IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 WP(C).No. 28524 of 2009(I) ------------------------------------- PETITIONER: ------------------- K. MOHANDAS, KUTTIYIL VEEDU, VALIAKULAM, CHERUKULANJI P.O., RANNI, PATHANAMTHITTA DISTRICT. BY ADVS. SRI.PIRAPPANCODE V.SREEDHARAN NAIR, SRI.PIRAPPANCODE V.S.SUDHIR, SRI.SAJU JOHN, SRI.JELSON J.EDAMPADAM. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PANCHAYATH, THIRUVANANTHAPURAM, 3. DEPUTY DIRECTOR OF PANCYAHAT, PATHANAMTHITTA DIST. 4. DEPUTY DIRECTOR (HIGHER GRADE), LOCAL FUND AUDIT, DEPUTY DIRECTOR'S OFFICE, PATHANAMTHITTA DIST. 5. THE SECRETARY, KONNI GRAMA PANCHATH, KONNI, PATHANAMTHITTA DIST. R1 TO R4 BY GOVERNMENT PLEADER SMT. NISHA BOSE, R5 BY ADVS. SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU, SRI.B.PREMNATH (E). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28524/2009-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RELEVANT EXTRACT OF THE PENSION BOOK DTD. 30/04/2009 OF THE PETITIONER. EXT.P.2: COPY OF THE ORDER NO. E3-457/2008 DTD. 24/03/2008 OF THE DEPUTY DIRECTOR OF PANCHAYAT, PATHANAMTHITTA. EXT.P.3: COPY OF THE ORDER NO.A1 3072/2007 DTD. 18/04/2008 OF THE R.5. EXT.P.4: COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER DTD. 18/04/2008 ISSUED BY THE R.5. EXT.P.5: COPY OF THE LETTER NO. LF. PTA.P8/335/08 DTD. 29/07/2008 OF THE R.4. EXT.P.6: COPY OF THE LETTER NO. LF.PTA.P9-888/08 DTD. 13/01/2009 OF THE R.4. EXT.P.7: COPY OF THE LETTER DTD. 31/03/2009 WRITTEN BY THE PETITIONER TO THE R.5. EXT.P.8: COPY OF THE REPRESENTATION DTD. 07/05/2009 SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.9: COPY OF THE REPRESENTATION DTD. 11/05/2009 SUBMITTED BY THE PETITIONER BEFORE THE R.4. EXT.P.10: COPY OF THE LETTER NO.LF.PTA.P9-302/09 DTD. 15/05/2009 OF THE R.4. EXT.P.11: COPY OF THE LETTER NO. LF.PTA.P9-302/09 DTD. 21/05/2009 OF THE R.4. EXT.P.12: COPY OF THE REPRESENTATION DTD. 05/08/2009 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.13: COPY OF THE ORDER NO. E2-8747/08 DTD. 01/08/2009 ISSUED BY THE PANCHAYAT DEPUTY DIRECTOR, PATHANAMTHITTA. RESPONDENTS' EXHIBITS: EXT.R5.A: COPY OF THE SERVICE DETAILS OF THE PETITIONER. EXT.R5.B: COPY OF THE LETTER DT. 29/07/2008 ISSUED BY THE R.4. TO THIS RESPONDENT. EXT.R5.C: COPY OF THE LETTER DTD. 07/02/2009 ISSUED BY THIS RESPONDENT TO THE PETITIONER. EXT.R5.D: COPY OF THE LETTER DTD. 24/03/09 ISSUED BY THIS RESPONDENT TO THE R.4. EXT.R5.E: COPY OF THE LETTER DTD. 30/03/2009 ISSUED BY THE R.4. TO THE PETITIONER. W.P.(C). NO.28524/2009-I: EXT.R5.F: COPY OF THE LETTER DTD. 25/05/2009 ISSUED BY THIS RESPONDENT TO THE PETITIONER. EXT.R5.G: COPY OF THE LETTER DTD. 04/06/2009 ISSUED BY THIS RESPONDENT TO THE PETITIONER. EXT.R5.H: COPY OF THE LETTER DT. 05/06/2009 ISSUED BY THE R.4. TO THIS RESPONDENT. EXT.R5.I: COPY OF THE LETTER DT. 03/07/2009 ISSUED BY THE R.4. TO THIS RESPONDENT. EXT.R5.J: COPY OF THE LETTER DT. 05/08/2009 ISSUED BY THE R.4. TO THIS RESPONDENT. EXT.R5.K: COPY OF THE ORDER DT. 01/08/2009 ISSUED BY THE R.4. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B.RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.28524 of 2009-I = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of August, 2010. Judgment 1.The petitioner retired from the service of the Konni Grama Panchayat while working as U.D.Clerk. He superannuated on 31.5.2008. The fixation of pay on completion of 10 years' service granted to him with effect from 2.11.1988 was done at Rs.905-1490 instead of Rs.845-1370. This was treated as the ground for issuing Exts.P10 and P11 refusing to approve the fixation of pay and to pay pensionary benefits. The stand taken by the establishment was that the mistaken sanctioning of the higher grade has to be ratified or regularised, without which, the excess drawn by the petitioner on the scale erroneously given to him cannot but be deducted from the credit of the petitioner. 2.However, the establishment failed to note that WPC28524/09 -: 2 :- the fixation made in favour of the petitioner was in 1988 and therefore, in view of the provisions of the Kerala Service Rules as enunciated and laid down by this Court in Principal Secretary to Government v. Gopala, 2005(4) KLT 190, the recovery cannot be made. 3.Under the aforesaid circumstances, the petitioner is entitled to succeed. The writ petition is accordingly allowed quashing the impugned orders to the extent they would result in recovery except to the extent provided in terms of the law laid in Gopala's case(supra). Taking the overall facts and circumstances into consideration, the prayer for interest is refused. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/1308