IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 OP.No. 16475 of 2002(J) ----------------------- PETITIONER: --------------- K.A.FRANKO, HIGH SCHOOL ASSISTANT (RETD.) ST.ALOYSIUS HIGH SCHOOL, ELITHURUTH, THRISSUR. BY ADV. SRI.N.N.SUGUNAPALAN (SR.) RESPONDENTS: --------------- 1. DISTRICT EDUCATION OFFICER, THRISSUR. 2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 3. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER (FINANCE), SRI.N.MANOJ KUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.16475/2002 ORDER ON C.M.P.NO.27875/2002 IN O.P.NO.16475/2002 DISMISSED SD/- K.BALAKRISHNAN NAIR, JUDGE 5.11.2008 SD/- M.C.HARI RANI, JUDGE APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE ABSTRACT OF THE AUDIT REPORT FORWARDED TO PETITIONER BY THE HEADMASTER. EXT.P2: COPY OF THE OBJECTION FILED BY THE PETITIONER. EXT.P3: COPY OF THE LETTER DT.23.3.2001 ISUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE JUDGMENT IN O.P.NO.17607/2001 DT.20.8.2001. EXT.P5: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P6: COPY OF THE ORDER DT.16.5.2002. EXT.P7: COPY OF THE COMMUNICATION DT.25.09.2006 SENT BY THE HEADMISTRESS, TPSHS, TRIKKUR TO THE 1ST RESPONDENT. EXT.P8: COPY OF THE JUDGMENT DT.26.6.2006 IN W.A.NO.1224/2005 OF THIS HON'BLE COURT. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ---------------------------------------- O.P. No.16475 OF 2002 ---------------------------------------- Dated this the 5th day of November, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner retired from St.Aloysius High School, Elthurthu as H.S.A. on 31.5.2001. His regular service in that school commenced on 14.12.1971. Prior to that he had got three spells of provisional service under the Government on appointment through Employment Exchange. Those spells are the following: “1. 5.8.1970 to 28.8.1970 2. 5.10.1970 to 13.4.1971 3. 7.6.1971 to 13.12.1971”. 2. The petitioner was granted 1st higher grade on 1.7.1982 and 2nd higher grade on 1.7.1991. For the grant of 2nd higher grade, the above spells of provisional service were also taken into account. The Accounts Officer attached to the office of the Deputy Director of Education, Trissur raised an objection O.P.No.16475/2002 2 as per Ext.P1 to the counting of provisional service. The said officer directed to revise the grant of higher grade and recover the excess salary, if any drawn. It was also ordered that next increment due on 1.7.1993 need be released only after the grade is revised. The petitioner filed his objection, as per Ext.P2, on 13.9.1994. While so, the Deputy Director issued a communication to the District Education Officer, as per Ext.P3, dated 23.3.2001, pointing out the irregularity in the fixation of pay and also directing to revise the salary taking into account the audit objection. The petitioner challenged that order before this Court. This Court, by Ext.P4 judgment, directed the Government to consider the matter. The petitioner filed Ext.P5 representation before the Government. The Government considered and rejected it by Ext.P6. One of the grounds taken by the Government in Ext.P6 is that the provisional service rendered by him is not a service for which increment can be given. As per the orders of the Government, concerning reckoning of provisional service, the said service should satisfy the requirement of Government Decision No.2 under Rule 33 Part I of Kerala Service Rules. The Government Decision No.2 O.P.No.16475/2002 3 was deleted with effect from 30.9.1994. The said decision reads as follows: “Provisional service on regularisation with or without break in the same category or post will be treated as officiating service ab initio for the limited purpose of granting of increments. Provisional service followed by a regular appointment with or without break in the same category of post will also be treated as officiating service ab initio for the limited purpose of granting of increments.” 3. As stated earlier, one of the objection in Ext.P6 was that the provisional service does not satisfy the requirement of the above quoted Government Decision for the purpose of grant of increment. This writ petition is filed, challenging Exts.P3 and P6 and seeking consequential reliefs. 4. Government have filed a counter affidavit resisting the prayers in the Original Petition. We heard the learned counsel on both sides. The learned Senior Counsel, Sri.N.N.Sugunapalan, submitted that in similar cases provisional service was counted for the purpose of grant of higher grade. Therefore, there is no reason to deny the said benefit. But, it is not in dispute that in those decisions whether the short spells of O.P.No.16475/2002 4 provisional service rendered will qualify for the grant of increment was not considered. 5. The provisional service rendered by the petitioner in Government service was not counted and could not have been counted for the purpose of grant of increment in the aided school, in view of the provisions contained in Rule 61 of Chapter XIV A, Kerala Education Rules. The said Rule reads as follows: “61. Increment: (1) Subject to rule (1A), the Educational Officer shall be competent to sanction the increments when they fall due to the teachers (including Headmasters). The Headmaster will move the Educational Officer through the Manager for sanction of the increments as and when they fall due and the Manager shall forward the increment certificates within a month [with his remarks, if any on the conduct of the teacher].” (emphasis supplied) Increments fall due only when the incumbent completes one year's service. 6. In view of the above position, the service rendered by the petitioner does not satisfy the requirements of Decision No.2 under Rule 33 of Part I K.S.R., which we have already quoted above. Therefore, we find that the provisional service rendered O.P.No.16475/2002 5 by the petitioner could not have been counted for the grant of higher grade also. 7. The learned counsel appearing for the petitioner submitted that the recovery of the excess amount paid may be set aside. The counsel submits, even after Ext.P1 audit report and Ex.P2 objection, the increments were being released to him. He has received them in good faith. He has already retired from service in 2001. So, the proposed recovery of the excess amount at this distance of the time is not proper. But, in this case, we find that soon after the erroneous fixation, the audit officer found out the same and raised his objection. The petitioner filed his reply and the matter was pending. When the matter was pending, of course, further increments were released to him. But, any such action from the part of the respondents should be taken as subject to the objection raised against the fixation of pay of the petitioner. In fact, because of the delay and laches from the part of the officials, the actual recovery was postponed. The petitioner stood to gain by that. The same cannot be permitted to be urged as a ground against the O.P.No.16475/2002 6 recovery now sought to be made. The public money erroneously received by the petitioner should be refunded by him. This view is taken by us is supported by the Division Bench of this Court in Santhakumari v. State of Kerala [2005(4) KLT 649]. It is true, there are certain decisions where in this Court interdicted recovery after long years of payment of the same. But, we are of the view that the facts of those cases are different from the facts of this case. In this case, soon after the payment, objection was raised. Such a case cannot be compared with the case where objection was taken after several years and the incumbent was allowed to draw the payment in good faith without any demur from the part of the competent authority. So, the prayer of the learned senior counsel for the petitioner that the recovery may be interdicted cannot be granted. In the result, the writ petitioner is not entitled to get any relief. Accordingly, the original petition is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps