IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 WP(C).No. 27342 of 2008(E) -------------------------- PETITIONER(S): --------------- SREEJITH K.G., S/O.LATE GOVINDAN, AGED 56 YEARS, KUMBALAPARAMBIL HOUSE, P.O.METHALA, THRISSUR - 680 669. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DPI, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEE, THRISSUR. 4. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. 5. THE SUB TREASURY OFFICER, KODUNGALLUR. 6. THE ACCOUNTANT GENERAL (A & E), KERALA, THRISSUR BRANCH, KARUNAKARAN NAMBIAR MARG, THRISSUR. BY SHRI P. NANDAKUMAR GOVERNMENT PLEADER FOR R1 TO 6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/3/2009, THE COURT ON 7.4.2009 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 3.6.2004 PROMOTING THE PETITOINER AS HEAD CLERK. EXT.P2-TRUE COPY OF THE ORDER OF THE 2ND REPSONDENT DATED 25.6.2004 EXT.P3-TRUE COPY OF ORDER OF R2 DATED 8.7.2004 EXT.P4-TRUE COPY OF statement OF TEMPORARY RELINQUISHMENT DATED 12.7.2004 EXT.P5-TRUE COPY OF THE REMIDNER DATED 10.7.2005 SUBMITTED BY THE PETITIONER BEFORE R2 EXT.P6-TRUE COPY OF THE REMINDER SUBMITTED BY THE PETITIONER BEORE R2 EXT.P7-TRUE COPY OF ORDER DATED 30.6.2006 OF R2 EXT.P8-TRUE COPY OF ORDER DATED 23.5.07 OF R4 EXT.P9- TRUE COPY OF THE FORWARDING LETTER DATED 6.8.2008 OF R3 EXT.P10- TRUE COPY OF THE REQUEST DATED 12.9.2006 EXT.P11-TRUE COPY OF REQUEST DATED 22.11.2007 EXT.P12-TRUE COPY OF REPRESENTATION DATED 18.8.2008 EXT.P13-TRUE COPY OF THE RELEVANT PORTIONS OF GO DATED 8.12.1993 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 27342 of 2008-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2009. JUDGMENT The petitioner herein retired from service as Junior Superintendent on 31.3.2007. The main challenge made in this writ petition is against the fixation of liability of an amount of Rs. 99, 018/- as excess pay drawn from 22.8.1996 to 31.7.2006 with a further direction to recover the same from the gratuity payable to the petitioner. 2. The service particulars of the petitioner show the following: He entered service as Lower Division Clerk in the General Education Department on 16.3.1981. He was later promoted as Upper Division Clerk from 28.2.1986 and on completion of 10 years as Upper Division Clerk, Higher Grade was given from 28.2.1996 and selection grade of L.D.C. on completion of total 23 years of service, with effect from 1.4.2004. 3. The petitioner was given a regular promotion as Head Clerk on 3.6.2004 and again as Junior Superintendent before joining duty as Head Clerk as per order dated 25.6.2004. These orders have been produced as Exts.P1 and P2 herein. At the relevant point of time, the petitioner was laid up with kidney failure and he could not join the promoted post. He had wpc 27342/2008 2 to undergo an operation for removal of one kidney during this period. As per Ext.P3 order dated 8.7.2004, the promotion granted him to the post of Junior Superintendent was cancelled. The petitioner submitted a temporary relinquishment statement on 12.7.2004 relinquishing his right for promotion as Head Clerk for a period of one year from the due date of promotion , i.e. from 3.6.2004 to 3.6.2005 as per Ext.P4. By Exts.P5 and P6 after recovery from the illness, he sought to cancel the temporary relinquishment which was accepted by the second respondent and by an order dated 30.6.2006 he was given subsequent promotion as Junior Superintendent. Accordingly, he joined duty on 31.7.2006. Ext.P8 is the order dated 23.5.2007 sanctioning D.C.R.G. Ext.P9 is the covering letter accompanying the liability certificate. Exts.P10 and P11 are the objections raised by the Headmistress of the school and by the third respondent to drop the audit objections. The petitioner has also filed Ext.P12 representation before the Government in the matter. Since no orders were passed on Ext.P12, the petitioner has approached this court seeking various reliefs. 4. The third respondent Deputy Director of Education has filed a counter affidavit. It is pointed out that the audit objection is based on para III of G.O.(P)No.930/98(2)/Fin. Dated 8.12.1993 to the effect that wpc 27342/2008 3 those who relinquished or relinquish regular promotion will not be given time bound higher grade. Therefore, sanction of higher grade on completion of 10 years of service as U.D. Clerk with effect from 28.2.1996 and Selection Grade on completion of total service of 23 years with effect from 1.4.2004 has been reviewed and the excess pay drawn has to be refunded. 5. Both sides have relied upon various Government Orders in the matter. Learned counsel for the petitioner submitted that going by para 12 of Ext.P13, the relevant Government Order relied upon in the counter affidavit , clause (xii) shows that those who relinquished or relinquish regular promotions will not be given time bound higher grades. But in this case, at the time when the time bound higher grades were granted, the petitioner had not relinquished any promotion. Temporary relinquishment was subsequent to the same and in view of the fact that he was undergoing treatment for kidney failure, after the period of such relinquishment, he was later granted promotion also. Therefore, it is submitted that in such cases, the higher grades cannot be denied. The learned Govt. Pleader relied upon para 10 of G.O.(P) No.480/89/fin. Dated 1.11.1989 to contend that time bound higher grades will not be granted to those who relinquish regular promotions. wpc 27342/2008 4 It is submitted that before giving time bound promotion an undertaking will be obtained from the officer concerned to the effect that he/she will not refuse the regular promotion to that grade as and when it become due. Therefore, it is contended that in the light of the relinquishment made by the petitioner, the audit objection cannot be said to be wrong. Presently, going by the averments in the writ petition and in the counter affidavit, even though liability certificate has been issued, none of the respondents have bestowed the attention to the objection raised by the petitioner in fixing the liability. In Ext.P12 representation the petitioner has invited the attention of the Government in the matter. It is also submitted that the Government is having ample power under Rule 39 of the General Rules of KS & SSR to pass appropriate orders and direct the Audit department to drop the objections against the disbursement of DCRG, at the earliest. 6. In that view of the matter, I am not going into the merits of the contentions now. The liability has been fixed by the audit wing. Statutory authorities are yet to take a decision in the matter, as the fixation of liability is objected by the petitioner. Going by Ext.P11, the Deputy Director of Education also requested the Accountant General to drop the audit objection. There is nothing to show that wpc 27342/2008 5 these objections have been considered by the Accountant General also. Therefore, the writ petition is disposed of directing the first respondent to consider and pass orders on Ext.P12 after hearing the petitioner, within a period of four months from the date of receipt of a copy of this judgment. The contentions raised by the petitioner will be considered on its merits. (T.R. Ramachandran Nair, Judge.) kav/