IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 RP.No. 642 of 2009(B) ------------------------------ AGAINST THE ORDER IN W.P.(C).NO.19339/2008 DATED 17/03/2009 .................... REVIEW PETITIONER/PETITIONER IN THE W.P.(C): ------------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SPL.GOVERNMENT PLEADER MR. N. MANOJ KUMAR RESPONDENTS/RESPONDENT IN THE W.P.(C): ------------------------------------------------------------------- 1. A.O.SEBASTIAN, S/O. OUSEPH, ANAKKAD HOUSE, EAST CHERANELLOOR, VIA. PERUMBAVOOR, ERNAKULAM DISTRICT. 2. T.C.VARGHESE, S/O. LUKA, ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL WING, MINOR IRRIGATION SUB DIVISION, ALUVA, NOW RESIDING AT NAZRAT ROAD, ALUVA, ALUVA WEST VILLAGE. R1 BY ADV. MR. B. GOPAKUMAR. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 03/03/2010, ALONG WITH R.P NO.643 OF 2009,THE COURT ON 11/03/2010 DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P. Nos. 642 & 643 of 2009 in W.P.(C). No.19339 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of March, 2010. ORDER These two review petitions have been filed under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure seeking to have the orders dated 17.3.2009 and 30.3.2009 in W.P.(C) 19339 of 2008 reviewed. 2. The respondent in these review petitions had instituted O.S. 602 of 1994 before the Munsiff's Court, Aluva seeking his retirement benefits. The suit was dismissed. The matter was taken in appeal as A.S. 184 of 2000 before the Sub Court, North Parur. The said court allowed the appeal, set aside the judgment and decree of the court below and passed a decree as follows: “In the result, the appeal is allowed in part with cost and the suit is decreed allowing the appellant to recover all sums due R.P.642 & 643/09. 2 to him from the respondent on the basis of fixation of his pay in the scale of Rs.550-10-600-15-800 right from the date of his absorption in regular service as on 1.4.1982 which is subsequently revised scale for the Pump Cleaner ofRs.775-15- 805-20-925-25-1100-30-160 towards salary and other service benefits reducing the sums already received by the appellant. He is also entitled to get 9% interest for the amount due to him from the date of suit till its realisation. The impugned judgment and decree is hereby set aside.” 3. Since the amount remained unpaid, execution was taken out by the decree holder. The executing court determined the amount due to the decree holder. That was not accepted by the judgment debtor State in the execution petition. The State challenged the order in O.P. 19339 of 2008. It appears that in order to resolve the dispute between the parties, this court appointed a Commissioner to determine the amounts due to the decree holder as his retirement benefits. The Commissioner filed three separate statements calculating the amount due under three different R.P.642 & 643/09. 3 modes. Presently we are concerned only with two calculations, one as per the decree and another as per the direction of this court. The calculation as per the decree shows that a sum of Rs.41,930/- is due to the petitioner. The calculation made on the basis of the direction of this court shows that he is entitled to Rs.34,587/-. But as per the third mode of calculation, it is shown that the decree holder has received Rs.20,835/- in excess of what is due to him. This court adopted the second method of calculation after passing orders to that effect and accepted the amount due to the petitioner as Rs.34,587/- as worked out by the Commissioner. 4. The State has now come up in review of the two orders, ie, order dated 17.3.2009, whereby it was declared that the decree holder should get the benefit of the pay revision and the corresponding scale of Rs.570-1070 and Rs.600-1100, which is revised as Rs.1050-2000 will be available to him. On that basis the amount was determined and it was found to be Rs.34,587/-. That was accepted by R.P.642 & 643/09. 4 order dated 30.3.2009. It is these orders that are under scrutiny. 5. The State suggests that the revised scale fixation for computing the amount due to the decree holder is erroneous. It is pointed out that the decree holder was absorbed in the regular establishment on 1.4.1982 in the pay scale of 280-400, which was subsequently revised to 550-800 with effect from 01.07.1983 and the monetary benefits should be given from 1.4.1985. The decree holder had retired from service on 31.10.1990. The State points out that going by the decree, his revised pay must be fixed in the scale of 775-15-805-20-925-1100-30-1160. It is contended that the decree holder had never claimed 775- 1160. Instead he claimed two pay revisions in the revised scale of 975-1720 and 1330-2555. It is pointed out that the scale of 550-800 came into effect only from 1.7.1983. Before 1.7.1983 scale of pay of Rs.550-800 was not in existence as could be seen from Annexure I. The claim of pay scale of 1330-2555 was irregular and illegal. The pay R.P.642 & 643/09. 5 scale was revised to 775-1160 from 575-900. Since the decree is liable for time bound higher grade his scale of pay can be enhanced to 575-900 after 1.10.1987. It is claimed that the amount actually due to the decree holder had been paid. However, in the writ petition before this court a Commissioner was appointed and he was asked to determine the amount due to the decree holder. By judgment dated 5.2.2009, it was held that as per Ext.P4 statement filed by the Government Pleader the amount due for the period from April, 1982 to March, 1985 was fixed. The Commissioner was then directed to prepare and file a statement accepting the the said statement from 1.4.1982 to 31.3.1985, and thereafter to calculate the balance amount due to the decree holder for the period up to 30.6.1988 with effect from 1.7.1988 till 31.10.1990. This court held that such fixation would resolve the entire issue and no further claim would remain. On 17.3.2009 this court passed an order holding that the decree holder cannot be deprived of the benefit of pay revision and therefore the R.P.642 & 643/09. 6 corresponding scale of Rs.570-1070 and Rs.600-1100, which was revised as Rs.1050-2000 would be available to the decree holder. On that basis, the amount due to the decree holder was determined and was quantified as Rs.34,587/-. In the review petition, it is stated that the said finding is not correct and direction that the decree holder is entitled to revised scale of 1050-2000 is an error apparent on the face of record. it is pointed out that he is entitled to pay scale of 775-1100. 6. It must be noticed that the decree holder retired in 1990. Even as in 2010 his retirement benefits have not been quantified and settled. It is very unfortunate that this should happen. It must be noticed that against the decree of the first appellate court Second Appeal was filed before this court, which was dismissed. SLP taken to the Apex Court also met with the same fate. The State still did not care to pay the amount due to the decree holder. He had to take out execution. When the amount was determined the State came up before this court and raised R.P.642 & 643/09. 7 all sorts of contentions. In order to resolve the dispute between the parties and to give a quietus to the same, this court appointed a Commissioner to determine the amount due to the decree holder. The Commissioner had adopted three different modes of calculations and arrived at the figures already made mention of. If one goes by the calculation on the basis of the decree, the amount would be Rs. 41,930, which strictly speaking the decree holder is entitled to. What he has now been given is only Rs.34,587/-. 7. A reading of the orders dated 17.3.2009 and 30.3.2009 shows that the specific issue considered was about the revised pay scale available to the decree holder for quantifying his retirement benefits. It was categorically held that the decree holder cannot be deprived of the benefit of pay revision and therefore the corresponding scale of 570-1070 and 600-1100, which has been revised to 1050- 2000 will be available to the decree holder. The contention of the State that the pay scale is only 775-1100 was also considered in both the orders. It was found that the decree R.P.642 & 643/09. 8 holder is entitled to the revised pay of 1050-2000. It is not as if this court was not apprised of the fact that the decree holder is entitled to the pay scale of 775-1100 as revised pay scale for computation of his retirement benefits. This court declined to uphold the said plea of the State and ordered that scale of pay of 1050-2000 is available to the decree holder. It is not as if that the court was kept in the dark regarding the issue and had it decided. In fact the present petitions are in the nature of appeal. This court had taken note of the relevant facts at the time of passing the orders which are sought to be reviewed and there is no error apparent on the face of record to show that the orders are in any way erroneous or not in accordance with law. These review petitions are without merits and accordingly they are dismissed. P. BHAVADASAN, JUDGE sb.