IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 WP(C).No. 32737 of 2009(J) --------------------------------------- PETITIONER(S): ------------------------ ANTONY JOSEPH, S/O. OF VARGHESE ANTONY, 53,NALLOOR HOUSE, KARIMBA P.O., MANNARKAD PRESENTLY WORKING AS P.D. TEACHER, GUP SCHOOL,. ALANALLUR. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURM 2. THE ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. 3. THE HEADMASTER, G.U.P. SCHOOL, ALANALLUR. R1 & R2 BY GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.32737/2009 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE STATEMENT OF FIXATION DATED 31/10/2005 ISSUED BY THE ASST.EDUCATIONAL OFFICER, MANNARKAD. P2 COPY OF THE ORDER ISSUED TO THE PETITIONER GIVING HIM THE SELECTION GRADE PAY P3 COPY OF THE CIRCULAR NO.GO(P)764/81 (384)/74 DATED 16/11/1981 BY THE FINANCE DEPARTMENT. P4 COPY OF THE SAID COMMUNICATION DATED 3/12/2008. P5 COPY OF THE REPLY GIVEN BY THE PETITIONER. P6 COPY OF THE RELEVANT PORTION OF THE COMMUNICATION RECEIVED IN THE SCHOOL. P7 COPY OF THE RELEVANT PORTION FROM SERVICE BOOK REFIXING THE PAY. P8 COPY OF THE ENCLOSING LETTER DATED 1/8/2011 OF THE HEADMASTER ADDRESSED TO THIS HON'BLE COURT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.32737/2009-J ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of August, 2011 J U D G M E N T The petitioner seeks for a declaration that he is entitled to count the military service rendered by him totalling 15 years and 4 days for the purpose of granting him time bound higher grade pay as per G.O. (P).No.764/81(384)/Fin, dated 16/11/1981 and Circular No.54/92(138)/Fin, dated 06/11/1992. 2. According to the petitioner, the said service is liable to be reckoned for all the higher grades, namely, second grade on completion of 18 years of service and then selection grade on completion of 23 years of service. 3. In the counter affidavit filed by the third respondent, it is pointed out that the petitioner is entitled for the grant of 13 years of Higher Grade in terms of the existing Rules. It is pointed out that the decision of this Court in State of Kerala v. Sreedharan [2004 (1) KLT 398] which allowed reckoning of the previous military service for granting first Higher W.P.(C). No.32737/2009 -:2:- Grade was reversed by a Full Bench of this Court in State of Kerala v. Philomina [2008 (1) KLT 666 (F.B.)] wherein it was held that it is only a concession granted by the Government and the same can, therefore, be granted in accordance with the Government Orders only. It is further pointed out that the Full Bench, ultimately, held that only one higher grade can be granted to the employee concerned. 4. During the pendency of the writ petition, the petitioner was issued with Ext.P6 communication and, thereafter, the pay has been refixed also as evident from Ext.P8 communication. Going by the same, his pay has been refixed to Rs.11,070/- from Rs.11,910/- as on 01/04/2010. 5. The learned counsel for the petitioner submitted that the petitioner will be retiring from service on 31/03/2012. The amount which has been paid in excess to the petitioner has not been quantified so far. It is therefore, pointed out that any recovery may be effected only from the Death-cum-Retirement Gratuity payable to him. W.P.(C). No.32737/2009 -:3:- 6. In that view of the matter, if the recovery of any excess amount is thought of, then the excess amount will be quantified and informed to the petitioner and the same will be recovered from the Death-cum- Retirement Gratuity payable to the petitioner. The petitioner will file an undertaking to that effect and, if an undertaking is filed as above, the withheld amount towards D.A., increment arrears will be disbursed to the petitioner. The writ petition is disposed of as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms