R. Gururajan, J.
1. Petitioners are before this Court challenging Annexure-G, dated 25-10-1977, Annexure-N, the order dated 13-1-2000 issued by the third respondent to the first petitioner and Annexure-P, the order dated 12-1-2000 issued to the second petitioner. They also seek for a direction to the respondents to pay them four advance increments to which they are entitled to for having acquired additional qualification.
2. The first petitioner joined the services as a Junior Assistant in the Karnataka Electricity Board/KPTCL (hereinafter referred to as the 'Board') on 18-8-1970. He acquired a degree in arts in the year 1978 and additional degree in law in the year 1991. He was promoted as an Assistant on 10-3-1980. Further, promotion was given to him on 2-6-1999.
The second petitioner joined the Board on 29-2-1971 as Junior Assistant and subsequently he was promoted as Assistant. He acquired M.A. degree in the year 1986 and a degree in law in the year 1991. Now he has retired from the service of the Board.
3. Petitioners approached this Court on an earlier occasion with regard to denial of advance increments on acquiring additional qualification in W.P. Nos. 20403 to 20408 of 1990. These petitions were disposed of along with W.A. Nos. 1073 to 1082 of 1991 by an order dated 26-9-1991 as per Annexure-A. This Court, directed the Board to consider the case of the petitioners in the light of the decision of this Court in the case of K.L. Madhusudhan and Anr. v. Secretary, K.E.B. and Ors., : ILR1990KAR1182 .Thereafter, petitioners were given four advance increments in terms of Annexure-B.
4. Thereafter, the respondents vide their official memorandum dated 27-10-1992 withdrew the benefit extended to them and re-fixed the pay from time to time. Reply was submitted and thereafter an order has been passed by the respondents reducing their pay by two increments. Petitioners filed W.P. Nos. 34975 and 34976 of 1992. This Court quashed the official memorandum and directed the Board to issue notices to the petitioners before passing any order. Subsequently, notices were issued on 4-11-1999 to the petitioners. Reply has been submitted in terms of Annexure-L and K. Thereafter, respondents have now passed an order at Annexure-N and P. Petitioners are challenging these two orders in addition to seeking a direction in these petitions.
5. Notices were issued pursuant to which respondents have entered appearance. They refer to the various facts of this case. They say that the grant of an advance increment is not a condition of service. It is only an incentive paid to the employees. They say that a mistake was committed in granting four advance increments and that mistake was subsequently rectified after providing opportunity to the petitioner. They justify their stand.
6. Matter is heard fairly for a long time. Sri Subba Rao, learned Senior Counsel would contend that the notification issued on 25-10-1977 is contrary to law and requires to be set aside by this Court as violative of Article 14. According to the Counsel, there is no justification for denying the benefits to those employees who acquired additional qualification during their service in the Board. Counsel says that injustice has been done to his clients. He strongly relies on the judgments of the Supreme Court in the case of D.S. Nakara and Ors., v. Union of India, AIR 1983 SC 130 : (1983)1 SCO 305 : 1983-1-LLJ-104 (SC) and Shyam Babu Verma and Ors., v. Union of India and Ors., : (1994)ILLJ815SC .
7. Per contra Sri Harikrishna Holla, learned Counsel would contend that a mistake is sought to be rectified by the respondents. He relies on the judgments of the Supreme Court in the cases of K. Narayanan v. State of Karnataka, 1994 Supp. (1) SCO 44 : 1994 SCO (L and S) 392 and S. Sathyananda Shetty v State of Karnataka, 1995 Supp. (1) SCO 765 : 1995 SCO (L and S) 664. He also strongly relies on judgment of this Court in the case of K.L. Madhusudhan, supra.
8. After hearing the Counsels, two questions emerge for my consideration:
1. Whether Annexure-G, the order dated 25-10-1977 is hit by Article 14 of the Constitution?
2. Whether the impugned orders at Annexure-N and P areillegal and unsustainable?
9. Re: Question No. 1.--It is an admitted fact that the Regulation 47 provides for four advance increments. Petitioners approached this Court on an earlier occasion with regard to denial of advance increments on acquiring additional qualification in W.P. Nos. 20403 to 20408 of 1990. These petitions were disposed of along with W.A. Nos. 1073 to 1082 of 1991 by an order dated 26-9-1991 as per Annexure-A. This Court directed the Board to consider the case of the petitioners in the light of the decision of this Court in the case of K.L. Madhusudhan, supra. Thereafter, respondents have provided four advance increments.
10. Subsequently, the respondents withdrew the benefit extended to the petitioners by two increments. Petitioners filed W.P. Nos. 34975 and 34976 of 1992. This Court quashed the official memorandum and directed the Board to issue notices to the petitioners before passing any order. Subsequently, notices were issued on 4-11-1999 to the petitioners. Reply has been submitted in terms of Annexure-L and K Thereafter, respondents have now passed orders as per Annexure-N and P.
11. The contention of the petitioner is that Annexure-G suffers from arbitrariness. Strong reliance is placed on the D.S. Nakam's case, supra. Per contra, reliance is placed by the other side on K.L. Madhusudhan's case, supra and other judgments.
12. It is no doubt true that in D.S. Nakara's case, supra, the Supreme Court has ruled that there can be no arbitrariness in the matter of retiral benefits. Even otherwise, this Court in W.A. Nos. 1073 to 1082 of 1991 in respect of these very petitioners has ruled that the petitioners' case is to be considered, in the light of the decision given in the case of K.L. Madhusudan, supra, wherein it was noticed that the grant of two advance increments in respect of those employees who acquired additional qualification during the course of their employment is in accordance with law, This judgment is binding on this Court.
13. In the light of this material, it cannot be said that there is any arbitrariness whatsoever. This Court has accepted the grant of two increments in case of those who acquired additional qualification during their service. It cannot be said that any discrimination is effected on account of this order. It is also to be noticed that these very petitioners challenged this very notification in W.P. Nos. 34975 and 34976 of 1992. From the order of this Court it is seen that this Court had directed the authorities to reconsider the matter after hearing the petitioner. Nothing prevented the petitioner from getting a decision with regard to the validity of this order in the earlier writ petition. They have failed to do so. The order of 1977 is challenged again in this third round of litigation by the petitioners. Taking into consideration the history of the case and the judgment on the point, I do not think that this Court would be justified in striking down an order of 1977 in the year 2002. The said order has withstood the test of time and has been acted upon by all concerned. Any striking down at this juncture would cause unnecessary hardship to the parties concerned.
14. Even otherwise, it is seen that a Division Bench of this Court in the case of K. Narayana v. State of Karnataka and Anr., 1991(3) Kar. L.J. 463 :1991(6) SLR 80 (Kar.), has ruled that advance increments granted by way of incentive is not a legal right or a vested right. The Division Bench has ruled that it is not a part of the service condition. This Court has also ruled in para 7 reading as under:
'7. After hearing both sides and going through the records, we are of the opinion that none of the contentions raised by Sri Subba Rao, learned Counsel for the appellant, deserves any consideration for the simple reason that the appellant's assertion that he is entitled to get incentive even in future also on the basis of the earlier Government Order is untenable as awarding incentive cannot be equated to one of a legal right. Further incentive given earlier has not created any vested right. Because, incentive is nothing but a payment made by the Government out of its own free will unconnected to service conditions. It is given with a view to encourage efficiency and standard of work to be turned out by an official by acquiring higher qualification. It is true that the Government have no power to alter or modify the conditions of Government service with retrospective effect to the prejudice to the Government servant. But, in the instant case, in fact, the learned Single Judge clearly stated that the action of the respondents in making the demand to refund the amount the appellant received upto a particular date as incorrect. Whereas, subsequent to that date, he has held that the employees of the Municipal Board cannot claim as a matter of right, as after all extending the benefit in the form of incentive or otherwise is purely a discretion and not a part of the service conditions. The authority relied upon by Sri Subba Rao is not applicable to the facts of the case. In our view, there are no merits in any one of the contentions raised by the appellant so as to interfere with the order of the learned Single Judge'.
Since grant of increments is held to be a discretionary one, I do not think that such discretion can be struck down at this length of time at the instance of the petitioner.
15. Recently, the Supreme Court in the case of State of Madhya Pradesh and Anr. V. Shakri Khan, : AIR1996SC2247 has ruled that the Governmenthas the power to prescribe cut-off date and the cut-off date for passingthe test is a proper classification. All those who did not pass the testprior to that date, but appointed earlier to that date are not eligible totwo advance increments on their passing the said test after the cut-offdate.
16. Again the Supreme Court in State of Madhya Pradesh and Anr. v. Badrinarayan Acharya, : (1996)IILLJ934SC , has ruled that fixing the date of the order as cut-off date is not arbitrary.
17. In the light of these judgments by the Apex Court circumstances, in the light of the various reasons mentioned above, the challenge to the Annexure-G is rejected.
18. Re: Question No. 2.--Admitted facts reveal that in terms of the judgment of this Court on an earlier occasion, petitioners were granted four advance increments. The respondents are now trying to recover the same in terms of their order at Annexure-P. Writ petitions came to be filed before this Court and the Writ Petition Nos. 20403 to 20408 of 1990 and W.A. Nos. 1073 to 1082 of 1991 were disposed of by directing the respondents to consider the representation to be filed by the petitioners and pass orders. It is only thereafter, the respondents in terms of Annexure-N and P, have provided two advance increments and the grant of four advance increments have been withdrawn. It is a well-settled principle of law that any mistake committed by the respondents can be retraced. In fact in similar or identical circumstances this Court in W.P. No. 40514 of 1993, has ruled that such mistake can be rectified by subsequent orders. In these circumstances, it cannot be said that the respondents have committed any error whatsoever in ordering recovery of the same. Therefore, Annexure-P and N are also not disturbed on the peculiar facts of this case.
19. Mr. Subba Rao, learned Senior Counsel argued that if the respondents have acted erroneously and if the petitioners are not guilty of any fault on their part, it is not proper to recover any excess amount already paid to them. Reliance is placed on a judgment of the Supreme Court in the case of Shy am Babu Verma, supra. In the case on hand, recovery is ordered in the light of the earlier orders of this Court. The facts in the case of Shyam Babu Verma, supra, are distinguishable. That was a case in which the benefits were given and they were withdrawn on account of the mistake committed by the Board. In the case on hand, this Court had categorically directed the Board to provide benefits to the petitioners in terms of the order of this Court in the case of K.L. Madhusudhan, supra. However, while implementing, a mistake was committed and the same is being rectified after hearing the petitioners and in the given set of facts, any order with regard to 'no recovery' at this stage in my view would be contrary to the Division Bench judgment of this Court. In these circumstances, I am not inclined to order 'no recovery on the peculiar facts of this case.
20. In the result, these petitions stand dismissed. Parties to bear their respective costs.