IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 WP(C).No. 37067 of 2003(K) -------------------------- PETITIONER: ------------------- K.V.KUNHIRAMAN, S/O.A.V.KUNHAMBU, SAKETHAM, KOYANKKARA, TRIKARIPUR P.O., KASARGOD DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: --------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUVATION, KASARGOD. 3. THE ASSISTANT EDUCATIONAL OFFICER, CHERUVATHUR, KASARGOD DIST. 4. THE ACCOUNTANT GENERAL (A& E), OFFICE OF THE ACCOUNTANT GENERAL (A & E), THIRUVANANHAPURAM. BY GOVERNMENT PLEADER, SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37067 of 2003(K) ----------------------------------------- APPENDIX ---------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE G.O. 380/94/FIN. DATED 9.6.1994. EXT.P2. COPY OF THE OBJECTION WITH RESPECT TO THE PETITIONER FURNISHED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P3. COPY OF THE ORDER DATED 19.3.2003 ISSUED BY 3RD RESPONDENT. EXT.P4. COPY OF THE LETTER DATED 6.8.2003 ISSUED BY 3RD RESPONDENT. EXT.P5. COPY OF THE G.O. (P) 475/96 (97)/FIN. DATED 6.7.1996.MN RESPONDENT'S EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.37067/2003-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of January, 2011 J U D G M E N T The orders resulting in refixation of the pay of the petitioner are under challenge herein. The petitioner retired as Headmaster of ALPS, Ayitty Islamic, Trikaripur on 31/03/2003. He entered service on 14/01/1971 and completed 25 years on 14/02/1996. He was promoted as a Headmaster in the year 1989, namely, on 28/11/1989. After the pay revision for the year 1992 was implemented, the petitioner submitted a re- option to come to the revised scale. According to the petitioner, the same was submitted in terms of Ext.P1 Government Order which is issued as a clarification to the pay revision order. Ext.P2 is the communication dated 23/08/2002 whereby the fixation was objected and the admissible pay was sanctioned. This was implemented by Ext.P3 order. By Ext.P4, he was directed to refund the alleged excess pay drawn. 2. Respondents have filed a counter affidavit in the matter. W.P.(C). No.37067/2003 -:2:- 3. The learned counsel for the petitioner submitted that going by paragraphs 2(ii)(c) and 2(ii) (e) of Ext.P1, the re-option submitted by the petitioner is justified. It is pointed out that respondents have only adverted to sub-clause (c) and they have not considered the effect of sub-clause (e). For easy reference, sub-clauses (c) and (e) of paragraph 2(ii) of Ext.P1 are extracted below:- “2(ii)(c) Teachers (P.D.) who were promoted as Headmasters prior to 1/3/1992 and who would have been eligible for the selection grade of P.D Teacher but for their promotion as Headmasters will be permitted to have their pay fixed notionally in the Selection Grade first on 1/3/1992 or on the date on which they become eligible for the selection grade after 1/3/1992 on the basis of the pay in the revised scale which they would have drawn had they continued as Senior Grade Primary Teachers and, then, based on the pay so fixed in the Selection Grade, their pay in the W.P.(C). No.37067/2003 -:3:- revised scale of pay of Headmaster will be fixed under Rule 28A, Part I, K.S.Rs. 2(ii)(e) In the case of Headmasters both Primary and High Schools who do not qualify themselves for the selection grade on 1/3/1992, fixation of pay as above will be admissible only on the date on which they become eligible for the Selection Grade or on the date of option for the selection grade.” 4. What is noted in Ext.P2 audit objection is that while submitting the re-option, the petitioner opted the pre-revised scale but his pay has to be fixed in the revised senior grade scale of pay and then in the selection grade and in the Headmaster scale. Therefore, the question is whether the option submitted by the petitioner was correct or not. Paragraph 2(ii) (c) of Ext.P1 concerns method of fixing the scale. What is mentioned in paragraph 2(ii)(c)is that as far as P.D. Teachers who have obtained promotion as Headmasters prior to 1/3/1992 and who were eligible for the Selection Grade of P.D Teacher but for their W.P.(C). No.37067/2003 -:4:- promotion as Headmasters will be permitted to have their pay fixed notionally in the Selection Grade first on 1/3/1992 or on the date on which they become eligible for the selection grade after 1/3/1992 on the basis of the pay in the “revised scale”. The said scale, evidently, would have been drawn by them had they continued as Senior Grade Primary Teachers. Therefore, based on the pay so fixed in the Selection Grade, their pay in the revised scale of pay of Headmaster will be fixed under Rule 28A, Part I, K.S.Rs. Even though the learned counsel for the petitioner, Shri Kaleeswaram Raj vehemently contended that sub-clause (e) allows the petitioner to opt the pre-revised scale of P.D Teacher, the said argument cannot be accepted in the light of the fact that the method of fixation is covered by sub-clause (c) and, sub-clause (e) only concerns the date of effect of the pay scale thus notionally fixed. This is clear from the wording in sub-clause (e) wherein it is mentioned that “fixation of pay as above will be admissible only on the date on which they become eligible for the W.P.(C). No.37067/2003 -:5:- Selection Grade or on the date of option for the selection grade”. Herein, the petitioner completed 25 years on 14/02/1996 which was the opted date. It was not a case where re-option date was objected but the fixation of the scale was objected. Going by sub- clause (c), the notional fixation will be in the revised scale if the petitioner had continued as Senior Grade Primary Teacher. Initially, it is to be fixed in the Senior Grade and then in the Selection Grade and accordingly their pay in the revised scale of pay of Headmaster will be fixed under Rule 28A, Part I, K.S.Rs. Going by the pleadings of the petitioner also, he opted the pre-revised scale which was found to be irregular in Ext.P2. In the light of the fact that the time bound Higher Grade are being sanctioned in terms of the various Government Orders and Ext.P1 alone governs the fixation of scale of pay that is not covered by any other contrary orders, the petitioner could have submitted option only in terms of Ext.P1. Therefore, the re-opted scale of the petitioner was rightly found irregular in Ext.P2. W.P.(C). No.37067/2003 -:6:- 5. The petitioner has already retired from service. The learned counsel for the petitioner submitted that at any rate the refund ordered cannot be justified as refixation was done after a number of years. It is further pointed out that when the petitioner submitted re-option, he had refunded the excess pay calculated based on the said scheme but that is not adjusted. 6. The learned Government Pleader submitted that the fixation having been found irregular, the petitioner will have to refund the excess of pay drawn. 7. This Court in series of cases have found that the recovery of excess pay after a long period cannot be justified. In Narayanan v. State of Kerala [2008 (3) KLT 188] also, the said principle was reiterated. Herein, evidently, the re-option was submitted in respect of the pay revision of the year 1992. The option was submitted in the year 1996. But Ext.P2 objection was raised only in the year 2002. In the meanwhile, the petitioner enjoyed the benefit of fixation and his salary was disbursed on that basis. W.P.(C). No.37067/2003 -:7:- It is not a case where any fraud or misrepresentation had been done by the petitioner also. The competent authority at that point of time had accepted the re- option and re-opted scale was approved also. 8. In the view I have taken, no interference is called for in the matter. Since the petitioner had retired from service and as the fixation made by Ext.P2 will have to be accepted as valid, he will be entitled for the retirement benefits only in terms of the said fixation. The same is made clear. 9. It is pointed out in the affidavit in I.A.No.812/2011, that in spite of the interim orders of this Court recovery of Rs.51,315/- was effected from the D.C.R.G sanctioned. He had remitted an amount of Rs.15,318/- on 02/05/1996 as per Treasury Chalan No.36/996 (Sub Treasury, Neeleswaram) when he exercised the re-option, which was accepted. It is prayed that these amounts may be directed to be released with interest. This is opposed by the learned Government Pleader. W.P.(C). No.37067/2003 -:8:- 10. Since it is found that the refixation is valid, the recovery of Rs.51,315/- cannot be faulted. But with regard to Rs.15,318/- said to have been remitted on 02/05/1996, the competent authority among the respondents will verify the same, and if the amount has been accepted the petitioner is entitled for a refund of the same as the re-option has not been accepted. The same will be disbursed to the petitioner along with 6% (six per cent) interest from 02/05/1996 within 3 months after due verification. The writ petition is dismissed subject to the above. No costs. (T.R. Ramachandran Nair, Judge.) ms