IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WP(C).No. 32496 of 2004(R) ---------------------------------- PETITIONER(S): ------------------- V.N.PARAMESWARAN NAIR ALIAS MANI, (RETIRED LINEMAN GRADE-I, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, RAMAPURAM), KOROTTY VANDAMAKKAL, KIZHATHIRI P.O., RAMAPURAM, PIN 686 576. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA RESPONDENT(S): -------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-4. 2. CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-4. 3. ASSISTANT ACCOUNTS OFFICER (PAY FIXATION), OFFICE OF THE CHIEF ENTERNAL AUDITOR, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-4. 4. ACCOUNTS OFFICER (PENSION SPECIAL), VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-4. .......2/-.... ....2.... 5. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, PALA. 6. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, THRIPPUNITHURA, PIN 682 301. R1 TO R6 BY ADVS. SRI.P.SANTHALINGAM, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2010, THE COURT ON 23/09/2010 DELIVERED THE FOLLOWING: SVS/ WP(C).No. 32496/2004(R) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE CERTIFICATE DATED 25/11/1983 ISSUED BY THE ASSISTANT ENGINEER, ELECTRICAL SECTION, RAMAPURAM. P2: COPY OF THE CERTIFICATE DATED 08/06/1983 ISSUED BY THE TAHSILDAR, MEENACHIL. P3: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE CHIEF ENGINNER(ELE.)(GENERAL) DATED 07/10/96. P4: COPY OF THE RELEVANT EXTRACT OF THE ENDT.ON EB4(a)/94/161 (PRO) DATED 04/02/1995 OF THE CHIEF ENGINEER (ELE.) (GENERAL). P5: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE CHIEF ENGINER (ELECTRICAL)(GENERAL) DATED 17/09/1997. P6: COPY OF THE LETTER NO.EBI-9/97-98/3994 DATED 27/03/1998 ADDRESSED TO THE CHIEF ENGINEER (ELECTRICITY) GENERAL, THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, THRIPPUNITHURA. P7: COPY OF THE NOTE NO. PAY, FIXN.A.II/9/04 DATED NIL-9.2004 OF THE ASSISTANT ACCOUNTS OFFICER, PAY FIXATION TO THE ACCOUNTS OFFICER (PENSION SPECIAL). P8: COPY OF THE JUDGMENT IN O.P.16525/98-P DATED 04/02/2000 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE SVS/ S. SIRI JAGAN, J. ------------------------------ W.P.(C) No.32496 OF 2004 ------------------------------- Dated this the 23rd day of September, 2010 J U D G M E N T This writ petition relates to non-payment of retirement benefits due to the petitioner, who retired from the services of the Kerala State Electricity Board as a Lineman Gr.I on 31.5.2004. Subsequent to the filing of the original petition all retirement benefits except an amount of Rs.35,850/- withheld from his DCRG have already been paid. Therefore, the only question now remaining to be considered in this writ petition is as to whether the recovery of an amount of Rs.35,850/- from the petitioner's DCRG is valid or not. 2. The petitioner joined duty pursuant to advice by the PSC as 'Mazdoor' on 16.5.1983. He was promoted as Junior Line Assistant by order dated 15.7.1989 and he joined duty on 9.11.1989. While so, despite vacancies having occurred in the next promotion post of Lineman Gr.I, the petitioner was not given such promotion. Therefore, by Ext.P3 representation dated W.P.(c)No.32496/2004 2 7.10.1996, the petitioner requested for promotion. While so, Ext.P4 order was passed on 4.2.1995 promoting the petitioner as Lineman Gr.I. But, in the same, the name of the petitioner was shown as 'Mani' instead of V.N. Parameswaran Nair, But it is not in disputed before me that the said 'Mani' occurring in Ext.P4 is the petitioner himself. But the petitioner was not allowed to join duty pursuant to that promotion on the ground that the incumbency details of the petitioner were yet to be received. The petitioner filed Ext.P5 representation dated 17.9.1997 to expedite action on Ext.P3 representation. Thereafter, the petitioner was permitted to join duty on 1.8.1998. Pursuant to the said promotion, the petitioner's pay was fixed in the post of Lineman Gr.I and arrears were paid with effect from 4.2.1995. According to the petitioner, there is no change of duties on promotion from Junior Line Assistant as Lineman Gr.I. A doubt arose as to whether the petitioner is entitled to fixation of pay and arrears with effect from 4.2.1995 or his pay has to be fixed only with effect from 1.8.1998, when the petitioner joined duty. Therefore, the W.P.(c)No.32496/2004 3 Executive Engineer by Ext.P6 addressed the Chief Engineer (Electricity) General for ratification of his action in fixing the pay of the petitioner in the post of Lineman Gr.I, with effect from 4.2.1995 and paying arrears thereof. The Chief Engineer did not take action on Ext.P6. While so, the petitioner retired from service on 31.5.2004. Thereafter, by Ext.P7, the Assistant Accounts Officer (Pay Fixation) took the stand that the fixation of the petitioner's pay with effect from 4.2.1995 and paying of arrears was not in order and the petitioner's pay should have been fixed only with effect from 1.8.1998. It is pursuant to the same that the said amount of Rs.35,850/- was withheld from the petitioner's DCRG being the alleged excess amount paid to the petitioner as salary for the period from 4.2.1995 to 31.7.1998. 3. The petitioner submits that in so far as there are no change of duties on promotion from Junior Line Assistant to Lineman Gr.I, the petitioner is entitled to fixation of pay and service benefits with effect from 4.2.1995 itself and therefore there is no question of recovery of any alleged excess pay W.P.(c)No.32496/2004 4 received by the petitioner between 4.2.1995 and 1.8.1998. In support of his contention, he relies on Rule 23(c) of Part I of Kerala Service Rules (which rules was omitted with effect from 1.3.2007) and the decision of the Division Bench of this Court in Sucheendran v. State of Kerala [2005(3) KLT 499]. 4. A counter affidavit has been filed by the respondents 1 to 6 supporting their stand that the petitioner is liable to re-fund the excess pay received by him for the period from 4.5.1995 to 31.7.1998. 5. I have considered the rival contentions in detail. Clause 11 of Ext.P4 specifically stipulates that the promotions ordered by Ext.P4 will have effect from the date of that order, which is 4.2.1995. In Ext.P6 letter from the Executive Engineer to the Chief Engineer, it is specifically stated that 'monetary benefit is also extended to him on the date of order of promotion since he has attended to the same duties and responsibilities for the above said period'. The respondents have no case otherwise also. The erstwhile rule 23(c) of Chapter III of Part I of KSR stipulated that promotions which W.P.(c)No.32496/2004 5 do not involve a change of duties shall be given effect to from the date of the vacancy which occasions the promotions. Based on that rule a Division Bench of this Court has in Sucheendran 's case (supra) held that promotions which do not involve a change of duties should be given effect to from the date on which the vacancy arose and monetary benefits cannot be denied for such promotions on the ground of 'no work no pay'. The said rule and the decision are squarely applicable to the petitioner in view of the admitted facts stated above. Ext.P4 order was expressly state to be effective from the date of the order. There is no change of duties between the two posts and it is not because of any fault of the petitioner that he could not join duty immediately on issue of Ext.P4. In fact, Exts.P4 and P7 would go to show that he had made repeated requests for permission to join duty. As such I am of opinion that the petitioner could not have been denied the monetary benefits also in respect of promotions ordered by Ext.P4 with effect from the date of that order namely 4.2.1995, which only have been paid to him. Consequently, W.P.(c)No.32496/2004 6 there is no question of recovery of any excess pay paid to him. That being so, withholding of the amount of Rs.35,850/- from the DCRG of the petitioner is clearly unsustainable. It is declared so. Accordingly, I allow this writ petition to that effect and direct the respondents to see that the said amount of Rs.35,850/- is paid to the petitioner as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE acd W.P.(c)No.32496/2004 7 W.P.(c)No.32496/2004 8