The court recognized that absent express pay protection in regularisation orders, recovery of excess payments made to employees is impermissible under prevailing law.

JUDGMENT

P.V.BALAKRISHNAN,J

This intra-court appeal is filed by the first respondent in W.P.(C)No.25524/2012, challenging the judgment dated 04.12.2017, allowing the writ petition filed by respondents 1 to 3 herein.

2. Respondents 1 to 3 herein/writ petitioners were working with the 3^rd respondent, initially on the basis of daily wages and thereafter, on contract basis. While so, even though a proposal for regularisation of service of respondents 1 to 3 was taken up by the 4^th respondent before the Government, the same was objected. Aggrieved by the same, the first respondent filed a writ petition, as W.P.(C)No.2277 of 2009, before this Court and this Court allowed the same and directed regularisation of his service with immediate effect, as per Ext.P3 judgment. Subsequently, respondents 2 and 3 also approached this Court and obtained similar orders in their favour. Thereafter, respondents 1 to 3 were regularised in service as per Exts.P4 and P5 orders. The service of the first respondent was regularised as 'Office Assistant' and the services of respondents 2 and 3 were regularised as 'Helpers'. It is the contention of respondents 1 to 3 that the regularisation was effected based on the recommendations of the 6^th respondent wherein, he also recommended for their pay protection. Thereafter, the 6^th respondent addressed Ext.P6 letter to the Government seeking advice to take a suitable decision regarding the pay protection and pay fixation in relation to respondents 1 to 3. To the above communication, the Secretary to the Government issued Ext.P7 clarification to the effect that the appointment of respondents 1 to 3 are as fresh appointees and that their pay and regularization should be fixed at the minimum scale of pay with effect from the date of regularisation of their service, as retrospective effect cannot be granted for regularisation. Consequently, the 6^th respondent issued Ext.P8 order regularising the services of respondents 1 to 3, by fixing their pay at a lower rate and also ordered recovery of excess pay drawn by them. It is in such circumstances, respondents 1 to 3 filed the afore writ petition seeking the following reliefs:

“i) Issue a writ of certiorari or any other writ, order or direction to quash Exhibits P7 and P8;

ii) Declare that the petitioners are entitled to get regularisation from the date of their initial appointment or at least from 2006, the year in which regularisation recommendation was made and the pay protection is granted to similarly placed persons;

iii) Further declare that the action of the respondent in treating the petitioners are new entrant and thereby by placing them in a lower scale of pay and to recover the excess amount drawn by them is without any power, authority or jurisdiction;

iv) Issue a writ of mandamus or any other writ, order or direction commanding and compelling the respondents to grant the benefits to the petitioners at par with the benefits extended in terms of Exhibits -P10 and P11;”

3. The learned Single Judge, after considering the materials on record and hearing both sides, allowed the writ petition.

4. Heard Adv.K.P.Harish, the learned Senior Government Pleader appearing for the appellant and Adv.C.Murali Krishnan, the learned counsel appearing for respondents 1 to 3.

5. The learned counsel appearing for the appellant submitted that, respondents 1 to 3, who were working on daily wages and contract basis, were regularised in service as per Exts.P4 and P5 orders and the said orders have not protected their pay by fixing the pay at a stage in the scale of pay which was being drawn by them, at the time of regularisation. He argued that Exts.P4 and P5 orders, to the extent of non granting pay protection, have not been challenged by the writ petitioners, and the