IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).No. 11851 of 2008(J) ----------------------------------- PETITIONER(S): ---------------------- C.UMMER, FULL TIME SWEEPER, THENHIPPALAM GRAMA PANCHAYATH, THENHIPPALAM, MALAPPURAM DISTRICT. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT,SECRETRIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM. 3. DY.DIRECTOR OF PANCHAYATHS, MALAPPURAM. 4. THENHIPALAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, THEHNHIPALAM GRAMA PANCHAYATH, MALAPPURAM DISTRICT. R1 TO R3 BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH R4 BY ADV. SRI.K.P.SUDHEER, SMT.P.S.SHEEJA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.11851/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE G.O.(P) NO.1/95/LAD DTD. 6.1.95. P2:- COPY OF THE RECEIPT NO.13833/I4 DTD. 28.7.98 OF ARECODE PANCHAYATH. P3:- COPY OF THE LETTER DTD. 19.1.07 SENT BY 3RD RESPONDENT TO 2ND RESPONDENT. P4:- COPY OF THE LETTER DTD. 2ND RESPONDENT REJECTING EXT.P3 REPRESENTATION. P:- COPY OF THE LETTER DTD. 3.6.2008 ISSUED BY DEPUTY DIRECTOR OF MALAPPURAM DISTRICT LOCAL FUND AUDIT TO SECRETARY , THENJIPPALAM GRAMA PANCHAYATH. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.11851 of 2008 (J) --------------------------------- Dated, this the 19th day of May, 2010 J U D G M E N T The main relief sought in this writ petition is that the petitioner should be directed to be paid salary in the scale of pay of Rs.775-1065, which is the scale of pay applicable to contingent employees. 2. Facts of the case are that, consequent on order dated 06/01/95 the pay scale of Last Grade employees was made applicable to the Full Time Contingent employees in the Panchayat service. The petitioner, who was drawing salary in the scale of Rs.550-950, exercised his option for the same, and accordingly, his pay was fixed in the scale of Rs.775-1065. However, realising that he will not be eligible for promotion, he withdrew his option on 03/07/1997, which was accepted, and continued in service till he attained the age of 65. On withdrawal of option, his pay was refixed in the scale of Rs.550-950. It is also stated that as a condition for accepting such withdrawal of option he had to repay an amount of WP(C) No.11851/2008 -2- Rs.33,739/- drawn by the petitioner consequent on the pay fixation in the scale of Rs.775-1065. The remittance was made on 28/07/1998, as can be seen from Ext.P2. The petitioner complains that subsequent to his remittance of the above amount, the Government issued order dated 12/06/2006 directing that the amount need not be recovered. 3. He submitted representation for refunding the amount and also sought the benefit of payment of salary in the scale of Rs.775-1065 with subsequent revisions. But his claim was rejected by Ext.P4. It is in these circumstances, this writ petition has been filed. 4. As far as the petitioner's claim for refund of Rs.33,739/- is concerned, the remittance was made by him as a condition for withdrawing the option exercised earlier. The amount was remitted by the petitioner on 28/07/1998. It was long thereafter that the Government issued order dated 12/06/2006 directing that the amount need not be recovered in such cases. This order has only prospective effect and therefore any remittance made prior thereto cannot be refunded. Therefore, the claim of the petitioner for refund WP(C) No.11851/2008 -3- of the amount remitted is unsustainable. 5. The other claim of the petitioner is that the pay as applicable to the scale of Rs.775-1065 as revised thereafter should be given. This was the scale that was applicable to Last Grade employees, which was made applicable to Full Time Contingent employees in the Panchayat service. This scale of pay was applicable only to those who had opted for pension scheme, and such employees are to retire at the age of 55. The petitioner had exercised such an option and his pay was also fixed in that scale. However, realising that he will not have qualifying service making him eligible for pension, he withdrew his option. As a result thereof, he ceased to be eligible for the benefit of the pay equivalent to that of Last Grade employees. Necessarily therefore, his entitlement was only for the pay scale of Rs.550-950 and on that basis, the petitioner derived the advantage of service up to 65 years, which he would not have, had he not withdrawn the option that he had exercised. Therefore, though the petitioner was drawing pay at a lower scale, he enjoyed longer service and that therefore cannot say that he was a loser in the bargain. Thus the petitioner drew pay WP(C) No.11851/2008 -4- in the scale applicable to him and retired from service. Therefore, he cannot claim himself eligible for the pay in the scale of Rs.775- 1065. Therefore the claim of the petitioner has been rightly rejected by Ext.P4. Be that as it may, the fact is that the petitioner was drawing pay in the scale of Rs.550-950 till his retirement on 31/07/2008. Therefore, any revision that was effected to said scale should also enure to his benefit. If such benefit has not been given, it is directed that the respondents shall extend to the petitioner the benefit of such revisions without any further delay. Benefit, if any, shall be worked out and paid to the petitioner as expeditiously as possible, at any rate, within three months of production of a copy of this judgment. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg