IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 WP(C).No. 34673 of 2010(H) --------------------------------------- PETITIONER(S): ----------------------- CHERIYAN.C.I., AGED 66, S/O. IYPE, CHENNANGARIYAKATHU, AREEPPARAMBU P.O. KOTTAYAM – 686 501. BY ADV. SRI.PRAMOD KOCHUTHOMMEN.E., SRI.U.R.HARSHAKUMAR. RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. DIRECTOR OF SURVEY AND LAND RECORDS THIRUVANANTHAPURAM-695 001. 3. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM-695 001. 4. SUB TREASURY OFFICER, OFFICE OF THE SUB TREASURY, KOTTAYAM-686 039. 5. STATE BANK OF TRAVANCORE, THIRUVARPPU BRANCH, KOTTAYAM-686 033.. R1 TO R4 BY GOVT. PLEADER MR.ANTONY MUKKATH. R5 BY ADV. MR.K.S. DILEEP, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.34673 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2010 J U D G M E N T The petitioner retired from service on 31.05.1999, while working as First Grade Surveyor in the Department of Survey and Land Records of the Government of Kerala. His pension was fixed, but later on it was sought to be refixed in view of a mistake in the higher grade granted to the petitioner. Consequent to the same recovery has also been ordered. It is under the above circumstances the petitioner has approached this court seeking the following reliefs: “i. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to pay the amount recovered from the petitioner immediately or within a time limit stipulated by this Hon'ble Court. ii. To call for the records leading to Ext.P1 to P6 and declare that Ext.P3 is illegal ultravires and unenforceable and also declare that the petitioner is entitled to get the pension and pensionary benefits on the basis of the higher scale of pay which has been receiving from the date of retirement. iii. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to consider Ext.P5 representation with in time frame.” W.P.(C)No.34673 of 2010 -2- 2. Identically placed employees had earlier approached this court challenging similar action by the government, wherein by Ext.P4 judgment this court held that the refixation is valid; but in the matter of recovery of excess pay paid certain directions were issued. The operative portion of that judgment reads as follows: “42. In view of the elaborate discussion that I have undertaken, I consider it appropriate to encapsulate my conclusions, as hereunder: (1) The petitioners, who were not qualified to be appointed to the post of Technical Assistant, coming within the purview of the Special Rules for Kerala State (Survey and Land Records), were not entitled to be granted third time bound higher grade in the scale of pay applicable to a Technical Assistant, on completion of 25 years of service. (2) The petitioners were entitled to third time bound higher grade on completion of 25 years of service in the scale of pay immediately above the scale of pay as fixed in the revised orders, which is in consonance with Clause 3(b)(vii) of G.O.(P) No.930/93. (3) The revision of the scale of pay and consequent revision of the pension being drawn by the petitioners as effected in the orders impugned in the present cases are upheld, subject to the directions issued hereunder: (a) The respondents are restrained from effecting recovery of any amounts, consequent upon the impugned re-fixation of pay and revision of pension, effected in the case of these petitioners till and inclusive of the date of this judgment. W.P.(C)No.34673 of 2010 -3- (b) The petitioners, in each one of these cases, may file a representation before the Government within two months from the date of receipt of a copy of this judgment, invoking Rule 7 of Part I of the KSR, and request the Government to exempt them from the re-fixation of pay and consequent revision of their pension and also to see that the pension originally fixed in each of their cases is continued. (c) The Government shall consider the representations filed by the petitioners sympathetically and in the light of the observations contained in this judgment on humanitarian considerations and take a decision as early as possible. (d) It is made clear that the Government will be entitled to indicate, if they decide to accept the case of the petitioners, that the Government's decision need not be treated as a precedent in any other case. (f) The interim order in each one of these cases will continue to operate, till a decision is taken by the Government on the representations filed by the petitioners as aforementioned. (g) But, it is made clear that recovery for the period, subsequent to the date of this judgment, will abide by the decision to be taken by the Government as aforementioned. All the writ petitions are disposed of as above.” The petitioner seeks the same benefit to him also. 3. I have heard the learned Government Pleader also. The learned Government Pleader does not dispute the fact that Ext.P4 judgment has been passed in the case of identically W.P.(C)No.34673 of 2010 -4- situated employees. That being so, I am inclined to dispose of this writ petition in terms of the said judgment. Ordered accordingly. S. SIRI JAGAN JUDGE shg/