K. Babu, J.
1. The judgment dated 8.6.2020 in Writ Petition No.32985 of 2015, rendered by a learned Single Judge of this Court, is under challenge in these intra-court appeals filed under Section 5 of the Kerala High Court Act.
2. The State of Kerala, represented by the Secretary to the Government of Kerala, Department of Science, Technology & Environment, respondent No.1 in the Writ Petition, is the appellant in Writ Appeal No.77 of 2021. The Kerala State Council for Science, Technology and Environment represented by its Executive Vice President, respondent No.2 in the Writ Petition, is the appellant in Writ Appeal No.557 of 2021.
3. The Writ Petitioner is respondent No.1 in both the appeals. The other official respondents in the Writ Petition are respondents 2 to 4 in these appeals.
4. We have heard Sri.B.Vinod, learned Senior Government Pleader and Sri.P.C.Sasidharan, learned counsel appearing for the appellants, Smt.Ann Susan George, learned counsel appearing for the first respondent and Sri.C.K.Karunakaran, learned counsel appearing for the third respondent.
5. The parties will be referred to as per their status in the Writ Petition.
6. The petitioner entered in the service of Water Resources Development and Management (CWRDM), one of the member institutions of Kerala State Council for Science, Technology and Environment (R2), on 29.11.1978. With the establishment of Jawaharlal Nehru Tropical Botanical Garden and Research Institute (JNTBGRI), several efficient employees, then worked in various sister concerns, were absorbed in the Institute. Thus, the petitioner was also absorbed offering higher pay scale. He joined the service of JNTBGRI on 7.5.1980. He retired as Assistant Registrar from the service of JNTBGRI on 31.5.2009.
7. After the retirement of the petitioner, the Registrar of JNTBGRI served Exhibit P3 order dated 27.9.2010, re-fixing his pay on the basis of the final report submitted by a rectification committee, to him.
8. The petitioner was drawing the pay in the scale of Rs.7800-12975 (pre-revised). His scale of pay was reduced to Rs.7200-11400 and on revision of pay with effect from 1.7.2004, the revised pay scale of Rs.12930-20250 was reduced to Rs.11910- 19350. Resultantly the basic pay of the petitioner, as on 1.7.2008, was reduced from Rs.19,800/- to Rs.17,550/-.
9. The petitioner was also served with Exhibit P4 pay fixation statement, stated to have been prepared by the rectification committee, along with Exhibit P3 order. In Exhibit P4, it was reported that the pay fixed in the case of the petitioner was found to be irregular. The benefit of assessment promotion granted to the petitioner, with effect from 28.7.1997, was also not found admissible as per order dated 2.8.1999. The petitioner, on receipt of Exhibit P3 and Exhibit P4, submitted Exhibit P5 representation dated 12.10.2010 stating that the reduction of his pay was illegal, especially, in view of the fact that he had joined JNTBGRI expecting higher prospects. No positive action was taken in Exhibit P5 representation. While so, Exhibit P6 order dated 2.2.2011 was issued, by which the petitioner was granted assessment promotion with effect from 28.7.2004. As per Exhibit P6, the petitioner, who was an Assistant Registrar in the scale of pay of Rs.7200-11400 (pre-revised) [11910-19350 revised], stood promoted as Assistant Registrar in the scale of Rs.7800-12975 (pre-revised) [12930-20250 (revised)] with effect from 28.7.2004. It is stated in Exhibit P6 that the assessment promotion was also given on the recommendation of the assessment committee held on 25.5.2010.
10. Consequent to this, the pay of the petitioner was fixed at Rs.16,650/-, as on 28.7.2004, in the pay scale of Rs.12930-20250 and, as on 1.7.2008, it was fixed at Rs.13,450/-. Aggrieved by the above decisions, the petitioner submitted Exhibit P8 representation before the Director of TBGRI on 8.8.2011, requesting to restore his pay in the scale of Rs.7800-12975 and thereafter to fix his pay in the scale of pay attached to the promotion post from 28.7.2004 and to fix the same as Rs.24,850/- as on 1.7.2008.
11. The petitioner claimed that he was granted promotions and his pay was fixed in accordance with the decision of the Executive Committee of JNTBGRI, whereas his pay was reduced by a committee appointed by KSCSTE without any authority and hence the petitioner requested the Director to place his case before the reconstituted anomaly committee. The petitioner also submitted Exhibit P9 representation before the Chief Minister of Kerala on 21.3.2012 stating his grievances. The petitioner pointed out in Exhibit P9 that he was eligible for promotion in the scale of pay of Rs.20700-26600 as on 1.7.2004. The petitioner challenged the reduction of pay contending that it is illegal and was done without notice to him much after his retirement.
12. The respondents resisted the claim of the petitioner. It is contended that they have been following the State Government pattern in the case of administrative staff and CSIR pattern for scientific staff. According to the respondents, inspection wing of the Finance Department of the Government of Kerala found serious irregularities in the fixation of pay of the employees under the third respondent and had instructed respondent No.2 to take corrective measures. A rectification committee was constituted for the purpose of submitting a report and to suggest steps to be taken to correct the irregularities. According to the respondents, the committee examined the service books and personal files of the employees for the period from the date of their appointment till 2008 and found that excess pay was drawn by the employees including the petitioner and rectification of pay scale was effected on the basis of the final report of the committee. The respondents pleaded that the Government had directed that the excess pay drawn for the period up to 31.12.2007 need not be recovered. According to the respondents, on grant of first assessment promotion to the petitioner, his pay was erroneously fixed in the scale of pay of Rs.7800-12975 from 28.7.1997. The committee found that the petitioner was only eligible for the scale of pay of Rs.7200-11400.
13. CWRDM, the institute from where the petitioner was absorbed, was an institution under the State Committee on Science, Technology and Environment (STEC). The Kerala State Council for Science, Technology and Environment KSCSTE (R2) came into existence on 21.11.2002, replacing STEC. Institutions like JNTBGRI (R3) were brought under KSCSTE. With the replacement of STEC by the KSCSTE in 2002, the Special Rules, namely, “Service Rules & Other Relevant Rules and Regulation for the Kerala State Council for Science Technology and Environment” (hereinafter called 'the Special Rules') came into force on 19.6.2003.
14. It is common ground that the Special Rules govern the service conditions of employees of respondent No.3. It is not in dispute that the petitioner was absorbed as an Assistant. At the time of absorption in JNTBGRI on 7.5.1980, his basic pay was fixed at Rs.360/- in the pay scale of Rs.350-580 protecting the pay he had drawn in CWRDM from where he was absorbed.
15. The petitioner retired from the service on 31.5.2009. Re-fixation of his pay was done after his retirement which is under challenge now. Refixation was based on Exhibit P4 report of the rectification committee. It is stated in Exhibit P4 that the fixation of the pay of the petitioner as Rs.1,700/- as on 1.3.1992 was irregular and his basic pay was, therefore, re-fixed as on 1.3.1992 as Rs.1,650/-. It is further stated in Exhibit P4 that fixation of his pay from 28.7.1997, on completion of five years as Section Officer, is interdicted by way of G.O.(P).No.82/99/STED dated 2.8.1999.
16. As stated afore, the Special Rules govern the service conditions of the employees, including the petitioner. Rule 4 of the Service Rules reads thus :
There may be staff members, who were allowed higher scales of pay than prescribed in these rules, prior to issue of these Rules. They will enjoy the scales of pay as personal. The assessment scales and assessment chances applicable to them will be as per G.O.(P) No.82/99/STED dated 2.8.1999.”
Rule 4 says that any member of the staff who was drawing higher scale of pay than prescribed in the rules prior to the coming into force of the rules are entitled to enjoy the higher scale as personal. Rule 4 of the Special Rules is incorporated as "savings" as a measure to protect those employees who were drawing higher scales and to allow them to continue to draw the higher scale. There is no dispute that Rule 4 was incorporated in the Special Rules after taking note of the fact that several employees were drawing pay in a higher scale and with intend to permit such employees to continue to draw their pay as was being drawn as personal.
17. The petitioner had been in the service of the third respondent with effect from 1980. It is indisputable that he is entitled to protection of his pay by virtue of Rule 4 of the Special Rules. It is contended by the learned counsel for the petitioner that even if it is assumed that the fixation of pay was done erroneously, the petitioner was entitled to enjoy it invoking Rule 4.
18. The learned counsel for the petitioner further submitted that some other similarly placed employees working under respondent No.3 got retirement benefits in tune with the relevant provisions of the Special Rules and that a different approach cannot be taken against the petitioner. He placed reliance on Exhibits P14, P15 and Annexure R1(A) judgments of this Court to substantiate his contention.
19. Exhibit P15 is the judgment dated 18.1.2019 of this Court in W.P.(C) No.21468 of 2017. The petitioner in that Writ Petition was an employee of the third respondent. When his pay was reduced, he challenged the order of refixation of his pay on the ground that he was entitled to protection under Rule 4 of the Special Rules. This Court accepted his plea and directed refixation of the pay of the petitioner in tune with Rule 4 of the Special Rules and to grant him all consequential benefits. When the respondents failed to comply with the directions of this Court, the petitioner therein instituted Contempt Case No.979 of 2019 against the respondents and this Court by judgment dated 20.6.2019 [Annexure R1(A)] closed the Contempt Case recording the submission of the respondents that the directions in Exhibit P15 judgment have already been complied with.
20. A security officer in the 3rd respondent institute, had challenged refixation of his pay on the basis of the report of the 'Pay Rectification Committee' referred to above in W.P.(C) No.34537 of 2011. This Court set aside, the refixation sought to be effected, as per Exhibit P14 judgment dated 18.2.2015 in W.P.(C) No.34537 of 2011. The petitioner herein by way of an affidavit dated 27.1.2021 stated that respondents have not preferred any appeal challenging Exhibit P14 judgment and that the entire amount due to the petitioner in Writ Petition No.34537 of 2011 has already been disbursed. The averment of the petitioner in the affidavit dated 27.1.2021 has not been controverted.
21. The learned counsel for the petitioner submitted that when some other similarly placed employees like the petitioners in Exhibits P14 and P15 judgments were granted retirement benefits in tune with the relevant provisions of the Special Rules the differential treatment accorded to the petitioner violates Articles 14 and 16 of the Constitution of India.
22. In Exhibits P3 and P4, no reasons have been specifically stated while denying the benefits due to the petitioner. The respondents have not explained how the petitioner could be denied of the benefit under Rule 4 of the Special Rules. The differential treatment accorded to the petitioner is not based on a sound rational basis. Hence we find force in the argument of the learned counsel for the petitioner alleging differential treatment. All the more important is that refixation of pay of the petitioner was done in 2011 after two years of his retirement. Admittedly no notice was given to the petitioner before refixing his pay.
23. The learned counsel for the petitioner further placed reliance on State of Punjab v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] to contend that refixation of the pay of the petitioner much after his retirement and the consequent order for recovery is illegal and impermissible in law. The learned Government Pleader and the learned counsel for the second respondent submitted that in view of the judgment of the Apex Court in High Court of Haryana and Punjab v. Jagdev Singh [AIR 2016 SC 3523], the principles laid down in Rafiq Masih (supra) will not apply. It is pointed out by the learned counsel for the petitioner that the Apex Court in Jagdev Singh (supra) has not held that the principles declared in Rafiq Masih (supra) are not sound, but has only carved out a distinction in cases coming under the second criterion of employees narrated in paragraph 18 of the judgment in Rafiq Masih (supra). The Honourable Apex Court in Rafiq Masih (supra) held as follows :
“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:
(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.”
24. In Jagdev Singh (supra), the Apex Court held 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.”
25. The effect of the judgment in Jagdev Singh (supra) on the judgment in Rafiq Masih (supra) was considered by the Division Bench of this Court in State of Kerala and others v. Vinod Kumar C.R. [2020(4) KLT 230] and State of Kerala and others v. Abraham P.Joseph [2021 (2) KLT 288] and held that the Apex Court in Jagdev Singh (supra) has not interfered with the directions contained in paragraph 18 of the judgment in Rafiq Masih (supra) regarding Clauses (i), (iii), (iv) and (v).
26. It can be seen from Exhibit P3 office order and Exhibit P4 pay fixation statement that the pay of the petitioner was refixed from 1.3.1992 onwards in a lower scale. Refixation was done in respect of the pay that was fixed 17 years prior to the retirement of the petitioner. The decision to refix the pay was taken on 23.9.2010 much after his retirement. Order for recovery was issued after his retirement.
27. In the above circumstances, the principles laid down in Rafiq Masih (supra) squarely apply to the facts of this case.
28. The learned counsel for the petitioner further raised a contention that the petitioner is entitled to the protection of legitimate expectation. The learned counsel for the petitioner submitted that the petitioner joined the service of respondent No.3 accepting the offer that his pay would be protected and therefore, he was under the legitimate expectation that his terminal benefits would be fixed on the basis of the pay he was drawing in view of the fact that his pay was protected and he continued to enjoy the higher pay.
29. The petitioner has specifically pleaded that while he was absorbed in the service of respondent No.3, his pay was protected and that it was on the expectation that he would get the higher pay that he had been drawing earlier, he consented for absorption. This plea of the petitioner is not specifically challenged. It is on this premise the learned counsel for the petitioner contended that the petitioner had the legitimate expectation that his terminal benefits would be fixed on the basis of the higher pay he was drawing. In this context, it is fruitful to refer to paragraph 19 of the decision of the Apex Court in M/s.Sethi Auto Service Station v. Delhi Development Authority & Ors (AIR 2009 SC 904), which reads thus :
“19. The protection of legitimate expectations, as pointed out in De Smith's Judicial Review (Sixth Edition) (para 12-001), is at the root of the constitutional principle of the rule of law, which requires regularity, predictability, and certainty in government's dealings with the public. The doctrine of legitimate expectation and its impact in the administrative law has been considered by this Court in a catena of decisions but for the sake of brevity we do not propose to refer to all these cases. Nevertheless, in order to appreciate the concept, we shall refer to a few decisions. At this juncture, we deem it necessary to refer to a decision by the House of Lords in Council of Civil Service Unions & Ors. Vs. Minister for the Civil Service, a locus classicus on the subject, wherein for the first time an attempt was made to give a comprehensive definition to the principle of legitimate expectation. Enunciating the basic principles relating to legitimate expectation, Lord Diplock observed that for a legitimate expectation to arise, the decision of the administrative authority must affect such person either (a) by altering rights or obligations of that person which are enforceable by or against him in private law or;
(b) by depriving him of some benefit or advantage which either: (i) he has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon or (ii) he has received assurance from the decisionmaker that they will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should be withdrawn.”
30. In Narayanan v. State of Kerala [1993(1) KLT 461], this Court had held that the legitimate expectation of any officer of the Government Department to normal promotion in the avenues provided for him should not be defeated except in such circumstances or where the requirements of the service justify the same.
31. The petitioner was deprived of the benefit or advantage which he has in the past been permitted to enjoy by the respondents. The petitioner had the legitimate expectation that he would be permitted to continue to enjoy the same benefit. While withdrawing the benefit, that the petitioner has been enjoying, the respondents have not applied any rational ground. There is necessary implication that the petitioner had the assurance from the respondents that the benefits enjoyed by him will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should not be withdrawn. In the present case, it is not in dispute that no opportunity of advancing reasons was given to the petitioner before withdrawing the benefits that he has been permitted to enjoy in the past. The decisi
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on of the respondents in this regard is arbitrary and in violation of the principles of natural justice. 32. The learned Single Judge held that on assessment promotion from the post of Assistant Registrar granted to the petitioner in Exhibit P6 order with effect from 28.7.2004, he is entitled to get his pay fixed in the higher time scale with reference to the actual pay he was drawing as on 28.7.2004 and he would also be entitled to get the terminal benefits based on the pay thus fixed. The learned Single Judge consequently set aside Exhibit P3 and Exhibit P4 re-fixing the pay of the petitioner from 28.7.1997 to a lower scale and also set aside Exhibit P6 to the extent it relates to the pay scale of Assistant Registrar and the pay scale on assessment promotion. Consequently fixation of pay on assessment promotion as per Exhibit P7 was also set aside by the learned Single Judge. The learned Single Judge also declared that the petitioner would be entitled to get his pay restored as was fixed prior to the issuance of Exhibit P3 order and that he is entitled to get his pay fixed on grant of assessment promotion with effect from 28.7.2004 in the higher scale of Assistant Registrar which he was actually drawing. 33. In the instant case, it can safely be concluded that the decision taken by the respondents is arbitrary, unreasonable and in violation of principles of natural justice. There is absolutely no justification in re-fixing the pay of the petitioner after his retirement and to recover the excess amount allegedly paid to him from 1.1.2008 onwards from his terminal benefits based on a rectification committee report. 34. We are of the firm view that findings of the learned Single Judge require no interference. The impugned judgment was passed on 8.6.2020. The respondents will restore the pay of the petitioner which he was drawing till his retirement before issuance of Exhibits P3 and P4 orders and thereafter, fix his pay on assessment promotion with effect from 28.7.2004. Based on that the respondents shall re-fix the terminal benefits and disburse the benefits due to him within a period of three months from the date of production of a copy of the judgment. With the above observations and modification, the Writ Appeals will stand dismissed.