IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 WP(C).No. 7005 of 2004(H) ------------------------- PETITIONER: ------------ 1. P.S.MAHESHARI, ASSISTANT GRADE-1 (GENL.) FOOD CORPORATION OF INDIA, REGIONAL OFFICE, THIRUVANANTHAPURAM. 2. V.R.PRASANNA, ASSISTANT GRADE-1 (GENL.) FOOD CORPORATION OF INDIA, REGIONAL OFFICE, THIRUVANANTHAPURAM. BY ADV. SRI.N.GOPINATHA PANICKER RESPONDENTS: ------------- 1. ZONAL MANAGER, FOOD CORPORATION OF INDIA ZONAL OFFICE, 3, HADDOWS ROAD, CHENNAI-600 006. 2. SENIOR REGIONAL MANAGER, FOOD CORPORATION OF INDIA, REGIONAL OFFICE, KESAVADASAPURAM, THIRUVANANTHAPURAM. 3. R.ARUMUGHAM, ASSISTANT GRADE-1 (GENL.), FOOD CORPORATION OF INDIA, DISTRICT OFFICE, CHENNAI. 4. T.P.PRABHAKARAN,ASSISTANT GRADE-1 (GEN.) FOOD CORPORATION OF INDIA, ZONAL OFFICE, 3, HADDOWS ROAD, CHENNAI 600 006. * 5. K.JANARDANA SARMA, (DELETED) ASSISTANT GRADE-1 (GENL.), FOOD CORPORATION OF INDIA, ZONAL OFFICE, 3, HADDOWS ROAD, CHANNAI 600 006. (*R5 DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 19/06/2007 IN I.A.NO.6932/2007) BY ADV. SMT.V.P.SEEMANDINI, SC, FCI FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.7005/2004 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF RELEVANT PAGES OF SENIORITY LIST OF ASSISTANT GRADE-II (GENL.) AS ON 31/12/1985. P2 : COPY OF RELEVANT PAGES OF SENIORITY LIST OF ASSISTANT GRADE - II (GENL.) AS ON 27/11/1990. P3 : COPY OF ORDER DATED 03/03/1999. P4 : COPY OF ORDER DATED 22/10/1999 IN CMP NO.15298/99 IN OP NO.9198/99. P5 : COPY OF JUDGEMNT DATED 09/02/2000 IN OP NO.9198/2000. P6 : COPY OF MEMO DATED 20/04/2000. P7 : COPY OF REPRESENTATION DATED 17/06/2000 SUBMITTED BY 1ST PETITIONER. P8 : COPY OF RELEVANT PAGES OF RECAST SENIORITY LIST OF ASSISTANT GRADE - III (GENL.) AS ON 31/03/1999. P9 : COPY OF ORDER DATED 12/04/2001 ISSUED BY 1ST RESPONDENT. P9(a) : COPY OF RELEVANT PAGES OF RECAST SENIORITY LIST OF ASSISTANT GRADE - II (GENL.) APPENDED TO EXT.P9. P10 : COPY OF LETTER DATED 21/05/2002 ISSUED BY R1. P10(a) : COPY OF RELEVANT PAGES OF PROVISIONAL SENIORITY LIST OF ASSISTANT GRADE-I AS ON 30/06/2001 APPENDED TO EXT.P10. P11 : COPY OF REPRESENTATION DATED 19/08/2002 SUBMITTED BY 1ST PETITIONER. P12 : COPY OF RELEVANT PAGES OF SENIORITY LIST OF ASSISTANT GRADE-I (GENL.) AS ON 31/12/2002. P13 : COPY OF REPRESENTATION DATED 20/10/2003 SUBMITTED BY 1ST RESPONDENT. P14 : COPY OF OFFICE ORDER DATED 27/12/2001 ISSUED BY R1 GRANTING NOTIONAL PROMOTION. P15 : COPY OF OFFICE ORDER DATED 04/02/2002 ISSUED BY R2. P16 : COPY OF OFFICE ORDER DATED 03/02/2004 ISSUED BY R1 WITHDRAWING EXT.P4. WPC NO.7005/2004 P17 : COPY OF OFFICE ORDER DATED 08/04/2003 ISSUED BY R1 GRANTING STAGNATION INCREMENT. P18 : COPY OF OFFICE ORDER DATED 13/12/2004 ISSUED BY R1 WITHDRAWING R17. P19 : COPY OF OFFICE ORDER DATED 05/06/2007 BY R1. RESPONDENT'S EXHIBITS R1 : COPY OF LETTER DATED 30/03/1994. R1(a) : COPY OF LETTER NO.5(40)/2001/SEN DATED 21/05/2002. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR, J. ------------------------- W.P.(C) No. 7005 of 2004 --------------------------------- Dated, this the 30th day of May, 2008 J U D G M E N T Petitioners are challenging Exts.P16 & P18 orders, whereunder the FCI has demanded petitioners to refund excess salary and benefits drawn pursuant to notional promotion given in 2001 and stagnation increments given in 2002. The case of the FCI is that seniority of petitioners in relation to respondents 3 & 4 were re- fixed after 2004 and consequent upon the refixation of seniority, petitioners were not entitled to notional promotion given in 2001 and the additional stagnation increments given in 2002. 2. Learned counsel for petitioners contended that 1st petitioner is a law graduate and 2nd petitioner is a post graduate and both of them joined FCI as Assistant Grade-III on 13/03/1972 and 14/03/1972 respectively. They were promoted as Assistant Grade-II on 01/07/1976 and later petitioners were promoted as Assistant Grade-I on 29/10/1999 and 20/09/2000 respectively. However, respondents 3 & 4, who are matriculates, were appointed as Typists and joined duty only in June 1972. These respondents were promoted as Assistant Grade-II in the year 1978. WP(C) No.7005/2004 -2- 3. Petitioners have produced seniority lists periodically published including Ext.P8 dated 31/03/1999, which shows that all through petitioners remained seniors to respondents 3 & 4. According to petitioners, refixation of seniority bringing the petitioners juniors to respondents 3 & 4 is arbitrary and against the Rules. Learned standing counsel for FCI submitted that seniority is re-fixed based on Regulation 16(2) of the FCI Staff Regulations. However, there is no explanation as to why an unsolicited promotion and stagnation increments were given years back to petitioners. It is reported that respondents, against whom seniority is claimed by petitioners, are retired long back from service. Both the petitioners are retiring from service tomorrow. I do not think, there is any necessity for this Court to consider the seniority claimed by petitioners over respondents because all the persons involved are either retired or are retiring immediately. Moreover, even if any increment is given wrongly by the FCI, I do not think it is fair for them to demand back the amount after petitioners enjoyed the benefits. The payments were neither contractual nor at the request of the petitioners, but were voluntarily paid by the employer. Since the disputed amount is only the additional WP(C) No.7005/2004 -3- increments and the amount involved is not substantial, I do not think a Government of India concern should involve in the exercise of calculating and recovering the small amount from the retired employees at this distance of time, after sorting out seniority issue afresh, which in any case is required, because the prima facie case established by petitioners is based on the seniority lists published on several occasions. In the circumstances, I decline to consider the seniority issue raised but allow the writ petition quashing Exts.P16 & 18 as against the petitioners. (C.N.RAMACHANDRAN NAIR, JUDGE) jg