Kerala High Court
State Of Kerala vs P.B.Balakrishnan Nair on 1 February, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
SATURDAY, THE 22ND DAY OF NOVEMBER 2014/1ST AGRAHAYANA, 1936
WP(C).No. 32950 of 2008 (V)
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PETITIONER(S):
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1. STATE OF KERALA, REPRESENTED BY THE
PRINCIPAL SECRETARY TO GOVERNMENT,REVENUE DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM.
2. DIRECTOR OF SURVEY AND LAND RECORDS,
VAZHUTHACAUD, THIRUVANANTHAPURAM.
BY ADV. P.P. PADMALAYAN, GOVERNMENT PLEADER
RESPONDENT(S):
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1. P.B.BALAKRISHNAN NAIR, RETIRED HEAD
DRAFTSMAN, 'KARTHIKA', TEMPLE ROAD
THODUPUZHA.
2. THE LOK AYUKTA REPRESENTED BY ITS
REGISTRAR, THIRUVANANTHAPURAM.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JV
W.P.(C). NO.32950/2008
APPENDIX
PETITIONER'S EXHIBITS:
P1 : COPY OF THE JUDGMENT IN O.P.16339/2002 DT.04.03.2003
P2 : COPY OF THE JUDGMENT IN O.P.25455/2000 AND CONNECTED CASES
DATED 01.02.2006
P3 : COPY OF THE PROCEEDINGS ISSUED BY THE FIRST RESPONDENT
DATED 07.07.2006
P4 : COPY OF THE COMPLAINT NO.2313/2006 FILED BY THE FIRST
RESPONDENT BEFORE THE LOK AYUKTA
P5 : COPY OF THE STATEMENT OF DEFENCE FILED BY THE ADDL.
SECRETARY TO GOVT.(FINANCE)
P6 : COPY OF THE ORDER DATED 03.04.2008 ISSUED BY THE 2ND
RESPONDENT IN COMPLAINT NO.2313/2006
RESPONDENTS' EXHIBITS: N I L
//TRUE COPY//
P.A. TO JUDGE
JV
P.V. ASHA, J.
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W.P.(C) No.32950 of 2008
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Dated this the 22nd day of November, 2014
JUDGMENT
The State of Kerala has filed this writ petition against Ext.P6 order passed by the Kerala Lok Ayukta on 03.04.2008 in Complaint No. 2313/06, wherein the Lok Ayukta held that the Order No.SYF2-5532 dated 07.07.2006 was an the outcome of maladministration and incorrect. It is found that the retirement benefits of the respondent should not be interfered with in the light of that order. It was also made clear that the pensionary benefits due to the respondent consequent to Pay Revision Order dated 25.03.2006 should be extended to him.
2. The 1st respondent had submitted a complaint W.P.(C) No. 32950/2008 2 before the Lok Ayukta as per Ext.P4 against the order Ext P3 passed by the Director of Survey and Land Records on 07.07.2006 -i.e Order No.SYF2-5532. The facts leading to that complaint are as follows:
3. The 1st respondent retired from service on 31.05.1995, while working as Head Draftsman in the Department of Survey and Land Records. He had become eligible for 25 years' higher Grade of Draftsman, after attaining the age of 50 years on 19.5.1990 . The 1st grade Draftsman on completion of 25 years, become eligible for the scale of pay of Technical Assistant, in case they are having the requisite qualifications as per the Special Rules ie pass in Account Test, Revenue Test & Head Suveyors' Test. In the case of unqualified hands, they will be entitled to only the next higher scale in the standard scale of pay of Head Draftsman. On a misinterpretation of Rule 13 B of KS& SSR, the 1st respondent and several others like him, were granted the scale of pay of Technical Assistant, even though they were not qualified. This was under the W.P.(C) No. 32950/2008 3 mistaken notion that exemption was admissible for them from all the tests and hence treating them as duly qualified.
Later, when the mistake was realised, the petitioners took steps to re-fix the pay and to recover excess amount. A batch of Writ Petitions were filed challenging the proceedings for re-fixation and recovery. In the judgment in O.P.18062/2000 and connected cases reported in Sarojini Amma Vs. State of Kerla 2002(3) KLT 573, this Court upheld the action of Govt, while holding that Rule 13B of KS&SSR granted exemption only from the obligatory departmental test and not from the basic essential qualification. It was held that the petitioners can take steps to recover the monetary benefits paid on mis-interpretation of R.13B. Since several of the persons who were granted such benefits had already retired from service, Govt decided not to recover the excess amount. . At the same time proceedings were initiated to re-fix their pay. Challenging the proceedings, a batch of O.Ps were filed. But this court did not interfere with the same. It was held W.P.(C) No. 32950/2008 4 that re-fixation of pay with retrospective effect from the date on which the higher pay-inadmissible scale of pay was given, was not illegal. Thereafter the 1st respondent filed W.P.(C) 31112/2005 challenging the proceedings for re- fixation. This Court directed to pass orders after hearing the 1st respondent herein. Ext P3 order was passed after affording an opportunity of hearing to the 1st respondent.
4. It was at that stage that the 1st respondent filed the complaint . The contention of the 1st respondent in his complaint Ext.P4 before the Lok Ayukta was that he was entitled to exemption under Rule 13B of KS&SSR and therefore, he was eligible for the higher grades in the scale of pay admissible to the promotion post of Technical Assistant. The Director of Survey and Land Records by proceedings dated 07.7.2006 -Ext.P3, after affording an opportunity of hearing to the petitioner directing re-fixation of his pay and pension for the future period. It was found that he was not eligible for exemption under Rule 13B of KS&SSR, merely on account of crossing the age of 50 years. W.P.(C) No. 32950/2008 5 It was found that, in the light of the judgments rendered by this Court in a series of decisions, which are produced as Exts.P1 and P2 and reported in Sarojini Amma Vs. State of Kerala [2002(3)KLT 573], the 1st respondent was not eligible for exemption, since the test was not one obligatory; but it was prescribed as a qualification for appointment to the post of Technical Assistant-the immediate promotion post of Head Surveyor / Head Draftsman.
5. The Lok Ayukta found that the interpretation of Rule 13B made by the Director of Survey and Land Records in Ext.P3 order was totally incorrect and that the re-fixation of pay made on the basis of that order, amounted to maladministration. According to Lok Ayukta, the 1st respondent had completed the age of 50 years when the Director of Survey and Land Records had issued the order initially on 23.10.1990, fixing his pay, applying correct legal position and it had to be left undisturbed and that Rule 13B of KS&SSR provides for exemption from all the tests prescribed for promotion. It was found that the stand taken W.P.(C) No. 32950/2008 6 by the authority that exemption cannot be granted from acquiring qualifications mentioned under special rules, was erroneous, in view of non-obstande clause with which Rule 13B begins.
6. I heard Sri. Padmalayan, the learned Government Pleader appearing for the petitioner- State of Kerala. The respondent is not present. Though notice is served, he has not entered appearance through counsel.
7. The main ground of attack against the order of Lok Ayukta is that it is without any authority, as evident from Section 8 of Kerala Lok Ayukta Act ('the Act' for short). The learned Government Pleader took me to the relevant provisions in the Act and contended that the issue involved was not one could be investigated by Lok Ayukta. Section 8 (1) therein provides as follows:
"8.Matters not subject to investigation.-
(1) Except as hereinafter provided, the Lok Ayukta or an Upa Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule".
(emphasis supplied) W.P.(C) No. 32950/2008 7 As per Clause 1 of Section 8, Lok Ayukta or Upa Lok Ayukta shall not conduct any investigation under this Act in the case of a complaint involving the grievance in respect of any action, when such action relates to any act specified in the 2nd Schedule.
Now we have to look at the 2nd schedule, which reads as follows:
"SECOND SCHEDULE
(a) Action taken for the purpose of investigating crime relating to the security of the State.
(b) Action taken in the exercise of powers in relation to determining whether a matter go to a Court or not.
(c) Administrative action taken in matters which arise out of the terms of a contact governing purely commercial relations of the administration with customers or suppliers except where the complainant alleges harassment or gross delay in meeting contractual obligation.
(d) Action taken in respect of appointment, removal, W.P.(C) No. 32950/2008 8 pay, discipline, superannuation or other matters relating to conditions of service of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service.
(e) Grant of honours and awards."
(emphasis supplied) Therefore it can be seen that removal, pay, discipline, superannuation or other matters relating to the conditions of service of public servants, are matters which are specifically excluded from the purview of the investigation by Lok Ayukta or Upa Lok Ayukta under clause (d) under second schedule.
8. It is also to be noticed that the mere fact that the 1st respondent was a pensioner or that re-fixation of pay affected his pension, at the time when complaint was filed, cannot confer jurisdiction on the Lok Ayukta to deal with the complaint, because , the basic issue in this case arises W.P.(C) No. 32950/2008 9 with respect to the the fixation of pay in the case of the 1st respondent and others similarly situated, on grant of higher grades, consequent to interpretation of Rule 13B of KS& SSR. It happened to affect his pension only because of the re-fixation of pay, consequent to the finding on applicability of Rule 13B. In such circumstances i.e when there is a specific exclusion of matters relating to pay and other service conditions of employees in the 1st part of clause (d) of 2nd schedule and the issue in its entirely fell under that part of clause (d); a complaint cannot be permitted to be entertained bringing it under the 2nd part viz "not including actions relating to claims for pension". There cannot be any claim for pension, independent of the main issue relating to pay and conditions of service. The complaint could not have been entertained under the guise of the status of the 1st respondent as a pensioner. In the light of the judgment of this Court, including Ext.P1, the Director of Survey and Land Records initiated proceedings for re-fixation of the pay of the 1st respondent, without taking any steps for recovery W.P.(C) No. 32950/2008 10 of the benefits already enjoyed.
9. Therefore, it can be seen that the complaint raised by the 1st respondent before the Lok Ayukta was essentially a matter of pay and pay fixation, which was effected on account of the interpretation of provisions in Rule 13B of KS&SSR, which relates to the conditions of service of public servant. The question regarding pension and pensionary benefits, is only a consequential action. When the issue raised essentially relates to a matter which is specifically excluded from the purview of investigations by Lok Ayukta, the Lok Ayukta ought not have entertained the complaint filed by the 1st respondent. But it was not only entertained, but also arrived at findings after interpreting the provisions contained in the Special Rules as well as Rule 13B of KS&SSR, contrary to what was held by this Court. In the light of the fact that the complaint of the 1st respondent arose out of the proceedings for re-fixation of pay and pension in the process of rectification of mistake, as permitted in the judgment of this Court in a batch of cases W.P.(C) No. 32950/2008 11 after interpretation of Rule 13B as well as the concerned Special Rules, the Lok Ayukta ought not have undertaken such ventures and held that the proceedings of the Director of Survey and Land Records amounted to an act of maladministration. Since the very issue arises on account of the re-fixation of pay and the re-fixation of pensionary benefits are only consequential to it, there was no authority for the Lok Ayukta to deal with the complaint filed before it by the 1st respondent and to issue direction to grant benefits, including that of pay revision to the 1st respondent.
In the above circumstance, I quash Ext.P6.
Accordingly the writ petition is allowed.
Sd/-
P.V. ASHA,
JV JUDGE