IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 WP(C).No. 7857 of 2004(I) ----------------------------------- PETITIONERS: -------------------- 1. T.N.RADHAKRISHNAN, BILL COLLECTOR, THE ALAPPUZHAM DISTRICT CO-OPERATIVE BANK, CHERTHALLA BRANCH. 2. V.NARAYANAN NAIR, BILL COLLECTOR, THE ALAPPUZHA DISTRICT CO-OPERATIVE BANK, HARIPAD BRANCH 3. M.K.RAJAPPAN, BILL COLLECTOR, THE ALAPPUZHA DISTRICT CO-OPERATIVE MBANK, HEAD OFFICE, ALAPPUZHA. BY ADV. SRI.K.HARILAL RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF CO-OPERATION, THIRUVANANTHAPURAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. ALAPPUZHA DISTRICT CO-OPERATIVE BANK, REPRESENTED BY THE GENERAL MANAGER. ADV. SRI.T.R.HARIKUMAR FOR R3 GOVERNMENT PLEADER SRI. P.K.RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 7857/2004 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE OFFICE MEMO DT. 25/7/96 BY THE R3. EXT.P2. COPY OF THE OFFICE MEMO DT. 11/09/96 BY R3 TO THE P1. EXT.P3. COPY OF THE LETTER DT. 5/10/96 BY THE R3 TO THE BRANCH MANAGER, CHERTHALA. EXT.P4. COPY OF THE GO MS NO. 70/99/CO-OP DT. 23/4/99 BY THE DEPARTMENT OF CO- OPERATION. EXT.P5. COPY OF THE OFFICE MEMO DT. 20/1/2004 BY THE R3 TO THE P1. EXT.P6. COPY OF THE OFFICE MEMO DT. 20/1/2004 BY THE R3 TO THE P2. EXT.P7. COPY OF THE OFFICE MEMO DT. 20/1/2004 BY THE R3 DTO THE P3. EXT.P8. COPY OF THE LETTER DT. 5/7/2003 BY THE R2 TO THE R3. EXT.P9. COPY OF THE ORDER DT. 29/1/2004 IN WPC NO. 3421/2004 OF THIS COURT. RESPONDENT'S EXHIBITS: nil. True copy Tga THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.7857 of 2004-I = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 21st day of May, 2008. JUDGMENT 1.The petitioners are Bill Collectors in the service of the third respondent. After an initial appointment as Peons, they were promoted as Bill Collectors. They were granted first grade time bound benefit equivalent to that of Lower Division Clerk in 1992 and the second higher grade benefit equivalent to Junior Accountant in the year 1996. They were also being paid salary accordingly. However, in 2003, the impugned Ext.P8 has been issued re-fixing the grade benefit and also ordering recovery of excess which they have obtained and enjoyed from 1992 to 2003. 2.As rightly pointed out by the learned counsel for WP(C) -: 2 :- the bank, the higher grade benefit and the promotion could not have gone together. Obviously, therefore, the revised fixation cannot be found fault with. But, the excess drawn cannot be recovered for the reason that the petitioners did not obtain and enjoy the benefit of any misrepresentation made by them or on the basis of fraud played on the establishment. This issue is covered by the decision in Col.B.J.Akkara (Retd) v. Govt. of India [(2006) 11 SCC 709]. In the result, while affirming the re-fixation of the salary, the impugned decision to the extent it orders recovery is quashed. The writ petition is allowed to the above extent. No costs. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/220508