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. 33386 of 2005(Y) ------------------------------------- PETITIONER(S): ------------------------ T.G.MOHANAN, VEHICLE SUPERVISOR, LDV(RTD), COLLEGE OF VETERINARY AND ANIMAL SCIENCES, MANNUTHY, RESIDING AT THYKKOOTTATHIL HOUSE, MOSCOW ROAD, P.O.ANCHERY, TRICHUR DIST. BY SRI.KRB.KAIMAL, SENIOR ADVOCATE BY ADV. SRI.B.UNNIKRISHNA KAIMAL RESPONDENT(S): ------------------------ 1. THE ADMINISTRATIVE OFFICER, KERALA AGRICULTURAL UNIVERSITY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, MANNUTHY, TRICHUR DIST. 2. THE COMPTROLLER, KERALA AGRICULTURAL UNIVERSITY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, MANNUTHY, TRICHUR DIST. 3. THE REGISTRAR OF KERALA AGRICULTURAL UNIVERSITY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, MANNUTHY, TRICHUR DISTRICT. 4. THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA. R1 TO R3 BY ADV. SRI.N.D.PREMACHANDRAN, SC, AGRL.UNTY. R1 & R2 BY ADV.SMT.P.JAYA, SC, AGRL. UNIVERSITY R4 BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.33386/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER DTD. 15.10.1987. P1(a):- COPY OF THE ORDER NO.E3/843/03 DTD. 23.4.2003 ISSUED BY THE DEAN OF KERALA AGRICULTURAL UNIVERSITY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES MANNUTHY, TOGETHER WITH THE STATEMENT ANNEXED. P2:- COPY OF THE ORDER ISSUED BY THE ADMINISTRATIVE OFFICER, KAU, DTD. 10.11.2004. P2(a):- COPY OF THE LETTER NO. LF(KAU) P-384/04 DTD. 5.10.2004 OF THE ADDITIONAL 3RD RESPONDENT TO THE 2ND RESPONDENT. P3:- COPY OF THE ORDER ISSUED BY THE DEPUTY COMPTROLLER, KAU DTD. 19.11.04. P4:- COPY OF THE ORDER ISSUED BY THE DEPUTY COMPTROLLER, KAU DTD. 19.11.2004. P5:- COPY OF THE ORDER ISSUED BY THE DEPTUY COMPTROLLER, KAU DTD. 4.2.2005. P6:- COPY OF THE REPRESENTATION BY THE PETITIONER TO THE ADMINISTRATIVE OFFICER, KAU, DTD. 10.11.05. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.33386 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2011 J U D G M E N T The petitioner retired from service of the Kerala Agricultural University, on 31.5.2004. While he was in service, in the year 1985, he was granted time bound higher grade promotion in the post of Vehicle Supervisor, without noticing that, he had already got one regular promotion as Driver Grade I in 1983. After the petitioner's retirement, on the basis of an audit objection, excess salary paid to the petitioner on account of the irregularly granted time bound higher grade was sought to be recovered from the petitioner. Consequently an amount of Rs.59,261/- has been recovered from the petitioner's DCRG on the ground that the time bound higher grade promotion is irregular. The petitioner therefore seeks the following reliefs: i. to quash the same by issuing a writ of certiorari or any other writ, order or direction, finding it is illegal. “i.a) issue a writ of certiorari quashing/setting aside Exts.P-2 and P-2(a). i.b) a writ of mandamus to respondents 1 and 2 to grant annual increment due to the petitioner on 1.2.2004 and grant arrears of salary for the period upto 31.5.2004. W.P.(C)No.33386 of 2005 -2- i.c) a writ of certiorari quashing Exts.P3 and P4 and direct the respondents to refix the pensionary benefits reckoning his pay as Rs.6650/- on the date of retirement with consequential monetary benefits. ii. to direct the respondents to refund the amount of 59,261/- already recovered from the petitioner's DCRG together with interest at 12% per annum till repayment. iii. to direct the respondent to pay the increment due to the petitioner prior to his retirement.” 2. A counter affidavit has been filed by the 4th respondent supporting the impugned action. 3. The petitioner would contend that the petitioner's case is identical to the petitioners in W.P. (C) Nos.1510 & 7544/2007, wherein the petitioners in those writ petitions who were identically placed like the petitioner in this writ petition were allowed to have their higher grades. 4. I have considered the rival contentions in detail. 5. It is not disputed before me that, before the petitioner was sanctioned the 10 year time bound higher grade promotion, he had already obtained a promotion in 1983 as Driver Grade I. As per the pay revision orders, only those persons who did not get any promotion in the entry post for 10 years would be eligible for the first higher grade promotion. Admittedly, the petitioner got one promotion W.P.(C)No.33386 of 2005 -3- within the 1st 10 years of his service and therefore the petitioner is not eligible for the first time bound higher grade after completion of 10 years. Therefore, I cannot fault the respondents in cancelling the higher grade promotion granted to the petitioner. But I am of opinion that, insofar as the time bound higher grade promotion was given in 1985 and it was not detected even at the time of retirement of the petitioner on 31.5.2004, it is unjust to recover the excess amount paid to him on his retirement insofar as the petitioner had not contributed to the mistake in grant of higher grade. In fact in one of the judgments referred to in similar cases the University themselves had overruled the audit objection unlike in the case of the petitioner. Insofar as the higher grade granted to the petitioner was patently irregular, on the face of it, I am not inclined to permit the petitioner to have his fixation taking into account the higher grade promotion granted irregularly. But the recovery of the excess pay paid to him is unjust. The Hon'ble Supreme Court has time and again W.P.(C)No.33386 of 2005 -4- held that, where employees are not responsible for the wrong fixation of pay, excess pay paid to them should not be recovered after years. In this case, admittedly the wrong grant of higher grade was 19 years prior to his retirement. The action taken is after his retirement. Therefore it is unjust to recover the excess amount paid to him from his DCRG. Accordingly that part of the impugned orders whereby the recovery of the excess salary paid to the petitioner has been ordered is hereby quashed. The respondents are directed to refund to the petitioner the amount of Rs.59,261/- recovered from his DCRG towards excess pay paid to the petitioner. However, I make it clear that the refixation would stand. The amount shall be refunded to the petitioner within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/