IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WP(C).No. 22627 of 2010(C) -------------------------------------- PETITIONER: ------------------- N.KARTHIKEYAN (RETIRED STATION MASTER GRADE II, STATE WATER TRANSPORT DEPARTMENT, KOLLAM), KARTHIKA BHAVANAM, MAHADEVIKAD P.O., KARTHIKAPPALLY, ALAPPUZHA DT. BY ADV. SRI.G.BENO. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, STATE WATER TRANSPORT DEPARTMENT, ALAPPUZHA. 3. THE ACCOUNT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM – 39. 4. THE SUB TREASURY OFFICER, SUB TREASURY, KARTHIKAPPALLY/HARIPPAD. R1 TO R4 BY GOVT. PLEADER SRI. P. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.22627 OF 2010(C) -------------------------------------------------- Dated this the 20th day of July, 2010 J U D G M E N T In Ext.P1 judgment, in which the petitioner herein is the 2nd petitioner, this court directed the respondents to grant 3rd time bound higher grade to the petitioner in the scale of Rs.6500- 10550. It would appear that based on the directions in the judgment the benefits were extended to the petitioner. Subsequently, in W.A.No.1234/06 filed by the respondents therein against Ext.P1 judgment, the Division Bench rendered Ext.P2 judgment, setting aside Ext.P1 and allowing the appeal. Subsequently, by Ext.P3 order his pay and pension has been revised and Ext.P4 notice was issued ordering recovery of the excess amount paid. It is challenging Ext.P4 to the extent recovery is permitted that the writ petition is filed. 2. Counsel submits that on equitable considerations, extending the principle laid down by the Apex Court in State of Bihar & Ors. V. Pandey Jagdishwar Prasad (2009(3) SCC 117 and in Syed Abdul Qadir & Ors. V. State of Bihar & Ors. (2009(3) SCC 475, recovery shall not be permitted. WPC.No.22627 /2010 :2 : 3. Evidently, the benefit of 3rd time bound higher grade was enjoyed by the petitioner on the strength of the directions Ext.P1 judgment. That judgment was reversed by Ext.P2 and the benefit extended to the petitioner was held to be irregular. Therefore the petitioner is liable to refund the amount and respondent cannot faulted for recovering the amount. 4. Relying on the fact that in Ext.P2 judgment, the Division Bench did not permit the respondents to effect recovery, counsel submits that recovery of the amount paid cannot be recovered. 5. In my view, only in a case where recovery is prohibited the respondents cannot recover the excess amount paid. On the other hand where there is no such prohibition respondents are free to recover the excess amount paid. Ext.P2 judgment shows that there is no such prohibition and if that be so Ext.P4 cannot be faulted. 6. In the facts noticed above, I am not persuaded to hold that the principles laid in the judgment relied on by the petitioner has any application. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WPC.No.22627 /2010 :3 :