IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 17660 of 2009(B) -------------------------- PETITIONER(S): --------------- ANAND (FORMER NAME PREMKUMAR P.) RETIRED SENIOR ENGINEER, KELTRON, RESIDING AT DNRA 156, POOJA, KADAPPATHALA NAGAR, P.O.KAWDIAR, THIRUVANANTHAPURAM-3. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, SECRTARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD., (KELTRON) REPRESENTED BY ITS MANAGING DIRECTOR, KELTRON HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM. ADV. SRI.M.GOPIKRISHNAN NAMBIAR SC FOR KELTR SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE FOR R2 SRI.M.GOPIKRISHNAN NAMBIAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2009 ALONG WITH WPC NO. 22457 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) Nos. 17660 &22457 of 2009 -------------------------- Dated this the 29th September,2009 J U D G M E N T Common issues arise for consideration in these writ petitions which have been heard together and therefore they are being disposed of by a common judgment. I will refer to the facts in Writ Petition No.17660 of 2009 in the first instance and the same will govern the other writ petition also. 2. Petitioner was employed in the service of the 2nd respondent Corporation and he opted to retire under the Voluntary Retirement Scheme which was notified as per Ext.P1 with effect from 12.10.2000. Monetary benefits were paid to him on 30.3.2001 and the benefits were commuted on the basis of pay and allowances which he had actually drawn on 12.10.2000. Ext.P3 is the statement showing computation of VRS and indicates the recovery of Rs.32,633/-. This recovery was on the basis of the 2nd respondent finding that though revised scale of pay of Supervisory and Executive Personnel was sanctioned on 23.2.21990, there was also a condition that the increase W.P ( C) Nos. 17660 &22457 of 2009 2 in individual cases shall not exceed 18%. It seems that in the case of the petitioner and certain other persons as well, increase consequent upon the fitment in the revised scale had exceeded 18% of the then existing pay. This had continued and it is therefore the Corporation apparently on discovering this mistake revised the pay scale of the concerned individual at the time of retirement under the VRS and proceeded to deduct the same from the amount payable under the VRS Scheme. This was done in relation to many other employees of the 2nd respondent. They had approached this Court in OP 23904 of 2001. Two aspects were considered by this Court, one of them related to the recovery of alleged excess amount, from the compensation payable to the employee retiring under the VRS. Second related to the implementation of revised scale of pay with effect from 1.3.2001. 3. This Court accepted the plea made by the petitioners therein that recovery from the VRS compensation consequent upon an alleged error in the fixation of pay effected several years before, was W.P ( C) Nos. 17660 &22457 of 2009 3 unjustified. Therefore, the amounts recovered were directed to be paid back to the petitioners therein. Second condition regarding plea for revised benefits brought into force with effect from 1.3.2001 were denied finding that the petitioners therein who retired on 12.10.2000 were not entitled to revised scales of pay brought into force with effect from 1.3.2001. 4. It seems that after taking note of Ext.P5 judgment, petitioner who claims to be similarly situated, submitted Ext.P6 request praying for a similar benefit namely what they called as refund of the alleged excess amount recovered from their VRS compensation. This request has not been accepted or acted upon. Hence the writ petition. 5. Similar facts are involved in WPC No.22457 of 2009 also. 6. Heard Sri. Unnikrishna Kaimial and Sri. Bindu Sreekumar, learned counsel for the petitioners and Sri. M.Gopikrishnan Nambiar, learned counsel appearing for the 2nd respondent. W.P ( C) Nos. 17660 &22457 of 2009 4 7. Petitioners claim the benefit of Ext.P5 judgment contending that they are similarly situated. I find force in the submission made by the learned counsel for the 2nd respondent that there is a crucial factor which distinguishes the petitioners from those who had approached this Court in OP 23904 of 2001. Petitioners therein challenged the recovery within one year from the date on which they had retired from service and within a few months from the date on which they were paid the compensation at the end of the financial year. Petitioners herein are challenging the recovery more than seven years after the amount itself was recovered from their VRS compensation. They should have approached this Court at least within three years from the date on which the alleged wrongful recovery was effected. 8. The law of limitation may not ipso facto, apply to proceedings under Art. 226 of the Constitution of India. 9. But in several cases the fact that the alleged aggrieved persons have cared to approach this Court only after several years from the date on which the impugned W.P ( C) Nos. 17660 &22457 of 2009 5 action was taken has been treated as adequate reason for declining the exercise of discretion by this Court under Art.226 of the Constitution of India. As stated above, petitioners should have taken care to mount a challenge to the wrongful recovery at least within three years from the date on which recovery is effected. That has not been done. Second respondent, an instrumentality of the State, is entitled to treat the issue as settled, inter alia on the premise that recovery which has been effected from the employees who have retired in October 2000 have not been challenged within a reasonable period. In these circumstances, I do not find my way to issue any direction to the 2nd respondent. Writ petitions are bereft of merit and hence dismissed. (V.GIRI,JUDGE) ma W.P ( C) Nos. 17660 &22457 of 2009 6 W.P ( C) Nos. 17660 &22457 of 2009 7