IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 WP(C).No. 22830 of 2007(P) ------------------------- PETITIONER : --------------------- V.T.JOSE, S/O.V.T.THOMAS, AGED 55, RESIDING AT VETTUKATTIL, ARAKULAM P.O., IDUKKI DISTRICT. PIN - 685 591. BY ADVS. SRI.P.C.SASIDHARAN SRI.E.S.ASHRAF RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM. 4. THE PRINCIPAL, ST.JOSEPH COLLEGE, MOOLAMATTOM, IDUKKI DISTRICT. R1 TO R3 BY GOVT. PLEADER SRI. ANTONY MUKKATH R4 BY ADV. SRI.BABY ISSAC ILLICKAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 22830 of 2007(P) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER DATED 11/05/95. EXT.P2 : COPY OF THE COMMUNICATION DATED 13/02/07. EXT.P3 : COPY OF THE LETTER OF THE ADDITIONAL CHIEF SECRETARY DATED 15/06/07. EXT.P4 : COPY OF THE COMMUNICATION DATED 30/06/2007. EXT.P5 : COPY OF THE RELEVANT EXTRACT FROMT HE GOVERNMENT ORDER DATED 08/12/1993. EXT.P6 : COPY OF THE REPRESENTATION DATED 23/04/07. EXT.P7 : COPY OF THE PROCEEDINGS OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION DATED 11.5.1995. RESPONDENT'S EXHIBITS: EXT.R3(a) : COPY OF THE GOVT. LETTER N.4736/D3/07/H.EDN DATED 15.6.07. EXT.R3(b) : COPY OF THE ORDER NO. A5/6942/07 DATED 05.09.07. //TRUE COPY// P.S. TO JUDGE Mn S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 22830 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 22nd day of June, 2011. J U D G M E N T The petitioner retired from service on 30.4.2007 in the post of Junior Superintendent (Higher Grade) from St. Joseph College, Moolamattom, which is an aided college. After retirement, the retirement benefits due to the petitioner were not paid to the petitioner. When the proposal of grant of 23 year higher grade to the petitioner, the 2nd respondent sought clarification from the Government by Ext. P2 letter in answer to which the Government issued Ext. P3 reply stating that the 10 year higher grade promotion given to the petitioner with effect from 1.6.1993 in the scale of pay of Senior Superintendent was irregular and it is liable to be revised as Rs. 1640-2990 as per Table 1 of the Pay Revision Order dated 8.12.1993. It was also stated that he is not entitled to 23 year higher grade promotion in view of the provisions in paragraph 3 of Annexure 3 of Pay Revision Order dated 25.3.2006, insofar as the scale of pay of his entry post is higher than the one prescribed for three higher grades. Therefore, the 23 year higher grade was denied to him and the excess pay paid on account of the grant of 10 year higher grade in the higher scale of pay was directed to be recovered from the petitioner. Pursuant to the same, the 2nd respondent, by Ext. P4, directed the 3rd respondent to take action in the matter, enclosing Ext. P3. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “i) To call for the records relating to Exts.P1 to P4 and quash Exts.P2 to P4 by the issuance of a writ of certiorari; ii) to issue a writ of mandamus commanding the respondents to sanction and disburse the pensionary benefits due to W.P(C) No. 22830 of 2007 -: 2 :- the petitioner forthwith; iii) to declare that the pay fixation as per Ext. P1 is strictly in order, legal and valid and in accordance with the pay revision orders and it is not open to the respondent to review the same at this belated stage (one and a half decade after); iv) to issue a writ of mandamus commanding the respondents to sanction 23 years higher grade to the petitioner in accordance with the pay revision orders.” 2. Pursuant to the interim orders of this Court in this writ petition, the admitted retirement benefits due to the petitioner have already been disbursed. Therefore, the only question to be decided in this case is as to whether the petitioner is entitled to the 10 year higher grade in the scale of pay applicable to Senior Superintendent, whether he is entitled to 23 year higher grade and consequently, as to whether the petitioner is entitled to retirement benefits on the basis of higher scales of pay. 3. A counter affidavit has been filed by the 3rd respondent contending that the petitioner is not entitled to both the benefits. According to them, as per the relevant pay revision orders, the petitioner is entitled to 10 year higher grade in the scale of pay applicable to Senior Superintendent only if there is a promotion post available in the college for promotion as Senior Superintendent and the petitioner is qualified to hold that post on promotion. They point out that in the petitioner's college, there is no post of Senior Superintendent and the highest post available is that of Junior Superintendent. Therefore, according to them, the petitioner is not eligible for 10 year higher grade in the scale of pay applicable to Senior Superintendent but only in the intermediate scale of pay provided in the Table to Annexure W.P(C) No. 22830 of 2007 -: 3 :- 3 of the Pay Revision Order. As far as 23 year higher grade is concerned, they would refer to the Pay Revision Order, which prescribes that three higher grades are available only to those employees who remain in the entry post on the scale of pay ranging from 2010-3860 to Rs. 4600-7125 and employees having entry post with higher scales of pay are entitled to only two higher grades as per that Pay Revision Order. They would contend that since the scale of pay of Head Accountants, which is the petitioner's entry post, is Rs. 8370-13270, the petitioner is not entitled to the 3rd higher grade. 4. I have considered the rival contentions in detail. 5. In view of the provisions of the pay revision orders, I am inclined to accept the contentions of the 3rd respondent. Admittedly, in the petitioner's college, there is no post of Senior Superintendent. For the purpose of implementation of pay revision order as far as the petitioner is concerned, the unit is his college or the group of colleges under the same management. It is not disputed before me that under the same management, there is no post of Senior Superintendents. If that be so, as per the pay revision order, the petitioner is entitled to 10 year higher grade only in the intermediate scale of pay and not in the scale of pay applicable to the next promotion post of Senior Superintendent, which is not available the colleges under the management of the college in which the petitioner was working. 6. As far as the 23 year higher grade is concerned, in view of the pay revision order, which restricts three higher grades only to employees who remain in the entry post in which the scale of pay ranging from 2610-3680 to 4600-7125 and the scale of pay of the petitioner's post, namely ,Head Accountant W.P(C) No. 22830 of 2007 -: 4 :- was Rs.8390– 13270, the petitioner is not entitled to the third higher grade. Therefore, I do not find anything wrong in the orders impugned. 7. The petitioner raises another contention that insofar as in the matter of wrong fixation of pay, the petitioner is not in any way culpable, the petitioner cannot be saddled with the liability to refund huge amounts on account of such wrong fixation, that too, after his retirement years later. According to the petitioner, the original fixation was in 1993 and the proceedings for re- fixation was only after the retirement of the petitioner on 30.4.2007. Therefore, according to the petitioner, it would be unjust to direct the petitioner to refund such a huge amount of money for no fault of the petitioner. The petitioner relies on the decision of the Supreme Court in Syed Abdul Quadir & Others v. State of Bihar & Others, 2009(3) SCC 475 in support of his contention. 8. On this point, I am inclined to accept the contention of the petitioner. In paragraph 59 of the case cited by the petitioner, the Supreme Court has held thus: “59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. W.P(C) No. 22830 of 2007 -: 5 :- Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.” The ratio of that decision squarely applies to the facts of this case. Therefore, I direct that although the fixation would stand, the petitioner shall not be directed to refund the excess pay drawn by him on account of the wrong fixation made by the respondents. To that extent, Exts.P2 to P4 would stand modified. The other benefits, if any, due to the petitioner like pay revision benefits which have been withheld on account of the above disputes, would be disbursed to the petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/