R. Leelamani vs State of Kerala and Others

K. Vinod Chandran, J.—1. The petitioner has been facing proceedings consistently on account of her pay fixation granted, which is clearly under the 3rd proviso to Rule 28A of Part-I of the Kerala Service Rules [for brevity, the KSR]. The brief facts to be noticed are that the petitioner joined as L.D. Clerk in the Criminal Judicial Department at the Wayanad District on 08.05.1986. She was promoted as U.D. Clerk on 17.05.1988. While she was continuing as U.D. Clerk, she sought for transfer to Ernakulam. The same was granted, but however with loss of seniority and reversion as L.D. Clerk as per a specific Government Order. She joined as L.D. Clerk in the Ernakulam District on 29.07.1991. On 06.08.1992, she was re-promoted as U.D. Clerk. Hence, the petitioner was fixed at the pay she was drawing as an U.D. Clerk in Wayanad District.

For more clarity, the details of basic pay as extracted in the writ petition is to be noticed. On 01.05.1990, the petitioner was granted an increment in the cadre of U.D.C. at Wayanad and she was drawing a basic pay of Rs. 1,050/-. On 01.05.1991, she received another increment and her basic pay increased to Rs. 1,075/-. On her transfer to Ernakulam, she was posted in the lower cadre of L.D.C. and her salary was fixed as on 26.07.1991 at Rs. 975/-. In the cadre of L.D.C., she received her next increment on 01.05.1992, raising her pay to Rs. 1,000/-. On 06.08.1992, the petitioner was promoted as U.D.C. On her promotion, going by the 3rd proviso to Rule 28A of Part I KSR, she was entitled to be granted the basic pay, she was drawing in the higher post earlier. Hence, her basic pay was fixed at Rs. 1,075/-.

In fact, she also had a claim for pay protection when being transferred to Ernakulam. The claim was that on transfer and consequent reversion to the post of L.D.C., the pay she drew in the post of U.D.C. ought to have been protected. A similar claim is seen allowed in Ext.P11 judgment, in the case of another employee. It is to be immediately noticed that the petitioner did not agitate the cause at the time of her transfer and fixation granted in the post of LDC at Ernakulam was accepted without demur.

The petitioner was first issued with an audit objection at Ext.P1, which was answered by the Chief Judicial Magistrate, under whom the petitioner was working, clarifying that there is no anomaly in the pay fixation granted to the petitioner. The audit objection is seen to have been dropped at Ext.P2. Strangely, Ext.P2 also directs the fact of recovery of excess payment to be recorded in the service book. Despite the objection having been dropped, again the matter was revived purportedly on the inspection of the District Judge. There where communications between the Government, Chief Judicial Magistrate and the High Court, eventually resulting in the High Court accepting the pay fixation granted to the petitioner as provided under the 3rd proviso to Rule 28A of Part I KSR, as is evidenced at Ext.P5.

Yet again, there was a proceeding in which the Government again sought for the opinion of the High Court by Ext.P8, which was answered by the High Court through Ext.P10, affirming the earlier opinion and pointing out that the fixation of pay granted to the petitioner has already been accepted. In the meanwhile, the petitioner was issued with a recovery notice at Ext.P9 by the Chief Judicial Magistrate, which is assailed hereunder. The petitioner contends that, Ext.P9 has to be set aside and the petitioner granted the protection also, which has been granted in the case of another, as is indicated at Ext.P11.

The 3rd proviso to Rule 28A of Part I KSR is extracted hereunder:

"Provided that if he has either previously held substantively or officiated in (i) the same post or (ii) a permanent or temporary post on the same time-scale or (iii) a permanent post on an identical time-scale, or a temporary post on an identical time-scale, such post being on the same time-scale as a permanent post, then the initial pay shall not be less than the pay which he drew, on the last such occasion and he shall count for increment the period during which he drew that pay on such last or any previous occasions."

The petitioner, before her transfer to Ernakulam, was occupying the substantive vacancy of U.D.C. in the Wayanad District. The reversion to the post of L.D.C. was only on account of her request transfer. The petitioner having been reverted to the post of L.D.C. was re-promoted. The 3rd proviso to Rule 28A of Part I KSR as extracted herein above, definitely would enable the fixation of pay on re-promotion at the last drawn pay in the higher cadre she occupied in Wayanad. This is the opinion expressed by the High Court also at its administrative side. In such circumstance, Ext.P9 is set aside. No recovery could be effected from the petitioner.

The next prayer is based on Ext.P11, for pay protection. The petitioner was reverted and joined at Ernakulam District in 1991. The claim was that on transfer and consequent reversion to the post of L.D.C., the pay she drew in the post of U.D.C. ought to have been protected. If she had a claim for pay protection, she should have raised it at the appropriate time. The petitioner chose to raise that claim only when a revision was sought to be made on the ground of the excess pay drawn, allegedly due to wrong fixation granted, as objected to on audit. The allegation of excess pay drawn has been set aside by this Court. The protection being related to the year 1991 and the petitioner having not chosen to agitate the remedy at the proper time cannot be granted the said relief at this distance of time.

The petitioner has retired and for obtaining the retirement benefit, the petitioner is said to have remitted the alleged excess amount drawn, to the Government. If that be so, definitely the petitioner has to be refunded the entire amounts. The petitioner''s fixation of pay as accepted by the High Court shall be approved and the subsequent increments granted to the petitioner and arrears, if any, shall also be paid. The petitioner''s pension also shall be computed on the basis of the last pay drawn, as directed herein; restoring her pay in the post of UDC under the 3rd proviso to Rule 28A of Part I KSR.

The writ petition would stand partly allowed, and the directions herein shall stand complied and the entire arrears of salary and allowances as also pension be paid within 6 months from the date of receipt of the certified copy of the judgment, failing which the petitioner shall be entitled to 6% interest on the amounts due from one month after retirement till repayment and the government shall pay such interest and be entitled to recover it from whoever caused such delay. The petitioner, on such payment shall be also issued a written communication of the computation of the arrears paid. No costs.