IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 25874 of 2008(E) -------------------------- PETITIONER(S): --------------- 1. P.K. RAJENDRAN, III GRADE OVERSEAR, PWD BRIDGES SECTION, MANJERI. 2. YOUSUF HAROON C., III GRADE OVERSEER, PWD BRIDGES SECTION, MANJERI. 3. T.K. ABOOBACKER, III GRADE OVERSEER, PWD, ROADS SECTION, PERINTHALMANNA. 4. BASHEER KOZHISSERY, III GRADE OVERSEER, PWD ROADS SECTION, MELATTOR. 5. ABDUL AZEEZ MUSLYARAKATH, III GRADE OVERSEER, PWD ROADS SECTION, MANJERI. 6. MUHAMMED ABDU REHIMAN K, III GRADE OVERSEER, PWD ROADS SECTION, MANJERI. 7. KUNHAN T.P., III GRADE OVERSEER, PWD ROADS SECTION, MALAPPURAM. 8. E.V.RAMACHANDRAN, III GRADE OVERSEER, PWD ROADS SECTION, WANDOOR, MALAPPURAM DISTRICT. BY ADV. SRI.VELLAYANI SUNDARA RAJU P.MEENAKUMARI. WPC NO.25874/2008 RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT (PWD), THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (ADMN), PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXECUTIVE ENGINEER, P.W.D. ROADS SECTION, MELATTUR. 4. THE ASSISTANT EXECUTIVE ENGINEER, P.W.D. BRIDGES SUB DIVISION, MANJERI. 5. THE ASSISTANT EXECUTIVE ENGINEER, P.W.D. ROADS SECTION, WANDOOR. 6. THE ASSISTANT EXECUTIVE ENGINEER, P.W.D. ROADS SECTION, PERINTHALMANNA. 7. THE ASSISTANT EXECUTIVE ENGINEER, P.W.D. ROADS SECTION, MALAPPURAM. 8. THE SENIOR AUDIT OFFICER, ACCOUNTANT GENERAL OFFICER, THIRUVANANTHAPURAM. MR.K.SANIL KUMAR, GOVERNMENT PLEADER FOR R1-8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.25874/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF G.O.(M.S.)NO.6/2006/PWD DATED 30/01/2006. P2 : COPY OF PROCEEDINGS OF R4 DATED 05/05/2006. P3 : COPY OF PROCEEDINGS OF R4 DATED 10/05/2006. P4 : COPY OF PAY FIXATION MADE BY R4 IN THE SERVICE RECORD OF 1ST PETITIONER WHICH WAS CHECED DURING LOCAL AUDIT DATED 08/06/2006. P5 : COPY OF PAY FIXATION MADE BY R4 IN THE SERVICE RECORD OF 2ND PETITIONER WHICH WAS CHECKED DURING LOCAL AUDIT DATED 08/06/06. P6 : COPY OF LETTER AND DETAILS OF EXCESS PAYMENT. P7 : COPY OF CIRCULAR NO.278 DATED 31/03/2006 OF R8. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------ WP(C) No.25874 of 2008 -------------------------- Dated, this the 17th day of September, 2009 ------------------------------ J U D G M E N T The petitioners are J.T.S.L.C. holders working as III grade Overseers in PWD. According to the petitioners, they have completed more than 23 years of service. It is stated that on completion of 10 years, 18 years & 23 years of service, they were granted time bound higher grade promotions in the scale of Rs.3,590-5,400, Rs.4,000-6,090 & Rs.4,500-7,000 respectively. 2. The petitioners were not satisfied with the above scale of pay extended to them, and therefore, they represented that they should be given time bound higher grade of pay at scales which were given to those who were eligible for higher promotions. These representations were considered, and finally by Ext.P1 order dated 30/01/2006 issued by the 1st respondent, the benefit was ordered to be extended to them. 3. A reading of Ext.P1 order shows that the Chief Engineer PWD (Admn.) reported that there are 21 such persons in the III WP(C) No.25874/2008 -2- grade Overseer category, who are all overaged and is a vanishing category. The Chief Engineer also requested the Government to consider their case sympathetically and that, on the ground that they deserve sympathetic and humanitarian consideration, the Government sanctioned higher grade for 10 years, 18 years and 23 years of service in the scale of pay of Rs.4,000-6,090/-, Rs.4,600- 7,125 and Rs.6,675-10,550. After Ext.P1 order was issued, the benefit thereof was extended to the petitioners by issuing Exts.P2 to P5 and similar such orders. 4. However, the audit party raised an objection that the petitioners were ineligible for the benefit extended to them as per Ext.P1. Accordingly by Ext.P6, they sought rectification of the mistake and to recover the amount received by the petitioners in pursuance to Ext.P1. It was thereupon that this writ petition was filed. 5. The view taken in Ext.P6 is that Ext.P1 did not have any retrospective effect, and therefore, the fixation and the benefit extended was erroneous. Counter affidavit has been filed by the 1st respondent, where, according to the 1st respondent, Ext.P1 was WP(C) No.25874/2008 -3- issued on sympathetic and humanitarian consideration, and normally an order will take effect only from the date of the order unless otherwise ordered. It is also stated that it being an order issued purely on humanitarian ground, the question of giving retrospective effect does not arise. On this basis, recovery suggested in Ext.P6 is sought to be justified. 6. In my view, the petitioners are entitled to succeed. The complaint of the petitioners, which led to Ext.P1, was that on completion of 10 years, 18 years and 23 years of service, they should be given time bound higher grade at the scale as was given to those who were qualified for further promotions. This request of the petitioners was considered, and though on sympathetic and humanitarian grounds, the request was accepted and their eligibility for the benefit as prayed for by them was recognised. Once the claim is recognised as above, the same should necessarily take effect from the date on which the petitioners otherwise became eligible for the time bound higher grade, namely, on completion of 10 years, 18 years and 23 years respectively. On the other hand, if according to the 1st respondent, the benefit under Ext.P1 was to WP(C) No.25874/2008 -4- take effect from any other date, that ought to have stated in Ext.P1, which also was not done. It was accordingly that the monetary benefits were extended to the petitioners, which is fully in compliance with the spirit of Ext.P1 and therefore there is no question of any recovery being made from the petitioners. For that reason, I see absolutely no justification for the subsequent view taken by the respondents on the ground that Ext.P1 can take only prospective effect. Therefore, Ext.P6 will stand set aside, and the writ petition is allowed as above. (ANTONY DOMINIC, JUDGE) jg