IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 WP(C).No. 4941 of 2007(L) --------------------------------------- PETITIONER(S): -------------------------- K.K.BALAN, S/O.AYYAPPAN KORU, AGED 61 YEARS, (RETD) SWEEPER CUM-SCAVANGER, KSRTC, REGIONAL WORKSHOP, ALWAYE AND RESIDING AT KURIKOT HOUSE, PALARIVATTOM, COCHIN-25. BY ADV.MRI.N.UNNIKRISHNAN RESPONDENT(S): --------------------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM, REP. BY ITS CHAIRMAN & MANAGING DIRECTOR. 2. THE EXECUTIVE DIRECTOR (A) AND SECRETARY, KSRTC, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 3. THE WORKS MANAGER, REGIONAL WORKSHOP, K.S.R.T.C., ALUVA. R1 TO R3 BY ADV.MR.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ANTONY DOMINIC, J ....................... W.P.(C).4941/2007 ....................... Dated this the 10th day of March, 2010 JUDGMENT Petitioner joined service of the 1st respondent as a Last Grade Servant on 7.11.1968. He was regularized on 24.2.1969. On 1.8.1979, he was posted as Sweeper-cum-Scavenger Gr-I in the scale of Rs.640-1120 and was thereafter posted as other duty Peon. He continued as such and retired on 30.11.2006. 2. Ext.P1 order was issued by the Corporation on 4.6.1988 enabling Last Grade employees to continue upto the age of 60. Petitioner claimed the benefit of the said order and that was rejected. Thereupon petitioner filed O.P.20585/2001 and by virtue of the interim order passed by this Court, petitioner continued in service upto 60 years. Original Petition was finally disposed of by Ext.P2 judgment rendered on 3.10.2005 declaring that the petitioner is entitled to continue in service upto 60 years. Accordingly Ext.P3 order was issued by the respondents, extending service of the petitioner till 60 years, but however, W.P.(C).4941/07 2 imposing a condition that he will not be eligible for any promotion or stagnation increments beyond the maximum of the scale of pay of Scavenger Gr-I, both in the year 1990 and 1997 pay revision. It was ordered that the Unit Officer will modify his pay fixation if found necessary as per rules, and that the ineligible amount if any, paid by way of stagnation increments or excess payment by other means will be recovered. 3. Based on Ext.P3, Ext.P4 pay fixation was issued to the petitioner. Thereupon he again approached this Court by filing W.P.(C).2032/2006. That writ petition was disposed of by Ext.P5 judgment quashing the impugned orders and directing the respondents to reconsider the matter with notice to the petitioner. Accordingly petitioner was heard and Ext.P6 order was issued. The relevant portion of Ext.P6 reads as follows. “The petitioner was allowed to continue in service upto the age of 60 years as per the interim direction of the Honourable High Court dated 20.9.2001 and the final judgment dated W.P.(C).4941/07 3 3.10.2005. The Honourable High Court has also made it clear that in case the petitioner has been paid any amount to which he is not legally entitled to get, he shall be issued a notice, his objection shall be considered and then alone any recovery shall be made if such recovery is legally permissible. While complying with the judgment of the Honourable High court, an admitted flaw has occurred to the extent that the petitioner was not personally heard. But it is seen that the recovery ordered was the excess payment made to him as he has availed the option of continuing upto the age of 60 years. He cannot avail both the privileges of those who opt to retire at the age of 55 and those opt to retire at the age of 60 simultaneously. Those who opt to continue in the service upto the age of 60 are not eligible for any promotion or stagnation increments beyond the maximum of the scale of pay. In the present case, the petitioner was granted stagnation increments and at the same time allowed to continue upto the age of 60. Hence the ineligible amount paid to him has to be recovered. During the personal hearing also he was convinced that ineligible stagnation increments have been W.P.(C).4941/07 4 granted to him and his prayer is that as once it was paid, it may not be recovered from him. Considering all aspects of the case as above, it is ordered that any ineligible amount paid to him by way of stagnation increments or excess payment made by other means will be recovered from him. The Unit Officer, R/w. Aluva should issue notice to him and arrange recovery from his pensionary benefits as he has already retired. The judgment of the Honourable High Court is complied with accordingly.” 4. It is challenging Ext.P6 the writ petition is filed. The contention of the petitioner is that there is no rule authorising the imposition of the conditions mentioned in Ext.P3. 5. Respondents have filed a counter affidavit. In the counter affidavit the justification offered is that the petitioner was permitted to continue upto the age of 60, subject to the impugned conditions. It is therefore stated that the petitioner is bound to repay the excess amounts. W.P.(C).4941/07 5 6. The issue that arises is whether the respondents were justified in imposing the condition that is mentioned in Ext.P3. Respondents also agree that the entitlement of the petitioner for continuance upto 60 years is based on Ext.P1. Ext.P1 provides that employees in the Last grade service who have been promoted to the scale of Rs.640-1120 prior to 1.6.1988, shall be allowed to continue till the age of 60 in that scale of pay. Order however provides that those employees in the scale of Rs.600-1010 can continue in that scale till 60 years and that they will have to forgo promotion to the higher scale of Rs.640- 1120. Insofar as the petitioner is concerned, he was given the scale of Rs.640-1120 from 1.8.1979, and this order does not impose any condition requiring such employee to forgo any stagnation increments. 7. Therefore, in the light of the conditions in Ext.P1 and in view of the fact that nothing contrary is available on record, I cannot uphold the condition in Ext.P3, requiring the petitioner, to forgo stagnation increments at the admissible scale of pay. W.P.(C).4941/07 6 The condition imposed in Ext.P3 requiring the petitioner to forgo the stagnation increment cannot be sustained. 8. Therefore, the writ petition is disposed of quashing Ext.P6 and directing the respondents to extend the petitioner the stagnation increment that was admissible to him at the scale Rs.640-1120, as revised subsequently. This shall be quantified and paid as expeditiously as possible, at any rate, within eight weeks of production of a copy of this judgment. ANTONY DOMINIC, Judge mrcs