IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 WP(C).No. 34565 of 2008(M) --------------------------------------- PETITIONER(S): ----------------------------- K.MOHAMMED IBRAHIM RAHAMATHULLA, FORESTER, SOCIAL FORESTRY RANGE, MALAPPURAM. BY ADV. SRI.S.KRISHNAMOORTHY RESPONDENT(S): ------------------------- 1. STATE OF KERALA REP.BY THE SECRETARY, FORESTS AND WILD LIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF FOREST CONSERVATOR, ADMINISTRATION, FOREST HEAD QUARTERS, THIRUVANANTHAPURAM. 3. FOREST RANGE OFFICER, SOCIAL FORESTRY, MALAPPURAM. BY GOVT. PLEADER SRI.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2011, ALONG WITH WPC. NO.10550 OF 2009 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.34565/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.SV2-219/06 DTD. 1.3.06 ISSUED BY THE GOVERNMENT. P2:- COPY OF THE RELEVANT PORTION OF THE KERALA FOREST SUBORDINATE SERVICE RULES, 1962 DTD. 29.11.1962. P3:- COPY OF THE ORDER NO.11599/F3/05 BBGV DTD. 6.3.07 OF THE IST RESPONDENT. P4:- COPY OF THE JUDGMENT DTD. 7.11.07 IN WPC. 31584/07 OF THIS HONOURABLE COURT. P5:- COPY OF THE ORDER NO.12675/F3/2007/FOREST DTD. 25.1.2008 ISSUED BY THE IST RESPONDENT. P6:- COPY OF THE NOTICE ALONG WITH CHALLAN DTD. NIL ISSUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) Nos. 34565/2008,10550, 14109 & 15865/2009, 8839/2010 & 10640 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 29th day of June, 2011. J U D G M E N T These writ petitions relate to the same subject matter and therefore they are heard together and disposed of by this common judgment . All the petitioners in these writ petitions are Foresters working in the Forests and Wild Life Department of the Government of Kerala. They were given two higher grades. On completion of 23 years of service, they were entitled to a third higher grade. They were actually given third higher grade in the scale of pay applicable to Rangers. Later on, the respondents realised that for the post of Rangers, completion of foresters' training is a prescribed qualification, which the petitioners did not have and therefore they were entitled to 23 year higher grade in the intermediate scale of pay prescribed by the Table to Annexure 3 of the relevant pay revision order. Accordingly, the Government directed re-fixation of the pay of the petitioners in the intermediate scale and recovery of the excess pay paid to them on the wrong fixation of pay. Subsequently, the Government issued an order dated 25.1.2008 (Ext. P5 in W.P(C) No. 34564/2008) clarifying that those foresters who have completed 50 years' of age will be exempted from the requirement of forester's training for the purpose of getting 23 year higher grade in the scale of pay applicable to Rangers. Unfortunately, the petitioners did not complete 50 W.P(C) Nos. 34565/2008 etc. -: 2 :- years' of age as on the date when the 23rd year higher grade became due to them. But, in the matter of recovery of the excess pay drawn on the wrong fixation of pay, the Government gave a concession by order dated 10.2.2010, (Ext. P6 in W.P(C) No. 8839/2010), wherein the Government decided not to recover the excess pay in respect of the period prior to 25.1.2008. But, it was held that the fixation would stand and the excess pay paid after 25.1.2008 would be recovered. It is under the above circumstances, the petitioners have approached this Court with these writ petitions challenging the re-fixation and recovery of excess amounts drawn on re-fixation. 2. The respondents would contend that insofar as foresters' training is a requisite qualification for promotion to the post of Rangers, the petitioners would not be entitled to the scale of pay of Rangers as the 23 year higher grade in view of the fact that in Annexure 3 to the pay revision order, it is specifically stated that only the persons qualified to hold the higher post are entitled to higher grade in the scale of pay applicable to the higher post and that unqualified persons would be eligible for the higher grade only in the intermediate scale of pay prescribed in the Table to Annexure 3 to the pay revision order. 3. I have considered the rival contentions in detail. 4. It is not disputed before me that the pay revision order prescribes the scale of pay of higher post as the higher grade scale of pay only in cases where the incumbent W.P(C) Nos. 34565/2008 etc. -: 3 :- possesses all the qualifications prescribed for promotion to the higher post. Here, admittedly, the petitioners did not have the qualifications for promotion to the post or Rangers prescribed in the Special Rules, a copy of which is produced as Ext. P2 in W.P(C) No. 34505/2008. Therefore, in accordance with the pay revision orders, the petitioners are entitled to only the intermediate scale of pay prescribed by the Table to Annexure 3 as the higher grade scale of pay. 5. The petitioners raise a contention that since the Foresters who have completed 50 years of age get the benefit of the higher scale of pay, that would amount to discrimination on the basis of age, which should not be permitted. I do not find any discrimination there. It is only a reasonable classification on the basis of age, which is permitted by the Constitution. In fact, such concessions are there in respect of promotion itself as per the Kerala State and Subordinate Service Rules. For promotion, the persons who have completed 50 years' of age are exempted from passing the obligatory departmental tests. The concession given in the matter of higher grade to Foresters who have completed 50 years of age also is only such an exemption which is based on reasonable classification. Therefore, I do not find any merit in that contention also. 6. Relying on various decisions of this Court and the Supreme Court, the petitioners contend that since the petitioners have not contributed to the wrong fixation, after long years the excess pay paid to them shall not be W.P(C) Nos. 34565/2008 etc. -: 4 :- recovered. But, in these cases, the respondents detected the irregularity within a reasonable time and corrected the same. Added to that, the Government themselves have decided not to recover the excess pay drawn up to 25.1.2008, namely, the date when Ext. P5 (in W.P(C) No. 34565/2008) was issued. Therefore, that contention of the petitioners also cannot be countenanced. In the above circumstances, I do not find any merit in these writ petitions and accordingly, they are dismissed. Sd/- S. Siri Jagan, Judge. Tds/