IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 W.A.No. 562 of 2009 ---------------------------- AGAINST THE JUDGEMENT IN OP.20457/2001 Dated 18/12/2008 .................... APPELLANT(S): RESPONDENTS ----------------------- 1. THE STATE OF KERALA, REP. BY PRINCIPAL SECRETARY-- -- TO GOVERNMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT, TECHNICAL HIGH SCHOOL, VADAKARA, KOZHIKODE DISTRICT. BY SR. GOVERNMENT PLEADER SRI. BENNY GERVASIS RESPONDENT(S)//PETITIONER: ------------------------- C.NATESAN, DRAFTSMAN GRADE I, TECHNICAL HIGH SCHOOL, VADAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.P.M.PAREETH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------------ W.A. No. 562 of 2009 ------------------------------------ Dated, this the 18th day of June, 2009 JUDGMENT Balakrishnan Nair, J. The respondents in the writ petition are the appellants. The respondent herein was the petitioner. The brief facts of the case are the following: 2. The respondent/writ petitioner joined service under the appellants on 28.8.1978 as Workshop Attender. He was promoted as Skilled Assistant Gr.II on 15.6.1985. Thereafter, he was promoted as Draftsman Gr.II on 21.10.1986 and as Draftsman Gr.I on 28.2.1994. The Draftsman Gr.II has two channels of promotion:-(1) He can change over to Workshop Instructor and the Workshop Instructor can get promotion as Assistant Lecturer, provided he is having not less than 60% marks in Diploma in Engineering. The Workshop Attenders have got other promotion channels also, but they are not relevant in this case. (2) The Draftsman Gr.II can, without opting for change over to Workshop Instructor, can get promotion as W.A. No.562 of 2009 - 2 - Draftsman Gr.I. Till the issuance of Ext.P2 order dated 14.12.1995, the scale of pay of Draftsman Gr.I, Assistant Lecturer, Engineering Instructor and Workshop Foreman was Rs.1640 - 2900. By Ext.P2, the scale of pay of Assistant Lecturer was revised to Rs.2060 - 3200 with retrospective effect from 1.3.1992. The post of Engineering Instructor in Technical High School was a promotion post of Workshop Instructor, having 60% marks for Diploma in Engineering. The Workshop Foreman was the promotion post for Workshop Instructors who does not have 60% marks for Diploma in Engineering. 3. On promotion of the petitioner as Draftsman Gr.I with effect from 28.2.1994, his pay was fixed by the third appellant as per Ext.P5 in the scale of pay of Rs.2060 - 3200 instead of the scale of pay of Rs.1640 - 2900. The third respondent proceeded on the footing that scale of pay of Draftsman Gr.I was also revised to Rs.2060 - 3200 with effect from 1.3.1992 under Ext.P2. But the said assumption made by the third appellant was wrong. So, steps were taken to revise and refix the salary and by Ext.P10, the W.A. No.562 of 2009 - 3 - salary of the petitioner was refixed in the scale of pay of Rs.1640 - 2900 with effect from 28.2.1994 and he was directed to refund the excess emoluments received by him. Aggrieved by the same, the petitioner filed Ext.P11 representation before the Government and as per the directions in Ext.P12 judgment, the Government reconsidered the matter and rejected his claim by Ext.P13. The Writ Petition was filed challenging Ext.P10 and P13. Learned Judge who heard the writ petition allowed the same, quashed the impugned orders and directed to restore his salary fixed as per Ext.P5. The respondents in the writ petition, feeling aggrieved by the said judgment, have preferred this writ appeal. 4. We heard Sri.Benny Gervasis, Senior Government Pleader for the appellants. Learned Government Pleader pointed out that as per Ext.P2, the scale of pay of Assistant Lecturer was revised to the scale of Rs.2060 - 3200 with effect from 1.3.1992 and the scale of pay of Draftsman Gr.I continued to be Rs.1640 - 2900 even after Ext.P2. Therefore, the third appellant committed a mistake in fixation of first respondent's pay as per Ext.P5, which the competent W.A. No.562 of 2009 - 4 - authority revised correctly as per Ext.P10 and the Government rejected the appeal against Ext.P10 as per Ext.P13. The learned Single Judge went wrong while entering the finding that the post of Engineering Instructor, Workshop Foreman, Draftsman Gr.I and Assistant Lecturers have been treated as equivalent categories in view of Ext.P1. Learned Single Judge also committed a mistake in allowing the claim of the writ petitioner based on the fact that the scale of pay of Draftsman Gr.II on grant of first time bound Higher Grade is Rs.2060-3200. Only Draftsman Gr.II qualified for promotion as Assistant Lecturer is granted that scale of pay. The Higher Grade Scale of Pay of Draftsman Gr.I is that of Lecturer (Rs.2200 -3500), provided the incumbent is eligible for promotion to the post of Lecturer. Learned Single Judge also relied on Exts.P6, P7 and P8 in support of the conclusions made in the judgment under appeal. But, learned Government Pleader pointed out that they are orders granting higher grade to the incumbents on completing 10 years service. The scale of pay granted as per that order is that of Assistant Lecturer. It does not mean that the scale of pay of W.A. No.562 of 2009 - 5 - the post of Draftsman Grade I is that of Assistant Lecturer. Learned Government Pleader also pointed out that though the learned Judge relied on Ext.P16 recommendation, the fact that request for grant of higher scale of pay for Draftsman Gr.I, Engineering Instructor and Workshop Foreman contained therein was rejected as per Ext.P17 has not been noticed by the learned Judge. Learned Government Pleader, therefore, prayed for allowing the appeal. 5. We heard learned counsel Sri.P.M.Pareed for the first respondent/petitioner. He supported the reasoning of the learned Single Judge relying on Exts.P3, P6, P7 and P8. 6. As per the pay revision order, the scale of pay of Draftsman Gr.I was Rs.1640 - 2900. By Ext.P2, the scale of pay of Assistant Lecturer was revised from Rs.1640 - 2900 to Rs.2060 - 3200. So the petitioner was granted the pay scale of Rs.2060 - 3200 wrongly under Ext.P5, which was corrected as per Ext.P10. We feel that all other contentions raised are not strictly relevant. The basic assumption that the pay of Draftsman Gr.I was also revised as per Ext.P2, based on which W.A. No.562 of 2009 - 6 - Ext.P5 was passed was wrong. The finding of the learned Single Judge to the contrary, relying on Ext.P1, is plainly unsustainable. Ext.P1 would not show that the scale of pay of Assistant Lecturer, Workshop Foreman, Engineering Instructor and Draftsman Gr.I were the same. The Higher Grade granted to qualified Draftsman Gr.II in the scale of Rs.2060 - 3200, does not give rise to any anomalous position as the pay in the Higher Grade of Draftsman Gr.I is that of Lecturer, provided the former is qualified. The Draftsman Gr.II on cadre change as Workshop Instructor can get promotion as Assistant Lecturer, provided he has 60% marks, but Draftsman Gr.II can become Draftsman Gr.I, even if he does not have 60% marks for the Diploma in Engineering. Therefore, the comparison of those posts made by the learned Single Judge and finding of anomaly therein are unsustainable. 7. Point (2) in Ext.P3 reads as follows: “The Workshop Instructors/Demonstrators/D'man Gr.II and equated categories who are qualified for promotion as Assistant Lecturer alone are eligible for the scale of pay of Rs.2060-3200 as their time W.A. No.562 of 2009 - 7 - bound grade scale. All others are eligible for the next higher scale in the standard scales of pay only.” The contention raised by the respondent relying on Point (2) in Ext.P3 has no relevance in resolving the dispute in this case. The same is the case of Exts.P6 to P8. They are orders granting Higher Grade on completion of 10 years service to the concerned incumbents. As long as 1992 Pay Revision grants only the scale of pay Rs.1640-2900 to the Draftsman Gr.I, he cannot claim any other scale of pay. When the said fact remains undisputed, all other contentions are bound to be rejected and we do so. Even assuming that somebody has been granted some benefit wrongly, the same will not confer any right on the petitioner to claim that scale of pay. 8. In the result, the writ appeal is allowed. The judgment of the learned Single Judge is reversed and the writ petition is dismissed. Learned counsel for the first respondent submitted that at least recovery of excess emoluments received may be set aside. We find it very difficult to accept that contention. The first respondent/petitioner has been paid W.A. No.562 of 2009 - 8 - public money wrongly, which he has no right to get. So it should be recovered. So, the prayer against recovery also cannot be granted. Sd/- K. BALAKRISHNAN NAIR, JUDGE. Sd/- C.T. RAVIKUMAR, JUDGE. DK. (True copy) P.S. TO JUDGE.