IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 18TH DAY OF JANUARY 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT PETITION No.57757/2018 & WP Nos.58172 – 58175/2018 (S – KAT) BETWEEN:
1. The State of Karnataka Represented by the Principal Secretary to Government Finance Department Karnataka Government Secretariat Vidhana Soudha, Bengaluru – 560 001.
2. The Commissioner for Commercial Taxes in Karnataka Vanijya Terige Karyalaya Gandhinagar, Bengaluru – 560 009.
3. The Accountant General (A & E) Karnataka, P B No.5329, 5369 Residency Park Road Bengaluru – 560 001. … Petitioners (By Sri I Tharanath Poojary, AGA) AND:
1. Sri. B.S. Nimbal, Aged about 68 years, Assistant Commissioner of Commercial Taxes, V.Circle, Belgaum.
2. Sri. B.K. Rami Reddy, Son of Sri. B.Kondaiah, Aged about 68 years Assistant Commissioner of Commercial Taxes (Retired) c/o Sri. S. Anjaneyulu, No.1401, 21st Cross Sector 1, HSR Layout Bengaluru.
3. Sri. G.B. Manjappa, Son of Sri. Gondi Basappa, aged bout 69 years, Assistant Commissioner of Commercial Taxes, II Circle, Shimoga.
4. Sri. K.R. Benakatti, Son of Sri. R.G. Benakatti, aged bout 70 years, Assistant Commissioner of Commercial Taxes, VI Circle, Laxmi Complex, Sadashiva Nagar, Belgaum.
5. Sri. S.C. Kaliveerappa, Son of Channappa, aged bout 69 years, Assistant Commissioner of Commercial Taxes, Kelagote, Chitradurga. … Respondents These writ petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the order dated 10.7.2017 in Application Nos.742/2004 c/w Application Nos.1814/2004, 3872/2004, 3885/2004 and 4099/2004 passed by the Karnataka State Administrative Tribunal, Bangalore (Annexure-A) and etc.
These writ petitions coming on for preliminary hearing this day, Mohammad Nawaz, J., made the following:
O R D E R The petitioners have sought to quash the common order dated 10.7.2017 passed by the Karnataka Administrative Tribunal, Bengaluru (‘Tribunal’ for short) in Application No.742/2004 c/w Application Nos.1814, 3872, 3885 and 4099 of 2004, whereby the Tribunal allowed the said applications filed by the respondents herein and quashed the impugned letter issued by the 3rd respondent therein, ordering for recovery of excess pay and allowances in pursuance of review of promotions effected in Notification dated 4.5.1996.
2. We have heard Sri Tharanath Poojary, learned Additional Government Advocate for petitioners.
3. Applications No.742/2004 c/w Application Nos.1814, 3872, 3885 and 4099 of 2004 have been filed by respondent Nos.1 to 5 respectively before the Tribunal with common grievance. It is stated that the respondents entered into service in the cadre of Commercial Tax Inspector by direct recruitment through Karnataka Public Service Commission (‘KPSC’ for short) on 10.10.1974. Thereafter, they were placed in independent charge of the post then existing as Assistant Commercial Tax Officer (now re- designated as `CTO’) under Rule 32 of Karnataka Civil Service Rules (`KCSRs’ for short) as per order dated 29.8.1984. Subsequently, the promotion was given with retrospective effect to the cadre of Commercial Tax Officer with effect from 29.8.1984 in Notification No.FD 213 CSE 99 dated 6.1.1993. Thereafter, in view of the order passed by the Tribunal in Application No.2841/1987 and other connected matters, the seniority list of Commercial Tax Inspectors was revised as per official memorandum dated 19.9.1994 and consequently in view of the revised seniority list, the promotion which was given also, came to be revised. The pay was re-fixed with effect from 29.6.1987 under Section 4 of KSCS (Regulation of Promotion, Pay and Pension) Act, 1973 (`RPPP Act, 1973’ for short) by virtue of letter issued by petitioner No.3.
4. Petitioner No.3 issued a letter to each of the respondents with regard to review of promotions and re- fixation of pay and sought for recovery of excess pay and allowances. The respondents herein challenged the same before the Tribunal as noted supra. The Tribunal by a common order allowed the applications and quashed the letters issued against them, holding that the applicants are entitled for all consequential benefits, which order is impugned herein.
5. It is the contention of the learned Additional Government Advocate appearing for the petitioners that the final seniority list of Commercial Tax Officer was issued as per Notification dated 4.5.1996. The government order after finalization of the interstate seniority list reviewed the promotions and have assigned the date of eligibility for promotion to the cadre of Commercial Tax Officer in terms of Section 4(3) of RPPP Act. The pay on the date of eligibility is to be re-fixed as if the concerned employee was promoted on such date, but he shall not be liable for any refund of the excess pay and allowance drawn by him upto the date of issuance of order fixing the date of eligibility and that there is no recovery of excess pay and allowances till issuance of government order upto 3.5.1996. The action taken by petitioner No.3 for recovery was thus sought to be justified.
6. Learned Additional Government Advocate would further contend that after reviewing the final seniority list, it was necessary to review the promotions and therefore the government after reviewing the promotion granted to the respondents have rightly assigned different dates of eligibility and consequent to that petitioner No.3 has rightly calculated the amount, which is liable to be refunded by the respondents and therefore the Tribunal ought not have interfered with such lawful action taken by the petitioners for recovery of excess pay. He would contend that the letter issued by petitioner No.3 for refund of excess salary is as per sub-Section 3 of Section 4 of the Act, which provides for re- fixation of pay on the date of eligibility and the Tribunal ought not to have gone into the question of delay in issuance of impugned letters of recovery of amount and hence contends that the impugned order passed by the Tribunal is illegal and contrary to law and accordingly seeks to allow the petitions.
7. It is the case of the respondents that they entered into service as Commercial Tax Inspector by direct recruitment through KPSC on 10.10.1974. Thereafter they were placed in independent charge of then existing post of Assistant Commercial Tax Officer, which is now re-designated as Commercial Tax Officer. Subsequently, the retrospective promotion to the cadre of Commercial Tax Officer was given based on the final seniority list of Commercial Tax Inspector. Thereafter, the revised seniority list of Commercial Tax Inspector came to be published by virtue of order passed by the Tribunal in Sri V Nanjundaswamy’s case in Application No.2841/1987 and the order of this Court in Avinashchandra’s case. The government reviewed the promotion made earlier to the cadre of Commercial Tax Officer and they were assigned the date of eligibility for promotion as 29.6.1987. Hence, the date of promotion was postponed by nearly three years. The pay of the applicants was re-fixed with effect from 29.6.1987 under Section 4 of the RPPP Act, 1973 and the applicants were asked to refund the excess pay and allowances.
8. It was contended before the Tribunal that the seniority list of CTIs was challenged in Application No.4684/1995 and based upon the order of the Tribunal, revised seniority confirmation list was published, which was again challenged in Application No.2284/1997 and the Tribunal was pleased to strike down the said list and direction was issued to prepare a fresh list as per the guidelines therein. In pursuance of the direction, another final seniority list dated 27.1.2001 was published, after publishing a provisional seniority list. Therefore the review-cum-seniority list dated 4.5.1996, which is based upon the seniority list of CTIs dated 19.9.1994 does not survive and though these developments have been taken place earlier to the issue of impugned letters, the 3rd respondent has failed to take the same into consideration and therefore the action of the 3rd respondent in issuing the impugned letters are not valid.
9. It was also contended by the respondents that the retrospective promotion of the applicants was in accordance with Rules issued under Section 3(1)(a) of RPPP Act, 1973 and based upon the final seniority list and not provisional seniority list. Hence, it is excluded from Section 4(1) of the said Act. The review is permissible only when promotions are made on the basis of provisional seniority list and the seniority of promotees to undergo a change in the final seniority list.
10. The impugned letters issued by petitioner No.3 for recovery of excess pay and allowances mentioned that though fixation of pay results in downward revision, but no recovery is effected till the date of government order of assigning the date of eligibility for promotion i.e. upto 4.5.1996. Hence, the recovery from 4.5.1996 to date may be effected. The Tribunal has taken into consideration Section 3(2) and Section 4 of RPPP Act, 1973, which provides that where the seniority of an allottee as specified in provisional inter-state seniority list in any class of post or office gets altered in the final seniority list, the promotion made based thereupon on the basis of seniority/merit shall be reviewed with reference to qualification and other conditions in the recruitment Rules applicable at relevant point of time and appropriate ranking shall be assigned to the allottees. Further Section 3(2) of the Act mandates that in the matters not specified in sub-section (1), provisions of Section 4 shall mutatis mutandis be applicable. The impugned letters came to be issued after long lapse of time. Reliance was also placed on a decision of the Hon’ble Apex Court in the case of State of Punjab & others –vs- Rafiq Masih (White Washer) reported in 2015 AIR SCW 501.
11. In the aforesaid judgment, the Hon’ble Apex Court has held that the action ordering recovery from an employee would be in order so long as not rendered iniquitous to the extent that the action of recovery would be more unfair, more wrongful, more improper and more unwarranted, then corresponding right of the employer to recover the amount. Further that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments. Admittedly, in the present case, the cause of action for issue of impugned letters is stated to be Government Order dated 4.9.1996. The letters have been issued after long lapse of time without any justification. Considering the over all facts and circumstances of the case, we find that there is no merit in the writ petitions so as to interfere with the order passed by the Tribunal.
Accordingly, writ petitions are dismissed. There is no order as to cost.
Sd/- Sd/-
JUDGE JUDGE Bkm.