for increment will be counted as qualifying service for grade promotion. Sri. Raghavan was working as Draftsman Grade I in the Kerala State Housing Board for the period from 15.9.1989 to 17.11.1994 prior to his appointment as Draftsman Grade I in the Kerala Water Authority on 18.11.1994. But the scale of pay of Draftsman Grade I in the Kerala State Housing Board and Kerala Water Authority are not identical. Although Sri. Raghavan was granted pay fixation as per Rule 30 Part I KSRs in the post of Draftsman Grade I in the Kerala Water Authority, he was not granted increments in that post by reckoning prior service in Kerala State Housing Board. In view of the above Sri. Raghavan is not eligible for 10 years grade with effect from 15.9.1999 in the Kerala Water Authority reckoning his prior service in Kerala State Housing Board."

Counter affidavit has been filed by the 2nd respondent supporting the stand taken in Ext. P11. It was inter alia stated that the petitioner while working in the KSHB as 1st Grade Draftsman was relieved on 17.11.1994 in order to take up appointment as Draftsman Grade I in the KWA. His pay was fixed with effect from 18.11.1994 on the basis of the decision taken by the KWA. It is stated that there are no orders to reckon the service in the KSHB for grade promotion in the KWA and therefore, the time bound higher grade granted with effect from 15.9.1999 was not in order. It is also stated that the scale of pay of Draftsman Grade I in the KSHB and KWA are not identical. Although the petitioner was granted pay fixation as per Rule 30 of Part I K.S.R. in the post of Draftsman Grade I in the KWA, he was not granted increments in that post by reckoning prior service in the KSHB.

The learned Single Judge, after considering the matter elaborately, held that the petitioner was not entitled for any relief as prayed for. The learned Single Judge observed that since the petitioner had joined KWA only in the year 1994, he would have to wait for ten years for getting higher grade. It is held in paragraph 9 as under:--

"The clarification issued by the Government has also dealt with the matter in the correct perspective. Ext. P11 finds that the Draftsman Grade I in the KWA and KSHB are not in identical scales of pay and that the decision in Ext. P2 is only with respect to pay fixation and not with respect to grant of increments or higher grade, reckoning the prior service. The adoption of the clarification by the KWA, cannot be faulted. The fore-cited circular too specifically indicates that: "In all cases of appointments either through Public Service Commission or through Employment Exchange (where the employment is regularized in consultation with the PSC) the employees concerned will be entitled to the benefit of higher grade after completion of the prescribed qualifying service in that post" [clause (xii)]. Hence to be entitled to higher grade the petitioner would have to complete the prescribed qualifying service in that post in the KWA, to which he was appointed on an advice from the PSC."

In regard to the contention urged on behalf of the petitioner that recovery should not be effected placing reliance on the judgment in State of Punjab v. Rafiq Masih (White Washer) [, 2015 (1) KLT 429 (SC)], the learned Single Judge held that the benefit of the said judgment cannot be made applicable to the petitioner as the facts do not commend a more equitable consideration in favour of the employee, upsetting the right of equity of recovery available to the employer.

It is argued by the learned counsel for the appellant that the period of service in the KSHB ought to have been taken into consideration for the purpose of granting higher grade. It is argued that in Ext. P1 judgment it was declared that the KWA is an independent autonomous body and hence, the KWA had to take a decision independently without reference to the Government. It is stated that the Government had taken a different view from that of KWA and therefore, the direction to refix the pay of the petitioner and to recover the amount are highly illegal. It is argued that even assuming that the higher grade was wrongly granted, there was no reason to recover the excess amount drawn and since the payment had been effected voluntarily by granting higher grade by the KWA, the judgment in Rafiq Masih''s case (supra) squarely applies to the facts involved in the case. It is submitted that the petitioner had not made any representation with reference to the claim made for higher grade and it was a voluntary act on the part of the KWA and in that view of the matter, the direction for recovery from the salary was totally unjustified. The learned counsel relied upon the judgment in Kasaragod District Cooperative Bank Ltd. and Another v. Radha K.A. and Another [, 2016 (1) KHC 260 (DB)], by which, this Court had also applied the very same principle and held that recovery was not effected from the salary of the officer concerned. The learned counsel also relied upon Rules 28 and 28A of Part I KSR to contend that once the scale of pay has been fixed on the basis of the earlier service, the same principle has to be adopted as far as the grant of higher grade is concerned.

On the other hand, the learned counsel appearing for the KWA as well as the learned Government Pleader appearing for the State of Kerala submitted that the petitioner has joined KWA after resigning from the service of KSHB and that apart, both the services are treated separately. In the absence of any provision which enables counting the service of KSHB to the post he was holding in KWA, the question of higher grade does not arise into consideration. It is also submitted that if higher grade is granted to the petitioner, it will amount to serious infirmity which would and enable others to make a claim in that regard.

Having heard either side and having perused the records, the short issue to be considered is whether the impugned orders are liable to be set aside.

With reference to the argument based on Rule 28A of Part I KSR, we do not think that the said provision has any application to the facts in issue. What is required to be considered in the present case is whether the petitioner was entitled for higher grade taking into account his service in KSHB. Higher grade is apparently granted when there is stagnation of an employee in the entry post, without a promotion for long periods. As far as the KWA is concerned, the petitioner had entered into their service as advised by the Kerala Public Service Commission (KPSC) in 18.11.1994. Unless there is a specific provision, which enables the petitioner to claim that earlier service in KSHB ought to be computed for the purpose of higher grade, it may not be possible for any authority to give any concession regarding period of service for granting higher grade. As rightly observed by the learned Single Judge, the higher grade is granted when there is stagnation in a particular post. In the present case, undoubtedly, the petitioner was not in service of KWA from 15.9.1989 to 17.11.1994 and therefore, in the absence of a specific provision, it may not be possible to compute the said period for granting higher grade. We are of the view that the learned Single Judge was justified in rejecting the said claim.

The next question is whether the excess amount drawn can be recovered. Learned counsel for the appellant relied upon paragraph 12(v) of the judgment in Rafiq Masih''s case (supra), which reads as under:--

"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 an extent, as would far outweigh the equitable balance of the employer''s right to recover."

It is stated that since the petitioner was not responsible for the grant of higher grade in terms of Ext. P5 and the petitioner had already received the said amount, it was not equitable on the part of the authorities to recover the amount drawn by the petitioner. But, it is relevant to note that the audit objection had been raised with reference to Ext. P5 dated 5.7.2001, as early as on 3.5.2002 Ext. P8 explanation was given on 29.3.2003 and the final orders were passed by the Audit Department on 11.11.2003. In the said circumstances, it is evident that steps were taken for recovery from the salary of the petitioner in regard to the excess payment within a reasonable time, i.e.; within a period of three years.

The only contention urged is that it is totally inequitable and harsh at this point of time. In fact the petitioner challenged the audit objection by filing W.P.(C) No. 39185 of 2003, which came to be disposed of by judgment dated 5.1.2004 and thereafter Ext. P11 order had been passed on 23.3.2005, by which, the audit objection had been confirmed. Thereafter, this writ petition was filed on 14.5.2005, which was pending for long time and there was a stay of recovery as well. Under such circumstances, we are of the view that the recovery could not be effected only on account of the fact that there was a stay of proceedings at the instance of the petitioner. These facts does not give rise to any equitable consideration in favour of the employee and hence, we do not think that the judgment in Rafiq Masih''s case (supra) could be made applicable to the fact situation.

However, if the petitioner was not promoted during the relevant period, definitely he would have been entitled for higher grade after 17.11.2004. If no such eventuality had occurred so far, the KWA shall pass appropriate orders, taking into consideration the petitioner''s service and eligibility for higher grade and if no payment has been effected in respect of the higher grade and his entitlement is proved, necessary adjustments shall be made from the amount sought to be recovered and thereafter appropriate decision shall be taken for recovery, if any. This shall be done within a period of two months from the date of receipt of a copy of this judgment.

This writ appeal is disposed of as above.