Ashok Bhushan, Ag.CJ Heard learned Government Pleader as well as learned counsel appearing for the Society, respondent No.3. This writ appeal has been filed against the judgment and order dated 28.2.2013 passed by learned Single Judge, closing the writ petition making the interim order absolute. The writ petition was filed by two petitioners ie., KBPS Managerial Staff Organisation represented by the General Secretary and one C.M. Basheer, Assistant Manager Kerala Books and Publication Society. The second respondent, hereinafter referred to as ‘the society’, was registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, purely promoted by the Government to establish and run text book printing press at Thrikkakara consisting of members solely nominated by first respondent Government.
3. The Society was to run in accordance with the Memorandum of Association, Rules and Regulation. The society issued an order dated 19.4.1985 declaring certain categories of employment as managerial personnel. The employees in the supervisory category with wages exceeding Rs.1,600/- per month were all declared as managerial category employees. Consequential orders were issued on 13.11.1989 on the basis of the report of the Sub-committee, constituted by the governing body for grant of Government scales of pay to Supervisors placed in the managerial cadre and for provisional pay fixation. A statement was issued on 10.8.1991, fixing the salary in the Government scales of pay, payable to the employees working in the Government press. The State Government on 15.11.1994 has issued an order intimating pay revision for the employees and officers of the society. The State Government issued an order on 5.1.2001 to the society directing that those supervisors absorbed in the managerial cadre without approval of the Government should be reverted to ordinary supervisor and excess payment on this account made there be recovered, further cadre review may be conducted and total number of posts in managerial cadre fixed and promotion criteria may be determined. The petitioner represented against the said order by letter dated 15.11.2001, Ext.P10. Further representations were sent. The Government asked for certain information and clarification by its letter dated 27.6.2002 and 2.1.2003. The Government on 12.5.2003 communicated that the supervisor should only be promoted to Managerial cadre according to the promotional avenue and subject to availability of the vacancy. The proposal for absorption of managerial cadre was rejected. Subsequent representations submitted by the petitioners were not acceded to and the Government communicated its decision on 30.3.2004 to the society that Government does not find it necessary to reconsider the decision already taken in the matter. Thereafter the petitioner had come up in the writ petition by praying for the following relief :
"(a) Call for the records and files leading to Exts.P9, P16 and P20 issued by 1st respondent and quash Exts.P9, P16 and P20 by issuance of a writ in the nature of certiorari or any other appropriate writ,order or direction.
(b) Declare that Ext.P1 order and all placements/postings of Supervisors made thereunder, to the managerial cadre, by 2nd respondent, are legal and valid;
(c) Issue a writ in the nature of prohibition or any other appropriate writ, order or direction prohibiting the respondents from reverting to the workmen cadre, the Supervisors posted to managerial cadre and from effecting recoveries from their pay, on the strength of Exts.P9, P16 or P20 orders of 1st respondent”
4. Counter affidavit was filed by the State in the writ petition referring to various correspondences which took place between the society and the Government. It was stated that 29 Supervisors were placed in the managerial cadre from 1989 onwards. Out of which 8 has left the service and five had become Assistant Managers and one got time bound grade promotion. When steps were taken to remove the officer from managerial cadre to lower cadre, an interim order was passed by this Court. It has been stated that the functions of the society are controlled by the State Government and the society is bound to follow the orders and instructions issued by the Government. It was further stated that prior approval of the State Government is required regarding the change of conditions of service. When the matter came up for hearing before the learned Single Judge, the learned single Judge observed that since more than eight years have passed after passing of the interim order and petitioners have been enjoying the benefit granted to them and some of the members of the society has already been retired, the recovery is unwarranted. The interim order was made absolute. It is useful to quote para 3 of the judgment, which is to the following effect :
"By interim order dated 16.6.2004, this Court directed stay of recovery pursuant to the impugned orders. In the meantime about more than eight years have passed. The petitioners are enjoying the benefits granted to them by the respondent society. It is submitted that the second petitioner and the members of the society have retired. Therefore, at this distance of time, direction for recovery is unwarranted in the facts and circumstances of the case and the same is quashed. Interim order is made absolute and writ petition is closed.”
5. A perusal of the judgment of learned single Judge clearly indicate that the learned Single Judge did not enter into the issues as to whether the society was bound to change the cadre of supervising staff as managerial, without their being any vacancy. There is no denial of the fact that change of cadre has affected monetory benefits also. Although the contention of the society before the Government was that monetory benefits were only confined to three persons and for others there was no change in monetory benefit by change to the managerial cadre, the Government has disapproved the action of the society and directed for reversion. Learned Single Judge having not entered into the merits, it was not appropriate to dispose of the matter merely saying that since the interim order was continuing for eight years, which was enjoyed by the petitioners at this distance of time recovery cannot be directed. Whether recovery is directed to be made or not depends on facts of each case. When clearly the contention is that particular cadre of employees in the managerial cadre without approval of the Government was unjustified, the direction of the Government to revert cannot be faulted. As far as the contention of the petitioners that monetory benefit affected only three persons, that stage is yet to come, since there is no determination and follow up action for recovery on account of the interim order passed by this Court. We, thus, are of the view that the Government is free to determine the quantum of recovery from each officer who have been paid in excess of their entitlement. We are not required to express any opinion on the contention of the petitioner that monetory benefit affected only to last three persons. That is an issue which has to be considered by the Government while taking the decision to effect the recovery. The Government may consider the said issue and if it is found that by change of the cadre, others were not affected, except three, the Government is free to take consequential action accordingly. In view of the forgoing discussions, we set aside the judgment of learned Single Judge dated 28.2.2013 and dispose of the writ petition with a direction to the Government to take consequential action in pursuant to its earlier order, Ext.P9, P16 and P20, in accordance with law. With these directions the writ petition is disposed of.
6. The Government, while taking the decision regarding consequential action, may also take into consideration the factum of those employees who have already retired from service or left the service.
The writ appeal is disposed of.
ASHOK BHUSHAN, ACTING CHIEF JUSTICE A.M.SHAFFIQUE, JUDGE.
sou.