IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WA.No. 2481 of 2008 --------------------- ( AGAINST THE JUDGEMENT IN WPC.7736/2005 Dated 20/10/2008 ) APPELLANT/ PETITIONER ------------------------ U.RAJAN, U.D.TYPIST, E.K.NAYANAR MEMORIAL GOVERNMENT COLLEGE, ELERITHATTU, KASARAGOD DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS/RESPONDENTS ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM. 5. THE PRINCIPAL, E.K.NAYANAR MEMORIAL GOVERNMENT COLLEGE, ELERITHATTU, KASARAGOD DISTRICT. BY GOVERNMENT PLEADER ADV. SHRI BENNY GERVASIS. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ........................................................................ W.A. No.2481 OF 2008 ......................................................................... Dated this the 29th January, 2009 J U D G M E N T Kurian Joseph, J. : The writ petitioner is the appellant. He is aggrieved by the recovery steps initiated by the State for the amount wrongly received by him. Presently, the appellant/petitioner is working as U.D.Typist in the Department of Collegiate Education. He was initially appointed as police constable in the Police Department on 04.09.1986 and he continued there till 13..11.1990. He resigned that post when he was appointed as .L.D. Typist in the Planning Board by selection through the Public Service Commission. 2. No doubt, the pay scales of the police constable and L.D.Typist are identical. But the simple question is whether the writ petitioner is entitled to count his service rendered as police W.A. No.2481 OF 2008 2 constable for the purpose of grade promotion, after resigning from the said post and joining the Planning Board as L.D.Typist and on subsequent inter departmental transfer to the Collegiate Education. After 1992 pay revision, the time bound higher grade promotion was restricted to stagnation in the entry post. So there cannot be any doubt that the writ petitioner/appellant was not entitled to count his service rendered by him in the Police Department. 2. However, it is seen that in view of certain Government orders issued prior to 1992 pay revision, when some ambiguity existed with regard to the Higher Grade promotion counting previous services in identical pay scales, the petitioner obtained the benefit of the higher grade with effect from 04.09.1996. It is seen that the petitioner had given an undertaking dated 26.09.1998 to refund the excess amount, if any, received by him consequent on fixation of pay in the higher scale due to sanctioning Grade promotion. The disputed period is 1996 to 2001. But the payment is seen effected from 1998 onwards. Subsequently it was found by the audit party that the petitioner W.A. No.2481 OF 2008 3 was not eligible to receive the Higher Grade. By the time, the petitioner had already received an amount of Rs. 40,677/-. The learned single Judge dismissed the Writ Petition in view of the undertaking given by the writ petitioner, agreeing to refund the disputed amount, in case it is found later that he was not eligible to obtain the same. 3. Adv. Shri Kaleeswaram Raj, learned counsel appearing for the appellant placing reliance on Narayanan T.K. vs. State of Kerala [2008(3) KHC 152] submits that there cannot be any recovery. Recovery of excess payment made to an employee is not automatic as held by this Court in W.A. 1510 of 2006. It is submitted that distinction will have to be made on the basis of facts and hence certain cases might call for sympathy. In Narayanan's case, the mistake was found out by the audit party after 10 years. By the time of recovery he had retired also. In the instant case, the petitioner is still in service with few more years' of service . The mistake was found out by the audit party shortly after the disbursement. 4. Having regard to the entire facts and circumstances of W.A. No.2481 OF 2008 4 the case, we are of the view that some indulgence should be given to the writ petitioner/appellant. Therefore, we hold that the recovery of the excess payment made to the petitioner/appellant shall be made in equal monthly instalments terminable by his retirement, without interest. In the unlikely event of his service being terminated earlier, the said amount shall be recovered from the gratuity, without interest. The Writ Appeal is disposed of as above. KURIAN JOSEPH, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk