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Showing contexts for: wrongful pay fixation in Sivankutty Nair vs Secretary To Government on 2 June, 2005Matching Fragments
4. The petitioner further submits that in the case of Smt. Sathyaseela, who was the first person promoted as per Ext.P1 whose case is identical to that of the petitioner, audit objection was dropped and, by Ext.P-12, Government sought clarification from the Accountant General's Office as to why in the case of the petitioner and the other persons in Ext.P1, the audit objection was not dropped. He also points out that there are instances wherein the Government had waived recovery of excess pay drawn on account of wrong fixation of pay as evidenced by Exts.P-14 and P-15. The petitioner further submits that when promotion to posts in the same scale of pay is ordered, one advance increment can be sanctioned as per Ext.P-13 order which was also denied to the petitioner.
14. In the decision in Sathyapalan's case supra, after holding that reckoning of provisional service followed by regular service in a different category to be illegal, this Court, in the following words, held that it is arbitrary to mulct the recipients with liability to refund the amount obtained by them by reason of the wrong fixation:
"The petitioners were granted increment on promotion as H.S. A. by the department, taking into account, the temporary service which ought not to have been counted for increment. It is far later that, based on an audit objection, Exts.P-3 and P-4 were issued to cancel the grant of increment and for consequent pay fixation. The petitioners were not at fault in granting the increment, it is the administrative authority which granted the increment counting the period which could not have been counted. Therefore, it is arbitrary to mulct the petitioners with the liability to refund the amount which they obtained by reason of a wrong fixation of pay made by the administration authority for the period upto 1984. Therefore, that part of Exts.P-3 and P-4 directing refund of the alleged excess amount drawn, as confirmed in Ext.P-13 and P-14, is quashed. It is further made clear that the petitioners are not entitled to the increment counting the temporary service; but the excess pay cannot be directed to be refunded until the date of Ext.P-13 and P-14. The respondents are liable to refix the pay of the petitioners without any liability for refund upto the date of Ext.P-13 and P-14."
16. These decisions are clear authority for the proposition that excess payment made pursuant to wrong fixation of pay cannot be recovered unless there is fault on the employee like misrepresentation.
17. In answer to this, the learned Government Pleader has cited a Division Bench decision of this Court in United India Insurance Co. Ltd. v. Roy, and a Single Bench decision in Rose v. State of Kerala, . I am of the considered opinion that the said Division Bench decision is distinguishable on facts. In that case, what was sought to be recovered was payment made by mistake contrary to the direction given by the General Insurance Company of India which is binding on all Insurance Companies. Further, in view of the decisions of the Supreme Court, the legal position is pretty clear that excess amount paid on account of wrong fixation of pay cannot be recovered unless the employee has, in any way, contributed to the mistake. The decisions in favour of the said proposition far outweighs the proposition to the contrary. Therefore, I respectfully disagree with the Single Bench decision in Rose's case (supra).
18. Further, in the present case, there is no wrong fixation of pay at all. In February, 1993, petitioner was promoted as Office Superintendent from the post of Selection Grade Typist, the post of Office Superintendent carried a higher scale of pay than that of the Selection Grade Typist. Therefore, the fixation done as per Exts.P-2 and P-3 were perfectly valid. It was only because the Government gave retrospective operation to Ext.P-4 that the scales of pay of the two posts became identical and consequently the fixation wrong. It is totally unjust and unreasonable to take away the benefits of promotion obtained by an employee in the right royal way, by giving a retrospective operation to a subsequent Government Order which came two years later, which would confer no benefit on the petitioner. It could even be argued that the retrospective operation of Ext.P-4 itself is bad, as such retrospective operation benefits only those persons who remained in the cadre of Selection Grade Typists from 1993 to 1995. For granting a benefit to Selection Grade Typists, the benefits of promotion legally acquired in normal course by those who are promoted as Office Superintendents from 1993 onwards cannot be taken away retrospectively.