IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WP(C).No. 326 of 2007(Y) ------------------------ PETITIONER: --------------- V.A.MARIAMMA, AGED 55 YEARS, W/O.K.GEORGE JACOB, FORMERLY HEADMISTRESS, GOVERNMENT HIGH SCHOOL, AYYANKAVU, KOTHAMANGALAM-686 691, (RESIDING AT KUNNATHU HOUSE, P.O.PONJASSERY, PERUMBAVOOR-683 547). BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD, ERNAKULAM. R1 TO 3 GOVERNMENT PLEADER SMT.M.T.SHEEBA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 326 of 2007(Y) -------------------------------- APPENDIX ------------- PETITIONER'S EXHIBITS ----------------------------- EXT.P1. COPY OF THE G.O. (RT) NO.3799/99/GE OF THE GOVERNMENT. EXT.P2. COPY OF THE ORDER NO.11/99-2000 OF THE HEADMISTRESS OF GOVT. GIRLS H.S. SCHOOL, PERUMBAVOOR. EXT.P3. COPY OF THE OBJECTION OF THE 2ND RESPONDENT AUDIT ENQUIRY NO.6 (LR. NO. PAY FIX. (HQ/8910/250) EXT.P4. COPY OF THE GOVT. LETTER NO.17893/R1/99/G.EDN. OF THE GOVERNMENT . EXT.P5. COPY OF THE ORDER IN C.M.P. NO.20443/2000 IN O.P. NO.12439/2000-E OF THIS HON'BLE COURT. EXT.P6. COPY OF THE ORDER OF THIS HON'BLE COURT IN W.P. (C) NO.3407/2005-E. EXT.P7. COPY OF THE PROVISIONAL PAY SLIP OF THE PETITIONER. EXT.P8. COPY OF THE REQUEST OF THE PETITIONER BEFORE THE GOVERNMENT. EXT.P9. COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.9188/2006-R. EXT.P10. COPY OF THE G.O. (RT) NO.4827/2006/G. EDN. OF THE GOVERNMENT. EXT.P11. COPY OF THE JUDGMENT IN OP NO.7823/1999-P OF THIS HON'BLE COURT. EXT.P12. COPY OF THE GRATUITY SANCTION ORDER OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBIT : --------------------------- 1. EXT.R1(A). GO (P) 1480/99/FIN. DATED 17.6.99 2. EXT.R1(B). GO (P) 2196/99/FIN DATED 9.11.99 / TRUE COPY / P.A. TO JUDGE VK T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.326/2007-L ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23rd day of November, 2011 J U D G M E N T This writ petition is filed aggrieved by Ext.P10 order passed by the Government whereby the Government was of the view that the aided school service undergone by the petitioner cannot be counted for pay fixation after entry into Government service on a regular basis. She retired from service on 31/03/2006. 2. The petitioner was granted the benefit of counting the aided school service as per Government Order dated 09/08/1999. The said benefit was granted in the light of G.O.(P).No.1480/99/Fin., dated 17/06/1999. Pay fixation was made as per Ext.P2 which was objected as per Ext.P3 by the Accountant General. The objection raised was that the aided school service cannot be reckoned for fixation of pay as the Government Order, namely, G.O.(P).No.1480/99/Fin., dated 17/06/1999 was kept in abeyance vide a later Government Order dated 09/11/1999. This was taken up W.P.(C). No.326/2007 -:2:- by the petitioner before various authorities and before the Government. 3. The reason stated in Ext.P10 is that G.O.(P). No.1480/99/Fin., dated 17/06/1999 is kept in abeyance vide G.O.(P).No.2196/99/Fin., dated 09/11/1999. Along with a memo, the learned Government Pleader has produced a copy of Government Order dated 09/11/1999 as Ext.R1(b). It is also mentioned in Ext.P10 that as per G.O.(P).No.990/2000/Fin., dated 27/06/2000, the Government Order dated 17/06/1999 [Ext.R1(a)] has been cancelled with effect from 17/06/1999 with a further direction that the amount drawn on the strength of the Government Order shall be recovered. The order Ext.P1 is dated 09/08/1999. 4. In fact, learned counsel for the petitioner submitted that the reliance placed in Ext.P1 of G.O. (P).No.1480/99/Fin., dated 17/06/1999 cannot be correct. Ext.P1 order was passed in the light of the Judgment of this Court in O.P.No.7825/1999, a copy of which is produced as Ext.P11. In Ext.P11 Judgment, the direction is to the Government to consider Ext.P3 and W.P.(C). No.326/2007 -:3:- other similar representations filed by the petitioners in the light of Exts.P1 and P2 produced in the said O.P. 5. Of course, Exts.P1 and P2 mentioned in O.P.No.7825/1999 are copies of G.O.(Rt). No.3627/85/Gl.Edn., dated 01/10/1998 and G.O.(Rt). No.696/84/Gl.Edn., dated 03/03/1984. But, evidently, a reading of Ext.P2 produced herein will show that the benefit was granted to the petitioner only in the light of G.O.(P).No.1480/99/Fin., dated 17/06/1999. Already, the said Government Order has been cancelled by a later Government Order. 6. In the counter affidavit filed by the first respondent also it is explained that G.O.(P). No.1480/99/Fin., dated 17/06/1999 was kept in abeyance by G.O.(P).No.2196/99/Fin., dated 09/11/1999 and subsequently cancelled from the date of its issue by G.O.(P).No.990/2000/Fin., dated 27/06/2000. Para.6 of the counter affidavit reads as follows:- “6. In the Judgment of this Court in various original petitions filed on the same issue the Court has ordered to scale down the W.P.(C). No.326/2007 -:4:- pay considering the Government school service only, since there is no provision in rules to reckon aided school service for fixation of pay on getting appointment in Government school. The Court has also directed not to recover the excess pay drawn on the strength of G.O.(P).No.1480/99/Fin., dated 17/06/1999. This was upheld in the Writ Appeal filed against the Judgment of the learned Single Judge. Hence in this case also, the pay of the petitioner has to be scaled down. As such the objection raised by the Accountant General is in order considering only the Government service.” 7. Evidently, it can be seen that this Court in similar cases has stopped the recovery of excess paid which has been upheld in the writ appeal also. 8. The learned counsel for the petitioner submitted that the aided school service reckoned by the Government at the relevant time was under different Government Orders and, therefore, the petitioner is entitled for the said benefit. 9. As rightly averred in the counter affidavit, there is no provision in the Kerala Service Rules to W.P.(C). No.326/2007 -:5:- protect the pay of an aided school teacher when he/she joins Government service. There is no provision to reckon the aided school service also in the service rules. Therefore, I find no reason to uphold the plea raised by the petitioner. 10. Exts.P3, P4 and P10 are therefore upheld as valid but the excess pay drawn by the petitioner based on Ext.P1 order in the post of High School Assistant will not be recovered. The petitioner will not be entitled for fixation of pay in the post of Headmistress based on Ext.P2. The refixed pay as eligible for the post of Headmistress will be reckoned for the purpose of sanction of pensionery benefits. It appears that based on the interim order dated 04/08/2008, the admitted amount of Death-cum-Retirement Gratuity and other retirement benefits have been disbursed. Therefore, since the recovery itself has to be stopped as above, it is made clear that the difference in scale of pay in the post of H.S.A which was fixed as per Ext.P2 will not be recovered from the petitioner. If there is no other liability as far as W.P.(C). No.326/2007 -:6:- the petitioner is concerned, the Non Liability Certificate/Liability Certificate will be revised and will be issued to the petitioner for enabling the petitioner to draw the eligible amount. The petitioner will also be free to challenge any other liability, if any communicated, before appropriate forum. The writ petition is dismissed subject to the above observations. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms