IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 OP.No. 11157 of 2003(C) ----------------------- PETITIONER(S): --------------- P.KUMARAN, RETIRED HEAD MASTER, POTTENTAVIDA HOUSE, P.O.THOOVAKUNNU, CANNANORE. SUPPLL. P2: INDIRA . K.V., W/O., LATE P. KUMARAN POTTANTAVIDA HOUSE, P.O. THOOVAKUNNU, KOLAVALLOOR. SUPPLL. P3: RAVEENDRAN V.K., S/O. LATE P. KUMARAN, P.O. THOOVAKKUNNU, KOLAVALLOOR. SUPPLL. P4: JOSNA P., D/O. LATE P. KUMARAN P.O. THOOVAKKUNNU, SUPPLL. P5: JOLLY P., D/O. LATE P. KUMARAN, NANDANAM, PATHANGADY, CANNANNORE. (IMPLEADED AS LEGAL HEIRS AS PER ORDER DT. 27.3.2008 IN I.A.NO.3445/08). BY ADV. SMT.VANAJA MADHAVAN RESPONDENT(S): --------------- 1. THE ASSISTANT EDUCATIONAL OFFICER, PANOOR. 2. THE DEPUTY DIRECTOR OF EDUCATION, CANNANORE. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, TRIVANDRUM. GOVERNMENT PLEADER SMT. M.R. SABU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 11157 of 2003 ORDER ON C.M.P.NO.19157 OF 2003 IN O.P.NO.11157 OF 2003 CLOSED. 20.11.2008 SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF THE G.O.(P) NO.380/94 DATED 9.6.1994. EXT.P2: COPY OF THE G.O.(P) NO.475/96 DTD 6.7.1996. EXT.P3: COPY OF G.O.(P) NO.566/96 DATED 11.9.1996. EXT.P4: COPY OF THE PAY FIXATION STATEMENT PASTED IN THE SERVICE BOOK ALONG WITH RECOVERY FROM DCRG. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 11157 OF 2003 ---------------------------------------- Dated this the 20th day of November, 2008 JUDGMENT The 1 st petitioner entered service of an aided School as a Lower Primary School Assistant on 2.12.1969. The 1 st petitioner was promoted as Headmaster on 15.3.1993, before he could become eligible for Senior Grade available to Primary Teachers. In respect of teachers, who got promotion before they could obtain Senior Grade as LPSA, the Government issued G.O.(P) No.380/94/(13)/Fin. dated, 9.6.1994 by which teachers who were promoted as Headmasters before 1.2.1992 were given certain benefits to continue in the original scale of pay till they become eligible for Senior Grade, get their pay fixed in the Selection Grade and thereafter get their pay fixed in the revised scale of pay of Headmasters in accordance with the pay revision orders. Later on, by Ext.P2 similar benefits in respect of senior Government officers were extended to those who got promotions subsequent to 1.3.1992 also, before becoming eligible for Senior O.P.No.11157/03 2 Grade. By Ext.P3 order, the Government made such benefits applicable to teacher also. Pursuant thereto, the 1 st petitioner's pay was fixed in accordance with Exts.P1, P2 and P3 and the 1 st petitioner thereafter retired from service on 31.3.2001. However an amount of Rs.27,305/- was recovered from his DCRG by endorsement in his service book, which endorsement is produced by him as Ext.P4. The 1 st petitioner filed the original petition challenging the said recovery. During the pendency of the original petition, the 1 st petitioner died and his legal heirs have come on record as additional petitioners to prosecute the original petition further. 2. The contention of the petitioners is that the fixation of pay of the 1 st petitioner was strictly in accordance with Exts.P1, P2 and P3 and therefore there was no occasion to recover any amount as excess pay from the 1 st petitioner as sought to be done by Ext.P4. Further the petitioners would submit that the fixation was done years ago and the re-fixation was without any notice to the 1 st petitioner and therefore violative principles of natural justice. Lastly, the petitioners would contend that it is totally unjust and unreasonable to recover the said amount years after the fixation of pay. O.P.No.11157/03 3 3. The learned Government Pleader would submit that although the 1 st petitioner is entitled to benefit of fixation as per Exts.P1 to P3 that fixation could have been only on the basis an option to be submitted by the 1 st petitioner pursuant to Ext.P3, which he had not submitted and that is why the re- fixation has been done. 4. I have considered the rival contentions in detail. 5. I am inclined to accept all the contentions of the petitioners. By Exts.P1 to P3 certain benefits have been given to primary school teachers, who became Headmasters before they could obtain Senior Grade, which only had been given to the 1 st petitioner. Such benefits given to the 1 st petitioner is sought to be recovered from him without any notice or show cause notice. That itself is violative principles of natural justice. In any event, it would be totally unjust to make recovery on the basis of alleged wrong fixation of pay years after the fixation. In any event, I do not find any merit in the contentions raised by the learned Government Pleader. The fixation must have been done based on an option submitted by the 1 st petitioner. Whether it is under Exts.P2 or P3 an option has been submitted, which had been accepted and pay fixed in O.P.No.11157/03 4 accordance with that option. Simply for that technical reason, I do not think that the benefits due to a retired employee should be recovered. Accordingly, the endorsement in Ext.P4 directing recovery of said amount of Rs.27,305/- from the DCRG of the 1 st petitioner is hereby quashed. The respondents are directed to see that the said amount is disbursed to the legal heirs of the first petitioner as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE Acd O.P.No.11157/03 5