WRIT PETITION 11688 of 2014 on 23 April 2001

JUDGMENT

Dated this the 10th day of December 2019

While petitioners were working as JuniorEngineers in Cochin Port Trust, Ext P1 proposal wasplaced before the Board of Trustees forrestructuring the Engineering Department in order toimprove the efficiency of the Department and boostthe morale of the employees by upgrading the postsof Junior Engineers in Class III as AssistantEngineer (Class II). By Resolution no.147 in Ext P2the Board of Trustees on 23.04.2001 decided toupgrade certain posts of Junior Engineers in CivilEngineering Department, Mechanical EngineeringDivision, Electrical Engineering Division andElectronic Engineering Division as AssistantEngineer (Class II) inthe pay scale of Rs.8600-14600. Based on Ext P2 decision, Ext P3 and P4orders were issued on 27.06.2001 upgrading theJunior Engineers including the petitioners whowere working in Mechanical and Civil Departments as

Assistant Engineers inRs.8600-14600, subject to anundertaking that they would perform duties of thecadre post prior to their upgradation. It wasordered that the designation of the promotees shallbe suffixed by (UG). At the time of upgradation. Itis stated that though the petitioners were in ClassIII Cadre they were in receipt of basic pay morethan the minimum of the Class II and the onlyfinancial benefit admissible for them was thebenefit of fixation of pay in the higher scale.2.It is stated that subsequent to that, onthe basis of some demands made by the EmployeesUnion, Ext P7 order was issued on 27.05.2005 Inwhich it was ordered that officers posted againstregular post of Assistant Engineers and dischargingthe functions and responsibilities of Sub DivisionalOfficer would be thereafter identified with thesuffix (SDO). It was also ordered that the suffix(UG) would be deleted from the designation ofEngineers in the upgraded posts and that theincumbents in the erstwhile Asst. Engineer (UG)would continue to discharge the duties and

responsibilities they were performing at that time.It is stated that pursuant to Ext P7 order, thesuffix (UG) was deleted from the designation ofAssistant Engineers in Ext P8 statement ofSupervisory staff issued on 01.04.2005. It is statedthat orders were issued thereafter regularising theupgraded Assistant Engineers as against regular posts of Assistant Engineers and accordinglypetitioners 1 to 6 were regularised from variousdates in 2011, 2010 and 2008. It is stated that onupgradation and on the basis of Ext P3 and P4orders, the petitioners' got their pay fixed withgrant of increment and fixation benefits. 3.While so, an audit was conducted for theperiod from 01.09.2006 to 30.09.2009 and in Ext.P9proceedings objections were raised in respect of twoof the employees who got upgraded as AssistantEngineers based on Ext.P1 order, pointing out thattheir pay should have been fixed as per F.R. 22(1)(a)(ii) and F.R 23(6), as the upgradation wassubject to the conditions that they continued toperform duties prior to the upgradation. It is

stated that one Mr. Mohanan approached this courtchallenging the proceedings for recovery initiated against him and when he approached the chairman,based on the directions in the judgment in that WritPetition, the Chairman reduced the amount. While sopetitioners also received Ext P10 to P17 ordersdated 22.04.2014,on the basis of those auditobjections, directing them to refund the excess payFailing which it would be recovered from theirsalary. The petitioners approached this courtchallenging these orders.

4. It is stated that one Mr.K.R.Mohanan,AE(M)

who was faced with the recovery proceedings hadsubmitted an appeal and that appeal was rejected.The petitioners claim that the undertaking obtainedfrom themselves on upgradation of the post isillegal and upgradation of corresponding number ofpost of Junior Engineers were abolished and therecannot be any objections against the fixation oftheir pay on the basis of duties performed by them.Petitioners claim that they were actually performingthe duties attached to the post of Assistant

Engineers. They claim that it was not even necessaryto issue orders regularising them and affixing (SDO)

or (UG) along with their designation. It is theircontention that the duties and responsibilities theyperforming were different and there is cannot be anyclassification among Assistant Engineers who wereupgraded and who were not upgraded. It is also theircontention that there is no post of Assistant Engineer SDO. It is stated that the orders Ext P10to P17 are issued even without a notice and withouteven informing them the nature of objection.

5. The respondents 1-7 as well as the 8[th]

respondent have filed separate counter affidavits.According to respondents 1-7, upgradation of theJunior Engineers was ordered on condition that theywould have to carry out the same work afterupgradation, as decided by the Board of Trustees on23.04.2001 in Ext R1(A) decision (Ext P2). Accordingto them upgradation ordered in Ext P3 and P4 was notpromotion. It is stated that the Audit Officerraised objections as to the fixation of pay of

petitioners under FR 22(1)(a)(i) in Ext R1B statingthat it was to be fixed under FR 22(1)(a)(ii), asthere was no change in duties and responsibilitieson upgradation. The petitioners' pay was fixed underF.R.22(1)(a)(i), which can be done only on promotionwhen there is change in duties and responsibilities.According to the respondents,suffix “SDO” was madefor the purpose of identification of regular post ofAssistant Engineers and upgraded Assistant Engineersand as soon as all the upgraded Assistant Engineersare regularised, suffix “SGO” would automaticallyvanish. It is stated that petitioners wereappointed in the regular post of Assistant Engineersas and when regular vacancies arose in the post anduntil then they had to perform the duties of JuniorEngineers.

6. It is also stated that upgradation ofJunior Engineers as Assistant Engineers was madewithout sanction from Government which is requiredunder the Major Port Trust Act, 1963. It is alsostated that Ministry of Shipping vide letter No.C-

18018/27/2000/PE-II dated 15.03.2001 had informedthat upgradation of post was not within the purviewof Board of Trustees of Port and pay fixation underF.R 22(1)(a)(i) is not applicable for fixing the payon upgradation as it does not involve higherresponsibilities.

7. The petitioners have filed reply affidavitproducing various documents to show that there wasdifference in duties and responsibilities. On thebasis of letter received and information collectedin the Right to Information Act, they claim thatthere is no order fixing duties and responsibilitiesof Assistant Engineer (SDO) and there is no decisionof the Board of Trustees enabling classification forthe post of Assistant Engineers and Junior AssistantEngineers SDO. It is their further contention thatthe pay was fixed as early as in 2001 when they weregranted upgradation and orders of recovery wereissued in 2014 is not permissible in the light ofthe judgments of the Apex Court as they were notresponsible for such fixation of pay.

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8. The Learned Counsel for the petitionerrelied on the judgments held by Apex Court in Stateof Punjab & Ors Vs. Rafiq Masih White Washerreported in 2015 (1) KLT 429 whereas the learned.Senior counsel relied on judgment of Apex Court in Chandi Prasad Uniyal and Ors Vs. State ofUttarakhand and Ors reported in (2012)8SCC417 insupport of the respective contentions that recoverycannot be made. Learned Sr.counsel points out thatthe public money is involved and petitioners weregetting benefits from the erroneous fixation of paythey are entitled to refund the same.

9. On consideration of the contentions on bothsides it is seen that specific undertakings wereobtained from the petitioners when they wereupgraded to the post of Assistant Engineeers as perExt.P3 and P4 orders that they would perform theduties of Junior Engineers. Hence it cannot be saidthat there was change in the duties andresponsibilities. The subsequent orders would showthat the persons like petitioners where placed on

probation as and when vacancies arose in the post of Assistant Engineers on regular basis. Ext.P24 order produced by the petitioner would show that they heldthe upgraded post of Assistant Engineer till orderswere issued on 21.11.2016 when he was placed against the regular post of Assistant Engineer and was placed on probation. It is clear that they were notholding any regular post on upgradation. Therefore Iam of the view that petitioners were not entitled to get their pay fixed in F.R 22(1)(a)(i) and hencethere is nothing wrong in the audit objection.

10. The question which remains is whethererroneous pay fixed in the case of the petitionersis liable to be recovered on the ground that recovery was ordered only in 2014. In para 18 of thejudgment inState of Punjab v. Rafiq Masih, (2015) 4 SCC 334, theApex Court summarised the situations where recoveries are impermissible,as follows:

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

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

(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.

(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.

(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.

11. In this case orders for recovery were issued in the year 2014 whereas petitioners were being paid mistakenly since 2001. In this case recovery could not be effected because of theinterim order passed in this Writ Petition. In viewof clause 3 of the paragraph 18 of the judgment inRaffiq Massih's case, there cannot be any recoveryupto 2014.However respondents are free to re-fix thepay and effect recovery for the period from the dateon which Ext P10 to P17 orders were issued. ThisWrit petition is disposed of accordingly SM

P.V.ASHAJUDGE

APPENDIX

PETITIONERS'EXHIBITS:

EXHIBIT P1EXHIBIT P1- TRUE COPY OF THE RELEVANT AGENDA NOTE DATE 23-4-2001.AGENDA NOTE DATE 23-4-2001.

EXHIBIT P2EXHIBIT P2- TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING OF 23-4-2001.PORTION OF THE MINUTES OF THE MEETING OF 23-4-2001.

EXHIBIT P3EXHIBIT P3- TRUE COPY OF THE ORDER DATED 27-6-2001 OF THE 3RD RESPONDENT.27-6-2001 OF THE 3RD RESPONDENT.

EXHIBIT P4EXHIBIT P4- TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT UPGRADING THE JUNIOR ENGINEERS (CIVIL) DATED 27-6-2001.3RD RESPONDENT UPGRADING THE JUNIOR ENGINEERS (CIVIL) DATED 27-6-2001.

EXHIBIT P5EXHIBIT P5- TRUE COPY OF THE RELEVANT EXTRACT OF STATEMENT OF EMPLOYEES OF 2002.EXTRACT OF STATEMENT OF EMPLOYEES OF 2002.

EXHIBIT P6EXHIBIT P6- TRUE COPY OF THE RELEVANT EXTRACT OF THE STATEMENT OF SUPERIOR STAFF OF 2004.EXTRACT OF THE STATEMENT OF SUPERIOR STAFF OF 2004.

EXHIBIT P7EXHIBIT P7- TRUE COPY OF THE ORDER DATED 27-5-2005 ISSUED BY THE 3RD RESPONDENT PURSUANT TO THE SETTLEMENT.27-5-2005 ISSUED BY THE 3RD RESPONDENT PURSUANT TO THE SETTLEMENT.

EXHIBIT P8EXHIBIT P8- TRUE COPY OF THE RELEVANT EXTRACTS OF THE STATEMENT OF SUPERVISORY STAFF.EXTRACTS OF THE STATEMENT OF SUPERVISORY STAFF.

EXHIBIT P9EXHIBIT P9- TRUE COPY OF THE FORWARDING LETTER FROM THE RESIDENT AUDITOR, ENCLOSINGTHE RELEVANT REPORT DATED 8-1-2010.LETTER FROM THE RESIDENT AUDITOR, ENCLOSINGTHE RELEVANT REPORT DATED 8-1-2010.

EXHIBIT P10EXHIBIT P10- TRUE COPY OF THE ORDER ISSUED TO THE 1ST PETITIONER FOR RECOVERY DATED 22-4-2014.TO THE 1ST PETITIONER FOR RECOVERY DATED 22-4-2014.

EXHIBIT P11EXHIBIT P11- TRUE COPY OF THE ORDER ISSUED TO THE 2ND PETITIONER FOR RECOVERY DATED 22-4-2014.TO THE 2ND PETITIONER FOR RECOVERY DATED 22-4-2014.

EXHIBIT P12EXHIBIT P12- TRUE COPY OF THE ORDER ISSUED TO THE 3RD PETITIONER FOR RECOVERY DATED 21-4-2014.TO THE 3RD PETITIONER FOR RECOVERY DATED 21-4-2014.

19-4-2014.

RESPONDENTS'EXHIBITS:

EXHIBIT R1(A)

TRUE COPY OF THE RELEVANT PAGE OF THE BOARD RESOLUTION NO.147 DATED 23.04.2001

EXHIBIT R1(B)TRUE COPY OF THE LETTER DATED 08.01.2010