IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 WP(C).No. 35769 of 2007(G) -------------------------- PETITIONER(S): --------------- M.RAGHAVAN, AGED 50 YEARS, S/O K.CHATHU, PEROLE, NILESHWAR P.O., HOSDURG TALUK. LOWER DIVISION CLERK, SUBORDINATE COURT, HOSDURG. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): --------------- 1. THE DISTRICT JUDGE, KASARAGOD. 2. THE SUBORDINATE JUDGE, HOSDURG. GOVERNMENT PLEADER SMT. N. SUDHA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2011, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 35769/2007. ------------------------------------------------------------------- EXT.P1 TRUE COPY OF MEMO DT. 23.5.2007. EXT.P2 LETTER DT. 11.4.2007. EXT.P3 OBJECTION DT. 25.6.2007. EXT.P4 ORDER DT. 29.11.2007. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 35769 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 4th day of February, 2011. J U D G M E N T The petitioner is a L.D. Clerk in the Sub Court, Hosdurg. He is challenging Exts.P2 and P3 orders, whereby the increment granted to him on 1.1.2003 on promotion to the post of Attender Grade II from the post of Process Server, was held to be irregular on the ground that he should have been given increment only with effect from 1.11.2003. According to the petitioner, the increment was correctly given and even if there is any irregularity, after more than 4 years, the alleged excess amount drawn to him cannot be recovered. 2. A counter affidavit has been filed by the 1st respondent, wherein it is stated as follows in paragraphs 3 and 4: “3. It may be noted that the petitioner has been erroneously granted increment with effect from 1.1.2003 re-fixing his pay invoking the provision of re-fixation under Rule 28A of Kerala Service Rules Part I. The petitioner was appointed by transfer as Attender Grade II with effect from 22.11.2002 and his pay has been fixed in the post of Attender Gr. II with effect from 22.11.2002. As such, his next increment falls due on 1.11.2003. But, he was erroneously granted increment on 1.1.2003 invoking Rule 28A. When the erroneous re-fixation of pay with effect from 1.1.2003 was noticed, a letter No. B1-9507/06 dated 11.4.2007 was issued to the Sub Judge, Hosdurg to rectify the defect of re-fixation of pay granted to the petitioner and the Sub Judge, Hosdurg, as per Ext. P4 directed the petitioner to refund a sum of Rs. 8,317/- the excess payment made to him as erroneous fixation of pay. 4. It is true that the petitioner has been promoted as Amin with effect from 7.6.2003 and later, appointed as L.D. Clerk by transfer with effect from 1.9.2005. As per letter mentioned above, the Sub Judge, Hosdurg directed to rectify the erroneous fixation, without declaring his probation in the category of Amin. When declaration of probation is insisted, increments in that post or category can be granted only on declaration of probation in that post or category. Since the granting of increment in the post of Attender Gr. II is erroneous, further granting of increments falls as erroneous.” W.P(C) No. 35769/07 -: 2 :- 3. I have considered the rival contentions in detail. 4. I am satisfied that insofar as the petitioner's increment date falls only on 1.11.2003, he could have been given increment and fixation only with effect from that date. That only has been done by the impugned orders. 5. The contention of the petitioner that since the petitioner had not contributed to the alleged mistake the excess amount should not be recovered from the petitioner also does not find favour with me. It is not as if the respondents took years to find out the mistake. Within 4 years, it has been found out and action taken. I am not inclined to consider it as unduly delayed. In the above view, the writ petition is dismissed. However, I direct the respondents to recover the excess amount drawn by the petitioner from the monthly salary of the petitioner in easy instalments. Sd/- S. Siri Jagan, Judge. Tds/