IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 OP.No. 8629 of 2002(B) ---------------------- PETITIONER(S): --------------- M.P.BHASKARAN, HEADMASTER, GOVERNMENT L.P.SCHOOL, VALVAKKAD, P.O.ELAMBACHI-671 311. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL, KERALA, OFFICE OF THE ACCOUNTANT GENERAL, KERALA. 3. ASSISTANT EDUCATIONAL OFFICER, CHERUVATHUR. 4. THE SUB TREASURY OFFICER, NILESHWAR. GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 8629/2002 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE AUDIT OBJECTION DTD.27.3.2000. P2. COPY OF THE ORDER DTD.3.8.2000 BY R3. P3. COPY OF THE ORDER BY R3 DTD.4.7.2001. P4. COPY OF THE LETTER DTD.14.8.2001 TO R4. P5. COPY OF THE GOVT. ORDER DTD.9.6.94. P6. COPY OF THE GOVT. ORDER DTD.11.9.1996. sdk+ ///True Copy/// P.A. To Judge S.SIRI JAGAN, J. ================== O.P.No. 8629 of 2002 ================== Dated this the 8th day of October, 2009 J U D G M E N T The petitioner entered service as a PD teacher on 18.11.1969. he was promoted as Headmaster on 16.9.1990. Some time in 1994 the petitioner became eligible for senior grade on completion of 25 years of service. While so, the petitioner became entitled to the benefit of Ext.P5 Government order, whereby the Government ordered that persons who were promoted as headmasters prior to their becoming eligible for selection grade would be entitled to fixation of pay in the headmaster's scale in accordance with that Government order. Pursuant to the said Government order, the petitioner opted 6.4.1994 as the date for selection grade, as per which, the petitioner's pay was fixed. But contrary to the provisions in Ext.P5 Government order, for the purpose of fixation of his pay in the selection grade, his pay in the senior grade was taken in the pre-revised scale whereas the Government order prescribed that the pay in the selection grade has to be fixed on the basis of the revised pay in the senior grade. Consequently, the Accountant General raised objections against the fixation and directed recovery of excess amount received by the petitioner. The amount has already been recovered from the petitioner. The petitioner is now challenging the audit objection and 2 the recovery consequent thereto. Even if the audit objection is sustainable, the petitioner would submit that as per the Supreme Court decisions on the subject, such recovery cannot be effected after long lapse of time, if the employee has not contributed to the wrong fixation. 2. The learned Government Pleader would submit that Ext.P5 Government order is clear to the effect that for the purpose of fixation, the pay in the selection grade has to be on the basis of the revised scale in the senior grade and admittedly, it has not been done and therefore, there is nothing wrong with the audit objection. The Government Pleader would further submit that there is no inordinate delay in correcting the mistake in fixation in so far as the audit objection is dated 27.3.2000. 3. I have considered the rival contentions in detail. 4. Clauses 2(ii) (c) and (d) of Ext.P5 Government order read thus: “2. Time Bound Higher Grades - Option: (ii) Teachers: xxx xxx xxx xxx (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 3 Grade Primary Teachers and, then, 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, KSRs, (d) Graduate Teachers who got promotion as Headmasters before 1.3.1992 and who would have been eligible for the selection grade but for their promotion as Headmasters will also be permitted to have their pay notionally fixed 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 High school Assistants and then based on the pay so fixed in the Selection Grade, their pay in the revised scale of Headmaster will be fixed under Rule 28A, Part I, KSRs.” The same makes it abundantly clear that for the purpose of fixation of pay in the selection grade, what is to be taken into account is the revised scale in the senior grade. Therefore, there is no merit in the contention of the petitioner on that score. As far as the second contention is concerned, the petitioner has not chosen to state when exactly his pay was fixed and he opted the date 28.11.1994 for the fixation. Ext.P1 audit objection is dated 27.3.2000. Therefore, it cannot be said that there is any inordinate delay in ordering recovery of the excess pay drawn by the petitioner thereon. Therefore, on both counts, this original petition fails and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 4 S.SIRI JAGAN, J. ================== O.P.No. 8629 of 2002-B ================== J U D G M E N T 8th October, 2009