The Secretary to Government, Department of Personnel and Administrative Reforms and Others vs Sri S.M. Kshirasagar

Mohan M. Shantanagoudar, J.—The order of the Karnataka Administrative Tribunal, Bangalore in Application No. 5805/2006 is called in question by the State in this writ petition. The records reveal that the respondent herein was appointed as Naka Clerk in City Municipal Council, Bagalkot on 1.9.1959. He was posted as Compounder to Municipal Ayurvedic Dispensary, Bagalkot on 27.9.1980 by the order of the Chief Officer, City Municipal Council, Bagalkot. The lien of the respondent was shifted to the post of Compounder in Municipal Ayurvedic Dispensary in Bagalkot. From 26.8.1981 till the date of his retirement on 31.1.1998, the respondent has worked and discharged his duties as Compounder in Ayurvedic Dispensary. By the Official Memorandum dated 17.3.1990, the respondent was transferred from the post of Compounder, Government Ayurvedic Dispensary Bagalkot to the post of Compounder, Government Ayurvedic Dispensary, Yalagur. On 29.5.1993, the respondent once again transferred from Government Ayurvedic Dispensary, Yalagur to Government. Ayurvedic Dispensary Bagalkot.

Rule 3 of the Karnataka State Civil Services (Absorption of the Employees of the Medical Institutions taken-over by Government) Special Rules, 1985 (for short "Absorption Rules, 1985") came into force on 27.9.1985 provides that a person who was an employee of a taken-over medical institution on the appointed day and who possessed on the appointed day the requisite qualifications prescribed for the post mentioned against his name in Column No. 2 of Schedule-II, is deemed to have been absorbed with effect from appointed date. Thus, the respondent continued as Compounder in Government Ayurvedic Hospital till his retirement. The provisional seniority list of Compounder, showing the name of the respondent at Sl. No. 3 was published on 20.9.1996.

As per the order, dated 15.3.2000, the services of the respondent was regularized in Compounder Group-D post having pay scale of Rs. 250-400. It is relevant to note that the said order, dated 15.3.2000 is passed after retirement of the respondent only for the purpose of pensionary benefits. Pursuant to such order/notification dated 15.3.2000 a Circular came to be issued on 16.6.2006 directing the concerned to recover the difference of salary paid to the respondent attached to the post of Second Division Assistant.

The petitioner was paid pay scale of Rs. 300-700, i.e., pay scale attached to Second Division Assistant during his service as Compounder Though the respondent''s pay was of Second Division Assistant from 1981 till his retirement in the year 1998, he performed the duties of Compounder. It is also relevant to mention here itself that the pay scale of Compounder was Rs. 340-800 as on 26.8.1991. However, since the respondent did not have necessary qualification of the Compounder, he was fixed with lower pay scale, i.e., Rs. 300-700 which was the pay scale of Second Division Assistant. Though the respondent was paid salary with pay scale of Rs. 300-700 treating him as Second Division Assistant, the State extracted the work of Compounder which was having higher pay scale. However, the respondent received the salary based on the pay scale of Rs. 300-700 only till his retirement. After his retirement, absorption order was passed on 15.3.2000 and based on the Circular issued on 16.6.2006 recovery of difference of salary which the respondent has received during his service was ordered. Such an endorsement was called in question before the Tribunal, which is rightly quashed.

Sri Bhajantri, learned Government Advocate contends that the respondent did not have requisite qualification prescribed and therefore higher pay scale provided to him is improper and incorrect. However, in order to mitigate hardship to the respondent, he is absorbed in Group-D post for pensionary benefits. Learned Government Advocate supports the order of the State Government directing recovery of difference of salary already paid in favour of the respondent.

The submissions of the learned Government Advocate cannot be accepted. Admittedly, the respondent has worked as Compounder since 1981 in the Dispensaries of the State Government. The post of Compounder was having pay scale of Rs. 340-800 in the year 1981, i.e., the year in which the respondent was posted as Compounder in the Government Dispensary. However, since the respondent did not have requisite qualification, he was paid pay scale attached to the post of Second Division Assistant, i.e., Rs. 300-700 treating him as Second Division Assistant. Salary was paid to the respondent based on the aforementioned pay scale till his retirement. Thus, it is amply clear that the respondent is always treated as Second Division Assistant by the State, but the work extracted by the State from the respondent was relating to post of Compounder. Since the respondent has worked as Compounder from 1981 till his retirement and since he was assigned pay scale of Second Division Assistant, i.e., lower pay scale than the pay scale attached to the post of Compounder, it is not open for the petitioners to recover the difference of pay already paid in favour of the respondent.

As has been held by the Apex Court in the case of Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, and in the case of Sahib Ram Vs. State of Haryana and Others, , the upgraded pay scale given on the wrong construction of relevant order by the authority concerned without any misrepresentation by the employee cannot be recovered. In such circumstances recovery of the payment already made shall be restrained.

In the matter on hand, the respondent has not misrepresented at all at any point of time. Admittedly, he was working as Compounder in the City Municipal Council Ayurvedic Dispensary prior to his absorption and shifting to Government Ayurvedic Dispensary. As per Absorption Rules, 1985, a person who was an employee of a taken-over medical institution on the appointed date, he is deemed to have been absorbed with effect from his appointed date in the Government Organization in the same post. Thus, in all fairness, the respondent should have been absorbed as Compounder in Group-C post. Considering all the material on record, the Tribunal by assigning valid reasons, has come to the correct conclusion.

Admittedly, for the post of Compounder under Mysore Panchayats and Taluk Boards Employees (Recruitment and Condition of Service) Rules, 1962 made u/s 210 of the Mysore Village Panchayats and Local Boards Act, 1959 (Mysore Act X of 1959), the qualification prescribed for the post of Compounder is only a Compounder Training Certificate granted by the Medical Department or equivalent qualification. SSLC qualification was not prescribed when the respondent joined as Compounder. Since the respondent had not produced any material to show that he had obtained Compounder Training Certificate by the Medical Department or equivalent qualification, he was rightly not entitled to be absorbed as Compounder in the pay scale of 340-800. However as on that day, there was a designation of Third Division Clerks in the Recruitment and Conditions of Service Rules, 1962, for which the education qualification prescribed was only 8th Standard (New 7th Standard). The respondent was having requisite qualification of 7th Standard at the time of his appointment on 1.9.1959. Since the respondent was selected in clerical cadre he was given pay scale of Clerk i.e., Rs. 300-700 since he had not passed requisite qualification for the post of Compounder.

In view of the above, the Tribunal is justified in holding that the respondent should have been absorbed in Group-C post, i.e., Second Division Assistant. Since the order of the Tribunal is just and proper, no interference is called for. Hence, writ petition fails and accordingly, the same stands dismissed.