Allowed

Ganga Devi C v. Regional Cancer Centre (Rcc)

Kerala HC27 May 2022WP(C)/8769/2021

Case brief

AI extract

What is this about?

The court quashed orders reducing a retired employee's pay and recovering excess salary from her terminal benefits. Citing Rafiq Masih, the Court held recovery impermissible due to retirement prior to the recovery order and excess payment duration exceeding five years.

What did the court decide?

Exhibits P15, P18, P19, P20 quashed; recovery from retirement benefits declared illegal; amount recovered directed to be released.

Ganga Devi C Vs Regional Cancer Centre (Rcc) — Pension and Retirement Benefits | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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FRIDAY, THE 27^TH DAY OF MAY 2022 / 6TH JYAISHTA, 1944

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WP(C) NO. 8769 OF 2021

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PETITIONER/S:

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GANGA DEVI C AGED 62 YEARS RCC - EMPLOYEE CODE 1111, TECHNICAL OFFICER (RETD) TC2/3093(1) PANACHUMOODU LANE, PATTOM P.O., THIRUVANANTHAPURAM 695 004 BY ADV S.ABDUL RAZZAK

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RESPONDENT/S:

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1 REGIONAL CANCER CENTRE (RCC) REPRESENTED BY THE DIRECTOR, RCC, P.O.BOX 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011.

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2 GOVERNMENT OF KERALA HEALTH AND FAMILY WELFARE (J) DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. BY ADV ATHUL SHAJI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2022, THE COURT ON 27.05.2022 DELIVERED THE FOLLOWING:

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JUDGMENT

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Dated this the 27^th day of May, 2022

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The petitioner was appointed as Laboratory Technician in the first respondent/Regional Cancer Centre on 16.06.1983. As per the orders then in force, she was granted her first assessment promotion, on completion of five years of service, with effect from 01.06.1988 and the second assessment promotion, on completion of 8 years, on 20.05.1992. While so, the Time Bound Grade Promotion (TBGP) Scheme was introduced in 1994 with the clarification that the assessment promotions that had fallen prior to 30.04.1994 does not impede the grant of TBGP. Accordingly, TBGP was granted to the petitioner, reckoning 10 years of qualifying service as on 17.07.1993 and her designation changed to Senior Lab Technician. The TBGP Scheme was replaced by Flexible

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Complementing and Ladder Promotion (FCP and LP) Scheme as per order dated 28.07.2000. The FCP and

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LP Scheme provided for promotion from one grade to another, limited to three grade promotions, on

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completion of 7, 14, and 20 years from the

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commencement of service. In accordance with the FCP and LP scheme, the petitioner was promoted as Lab Technician (Selection Grade) on 18.04.1999

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and thereafter as Technical Officer, on 18.07.2000. The petitioner was granted the promotions as per the FCP and LP scheme. Meanwhile, the pay scale of RCC employees was made at par with the Sree Chithira Tirunal Institute of Medical Sciences and Technology (SCTIMST) scale. The consequential pay revision

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was ratified by the Government as per Ext.P7 order dated 17.06.2000. With effect from 01.01.2007, the 6^th Central Pay Band (CPC) was

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implemented for non-academic staff in the RCC as per Ext.P10 Government order dated 03.11.2009 and

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the monetary benefits made available from

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01.01.2007. Ext.P12 Government order dated 08.01.2014 was later issued, providing for notional fixation of pay to protect the service increments earned. Accordingly, the petitioner's pay scale was revised to Rs.7450-225-11500, granting the 3^rd FCP on completion of 20 years. Referring to Ext.P12 Government sanction, first respondent sanctioned petitioner's pay scale from 17.03.2006 as evidenced by Ext.P13. Thereafter, a Three Men Committee was appointed to find anomalies in the fixation of pay scale of employees in the SCTIMST and RCC to suggest corrective measures. The Three Men Committee suggested review of the assessment grade promotions granted to the non-academic staff and the to fix their pay n the corresponding per-

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revised scale of pay, without granting the benefit of rectification of pay scales during the period from 01.03.1997 to 31.12.2005. Although

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the first respondent issued Ext.P13 proceedings

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based on the recommendations of the Committee, that was not implemented, since the first respondent itself had sought review of the recommendations. Meanwhile, the petitioner superannuated on 28.02.2019.

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To the petitioner’s dismay two years

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after her retirement, Ext. P1 provisional pension sanction order was issued based on a provisional pay fixation done in tune with the Three Men Committee's recommendations. In Ext. P15 pay refixation order, the scale of Rs.6500—10500, sanctioned in Ext.P9 with effect from 01.03.1997, was reduced to the scale Rs.5000-150-8000 ignoring the TBGP granted for 10 years completed service and the pay drawn in the revised SCTIMST Scale Rs.7450-225-11500 from 01.03.1997.

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Consequently, fixation in 6^th Pay Commission Pay Band Rs.9300-34800 was wrongly started with a basic pay of Rs.6900/-, instead of the basic pay

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of Rs.8,125/-, as on 01.12.2006 as per the pay sanctioned in Ext.P11. Thereafter, by Ext P18 proceedings the first respondent accorded sanction for recovering Rs.10,25,691/- from the petitioner towards excess pay for a period of 25 years from April 1994 up to her retirement on 28.02.2019. The recovery was effected by deducting that amount from the petitioners

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gratuity and leave surrender. Aggrieved, this writ petition is filed.

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contended that Time Bound Higher Grades and Flexible Complementing and Ladder Promotions were granted to the petitioner correctly and approved

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by the RCC. Even though anomalies were pointed out by the Three Men Committee, the RCC itself had objected to the curative measures recommended

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by the Committee finding them to be harsh and prejudicial to the employees. In any event, the anomalies were not rectified while the petitioner

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was in service. As such, the revision of her pay,

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resulting in reduction of basic pay and

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retirement benefits, is patently illegal, more so since the revision/reduction is without notice to the affected party.

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Learned Counsel also assailed the

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recovery effected from petitioner's gratuity and leave surrender by relying on the decision in

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State of Punjab v Rafiq Masih (White Washer) [(2015) 4 SCC 334]

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Learned Standing Counsel submitted that the correct and eligible pay of the petitioner was arrived at as per the directives issued by the Government. As per Rule 16 of the Memorandum of Association of the RCC Society, prior permission/sanction of the Government has to be obtained with respect to matters relating to revision of scales pay of the employees. Contrary to this stipulation, the petitioner was granted

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the 10 year Time Bound Higher Grade. It is submitted that the petitioner entered service on 16.06.1983 and had less than 14 years service as on 01.03.1997. As such, her entitled scale of pay was Rs.5000-8000. As against this, the

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petitioner's scale was fixed at 6500-10500 by reckoning the invalid scale sanctioned without prior permission, as personal scale. The Three

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Men Committee directed to rectify this irregularity by sanctioning the scale of Rs.650010500 only on completion of 20 years of service, (ie, from 16.06.2003) instead of from 01.03.1997. Moreover, the petitioner had executed a bond, conceding that her liability if any noted during audit, can be recovered from her leave surrender, gratuity and pension.

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obtain prior permission from the Government in

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respect of matters relating to revision of scales of pay of its employees and that Time Bound

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Grades were granted without obtaining such permission is not in dispute. The Three Men Committee had pointed out this anomaly and the Government had directed the RCC to take steps for rectification. No such steps were taken while the petitioner was in service. The question therefore whether, recovery of the alleged excess salary from the petitioner's gratuity and monetary component of leave surrender is justified. In

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Rafiq Masih , the Apex Court had occasion to consider the legality in the State ordering recovery from a retired employee on the premise that he had drawn excess salary while in service. After elaborate consideration, the following situations, wherein recoveries by the employer would be impermissible in law, were postulated;

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“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

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that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

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(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

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

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(Underlining supplied)”

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Situation No.2 and 3 above will squarely apply in the petitioner's case, inasmuch as she had retired prior to one year of the recovery being affected and the excess payment made for a period in excess of 5 years prior to the order for recovery.

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Learned Counsel for the petitioner

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relied on the decision in State of Kerala

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v.Suresh Chandran [2021 (3) KLT OnLine 117] to

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contend that the refixation of petitioner's pay after retirement based on the recommendation of the Three Men Committee is illegal. The relevant portion of the judgment reads as under;

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“32. The learned Single Judge held that on

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assessment promotion from the post of Assistant Registrar granted to the petitioner in Exhibit P6 order with effect from 28.07.2004, he is entitled to get his pay fixed in the higher time scale with reference to the actual pay he was drawing as on 28.07.2004 and he would also be entitled to get the terminal benefits based

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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 28.07.2004 in the higher scale of Assistant Registrar which he was actually drawing.”

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Based on the above reasoning, the Division Bench

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found no justification in re-fixing the pay of the respondent in the appeal, after his retirement and in effecting recovery of the excess amount from his terminal benefits, in terms of the rectifications suggested in Committee's report.

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Herein also, the petitioner's pay is re-

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fixed based on the Three Men Committee report.

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The petitioner's pay was re-fixed unilaterally and consequential recovery effected after her retirement. The benefits earned by an employee for rendering unblemished service of more than 30 years cannot be taken away in such an unceremonious manner. The respondent should have afforded an opportunity of hearing to the petitioner before revising her pay. That having been not done, I am constrained to interfere with the impugned orders.

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In the result, the writ petition is allowed as under;

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(i) Exhibits P15, P18, P19 and P20 are

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quashed.

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(ii) Recovery from the retirement benefits

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granted to the petitioner is declared illegal.

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(iii) The respondents are directed to

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release the amount recovered from the gratuity and leave surrender of the petitioner forthwith.

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(iv) The first respondent is at liberty

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to refix the petitioner's pay for the purpose of revising her pension. Such refixation, if any, shall be done only after affording an opportunity of hearing to the petitioner.

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(v) If the decision is adverse to the petitioner, she will be at liberty to challenge that order in an appropriate proceeding.

Sd/-

V.G.ARUN JUDGE

Scl/

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APPENDIX OF WP(C) 8769/2021

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PETITION	ER EXHI	BITS
EXHIBIT	P1	PHTOCOPY OF PPO ON REPORT DATED 8.4.2019
EXHIBIT	P2	PHOTOCOPY OF 1ST APPOINTMENT ORDER DATED 16.6.1983
EXHIBIT	P3	PHOTOCOPY OF 1ST ASSESSMENT PROMOTION ORDER DATED 17.5.1990
EXHIBIT	P4	PHOTOCOPY OF 2ND ASSESSMENT PROMOTION ORDER DATED 20.5.1992
EXHIBIT	P5	PHOTOCOPY OF CIRCULAR DATED 18.5.1994
EXHIBIT	P6	PHOTOCOPY OF 1ST RESPONDENT'S ORDER NO.67/95 DATED 28.7.1995 FOR TBGP
EXHIBIT	P7	PHOTOCOPY OF G.O.(MS) NO.148/2000/H AND FWD DATED 17.6.2000
EXHIBIT	P8	PHOTOCOPY OF PROMOTION ORDER DATED 18.7.2000 AS TECHNICAL OFFICER
EXHIBIT	P9	PHOTOCOPY OF PAY FIXATION ORDER DATED 14.11.2000
EXHIBIT	P10	PHOTOCOPY OF G.O.(MS) NO.382/2009 H AND FWD DATED 3.11.2009
EXHIBIT	P11	PHOTOCOPY OF PAY FIXATION ORDER DT. 30.11.2009
EXHIBIT	P12	PHOTOCOPY OF G.O.(MS) 11/2014 DATED 8.1.2014
EXHIBIT	P13	PHOTOCOPY OF 1ST RESPONDENT'S ORDER DATED 30.11.2016
EXHIBIT	P14	PHOTOCOPY OF GOVT. LETTER DATED 6.9.2020
EXHIBIT	P15	PHOTOCOPY OF PROVISIONAL PAY FIXATION ORDER NO.RCC 612/2020 FIN C 03.7.2020
EXHIBIT	P16	PHOTOCOPY OF PROVISIONAL PENSION SANCTION ORDER ON REPORT DATED 8.4.2019
EXHIBIT	P17	PHOTOCOPY OF REPRESENTATION DATED 18.11.2020 TO 1ST RESPONDENT.
EXHIBIT	P18	PHOTOCOPY OF STATEMENT FOR RECOVERY DATED 13.7.2020
EXHIBIT	P19	PHOTOCOPY OF ORDER/NOTE

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NO.RCC/612/2020 -FIN-E DATED 9.11.2020 EXHIBIT P20 PHOTOCOPY OF ORDER/NOTE NO.RCC/592/2020 - FIN -E DATED 9.11.2020 RESPONDENT'S EXHIBITS EXT.R1(A) TRUE COPY OF THE INDEMNITY BOND DATED 09.09.2020 EXECUTED BY THE PETITIONER.

Ganga Devi C v. Regional Cancer Centre (Rcc)

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Ganga Devi C v. Regional Cancer Centre (Rcc)

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