IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 OP.No. 16435 of 1999(F) ----------------------- PETITIONER(S): --------------- A. DANIEL, POLICE CONSTABLE (RETD), NO. PC Q2505, LALU BHAVAN, NADUMPANA P.O., KAREEPPALLY, KOLLAM. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 3. ACCOUNTANT GENERAL (KERALA), THIRUVANANTHAPURAM. 4. THE SUB TREASURY OFFICER, PENSION PAYMENT SUB TREASURY, KOLLAM. 4. THE SUB TREASURY OFFICER, KUNDARA, KOLLAM DIST. THE ADDRESS OF R4 IS CORRECTED AS PER ORDER DT. 16-7-1999 IN I.A.NO. 28671/1999. GOVERNMENT PLEADER SRI.M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/11/2008, ALONG WITH OP NO. 29467 OF 1999 THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 16435/1999. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 12-4-1997. EXT.P2 LETTER DT. 8-7-1997. EXT.P3 LETTER DT. 24-9-1997. EXT.P4 ORDER DT. 18-9-1997. EXT.P5 REPRESENTATION DT. 21-1-1998. EXT.P6 ORDER DT. 6-5-1997. EXT.P7 JUDGMENT IN O.P. NO. 2137/98 EXT.P8 ORDER DT. 10-12-1998. EXT.P9 ORDER DT. 24-3-1999. EXT.P10 LETTER DT. 13-4-1999. EXT.P11 REPRESENTATION DT. 12-5-1999. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 16435 & 29467 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 5th November, 2008. J U D G M E N T The petitioner retired from service while working as a police constable on 30-9-1997. Earlier, on account of re-fixation of pay pursuant to pay revision on account of defect in option submitted by the petitioner, he was liable to refund certain amounts, which he had already received. In respect of the same, he claimed a chance for re- option. Since the chance was not given, the petitioner approached this Court by filing O.P.No. 2137/1998 in which Ext. P7 judgment was passed directing the Government to consider the request of the petitioner in the light of the Government Order granting further time to Government servants to submit their options in accordance with the pay revision orders. Pursuant thereto, Government issued Government order dated 10-12-1998 allowing the petitioner to submit re-option. Accordingly, he submitted his re-option and his pay and retirement benefits were re-fixed on the basis of the re-option which was accepted. Pursuant thereto, the Accountant General passed Ext. P9 order revising his pension and gratuity. In Ext. P9 order, there was no direction to recover any amount from the petitioner, as was done earlier, apparently because on the basis of the re-fixation, no further amounts were due to be refunded by the petitioner. Allegedly on the ground of some ill-will harboured against the petitioner, a superior officer issued Ext. P10 letter seeking an unnecessary clarification to the Accountant General on which ground the pensionary benefits were not released to the petitioner. It is under the above circumstances, the petitioner filed O.P.No. 16435/199 seeking the following reliefs: “i. Issue a writ of mandamus or any other appropriate writ, or order or directions directing the respondents to disburse the pension arrears, commutted value of pension, and death cum retirement gratuity as sanctioned in Exhibit P9 series orders by the O.P. Nos. 16435 & 29467/1999 -: 2 :- Accountant General with 18% interest from the date of retirement to the date of actual payment. ii. to issue a direction to the 4th respondent to release the pension and commutted value of pension as granted in Exhibit P9 without insisting for any non-liability certificate. iii. to issue a writ of certiorari or other writ or order or direction calling for the records leading upto Exhibit P11 and quash Exhibit P10 declaring it as unnecessary and deliberate. iv. to issue a declaration that the respondents cannot rely upon the liability order in Exhibit P5 after the acceptance of re-options and pay revisions. v. to direct the respondents to grant increments to the petitioner during the period when he was on deputation to Nagaland and pay the arrears of salary and also revise the pensionary benefits taking into account those increments and fixation of last pay on that basis.” In that original petition, there was an interim order dated 9-7-1999 directing the respondent to disburse to the petitioner benefits due to him after deducting liability, if any. 2. Thereafter, the petitioner's superior officer again wrote to the Accountant General seeking a clarification as to whether the amount directed to be recovered as per earlier orders shall be recovered from the petitioner or not. By Ext. P14 order in O.P.No. 29467/1999, the Accountant General informed the petitioner's superior officer that the excess pay drawn due to earlier erroneous fixation of pay has to be refunded on the ground that the benefit of re- option is limited to pensionary claims only. It is under the above circumstances, the petitioner filed O.P.No. 29467/1999 seeking the following reliefs: “i. Issue a writ of mandamus or any other appropriate writ, or order or directions directing the respondents to disburse the pension arrears, commutted value of pension, and death cum retirement gratuity as sanctioned in Exhibit P9 series orders by the Accountant General with 18% interest from the date of O.P. Nos. 16435 & 29467/1999 -: 3 :- retirement to the date of actual payment, without taking into account Ext. P13 and Ext. P14. ii. to issue a direction to the 4th respondent to release the pension and commutted value of pension as granted in Ext. P1 without insisting for any non-liability certificate and without any deduction. iii. to issue a writ of certiorari or other writ or order or direction calling for the records leading upto Exhibit P11 and quash Exhibit P13 and Ext. P14. iv. to issue a declaration that the respondents cannot rely upon the liability order in Exhibit P2 after the acceptance of re- options and pay revisions. v. to direct the respondents to grant increments to the petitioner during the period when he was on deputation to Nagaland and pay the arrears of salary and also revise the pensionary benefits taking into account those increments and fixation of last pay on that basis.” 3. I have heard the learned Government Pleader also. 4. It is not disputed before me that on re-fixation of pay in accordance with the fresh option submitted by the petitioner, no amount would become due to be refunded by the petitioner since the pay would be fixed at a higher rate. That being so, although the petitioner cannot seek payment of any arrears of salary on account of such re-fixation, there is no justice in directing refund of any amounts, which were due to be refunded on the basis of the earlier fixation of pay which has already been revised as per the revised option submitted by the petitioner. Further, after the Accountant General issued fresh orders re-fixing the pay, the superior officer of the petitioner had no business to write to the Accountant General seeking clarification as to whether non-liability certificate should be insisted on in respect of the amounts since it is a composite order . It is settled law that non-liability certificate is necessary only in respect of payment of DCRG. In the above circumstances, there is no O.P. Nos. 16435 & 29467/1999 -: 4 :- justification for delaying payment of retirement benefits due to the petitioner and to seek recovery of the amount which was found due as per the earlier fixation of pay. Accordingly, Ext. P14 in O.P.No. 29467/1999 is quashed. The respondents shall see that all the balance retirement benefits due to the petitioner is disbursed to the petitioner, if not already paid, within one month from the date of receipt of a copy of this judgment. I direct that the said retirement benefits would also carry interest at the rate of 6% p.a. The original petitions are allowed as above. S. Siri Jagan, Judge. Tds/ O.P. Nos. 16435 & 29467/1999 -: 5 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 16435 & 29467 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 5th November, 2008.