IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 3265 of 2005(L) ------------------------------- PETITIONER: -------------- GRACEMMA JOSEPH (HSA (MATHS), ST. ALOYSIUS HSS, EDATHUA) W/O.THE LATE V.E. CHACKO, KOZHUPPAKULAM, EDATHUA - 689 573, ALAPPUZHA DISTRICT. BY MR.THOMAS ANTONY, ADVOCATE. RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (AUDIT) OF KERALA, O/O.THE ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATION OFFICER, KUTTANAD, ALAPPUZHA DISTRICT. BY MR. K. RAMESH, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3265/2005 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF PROCEEDINGS OF R3 DTD.9.12.03 BEARING No.K.DIS./G/2795/2003. EXT. P2 : COPY OF ORDER No.65048/J2/2000/G.EDN DTD.17.1.01 OF R1. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.3265 OF 2005 --------------------------------------- Dated this the 21st day of August, 2009. J U D G M E N T Aggrieved by the re-fixation of pay pursuant to audit objection, the petitioner has filed this writ petition. 2. The petitioner was working as H.S.A (Maths) at the time of filing of the writ petition. She retired from service on 31.03.2005. The petitioner was having different spells of appointment as shown below: a) H.S.A 24.10.1977 to 13.01.1978 2 months and 21 days b) H.S.A 01.02.1978 to 31.03.1978 2 months c) H.S.A 27.07.1978 to 23.10.1978 2 months and 28 days d) H.S.A 25.10.1978 to 09.03.1979 4 months and 16 days e) H.S.A 06.06.1979 onwards the petitioner has continuous service. 3. The petitioner was continuously appointed from 06.06.1979. The period of probation of the petitioner was declared taking into account her provisional broken period of service under Rule 6(a) of Chapter XIV-A of Kerala Education Rules by the Manager. The first increment was granted to the W.P.(C) No.3265/2005 2 petitioner with effect from 29.08.1979 and the subsequent increments from 01.08.1980 onwards. 4. Exhibit P1 is the proceedings of the District Educational Officer whereby in terms of the audit objection, the pay was refixed and the petitioner was ordered to refund an amount of Rs.27,928/- as excess pay drawn from 28.08.1979 to 31.07.1998. In Exhibit P1, the reason stated to revise the pay is that “taking in to account the broken spells of services from 24-10-77 she was granted increment raising the pay to Rs.433/- in the scale of 420-720 w.e.from 28-8-1979. Subsequent pay enhancements were allowed based on this pay. But, in the Report of Checking of pay fixations, the Accountant General has objected the grant of the above increment. Her service prior to 27-7-78 was in the pay scale of 285-540. From 27-7-78, she was in the Pay scale of 420-720. Services in different pay scales cannot be combined for purpose of grant of increments as per existing rules”. 5. Learned counsel for the petitioner submitted that the above objection cannot be sustained in the light of the decision of W.P.(C) No.3265/2005 3 a Division Bench in Hussain vs. Kerala Water Authority (1996 (2) KLT 555) and also in the light of a decision reported as Jose Jacob vs. State of Kerala (1998 (2) KLT 873). It is submitted that the Division Bench was of the view that by the revision of pay scales, it cannot be said that the identity of the scale of pay was lost. Paragraph 3 of the judgment of the Division Bench is extracted below: “As regards the petitioners, there was no change of pay scales. For example, in the case of Third Grade Overseers, prior to 1.7.1983 the scale of pay was Rs.330-515 and it was revised to Rs.640- 1000 with effect from 1.7.83. Later it was revised to Rs.825-1290 with effect from 1.7.1988 and thereafter with effect from 1.3.92 the scale of pay was revised to Rs.970-1575. There was no change in the pattern of the scale of pay. By the revision of pay scales it cannot be said that the identity of the scale of pay was lost. Only the effect of pay revision was given and that is quite normal under any service. All the Overseers were on identical pay scales and so long as there was no change in their pay scales they are entitled to the benefit of the Government. Decision No.2 and their entire provisional services should be treated as officiating W.P.(C) No.3265/2005 4 service and they are entitled to treat this period for the purpose of increments”. 6. In Jose Jacob vs. State of Kerala (1998 (2) KLT 873) an identical question was examined. In the said case also, the petitioners were having provisional service. The question was examined in the light of the contention that the provisional service cannot be reckoned for the purpose of granting benefits. It was held thus in paragraphs 7 and 9: “...........It is not disputed by the respondents that the respective petitioners got appointment in the same category of post which they did hold as provisional appointees. In other words, they were appointed later, on regular basis in the same category of posts to which the qualification and method of appointment were one and the same. Because of such change in the scale of pay due to the pay revision, the incumbents cannot be denied of the benefits as are applicable in terms of the statutory rules. Merely because there was a change in the scales of pay because of pay revisions, the petitioners who got regular appointments in the same category in which they held provisional appointment cannot be denied of increments reckoning the provisional service as at the material W.P.(C) No.3265/2005 5 time Government Decision No.2 was applicable in their case”. 7. The situation herein is identical. The scale of pay of the petitioner prior to 1978 pay revision was Rs.285-540 and from 27.07.1978, she was in the scale of pay of Rs.420-720. The view taken is that the services in different pay scales cannot be combined for the purpose of grant of increments. The same goes against the dictum laid down in the above two decisions. 8. In the counter affidavit filed by the 3rd respondent, the stand taken is that the audit objection raised is sustainable and that the increments reckoning her provisional service prior to 27.11.1979 is irregular. As noticed already, the said stand cannot be accepted in the light of the dictum laid down in the above two decisions. Therefore, this writ petition is allowed. Exhibit P1 is quashed. There will be a direction to the 3rd respondent to refix the pay of the petitioner and the same shall be done within a period of four months from the date of receipt of a copy of this judgment. The excess pay which was refunded namely, W.P.(C) No.3265/2005 6 Rs.27,928/- will also be refunded to the petitioner. Since the petitioner has already retired from service, there will be a direction to refix the pay in terms of the pay revision orders and the pensionary benefits will be accordingly refixed, and the eligible benefits will be granted within a further period of three months. T.R. RAMACHANDRAN NAIR JUDGE smp