IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 WP(C).No. 8425 of 2007(C) ------------------------- PETITIONER: ------------ C.SUKUMARAN NAIR, MAYA NIVAS, ATHIYANNOOR, ARALMOODU P.O., THIRUVANANTHAPURAM (RETD. ASST. ENGINEER, IRRIGATION DEPT.) BY ADV. SRI.P.K.SURESH KUMAR SMT.PRIYA VIJAYAN RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF WATER RESOURCES, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8425 of 2007 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF ORDER NO.E2-14202/06 DATED 2.9.06 ISSUED BY THE 2ND RESPONDENT EXT.P2- TRUE COPY OF LETTER NO.GE 32/C/S/924/1095 DATED 11.8.06 ISSUED BY THE THIRD RESPONDENT EXT.P3- TRUE COPY OF ORDER NO.A3-19217/91 DATED 6.10.97 ISSUED BY THE 2ND RESPONDENT EXT.P4- TRUE COPY OF ABSOLUTE NON-LIABILITY CERTIFICATE DATED 2.1.07 ISSUED BY THE 2ND RESPONDENT (TRUE COPY) P.A TO JUDGE P.N.RAVINDRAN, J ------------------- W.P.(C).8425/2007 -------------------- Dated this the 25th day of August, 2008 JUDGMENT The petitioner is a pensioner. He retired from service as Assistant Engineer on 31.7.2006 on attaining the age of superannuation. The grievance voiced by the petitioner in tis writ petition is that a sum of Rs.1,50,000/- has been withheld from the DCRG sanctioned to him. 2. The petitioner, a diploma holder in the category of Fist Grade Overseer/First Grade Draftsman was temporarily promoted as Assistant Engineer under Rule 31 (a)(i) of Part-II, K.S. & S.S.R, by Ext.P3 order dated 6.10.1997, issued by the second respondent. The petitioner officiated in that post continuously thereafter. On being provisionally promoted as Assistant Engineer, his pay in that category was fixed applying Rule 28A of Part-I of K.S.R. First Grade Overseers were at that point of time, placed in the scale of pay of Rs.4,600-7125/- and Assistant Engineers were placed in the scale of pay of Rs.6675-10550/-. As the petitioner was not drawing W.P.(C).8425/2007 2 Rs.6675/- as his basic pay, in the lower post of First Grade Draftsman when he was promoted as Assistant Engineer, applying Rule 28A of Part-I of the K.S.R his pay as on 6.10.1997 was fixed at Rs.6675/-, which was the lowest stage in the time scale of Rs.6675-10550/- applicable to the post of Assistant Engineer. 3. Appointment of Assistant Engineers in the Irrigation Department is to be made from among degree/diploma/certificate holders in the feeder categories applying the ratio of 6:3:1. The petitioner belongs in the category of diploma holders. Pursuant to the directions issued by this Court in a series of writ petitions, the Chief Engineer had to re-arrange the vacancies among the three different categories namely, degree holders, diploma holders and certificate holders. As a result thereof, the petitioner was assigned the date 1.7.2000 in the category of Assistant Engineer. This was done as per the order dated 20.3.2006 issued by the Chief Engineer. Shortly after the petitioner retired from service, the Accountant General, relying on the aforesaid order of the Chief Engineer, issued W.P.(C).8425/2007 3 Ext.P2 letter dated 11.8.2006, to the effect that the pay of the petitioner upto 30.6.2000 has to be regulated and re-fixed in view of the fact that he was assigned the date 1.7.2000 in the category of Assistant Engineer. Pursuant thereto, the Chief Engineer by Ext.R2(a) proceedings dated 15.1.2007, fixed the salary of the petitioner in the scale of Rs.6675-10550/- with effect from 1.7.2000. It was also directed that the pay and allowances drawn by the petitioner in the post of Assistant Engineer during the period from 9.10.1997 to 30.6.2000 shall be recovered. The short question involved in the case is whether the respondents have the right or the authority to direct recovery of the pay and allowances drawn by the petitioner during the said period. 4. Rule 31(a)(i) of Part-II, K.S. & S.S.R reads as follows:- Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post W.P.(C).8425/2007 4 borne on the cadre of a higher category in a service or class by promotion from a lower category and there would be undue delay in making such promotion in accordance with the rules, the Appointing Authority may promote a person otherwise than in accordance with the rules, temporarily.” 5. Rule 31(f) of Part-II, K.S & S.S.R reads as follows:- “There shall be paid to a person promoted under sub-rule (a) or (b) either the minimum of the higher time scale of pay, or the pay admissible to him in the higher time scale based on the pay in the lower time scale applicable to him under the rules regulating the fixation of pay from time to time, whichever is higher. He shall be paid increments in the time scale at the time intervals, as fixed by Government from time to time.” 6. A reading of Rule 31(f) of Part-II, K.S & S.S.R shows that the petitioner who was temporarily promoted to the higher post of Assistant Engineer carrying a higher time scale of pay, was entitled to have his pay W.P.(C).8425/2007 5 fixed in the higher post. Such pay fixation, is admittedly regulated by Rule 28A of Part-I K.S.R. Applying Rule 28A, the pay of the petitioner was rightly fixed with effect from 9.10.1997 on his temporary promotion as Assistant Engineer. It is significant to note that the respondents do not have a case and in any case no such case is pleaded that the pay of the petitioner as on 9.10.1997 was wrongly fixed applying Rule 28A. In other words, the entitlement of the petitioner, to have his pay fixed in the higher time scale of pay of Rs.6675- 10550/- on his temporary promotion to the post of Assistant Engineer is not in dispute. The only contention raised by the respondents is that as the petitioner was later assigned the date 1.7.2000 in the higher post of Assistant Engineer, following the re- arrangement of vacancies in implementation of the Quota rule, he is entitled to have his pay fixed in the higher post only with effect from that date. 7. In my considered opinion, there is no merit in the said contention. It is not in dispute that pursuant to Ext.P3 order of promotion, the petitioner started W.P.(C).8425/2007 6 discharging duties as Assistant Engineer with effect from 9.10.1997. He continued to function as Assistant Engineer and was not reverted when re-arrangement of vacancies was done in implementation of the ratio among degree/diploma/certificate holders. The petitioner continued to officiate in the higher post without break since 9.10.1997. The respondents do not have a case that the petitioner did not discharge the duties of Assistant Engineer continuously from 9.10.1997. Their only stand is that as the petitioner was assigned a later date namely 1.7.2000, his earlier temporary promotion with effect from 9.10.1997 does not confer on him the right to receive higher emoluments. 8. As noticed by me earlier, in view of Rule 31(f) of Part-II, K.S & S.S.R and Rule 28A of Part-I of K.S.R the pay of the petitioner was rightly fixed. That fixation is not in dispute. In view of the fact that the petitioner continued to officiate in the higher post of Assistant Engineer continuously and without break from 9.10.1997 till his retirement on 31.7.2006, the stand taken by the W.P.(C).8425/2007 7 respondents in Ext.R2(a) and in the order dated 20.3.2006 referred to in paragraph 3 of the counter affidavit filed by the second respondent, that he was entitled to draw pay in the scale of pay applicable to Assistant Engineers only with effect from 1.7.2000, is plainly untenable. The respondents have not traced the power to issue Ext.R2(a) or the order dated 20.3.2006 referred to in paragraph 3 of the counter affidavit filed by the second respondent to any provision in the K.S & S.S.R or the K.S.R. No provision in the K.S.R was brought to my notice which empowers the authorities to act as they have done in the instant case. In my considered opinion, the stand taken by the respondents is not founded on any rule. 9. In view of the stand taken by the respondents, a sum of Rs.1,50,000/- was withheld from the DCRG sanctioned to the petitioner. As I have held that the petitioner is entitled to draw salary and allowances in the scale of pay applicable to the post of Assistant Engineer with effect form 6.10.1997 and that he is not liable to refund the monetary benefits drawn by him W.P.(C).8425/2007 8 during the period from 9.10.1997 to 30.6.2000, no part of the DCRG sanctioned to him is liable to be withheld. 10. The Apex Court has, in State of Kerala and others v. M.Padmanabhan Nair (AIR 1985 SC 356) held that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property in their hands. It was held that any culpable delay in settlement and disbursal thereof must be visited the penalty of payment of interest at the current market rate till actual payment. The Government of Kerala had in the wake of the said decision of the Apex Court issued Circular No.31/85/Fin dated 10.4.1985 and Circular No.18/2003/Fin dated 25.1.2003 bringing to the notice of all concerned that pensionery claims should be settled expeditiously and that if the Government is held liable to pay interest on the pensionary benefits payable to its employees, the interest portion of the Government’s liability will be recovered from the officers concerned. The Apex Court has in Dua v. State of Haryana (2008 (3) KLT 58) W.P.(C).8425/2007 9 held that in the case of delay in payment of pensionary benefits, the pensioner would be entitled to interest either under the statutory rules governing payment of pension or executive orders issued by the Government and in their absence, under Articles 14,19 and 21 of the Constitution of India. In the instant case, for no fault of the appellant, the DCRG payable to him was withheld. As the respondents had illegally withheld payment of DCRG which the petitioner could have invested in an interest earning deposit, I am of the view that he is entitled to be compensated by award of interest. In these circumstances, I hold that the petitioner will be entitled to the interest at the rate of 6% per annum from 1.10.2006 (on the expiry of two months from the date of retirement) on the withheld portion of the DCRG till the date of payment. It will be open to the State to recover the interest from the officers responsible for the delay in the disbursal of DCRG to the petitioner in terms of Circulars referred to above. 11. In the result, I allow the writ petition and direct the respondents to disburse the full amount of the DCRG W.P.(C).8425/2007 10 sanctioned to the petitioner together with interest therein at 6% per annum from 1.10.2006 till date of payment. This shall be done within one month from the date on which the petitioner produces a certified copy of the judgment. No costs. P.N.RAVINDRAN, Judge mrcs