IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 WP(C).No. 9506 of 2005(F) -------------------------------------- PETITIONER(S): ------------------------ SRI. RAJU.P.A. AGED 44, S/O.P.P.APPUKUTTAN, FOREMAN/ENGINEER, INSTRUMENTATION DEPARTMENT, THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD., UDYOGMANDAL, KALAMASSERY, ERNAKULAM. BY ADV. SRI.K.C.ELDHO RESPONDENT(S): --------------------------- 1. THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD., REP. BY ITS CHAIRMAN, UDYOGMANDAL, KALAMASSERY, ERNAKULAM. 2. THE CHIEF MANAGER (PERSONNEL), THE FERILIZERS AND CHEMICALS TRANVANCORE LTD., UDYOGAMANDAL. BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.9506/2005 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER OF PROMOTION DATED 16/02/2001. P2 COPY OF THE JUDGMENT DATED 12/10/2004 IN O.P.NO.15323/2000 P3 COPY OF THE ORDER DATED 6/01/2005 ISSUED BY THE 1ST RESPONDENT. P4 COPY OF THE ORDER DATED 27/01/2005 ISSUED BY THE RESPONDENTS. P5 COPY OF THE SALARY STATEMENT OF THE PETITIONER FOR THE MONTH OF FEBRUARY,2005. P6 COPY OF THE ORDER IN WP(C)NO.4635/2005 DATED 9/2/05. RESPONDENT'S EXHIBITS: R2(A) COPY OF THE PROCEEDINGS OF THE INTERVIEW HELD ON 08/01/1992. R2(B) COPY OF THE CAREER DETAILS OF LAYER-I OFFICERS IN INSTRUMENTATION DATED NIL. /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.9506 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2011 J U D G M E N T The petitioner is an employee of the 1st respondent. The petitioner was promoted to the post of Foreman/Engineer (Instrumentation) by Ext.P1 order of promotion with effect from 27.3.2000. Along with the petitioner, two other persons were also promoted. The petitioner and one of the other persons claimed seniority against the 3rd person in the post of Foreman/Engineer taking the contention that they are entitled to be promoted earlier than the 3rd person, since they had acquired the required qualifications ahead of the 3rd person. They therefore filed O.P. No.15323/2000 before this court. In that writ petition, they took the contention that the 3rd person was placed ahead of them in the matter of promotion, taking into account the experience gained by the 3rd person outside the 1st respondent company which could not have been done as per the rules applicable. In that writ petition, this court passed Ext.P2 judgment W.P.(C)No.9506 of 2005 -2- accepting the contention that the outside experience could not have been taken into account for the purpose of deciding the eligibility of promotion of the 3 persons. Unfortunately for the petitioner, the petitioner also had outside experience which had been taken into account for fixing his date of promotion also. This court found that exchewing the outside experience of both, the petitioner was entitled to be promoted earlier than the 3rd person. It was also specifically found in Ext.P2 judgment that the petitioner was entitled to promotion only with effect from 23.1.2001 excluding the experience gained from outside. It was also found that the 3rd person completed the required experience only later. Accordingly this court directed the 1st respondent to pass appropriate fresh orders refixing the dates of promotion of the 3 persons in the light of the said declaration in Ext.P2 judgment. Accordingly by Ext.P3 order, the date of promotion of the petitioner was revised as 23.1.2001 instead of 27.3.2000. Consequently the petitioner was directed to refund the excess salary received W.P.(C)No.9506 of 2005 -3- by him on the basis of the date of promotion as 27.3.2000. By Ext.P4 the excess salary received by him was calculated as Rs.39,535/-. In the month of February 2005, part of the amount was deducted from the petitioner's salary and only the balance was paid. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “a) call for the records leading to Exhibit P3 and P4 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. b) issue a writ of mandamus or any other appropriate writ, order or direction declaring that the salary paid to the petitioner on the basis of Exhibit P1 is not liable to be recovered. c) issue a writ of mandamus or any other appropriate writ, order or direction compelling the respondents to reimburse the salary recovered from the petitioner as per Exhibit P5 within a time limit stipulated by this Hon'ble Court.” 2. The contention of the petitioner is that, although in Ext.P2 judgment there was a specific finding that the petitioner was entitled to promotion only with effect from 23.1.2001, there was no direction in that judgment to recover the excess salary paid to the petitioner. According to the petitioner, insofar as the petitioner was paid the salary in accordance with Ext.P1 order passed validly by W.P.(C)No.9506 of 2005 -4- the respondents themselves, the excess salary cannot be recovered. The petitioner relies on various decisions of the Hon'ble Supreme Court and this court which are referred to in ground 'C' of the writ petition which are: (2002) 3 SCC 302, 1998 (1) KLT 399, 1990 (1) KLT 602, 1990 (2) KLT 503, 2002 (3) KLT 803 and 2002 (1) KLT 144. 3. The respondents have filed a counter affidavit supporting their impugned action. 4. I have considered the rival contentions in detail. 5. The petitioner challenged the seniority of the 3rd person by filing a writ petition taking the specific contention that the outside experience gained by the third person could not have been taken into account for the purpose of promotion in the 1st respondent. While accepting that contention, this court also found that the petitioner was also given the date of promotion taking into account his outside experience and this court directed re-fixation of the dates of promotion of all the 3 persons in W.P.(C)No.9506 of 2005 -5- the light of that declaration in Ext.P2 judgment. In Ext.P2 judgment there was a specific finding that the petitioner was entitled to promotion only with effect from 23.1.2001. Therefore although the petitioner succeeded in his mission to gain seniority over the 3rd person in the process the petitioner suffered the finding that he was also entitled to promotion only with effect from 23.1.2001. After having obtained in Ext.P2 judgment, in respect of the same, the petitioner cannot escape from the natural consequences of that finding in Ext.P2 judgment. This court specifically directed re-fixation of dates of promotion of all the 3 persons. That only has been done by the impugned orders. I find that similarly the 3rd person was also proceeded against for recovery of the excess pay on refixation of the date of promotion. When the date of promotions are re-fixed as directed by this court, the respondents are entitled to recover the excess salary paid to the petitioner in accordance with the earlier dates of promotion in Ext.P1 which was found to be wrong by this W.P.(C)No.9506 of 2005 -6- court. The petitioner has to take the consequences of the favourable part and the unfavourable part of Ext.P2 judgment. The consequences of unfavourable part is that, the petitioner is liable to repay the excess salary paid to him. The decisions relied on by the petitioner relates to recovery of excess salary on account of wrong fixation of pay. Those decisions are not applicable to the facts of this case. In this case, the re- fixation of date of promotion was pursuant to a judgment of this Court in a writ petition filed by himself, which situation is not present in any of the decisions. After having invited the decision the petitioner cannot escape from the consequences of that judgment. In the above circumstances, I do not find any merit in the contention of the petitioner and accordingly the writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/