IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 6952 of 2005(C) ------------------------- PETITIONER(S): ----------------------- NITHYANANDA BHAT H., S/O.LATE GOAPALAKRISHNA BHAT, R/AT KEEKAN HOUSE, POST PANAYAL, VIA-BEKAL, KASARAGOD DISTRICT, (HEAD CLERK, RETIRED, CHATTANCHAL HIGHER SECONDARY SCHOOL, CHANTTANCHAL) BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): ------------------------- 1. THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. 2. PRINCIPAL, CHATTANCHAL HIGHER SECONDARY SCHOOL, THEKKIL POST, CHATTANCHAL, KASARAGOD DISTRICT. 3. MANAGER, CHATTANCHAL HIGHER SECONDARY SCHOOL, THEKKIL POST, CHATTANCHAL, KASARAGOD DISTRICT. 4. THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD, P.O.VIDYANAGAR. 5. THE DISTRICT EDUCATION OFFICER, KASARAGOD. 6. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-1. R1, 4 TO 6 BY MR.DILEEP MOHAN, GOVERNMENT PLEADER MR.K.MOHANA KANNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.04.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.6952 OF 2005 A P P E N D I X PETITIONER'S EXHIBIT :- 1. EXT.P1 :- Copy of the order dated 1.9.2003 issued by the 4th respondent 2. EXT.P2 :- Copy of the audit objection dated 9.5.2002 issued by the 4th respondent 3. EXT.P3 :- Copy of the representation dated 5.11.2002 before the 4th respondent by the petitioner 4. EXT.P4 :- Copy of the order dated 12.6.2004 passed by the Legal Service Authority, Kasaragod to the petitioner 5. EXT.P5 :- Copy of the request dated 31.10.2003 by the petitioner to the 4th respondent 6. EXT.P6 :- Copy of the judgment in WP. 24920/04 dated 20.8.2004 by this Hon'ble court 7. EXT.P7 :- Copy of the representation dated 9.11.2004 by the petitioner before the 1st respondent 8. EXT.P8 :- Copy of the Certificate dated 13.6.1989 issued by the Public Service Commission to the petitioner 9. EXT.P8 (a) :- Copy of the Certificate 16.11.88 issued by the Public Service Commission to the petitioner 10. EXT.P9 :- Copy of the objection dated 5.1.1999 issued by the 5th respondent to the petitioner 11. EXT.P10 :- Copy of the objection dated 16.10.2004 issued by the 5th respondent to the petitioner 12. EXT.P11 :- Copy of the G.O.No.1032/87 dated 3.12.1987 issued by the Government 13. EXT.P12 :- Copy of the intimation dated 15.12.2004 issued by the 1st respondent to the petitioner 14. EXT.P13 :- Copy of the intimation dated 16.12.2004 issued by the 1st respondent to the petitioner WP(C) NO.6952 OF 2005 RESPONDENT'S EXHIBIT :- NIL ANNEXURE - 1 :- Copy of the liability certificate issued by the 2nd respondent //True Copy// P.A to Judge S.SIRI JAGAN, J. ---------------------- WP(C) No.6952 of 2005 ------------------------------------------- Dated this the 6th day of April 2010 J U D G M E N T The petitioner is a retired aided school Clerk. He is aggrieved by Exts.P2, P9 and P10 orders by which, based on certain audit objections, regarding fixation of pay the retirement benefits of the petitioner has been re-fixed to his detriment. Two grounds are mentioned in Ext.P2 for re- fixation of the petitioner's pay. One is that, the petitioner had not passed the departmental test and therefore he is not entitled to the time bound higher grade, which had been granted to the petitioner. Therefore, the grant of higher grade has to be cancelled. The second ground is that, the petitioner became entitled to 10 years higher grade on 20.7.1988, since he entered into service on 20.7.1978. But he opted for the higher grade from 1.7.1989 and the higher grade fixation was given wrongly with effect from 01.07.1989. According to the petitioner, both objections are unsustainable. The petitioner would contend that the 2 WP(C) No.6952 of 2005 Government had issued a circular exempting aided school clerks from passing departmental test, which was cancelled only subsequent to grant of higher grade to the petitioner. The petitioner therefore would submit that cancellation cannot effect the case of the petitioner retrospectively. Regarding the option for higher grade, he would submit that such option was being permitted by the Government, Government employees and Teachers for higher grade also. 2. A counter affidavit has been filed seeking to controvert the contentions of the petitioner. 3. I have considered the rival contentions in detail. 4. As far as the requirement of passing departmental test is concerned, very recently the Government has issued an order, exempting aided school clerks, who were appointed prior to 29.7.2006 from acquiring test qualification for service benefits, which applies the petitioner also. Regarding the second contention, it is not a secret that the Government themselves were permitting, even though 3 WP(C) No.6952 of 2005 wrongly, option for higher grade also. Therefore at this point of time, I do not think that the petitioner should be visited with any adverse orders on account of fixation of pay based on option for higher grade. In the above circumstances Exts.P2, P9 and P10 orders in so far as they relate to the petitioner are quashed. The respondents are directed to re- compute the petitioner's retirement benefits without reference to the impugned orders and disburse arrears due, if any, to the petitioner. The said exercise shall be completed as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. S.SIRI JAGAN JUDGE DMB