V.K. Harikumar, Jyoths, Hamsa A.P., Mohamed Haneefa v State of Kerala and Registrar of Co-operative Societies

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 20TH DAY OF DECEMBER 2013/29TH AGRAHAYANA, 1935** ## **WP(C).No. 13031 of 2011 (D)** ## **----------------------------** **PETITIONER(S):** **--------------------------** **1. V.K.HARIKUMAR,JYOTHIS,** - **A.R.NAGAR.P.O., MALAPPURAM.** **2. HAMSA A.P., AYINTHOORPOCKAT HOUSE, A.R.NAGAR P.O., MALAPPURAM.** **3. MOHAMED HANEEFA, PERINCHERRI HOUSE, MAKKARAPARAMBA, MALAPPURAM.** **BY ADVS.SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN** **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA,REPRESENTED BY SECRETARY, DEPARTMENT OF CO-OPERATION (C), SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695 001.** **BY GOVERNMENT PLEADER SRI.D.SOMASUNDARAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-09-2013, ALONG WITH WPC.NO. 13715/2011 AND CONNECTED CASES, THE COURT ON 20-12-2013 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.13031/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE PAY REVISION REPORT 2011 OF THE STAFF OF THE COOPERATIVE SOCIETIES** - **P2 COPY OF THE ORDER NO.G.O.(P)NO.36/11/CO-OP DATED 25/02/2011 OF THE 1ST RESPONDENT** - **P3 COPY OF THE REPRESENTATION FILED BY THE 3RD PETITIONER BEFORE THE 1ST RESPONDENT DATED 2/4/2011** - **P4 COPY OF THE PAY ARREARS OF THE 1ST PETITIONER FROM 01/4/2009 TO 31/5/2011** - **P5 COPY OF THE LATEST CLASSIFICATION NORMS ACCORDING TO THE FINANCIAL POSITION BEFORE 4/1/2010** - **P6 COPY OF THE LATEST CLASSIFICATION NORMS ACCORDING TO THE FINANCIAL POSITION AFTER 4/1/2010** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.Nos.13031 of 2011, 13715 of 2011, 13782 of 2011, 14365 of 2011, 14795 of 2011, 16676 of 2011, 16685 of 2011, 16806 of 2011, 17058 of 2011, 20739 of 2011, 22649 of 2011, 21198 of 2012, 115 of 2013 and 7622 of 2013 ---------------------------------------Dated this the 20[th] day of December 2013 ## **J U D G M E N T** W.P.C.No.13715 of 2011 is filed by the Employees Union of Urban Co-operative Banks and certain officers challenging Ext.P3 by which the Dearness allowance (for short ‘DA’) had been reduced from 79% to 64% with effect from 01/07/2010. Petitioners also seek for a declaration that they are entitled for DA as and when the Government of Kerala adopts the DA declared by the Government of India to their employees in terms of Rule 189(3) of the Cooperative Societies Rules (hereinafter referred to as ‘the Rules’) and for other consequential benefits. The contention of the petitioners is that the pay revision of the employees of the Urban Co-operative Banks in the State are being issued by the Government on the basis of an agreement 2 W.P.C.Nos.13031 of 2011 & Connected cases between Government of Kerala, the Trade Unions representing the employees and their respective Managements. Pay revisions are being effected every five years and the previous pay revision expired on 31/03/2008. 2. A Committee constituted by the Government after holding discussions with the Trade Union and the Management decided to issue a pay revision order on 18/08/2010 effective from 01/04/2008 as Ext.P2. The revised pay is being fixed by merging 24% of the DA to the basic pay. At the relevant time, the applicable DA was 47% of which 24% merged with Basic Pay. The balance DA payable was 23% from 01/04/2008. The DA for subsequent periods were also fixed i.e. from 01/04/2008 at 23%, from 01/07/2008 at 30%, from 01/01/2009 at 40% and from 01/07/2009 at 49%, from 01/01/2010 at 63%, from 01/07/2010 at 79% and from 01/01/2011 at 91%. 3. From 01/07/2010 all the employees had got the DA at 79% and from 01/01/2011 at 91%. The petitioners W.P.C.Nos.13031 of 2011 & Connected cases 3 relies upon Rules 189(2) and (3) of the Rules which inter alia reads as follows: _“_ _**189 (2)** the scale of pay for different categories of posts shall be shown in Appendix III to these rules._ _(3) All employees of societies shall be eligible for Dearness Allowance at the rates allowed by the Government to their employees.”_ 4. The complaint of the petitioners is that the Government had issued an order dated 10/05/2011 unilaterally reducing the DA drawn by employees of Urban Co-operative Bank from 79% to 64% with effect from 01/07/2010 . Consequent reduction is made in the DA for the subsequent periods also. 5. The main contention urged by the petitioners is that in so far as the DA had been fixed in terms of settlement as evident from Ext.P2, unless there is another settlement, no deviation could be made in the matter. W.P.C.Nos.13031 of 2011 4 & Connected cases 6. W.P.C.No.7622 of 2013 is filed by an employee of Kollam Co-operative Urban Bank Ltd. challenging Ext.P2 Government order dated 06/07/2012 reducing the DA applicable to the petitioner in terms of Ext.P1 pay revision order. It is inter alia contended that Ext.P1 pay revision order was issued on the basis of a settlement by which 24% DA was merged with basic pay as on 01/04/2008. As per Ext.P2, the DA was revised to 115% with effect from 01/01/2012 and 127% as per Ext.P3 from 01/07/2012. It is contended that such benefits were not extended to the petitioner stating that the 2[nd] respondent is not a party to Exts.P4 and P5. Other grounds raised are similar to the grounds raised in 13715 of 2011. 7. The 2[nd] respondent has filed counter affidavit inter alia stating that Exts.P2 and P3 dated 06/07/2012 and 12/02/2012 Government orders have no application to the petitioner. He had opted for revised pay scale and therefore he is not entitled for the rate of DA payable to the W.P.C.Nos.13031 of 2011 & Connected cases 5 employees who have opted for getting the pre-revised scale of pay. Hence his claim for DA at the rate of 115% is denied. 2[nd] respondent has filed another counter affidavit stating that the latest Government order prescribing the rate of DA is Ext.P3. Those employees who have opted for revised scale of pay are entitled to get only DA at the rate of 103% and nothing more and the employees who have opted for pre-revised scale of pay and revising such pay are alone entitled to get higher rate of DA in excess of 103% as shown in the Government orders. It is stated that since all the employees working in the 2[nd] respondent bank have opted for revised scale of pay and since they are receiving such pay, they are not entitled for any additional DA. 8. W.P.C.No.16806 of 2011 is filed by Employees Union and certain Officers of the Kottayam District Cooperative Bank. The writ petition is filed challenging Ext.P8 and for a declaration that the petitioners are entitled to the benefit of Ext.P3 till the expiry of the term fixed in Ext.P3. W.P.C.Nos.13031 of 2011 6 & Connected cases By Ext.P8, the Government had reduced the DA payable to the employees. The main contention urged by the petitioners is that it was on the basis of serious deliberations and consultations that Ext.P3 order was rendered by the Government and any notification superseding the same ought to have been issued only after notice to the petitioner. According to them, Rule 189 is only an enabling provision and the said provision does not restrict the right of the management to fix the DA above the ceiling limit. According to them, the employees of the District Co-operative Bank form a separate category and there is no justification in grouping them along with employees of other classes of Cooperative societies. 9. A memo is filed by the Learned Government Pleader inter alia adopting the contentions raised in the counter affidavit filed in W.P.C.No.14365 of 2011. It is contended that as per Rule 189 of the Rules, all employees of societies shall be eligible for DA at the rates allowed by W.P.C.Nos.13031 of 2011 & Connected cases 7 the Government to their employees. Therefore, irrespective of them being employees of District Co-operative Bank, State Co-operative Bank, Primary Agricultural Co-operative Societies etc. all are eligible for DA at uniform rate. The pay and allowances of the employees of different type of banks were revised as per Government orders after merging the DA as on 01/06/2006 i.e., 24% to the Basic Pay. But the date of effect of the revision in respect of different banks were different and therefore there occurred difference in the rates of DA in respect of different banks. In all the pay revision orders, it is seen that 24% DA was merged with basic pay of employees which is the same as DA merged to employees of Central Government and State Government as on 01/01/2006. The DA granted to the employees of each Co-operative Societies/Banks subsequent to the merging of 24% of DA to the basic pay as per their pay revision orders and the DA granted to the employees of Central and State Government employees is shown in Table B to the counter W.P.C.Nos.13031 of 2011 & Connected cases 8 ## affidavit which reads as under: ## **TABLE B** |**_Sl._**<br>**_No._**|**_Co-operative_**<br>**_Societies/Banks_**|**_Date of_**<br>**_effect of_**<br>**_pay_**<br>**_revision_**|**_Rate of Dearness Allowance (inpercentage)_**|**_Rate of Dearness Allowance (inpercentage)_**|**_Rate of Dearness Allowance (inpercentage)_**|**_Rate of Dearness Allowance (inpercentage)_**|**_Rate of Dearness Allowance (inpercentage)_**|**_Rate of Dearness Allowance (inpercentage)_**|**_Rate of Dearness Allowance (inpercentage)_**|**_Rate of Dearness Allowance (inpercentage)_**| |---|---|---|---|---|---|---|---|---|---|---| ||||**_01/04_**<br>**_/07_**|**_01/07_**<br>**_/07_**|**_01/01_**<br>**_/08_**|**_01/07_**<br>**_/08_**|**_01/01_**<br>**_/09_**|**_01/07_**<br>**_/09_**|**_01/01_**<br>**_/10_**|**_01/07_**<br>**_/10_**| |1|District<br>Co-<br>operative Banks|01/04/07|11|17|23|30|40|49|63|79| |2|Urban Co-operative<br>Banks|01/04/08|-|-|23|30|40|49|63|79| |3|Kerala State Co-<br>operative Bank|01/04/07|9|14|19|24|32|40|51|61| |4|Primary Agri.Co-<br>operative Societies|01/04/09|-|-|-|-|31|38|49|61| |5|Primary Agri.and<br>Rural Development<br>Bank|01/07/08|-|-|-|23|31|38|49|61| |6|Kerala State Co-<br>operative Agri. And<br>Rural Development|01/07/08|-|-|-|23|31|38|49|61| |a|D.A.rate of Central<br>Govt.Employees.|01/01/06|6|9|12|16|22|27|35|45| |b|D.A. Rate of State<br>Govt. employees|01/01/09|-|-|-|-|-|NIL|8|18| It is further indicated that DA for State Government employees and employees of Co-operative Societies/Banks are determined in accordance with the DA fixed for Central Government employees. However, in respect of Central Government employees, by fixing DA, grade pay is also W.P.C.Nos.13031 of 2011 & Connected cases 9 taken into account. Grade pay is equal to 40% of higher limit of pre-revised scale. Grade pay is added along with the basic pay. But no such grade pay is granted to State Government employees and employees of Co-operative Societies/Banks. In paragraphs 5, 6 and 7 of the counter affidavit along with the Tables thereon, the respondents have clearly stated the manner in which the DA has been granted which is extracted as under: _“5. It is further submitted that before the existing pay revision orders 50% of DA out of 59% DA were merged with the basic pay of employees - of all types of Co operative Societies even if the date of effect of pay revision orders were different. In the existing pay revision orders 24% of DA was merged. In the case of Central Government employees, after 1/1/1996, 50% + 24% = 74% of DA were merged to basic pay as on 1/1/2006. Since the percentage of DA (i.e. 50% + 24% = 74%) merged to basic of employees of Cooperative Societies were same as that of Central Government employees, the employees of Co-_ W.P.C.Nos.13031 of 2011 10 & Connected cases _operative Socities were eligible to get DA at the rate fixed by the Central Government employees from time to time. The DA granted by the Central Government to its employees from 01/04/2007 to 01/01/2009 is shown in the table submitted here under as TABLE C._ ## _TABLE C_ ||_TABLE_|_C_| |---|---|---| |**_Sl.No._**|**_Date of effect_**|**_DA of Central Govt._**<br>**_employees (in%)_**| |1|01/04/2007|6%| |2|01/07/2007|9%| |3|01/01/2008|12%| |4|01/07/2008|16%| |5|01/01/2009|22%| |6|01/07/2009|27%| |7|01/01/2010|35%| |8|01/07/2010|45%| _6. It is further submitted that in the existing pay revision of employees of Co-operative Societies, the entire percentage of DA admissible were not merged to the basic pay. The percentage amount of unmerged portion of DA (i.e.9%) to pre-revised basic pay is not same as that which is to revised basic pay. Therefore, the remaining percentage of DA has to be calculated_ W.P.C.Nos.13031 of 2011 11 & Connected cases _by using separate formula. Thus, the Government, as per Ext.P6 order adjusted the remaining portion of DA by multiplying with 100/124. Through the Ext.P6 order the Government have introduced uniform rate of Dearness Allowance to employees of all types of Co-operative Societies by quashed the portion which is related to DA mentioned in orders already issued. Thus the percentage of DA eligible to employees of Co-operative Societies/Banks is submitted here under as TABLE D._ ## _TABLE D_ |**_Sl.No._**|**_Date of Effect_**|**_DA of Central_**<br>**_Government Employees_**<br>**_(in%)_**|**_DA of employees of Co-_**<br>**_operative Societies/Banks_**| |---|---|---|---| |1|01/04/2007|6%|9%| |2|01/07/2007|9%|14%| |3|01/01/2008|12%|19%| |4|01/07/2008|16%|24%| |5|01/01/2009|22%|32%| |6|01/07/2009|27%|40%| |7|01/01/2010|35%|51%| |8|01/07/2010|45%|64%| _7. It is further submitted that by implementing uniform rate of DA to employees of all types of Co-operative Societies/Banks, the_ W.P.C.Nos.13031 of 2011 12 & Connected cases _percentage of DA already availed has to be adjusted by increase or decrease as the case may be in parity with the Ext.P6 Government Order. The comparative statement of excess or short of DA already availed by employees of different types of Co-operative Societies/Banks compared to uniform DA implemented as per Ext.P6 order is shown in the table submitted hereunder as TABLEE._ _- TABLE E_ |**_Sl._**<br>**_No._**|**_Co-operative_**<br>**_Societies/Banks_**|**_Date of_**<br>**_effect of_**<br>**_pay_**<br>**_revision_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**| |---|---|---|---|---|---|---|---|---|---|---| ||||**_01/04/_**<br>**_07_**|**_01/07_**<br>**_/07_**|**_01/01_**<br>**_/08_**|**_01/07_**<br>**_/08_**|**_01/01_**<br>**_/09_**|**_01/07_**<br>**_/09_**|**_01/01_**<br>**_/10_**|**_01/07_**<br>**_/10_**| |1|District<br>Co-<br>operative Banks<br>:-<br>DA already availed<br>DA asper Ext.P6|01/04/2007|11<br>9|17<br>14|23<br>19|30<br>24|40<br>32|49<br>40|63<br>51|79<br>64| |Excess DA availed|||2|3|4|6|8|9|12|15| |2|Urban Co-operative<br>Banks<br>DA already availed<br>DA as per Ext.P6|01/04/2008|Old<br>rate|Old<br>rate|23<br>19|30<br>24|40<br>32|49<br>40|63<br>51|79<br>64| |Excess DA availed|||||4|6|8|9|12|15| |3|State Co-operative<br>Bank<br>:-<br>DA already availed<br>DA asper Ext.P6|01/04/2007|9<br>9|14<br>14|19<br>19|24<br>24|32<br>32|40<br>40|51<br>51|61<br>64| W.P.C.Nos.13031 of 2011 13 & Connected cases |**_Sl._**<br>**_No._**|**_Co-operative_**<br>**_Societies/Banks_**|**_Date of_**<br>**_effect of_**<br>**_pay_**<br>**_revision_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**|**_Rate of Dearness Allowance_**| |---|---|---|---|---|---|---|---|---|---|---| ||||**_01/04/_**<br>**_07_**|**_01/07_**<br>**_/07_**|**_01/01_**<br>**_/08_**|**_01/07_**<br>**_/08_**|**_01/01_**<br>**_/09_**|**_01/07_**<br>**_/09_**|**_01/01_**<br>**_/10_**|**_01/07_**<br>**_/10_**| |Excess DA availed|||Nil|Nil|Nil|Nil|Nil|Nil|Nil|(-) 3| |4|Primary Agri.Co-<br>operative Societies<br>:-<br>DA already availed<br>DA asper Ext.P6|01/04/2009|Old<br>rate|Old<br>rate|Old<br>rate|Old<br>rate|31<br>32|38<br>40|49<br>51|61<br>64| |Excess DA availed|||||||(-)1|(-)2|(-)2|(-)3| |5|Primary Agri.and<br>Rural Development<br>Bank<br>:-<br>DA already availed<br>DA asper Ext.P6|01/07/2008|Old<br>rate|Old<br>rate|Old<br>rate|23<br>24|31<br>32|38<br>40|49<br>51|61<br>64| |Excess DA allowed||||||(-)1|(-)1|(-)2|(-)2|(-)3| |6|Kerala State Co-<br>operative Agri. And<br>Rural<br>Development:-<br>DA already availed<br>DA as per Ext.P6|01/07/2008|Old<br>rate|Old<br>rate|Old<br>rate|23<br>24|31<br>32|38<br>40|49<br>51|61<br>64| |Excess DA availed||||||(-) 1|(-) 1|(-) 2|(-) 2|(-) 3| 10. W.P.C.No.13782 of 2011 is filed by employees of Kozhikode District Co-operative Bank and their Union challenging Ext.P4 dated 10/05/2011. By Ext.P4, the Government has reduced the DA applicable from 01/07/2010 to 64% instead of 79% drawn by the employees of the W.P.C.Nos.13031 of 2011 14 & Connected cases District Co-operative Bank. The grounds are similar to those raised in other cases as well. The Learned Government Pleader has filed a memo adopting the contentions raised in W.P.C.No.14365 of 2011 which I have already dealt with earlier. 11. W.P.C.No.21198 of 2012 is filed by the office bearers of the Quilon Co-operative Urban Bank inter alia challenging Ext.P2 by which DA had been reduced to 115% with effect from 01/01/2012. The grounds raised are similar in nature. Counter affidavit filed by the 2[nd] respondent inter alia indicates that since all the employees of the 2[nd] respondent bank have opted for revised scale of pay they have no right to make any claim for the pre-revised scale and DA thereon. Reference is made to Clause 7 of Ext.P1 stating that DA will be calculated in the revised scale of pay from 01/04/2008 at the rates declared by the Government of Kerala. It is contended that as per Ext.P2, the DA made applicable is 93% of the revised scale of pay and not 115%, W.P.C.Nos.13031 of 2011 15 & Connected cases as claimed. It is contended that presently DA @ 115% is being received by the petitioners. 12. W.P.C.No.14365 of 2011 is filed challenging Ext.P6 dated 10/05/2011. Grounds raised are similar to those raised in other cases. Counter affidavit is filed by respondents which is dealt with in detail in the earlier portion of the judgment. 13. W.P.C.No.115 of 2013 is filed by a person working as Peon in Alleppey Urban Co-operative Bank. He challenges Exts.P2 and P3 by which there is a reduction of DA. The grounds raised are similar to those raised in other writ petitions. 14. W.P.C.No.16685 of 2011 is filed by the Employees Union of the Nilambur Urban Co-operative Bank and certain office bearers. They challenge Exts.P6 and P8 to the extent there is reduction of DA. The grounds raised are similar to the grounds raised in other writ petitions. W.P.C.Nos.13031 of 2011 16 & Connected cases 15. W.P.C.No.16676 of 2011 is filed by the Employees Association of the Kottayam District Co-operative Bank and its Executive Officer challenging Exts.P7 and P10 by which there is a reduction of DA from 79% to 64%. 16. W.P.C.No.17058 of 2011 is filed by the Employees Federation of Trivandrum District Co-operative Bank and one of its office bearers challenging Exts.P6 and P12 orders and Ext.P13 resolution by which there is a reduction in DA. The grounds raised are similar in nature and the defence raised are similar to W.P.C.No.14365 of 2011. 17. W.P.C.No.14795 of 2011 and W.P.C.No.20739 of 2011 are filed by the Kerala Co-operative Employees Union and its office bearers. In W.P.C.No.14795 of 2011, the petitioners challenge ExtP2 order by which DA has been reduced to the employees of Urban Co-operative Bank. In W.P.C.No.20739 of 2011 also, the challenge is with reference to Ext.P2 by which there is a reduction in DA. The grounds raised are similar in nature and the defence raised are W.P.C.Nos.13031 of 2011 17 & Connected cases similar to W.P.C.No.14365 of 2011. 18. W.P.C.No.22649 of 2011 is filed by the Secretary of the Kerala Co-operative Employees Union and an employee of the Kerala State Co-operative Agricultural & Rural Development Bank. They challenge Exts.P2, P7 and P9 as being in violation of Rule 189(3) of the Rules. 19. W.P.C.No.13031 of 2011 is filed by the employees of Certain co-operative Banks challenging Ext.P2 by which there is a reduction in the DA. Grounds raised are similar in nature to the grounds raised in other writ petition. 20. The facts available in the case would show that in case of employees of Urban Co-operative Bank and District Co-operative Bank, their basic pay have been fixed after merging 24% of the DA. The contention therefore raised by the petitioners is that there is no provision in the pay revision order to pay the balance DA by applying the formula of 100/124. W.P.C.Nos.13031 of 2011 18 & Connected cases 21. In respect of employees of Primary Co-operative Banks, their pay was revised by merging 30% of the DA with the existing basic pay and for the payment of balance DA, there was a provision to apply the formula 100/130. In the absence of any such formula being made applicable to employees of Urban Co-operative Bank and District Cooperative Bank, the impugned orders cannot be sustained. Reference is made to Rule 189(3) which inter alia indicates that all employees of societies shall be eligible for DA at the rates allowed by the Government to their employees. There is no dispute about the fact that the DA is payable to the employees of Co-operative Banks on the basis of the DA applicable to the State Government employees which correspondingly is based on the DA fixed by the Central Government based on certain index as stated in the counter affidavit of the Government. 22. Another contention urged is that, as per Section 189(3) when the Government has revised the pay in W.P.C.Nos.13031 of 2011 & Connected cases 19 consultation with the State Co-operative Union it becomes part of Appendix III and has statutory force which cannot be reduced by issuing Government orders. 23. The learned counsel for the petitioners relied upon the judgment of this Court in Institute of **Brothers of St.Gabriel v. State of Kerala and others** _[2008(4) ILR Kerala Series 373]_ . This judgment is relied upon to contend that when there is a statutory provision it is not open for the Executive to suspend the operation of such a statutory provision by an executive order. The contention is that the impugned orders are only executive orders which cannot prevail upon the settlement arrived at between the parties in terms of Rule 189(3) of the Rules. 24. Another judgment relied upon is **Union of India and others v. R.Vasudeva Murthy and Others** _[2010(9) SCC 30]._ Paragraph 21 is relied upon which reads as under: _“_ _**21.** We make it clear that if any of the employees have been given the benefit of the OM and payments have been made by the Union of_ W.P.C.Nos.13031 of 2011 & Connected cases 20 _India and/or the Department of Telecommunications, it would not be entitled to recovery thereof from the Draughtsmen as it would be too harsh and unreasonable to ask for refund after such a long lapse of time"._ 25. Yet another judgment relied upon is **Raman v. Registrar of Co-operative Societies** [1978 KLT SN 18]. It was held by this Court as under: _“It is not correct to state that Rule 189(3) limits the DA to the rate which the Government employees were getting at the time when the Rules came into force. The employees of the societies are entitled to the enhanced DA whenever the Government raises DA to its employees in view of the provisions in Rule 189 (3).”_ 26. On the other hand, learned senior counsel Sri. Dharmadan appearing on behalf of certain respondents relied upon the judgment of this Court in **Alias T.O and others v. M/s.T.O.Abraham and Company and Others** _[2004(3) ILR (KERALA SERIES) 501]_ . The said judgment is W.P.C.Nos.13031 of 2011 21 & Connected cases relied upon to contend that when the conduct of the respondent amounts to abuse of process, the court will not render any assistance to such a litigant. In that case, it was held that without impleading proper parties an attempt was made to get over the order passed by the Civil Court through the medium of this Court, which was held to be an abuse of process of this Court. This judgment is relied upon to contend that the petitioners have approached the Court without impleading proper parties which amounts to an abuse of process of court. 27. Another judgment relied upon is **Retired Teacher’s and Employees Union and Others v. State of Kerala and Others** _[2012(1) KHC 323]_ . Reference is made to paragraphs 16 and 50 of the said judgment. The learned Single Judge of this Court held as under: _“_ _**16** . No particular statutory provision covers the field. There is nothing to show that any of the relevant statutes confer a right on the Government employees and teachers, etc. to have_ W.P.C.Nos.13031 of 2011 & Connected cases 22 _a pay revision, that too at the end of every fifth year. The appointment of Pay Revision Commissions is also not based on any provision under any particular statute. It can only be in terms of the executive power available to the State under Art.162 of the Constitution of India. The Pay Revision Commission cannot therefore be described as a statutory body. It is not one appointed under the Commission of Inquiries Act, 1952 also. Therefore, as far as fixation of pay scales are concerned, it is only an executive function. The Government leaves it to an expert body like Pay Revision Commission to go into various aspects, after reference to social factors and other general conditions, including the paying capacity of the State." x x x x_ _**50.** In this context, learned Government Pleader relied upon a Full Bench decision of this Court in State of Kerala and others v. V.J. Philomina (2008 (1) KLT 666 (F.B.) = 2008 (1) KHC 665), wherein the Bench was of the view that “when concessions having financial implications are granted by the Government, widening the scope of such concessions by judicial interpretation would invite_ W.P.C.Nos.13031 of 2011 & Connected cases 23 _unexpected burden on the public exchequer. Time bound higher grade is not a condition of service guaranteed by statutory rules but a concession extended to employees who are stagnating in a particular post for want of regular promotion.” It is contended that this Court cannot adopt an interpretation which will burden the public exchequer. Learned Government Pleader relied upon an unreported judgment in O.P.No.32614/1999, between Kerala State Service Pensioners Organisation, Kollam and State of Kerala. The same was with regard to the implementation of 1997 pay revision order. Therein, the pay revision order was implemented from 1.3.1997. The petitioners retired prior to the said date, viz., after 1.1.1996. The denial of benefits to them was under challenge. The Government contended that the date of effect of a pay revision is a matter of policy for the Government as it will have to account for the financial stability also. While considering the same, this Court held thus:_ _“More over, pay revision is being effected for the last several years. Petitioners two_ W.P.C.Nos.13031 of 2011 24 & Connected cases _onwards had retired after 1.1.1996. That means they had already enjoyed pay revision benefits ordered prior to that date. After their retirement they cannot get revision of salary. Ext.P7 is the revised salary structure of the employees in service as on 1.3.1997. There is nothing arbitrary in it. The petitioner has not substantiated any right and they shall not have a right to get their salary revised after retirement.”_ _The said dictum will show that the petitioners herein also cannot have a right to get their salary revised after retirement, as the date fixed cannot be held to be arbitrary. I respectfully agree with the view taken therein."_ 28. The Learned senior Government Pleader Sri.D.Somasundaram referred to the judgment of the Supreme Court in **Registrar, Co-operative Societies Haryana and Others v. Israil Khan and Others** _[2010(1) SCC 440]_ . Paragraphs 7 to 10 are relevant which reads as under: W.P.C.Nos.13031 of 2011 & Connected cases 25 _“_ _**7.** There is no “principle” that any excess payment to employees should not be recovered back by the employer. This Court, in certain cases has merely used its judicial discretion to refuse recovery of excess wrong payments of emoluments/allowances from employees on the ground of hardship, where the following conditions were fulfilled:_ _“(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee._ _(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.”_ _**8.** In Col. B.J. Akkara (Retd.) v. Govt. of India this Court explained the reason for extending such concession thus: (SCC pp. 728-29, para 28)_ _“28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if_ W.P.C.Nos.13031 of 2011 26 & Connected cases _recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.”_ _(emphasis supplied)_ _**9.** What is important is, recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is_ W.P.C.Nos.13031 of 2011 27 & Connected cases _subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment._ _**10.** In these cases, the Rules specifically provided that the employees should be paid a consolidated salary. Therefore without amendment of the Rules, the Managing Committees could not have passed a resolution for giving the benefit of regular pay scales that too with retrospective effect to the employees. Further, the Societies did not have the funds to make such payments and illegally diverted the funds made available for disbursal of loans to farmers, for the purpose of making such excess payment to the employees. When the resolution extending such benefit was passed and the amounts earmarked for loans for farmers were diverted for making payment to the employees, the Managing Committees as well as the employees were aware that the resolution and consequential payment was contrary to the Rules. There was no question of any wrong calculation or erroneous understanding of the legal position._ W.P.C.Nos.13031 of 2011 28 & Connected cases _Most of the employees who received similar relief have refunded or have agreed to refund the excess payment. Making any exception in the case of the respondents would also lead to discrimination.”_ 29. On an analysis of the case law relied upon by either side, the proposition to be considered is whether the impugned orders are in violation of Rule 189(3) of the Rules. As held in **Raman’** s case (supra), the employees of the Societies are entitled to enhanced DA whenever the Government raises DA to its employees. The judgment of the Supreme Court in **R.Vasudeva Murthy** ’s case (supra) is relied upon to contend that the benefits already given cannot be taken back. But, it is relevant to note that in **Retired Teacher’s and Employees Union** ’s case (supra), the Supreme Court held that as far as fixation of pay scales are concerned, it is an executive function. The Government leaves it to an expert body like Pay Revision Commission to go into the various aspects, after reference to social factors W.P.C.Nos.13031 of 2011 29 & Connected cases and other general conditions. Still further, it is observed that the court cannot adopt any interpretation which will burden the exchequer. In **Israil Khan and Others** ’ case (supra) the Supreme Court held that any excess payment to employees could be recovered by the employer. Therefore, one has to see whether the impugned orders reducing the DA of certain category of employees of the bank can be interfered. 30. Having regard to the arguments raised by either side, the short point to be decided in these batch of writ petitions is regarding the computation of DA which was modified by the Government as per the impugned orders. By virtue of the impugned orders, it is indicated that when the scale of pay of Central Government employees were fixed, 24% of the DA was merged to the basic pay. It is observed that in the case of Central Government Employees, after 01/01/1996, 74% of the DA was merged to the basic pay as on 01/01/2006. Since the percentage of DA merged W.P.C.Nos.13031 of 2011 & Connected cases 30 to the basic pay of employees of the Co-operative societies were same as that of Central Government employees, they were entitled to get DA at the rates fixed by the Central Government from time to time. Table C shows the details of DA given to Central Government employees which is strictly applicable to the employees of Co-operative societies. It is relevant to note that in the existing pay revision of the employees of Co-operative Societies the entire percentage of DA did not merge with the basic pay. The remaining percentage of DA which was not merged was calculated by using a formula, and the Government adopted a method by adjusting the remaining portion of DA by multiplying it with 100/124 which results in the eligible DA as described in Table D. It is evident that intention of the Government is to implement the uniform rate of DA to the employees of all kinds of Co-operative Societies/Banks. The percentage of DA already availed were adjusted by increase or decrease as the case may be and accordingly Table E is prepared which W.P.C.Nos.13031 of 2011 31 & Connected cases inter alia would show the difference in the percentage of DA. Another relevant factor was that the emoluments of employees of the District Co-operative Bank were higher than State Co-operative Bank and most of the District Cooperative Banks were running in huge loss and therefore the banks are not in a position to provide public money by way of exorbitant rate of DA to its employees. 31. Having regard to the aforesaid factual situation, the only point that is required to be considered is whether, while issuing the impugned orders, the employees of the District Co-operative Banks, Urban Co-operative Banks etc. are receiving DA less than that of Government employees. None of the petitioners have such a case. Rule 189(3) clearly indicates that the DA shall be the same as that of State Government employees. Of course, there is nothing wrong in providing a better benefit to the employees of Cooperative segment. But that does not mean that the petitioners have a legal right to demand DA in excess of the W.P.C.Nos.13031 of 2011 & Connected cases 32 statutory provision. 32. Another contention urged is regarding the existence of a tri-lateral agreement. DA is payable in terms of a statutory provision. The settlement is not a statutory settlement. It is only an arrangement between the parties. The employees have a right to get DA as per Rule 189(3) of the Rules and only restriction is that it should not be less than that of the employees of the State Government. In so far as the petitioners do not have such a case I do not think that the petitioners can challenge the impugned orders. 33. In W.P.C.No.7622 of 2013, it was inter alia contended by the 2[nd] respondent that the writ petition is an abuse of process as it was filed suppressing two facts. He had filed an earlier case and the present writ petition is filed ignoring the direction and order of this Court in W.P.C.No.21198/2013. It is contended that the reading of the Government orders would establish that the persons who had opted for revised pay scales are not entitled for the W.P.C.Nos.13031 of 2011 33 & Connected cases rate of DA payable to employees who have opted for getting the pre-revised scale of pay. A reply is filed stating that an erroneous calculation has been made without considering the merging of 24% DA from the pre-revised scale. Since I am not interfering with the impugned orders, further consideration of this matter is not required. That apart, if at all, any of the employees have any individual grievance regarding the manner in which DA has been calculated based on the orders passed by Government, it is always open for them to approach the appropriate authority under the Statute as the issue involved is regarding salary and benefits payable to the employee of the society. Under these circumstances, I do not think that any interference is required to the impugned orders. Accordingly, these writ petitions are dismissed. ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.Nos.13031 of 2011 34 & Connected cases