IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 WP(C).No. 29579 of 2006(U) -------------------------------------- PETITIONER: ------------------- P.C. VARGHESE, AGED 48 YEARS, S/O.LATE CHACKO, PANAYANKAL, P.O.MANIMALA. (CLERK, ST.GEORGE HIGH SCHOOL, MANIMALA). BY ADV. SRI.E.S.M.KABEER. RESPONDENTS: ------------------------ 1. THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY. 2. THE ACCOUNTANT GENERAL (SPECIAL CELL) THIRUVANANTHAPURAM. *ADDL. R.3. IMPLEADED: 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. *ADDL. R3 IMPLEADED AS PER ORDER DT. 17/06/2010 IN IN I.A. NO.7650/2010. R1, R2 & ADDL. R3 BY GOVERNMENT PLEADER SRI. T.T. MUHAMOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.29579/2006-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE GOVERNMENT ORDER DTD. 12/11/2001 PERMITTING TO COUNT LAST GRADE SERVICE ALONG WITH CLERIKAL SERVICE FOR GRADE. EXT.P.2: COPY OF THE RELEVANT EXTRACT OF THE AUDIT OBJECTION. EXT.P.3: COPY OF THE LETTER DTD. 12/10/06 OF THE R.1. EXT.P.4: COPY OF THE STATEMENT OF FIXATION OF PAY GRANTING HIGHER GRADE W.E.F. 23/10/98 DTD 23/10/02. EXT.P.5: COPY OF THE STATEMENT OF FIXATION OF PAY ON PROMOTION DTD. 20/03/96. EXT.P.6: COPY OF THE STATEMENT OF FIXATION OF PAY DTD. 26/09/06. EXT.P.7: COPY OF THE GOVERNMENT ORDER DTD. 23/07/02 EXTENDING THE BENEFIT OF EXT.P.1. EXT.P.8: COPY OF THE G.O.(MS).NO.16/10 G. EDN. TVM. DTD. 18/01/2010. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.29579 Of 2006 ----------------------------------------------------- DATED THIS THE 13th DAY OF JANUARY, 2011 J U D G M E N T The challenge herein is against the audit objection raised as per Exhibit P2. 2. The petitioner is aggrieved by Exhibit P2 whereby the 2nd respondent in the audit has objected to the second higher grade granted reckoning the last grade service and the period of service as Clerk. The petitioner entered service as a Full Time Menial on 23.10.1978 and was promoted as Peon with effect from 6.6.1994. A further promotion was granted as Clerk with effect from 16.10.1995. His pay was revised to Rs.3,725/- from the scale of pay of Rs.3050- 5230 with effect from 1.10.1997. He was granted 20 years of grade as Clerk with effect from 23.10.1998 reckoning the service of Peon/Full time Menial and the pay was fixed at Rs.4,050/-. Thus higher grades were granted in the light of Exhibit P1 Government letter. 3. The sole contention raised in the audit is that the said Government letter cannot apply to the petitioner. It is not a general order and it was issued in a specific case. This contention is reiterated in the counter affidavit filed by the 1st respondent also. The 2nd respondent has also filed a counter affidavit. W.P.(C)No.29579/06 -2- 4. The learned counsel for the petitioner submitted that the Government letter applies in cases of persons like the petitioner, who have been granted the benefit of second higher grade on completion of 20 years of service in the last grade service and in the promoted post of Clerk. It is submitted that the Government has evolved various principles in paragraphs 1 to 4 of Exhibit P1. Since it is issued from the Finance Department, it is contended that it has the effect of a general order. Reliance is also placed on Exhibit P7 whereby the Government by another communication addressed to the District Educational Officer, Trivandrum applied the parameters in Exhibit P1, which is in respect of another similarly placed Clerk, whose entitlement for second higher grade was accepted. It is, therefore, contended by the learned counsel for the petitioner that the Government letter has got general application. 5. The contention raised by the learned Government Pleader is that since the petitioner obtained promotion as a Peon before the promotion as a Clerk and has obtained fixation on completion of 10 years, the petitioner is not entitled for the 20 years grade. 6. Since there is a dispute whether the Government letter is a general one or not, it is only proper that the matter is considered on the proper level itself. Further, Exhibit P3 is the communication W.P.(C)No.29579/06 -3- forwarding the audit objection to the petitioner and the petitioner can move the Government for waiving the audit objection also. By an interim order passed by this Court, recovery of excess salary has been stayed. 7. If the petitioner files an appropriate representation before the Government seeking to waive the audit objection along with a copy of this judgment, the same will be considered by the Government within a period of three months from the date of receipt of a copy of the same. Appropriate orders will be passed after hearing the petitioner. The interim order passed by this Court will continue, till orders are passed by the Government. The Writ Petition is disposed of as above. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn