IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 OP.No. 25887 of 2002(F) ---------------------------- PETITIONERS: ---------------- 1. K.NARAYANAN NAIR, PRANAVAM, PALLIPURATHU (DIED) KOVILAKAM, OLAVANNA, CALICUT. 2. M.C.KANARAN, SWARNA NIVAS, VALLINADI P.O KALLACHI VIA., KOZHIKODE 3. K.NARAYANAN, PULUVANKANDI PARAMBA, KOTTOOLI, CALICUT. 4. C.RADHAKRISHNAN, MAMILITHADATHIL HOUSE, KOZHIKODE-14. 5. R.K. BALAN NAMBIAR, MADHAVI NIVAS, AROOR P.O., KAKKATTIL, KOZHIKODE. ADDL. PETITIONERS 6 - 9 IMPLEADED: 6. RUGMINI N.V., W/O. LATE K. NARAYANAN NAIR, “PRANAVAM”, PALLIPURATH KOVILAKAM, OLAVANNA P.O., KOZHIKODE. 7. VINOD KUMAR K., S/O. K. NARAYANAN NAIR, RESIDING -DO- 8. REMA.K., D/O. LATE K. NARAYANAN NAIR, PUTHIYAVEEDU, PUZHATHI, CHIRAKKAL P.O., KANNUR. 9. SINDHU K., D/O. LATE K. NARAYANAN NAIR, EDAKRAMANCHERI HOUSE, PERUMANNA P.O., KOZHIKODE. (ADDL. PETITIONERS 6 - 9 IMPLEADED AS LEGAL HEIRS OF 1ST PETITIONER AS PER ORDER DTD. 7/6/07 IN I.A.No.14724/06). BY MR.T.G.RAJENDRAN, ADVOCATE. MR.K.PRAVEEN KUMAR, ADVOCATE. OP.No. 25887/2002 RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HIGHER EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE EXAMINER OF LOCAL FUND ACCOUNTS, TRIVANDRUM. 3. THE SECRETARY, LOCAL LIBRARY AUTHORITY, KOZHIKODE. 4. THE ACCOUNTANT GENERAL (A&E) KERALA, TRIVANDRUM BY MR.P.V.SURENDRANATH, ADVOCATE, FOR R3. MR.A.J. VARGHESE, SR. GOVERNMENT PLEADER. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 25887/2002 Order on C.M.P.No.43887/2002 in OP.No. 25887/2002 Dismissed. 19.05.2010 Sd/- T.R. RAMACHANDRAN NAIR, JUDGE. A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF G.O.(Ms) No.104/94/H.EDN. DTD. 22.7.94. EXT. P2 : COPY OF REFIXATION ORDER ISSUED TO 1ST PETITIONER DTD. 9.9.94. EXT. P3 : COPY OF REFIXATION ORDER ISSUED TO 2ND PETITIONER DTD. 1.10.94. EXT. P4 : COPY OF ORDER ISSUED TO 3RD PETITIONER DTD. 7.9.94. EXT. P5 : COPY OF ORDER ISSUED TO 4TH PETITIONER DTD. 8.9.94. EXT. P6 : COPY OF ORDER ISSUED TO 5TH PETITIONER DTD. 23.10.94. EXT. P7 : COPY OF JUDGMENT IN OP 5204/94 DTD. 27.1.00. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- O.P. No.25887 OF 2002 --------------------------------------- Dated this the 19th day of May, 2010. J U D G M E N T The petitioners 1 to 5 herein retired from service as Attenders of the Local Library Authority, Kozhikode. They are aggrieved by the refixation of Grades and the consequential recovery. Exhibit P1 is an order dated 22.07.1994 fixing the Higher Grade service of Attenders of Local Library Authorities. Going by the same, Attenders who were appointed in the scale of Rs.310-490 on completion of 13 years were granted Higher Grade at Rs.330-515 and Rs.845-1370 on completion of 20 years and Rs.905-1490 on completion of 25 years. The petitioners were already granted Higher Grade at Rs.350-500 on completion of 13 years, Rs.905-1490 on completion of 20 years and Rs.950- 1590 on completion of 25 years. Pursuant to Exhibit P1, refixation orders have been passed as per Exhibits P2 to P6 and recovery was started. This is under challenge in this original petition. O.P. No.25887/2002 2 2. Exhibit P7 is a judgment rendered by this Court in the case of a similarly placed employees of the 3rd respondent. The said original petition was allowed by this Court taking the view that the recovery due to irregular fixation of pay cannot be supported. The petitioners therein were also working as Attenders. 3. The 3rd respondent has filed a counter affidavit wherein it is pointed out that based on the Government Orders, there was a decision to recover various amounts from petitioners 1 to 5 and the amounts were recovered from their pensionary benefits. It is also pointed out in paragraph 3 that in the light of Exhibit P7 judgment, the withheld amounts/recovered amounts have been disbursed to the petitioners therein. 4. Evidently, the petitioners herein are similarly placed as that of the petitioners in Exhibit P7 judgment. This Court took the view that the recovery is bad based on the decision of this Court in V.P.Aleyamma vs. Deputy Director of Education, Ernakulam & others (ILR 1982(2) Kerala 509) and Satyapalan vs. Deputy Director of Education (1998 (1) KLT O.P. No.25887/2002 3 399). The view taken is that if the authorities have committed mistake in refixation and if the employees are not responsible for the irregular fixation of pay and Grade promotions, the employers are not entitled to recover the alleged excess amounts from the pensionary benefits of the employees. I respectfully agree with the above view. 5. Additional petitioners 6 to 9 have been impleaded as legal representatives of the 1st petitioner K.Narayanan Nair as per order dated 07.06.2007 in I.A.No.14724/2006. The recovery ordered as per Exhibits P2 to P6 is set aside. It is declared that the petitioners are entitled for the refund of the amount recovered pursuant to Exhibits P2 to P6. The amounts recovered will be refunded within a period of two months from the date of receipt of a copy of this judgment if not already refunded. This original petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp