IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 24948 of 2006(T) -------------------------------------- PETITIONER: ------------------- P.K. NANDAKUMAR, ELECTRICIAN-CUM-MECHANIC, INSTITUTE OF ANIMAL HEALTH AND VETERINARY BIOLOGICALS, PALODE, TRIVANDRUM. BY ADV. SMT.RASHMI. K.V. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, AGRICULTURE (AHE) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DEPARTMENT OF ANIMAL HUSBANDRY, REP. BY ITS DIRECTOR, THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REP. BY THE ADDITIONAL SECRETARY TO GOVERNMENT, AGRICULTURE (AHE) DEPARTMENT, THIRUVANANTHAPURAM. 4. THE INSTITUTE OF ANIMAL HEALTH & VETERINARY BIOLOGICALS, PALODE REP. BY ITS DIRECTOR, PALODE, TRIVANDRUM. R1 TO R3 BY GOVT. PLEADER MR. T.K. VIPINDAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24948/2006-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 07/01/2004 ISSUED BY THE R.2. EXT.P.2: COPY OF THE ORDER DTD. 26/02/05 ISSUED BY THE R.3. EXT.P.3: COPY OF THE REPRESENTATION DTD. 28/03/05 SUBMITTED BY THE PETITIONER. EXT.P.4: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 17/05/05 ISSUED BY THIS HONOURABLE COURT IN W.P.(C).NO.13392/2005. EXT.P.5: COPY OF THE ORDER DTD. 30/01/06 ISSUED BY THE R.1. EXT.P.6: COPY OF THE ORDER ISSUED BY THE R.3. DTD. 20/03/06 DIRECTING TO RECOVER THE EXCESS AMOUNT PAID TO THE PETITIONER. RESPONDENTS' EXHIBIT: EXT.R4.A: COPY OF THE JUDGMENT IN O.P.14230/00. //TRUE COPY// P.A. TO JUDGE. Prv. HARUN-UL-RASHID, J. ---------------------------------------- W.P.(C).No. 24948 of 2006 ---------------------------------------- Dated this the 20th day of March, 2009 JUDGMENT This writ petition is filed seeking to quash Ext.P2 , P5 and P6 orders to the extent of refixing the scale of pay of the petitioner with effect from 1.8.1996. 2. The petitioner was appointed as Electrician on a pay scale of Rs, 800-1300/- on 15.7.1994. The petitioner was promoted to the post of Electrician -cum -Mechanic in the pay scale of Rs.4000-6090 by Ext.P1 order dated 7.1.2004 The petitioner submitted that the said scale of pay is granted as per the Pay revision order issued in G.O.(P) 3000/98/Fin 25.11.1998 3. In this context it is pertinent to note the service of another Electrician -cum- Mechanic Sri.M.V.Gopalakrishnan Nair who joined on 2.3.1981 in the scale of Pay of Rs 300-450(Lower scale) and his pay was revised from time to time corresponding to this lower scale in the subsequent pay revision orders. . It is not disputed that there were two scales of pay for the post of Electrician-cum-Mechanic in the Department till the pay revision orders vide G.O.(P) 480/89/ Fin dated 1.11.1989. From the next pay revision orders vide G.O.(P) 480/89/Fin dated 1.11.1989 onwards there was only one pay scale for the post of Electrician cum Mechanic and the Scale of pay was shown as Rs. 950- W.P.(C) No. 24948 of 2006 -2- 1590 in 1989 then to Rs.1200-2040 in 1993 and further to Rs. 4000- 6090 in 1998. Post with lower scale was not seen incorporated in the subsequent Pay Revision Orders. 4. When Sri.M.V. Gopalakrishnan Nair, joined duty on 2.3.1981 as Electrician- cum -Mechanic in the scale of pay of Rs.300-450, there were two scales of pay for the post of Electrician cum Mechanic in the Department i.e 300-450 and 390-685 and he was allowed the lower scale of Rs. 300-450 and his pay was fixed in the corresponding lower scale in the subsequent pay revisions also. The petitioner herein who joined the Department as Electrician during 1994 was allowed the pay scale of Rs. 800-1300 whereas the said Gopalakrishnan Nair who has been working in the higher post of Electrician -cum- Mechanic was allowed only the scale of Rs.800-1200 in the pay revision of 1993. It is a fact that the Electrician cum mechanic is the promotion post of Electrician in the Department 5. The said Gopalakrishnan Nair's the first time bound Higher Grade promotion was sanctioned with effect from 1.8.1996 on completion of 15 years of service excluding five years leave without allowances . His pay was fixed in the scale of pay of Rs.2750-4625 with effect from 01.04.1997. The petitioner who is junior to Sri.M.V. Gopalakrishnan Nair who was promoted only in 2004 from the category of Electrician to the category of Electrician-cum-mechanic gets more pay in the scale of pay of Rs. 4000-6090 than that of his senior The said Gopalakrishnan Nair W.P.(C) No. 24948 of 2006 -3- approached this Court by filing O.P. 14230/2006 This Court directed the Government to pass appropriate orders on merits in accordance with law being taken note of the observations in the said O.P. Pursuant to the direction issued by this Court in the said O.P ,after hearing both sides and affected parties the Government passed G.O. 284/2005/AD dated 26.2.2005, which is produced as Ext.P2, ,sanctioned 1st Higher Grade to Sri.M.V.Gopalakrishnan Nair, on completion of 10 years service in the scale of pay of 1200-2040 as per G.O.(P) No. 600/93/Fin dated 25.9.1993 with effect from 1.8.1996. Consequently the scale of pay of the petitioner was also ordered to be re-fixed simultaneously to that drawn by the said Gopalakrishnan Nair before granting him the 1st higher grade. 6. Prior to the date of issuance of G.O. 480/89/ Fin/ dated 1.11.1989 there were two scales of pay for the post of Electrician-cum- Mechanic But from the next pay revision orders vide the above said Government Order onwards, there was only one pay scale for the post of Electrician -Cum-Mechanic namely higher scale of pay. According to the petitioner Ext.P5 order, reducing and re-fixing the pay of the petitioner to the lower scale, was passed for allowing higher grade to M.V.Gopalakrishnan Nair. Since there was no Electrician Cum-Mechanic post with lower scale incorporated in the subsequent pay revision orders the Government revised the scale of pay as Rs.775-1160/- Accordingly the pay scale of the said Gopalakirshnana Nair was revised from time to W.P.(C) No. 24948 of 2006 -4- time in the subsequent pay revision orders. 7. The learned Government Pleader submitted that at the time of promotion of the petitioner as Electrician - cum - Mechanic in the year 2004 the petitioner's pay should have been fixed corresponding to the lower scale. But since there were only one pay scale for the promotion post in the revised scale of pay of Rs. 4000-6090 , that pay scale is wrongly fixed in the case of the petitioner. According to Rule 37 A Part I KSRs pay of an officer whose appointment to a post found to have been erroneous it shall be regulated by special orders issued by Government in this regard 8. Ext.P2 order was reconsidered by the Government as directed by this Court in Ext.P4 judgment at the instance of the petitioner herein. The Government came to the very same conclusion and ordered that the the promotion in higher scale of pay granted to the petitioner was wrongly made and therefore it was revised and refixed as Rs. 2650-4150. 9. According to the Government Pleader the scale of pay applicable to the petitioner for the promotion post ought to have been fixed , corresponding to the lower scale of pay i.e 2650-4150. The promotion given to the petitioner to the post of Electrician cum Mechanic in a higher pay scale when lower pay scale exists was found erroneous and therefore rightly corrected by the Government. I find no reasons to interfere with Ext.P2 P5 and Ext.P6 consequential order. The petitioner is not entitled to any reliefs. W.P.(C) No. 24948 of 2006 -5- 10. The petitioner is happened to draw more amount as salary due to the mistake committed by the Government. Government has no case that the petitioner is responsible for the drawal of excess salary Therefore the recovery of entire excess amount drawn by the petitioner cannot serve the ends of justice In the circumstances I limit the recovery of excess amount drawn by the petitioner to 50% of the amount drawn by him The said 50% amount shall be adjusted from the petitioner's future salary, if not recovered, till date. The writ petition is disposed of as above. (HARUN-UL-RASHID, JUDGE) es. W.P.(C) No. 24948 of 2006 -6- HARUN-UL-RASHID, J. --------------------------- W.P.(C).No. 24948 of 2006 ---------------------------- JUDGMENT 20th March, 2009