Prasannakumar P.K. vs Managing Director,Kerala State Dvelo

P.V.Kunhikrishnan, J.

The above writ petition is filed with following prayers:

i) To issue a writ of certiorari or any other writ, or order to quash Ext.P7.

ii) To issue a writ of certiorari or any other writ, or order to quash Ext.P5.

iii) To declare that the petitioner is entitled to get the benefit granted as per Ext.P3, as if he was a provisional employee prior to 04.06.1994.

iv) To command the 1st respondent to continue to pay the benefits granted as per Ext.P3.

v) To declare that the recovery of any amount paid based on the Ext.P3 decision is illegal.

vi) Issue any other writ order or direction as this Hon’ble Court may deem fit in the facts and circumstances of the case.” (sic)

The petitioner was a peon in the service of the Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes Ltd. He was initially appointed in the year 1981 and as per Exts.P1 and P2, he was regularised with effect from 1994. The Board of the Corporation has decided to grant the benefit of grade promotion and increment reckoning the non permanent service also. Based on the said decision, Ext.P3 order has been issued by the Managing Director converting the daily wage service of the petitioner prior to 04.06.1994 as provisional service for the purpose of granting the benefit of Government decision No.2 of rule 33 Part I KSR. The petitioner has been paid increments and granted grade promotion based on the said decision. Thereafter, the Government have issued Ext.P5 order stating that granting the benefit of grade promotion to daily wage workers cannot be countenanced and directed to cancel the benefit granted to the petitioner and also directed to recover the alleged excess pay. Based on the same, Ext.P4 order has been issued directing to refund the excess pay granted as per Ext.P3 in ten installments. The petitioner challenged the said orders before this Court and as per Ext.P6, this Court directed to reconsider the matter. Thereafter, again Ext.P7 order is passed reiterating the stand taken in Ext.P4 and the order of cancellation of the benefit and direction to recover the amount was found correct. Aggrieved by the same, this writ petition is filed.

Heard the counsel for the petitioner and the Special Government Pleader (SC/ST).

The petitioner is aggrieved by Ext.P7. As per Ext.P7 the petitioner is directed to pay the excess amount received in ten installments. Whether the recovery in such circumstances from the petitioner is legally possible or not is considered by the Apex Court in State of Punjab and others v. Rafiq Masih (White Washer) and others [(2015) 4 SCC 334]. The Apex Court held that recovery is impermissible in the circumstances like (i) recovery from employees belonging to Class III and Class IV (Group C&D). The petitioner is admittedly a Class IV employee. If that be the case, recovery from the petitioner based on a wrong fixation is not possible.

Therefore, this writ petition is allowed. Ext.P7 is set aside.