IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 OP.No. 12771 of 2003(U) ---------------------------------- PETITIONER: ------------------- A.DAMODARA PANICKER (RETIRED PEON, VETTOM GRAMA PANCHAYAT),ARICHALI KALARICKAL HOUSE, P.O. VETTOM, TIRUR-2. BY ADVS. MR.M.V.BOSE, MR.VINOD MADHAVAN, SMT.NISHA BOSE. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR OF PANCHAYATS, MALAPPURAM. 5. THE DEPUTY DIRECTOR OF LOCAL FUND AUDIT, DISTRICT OFFICE, MALAPPURAM. R1 TO R5 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. 12771/2003-U: ORDER ON C.M.P. NO. 21771/2003 IN O.P. NO. 12771/2003-U CLOSED 01/10/2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 16/03/1983 OF THE DISTRICT PANCHAYAT OFFICER, MALAPPURAM. EXT.P.2: COPY OF THE ORDER DTD. 28/01/1986 OF THE DISTRICT PANCHAYAT OFFICER, MALAPPURAM. EXT.P.3: COPY OF THE ORDER DTD. 12/11/1986 OF THE DISTRICT PANCHAYAT OFFICER, MALAPPURAM. EXT.P.4: COPY OF THE ORDER DTD. 17/05/1991 OF THE DISTRICT PANCHAYAT OFFICER, MALAPPURAM. EXT.P.5: COPY OF THE LETTER DTD. 29/03/2000 FROM THE DY. DIRECTOR OF LOCAL FUND AUDIT, MALAPPURAM. EXT.P.6: COPY OF THE LETTER FROM THE ASST. DIRECTOR OF PANCHAYATS, MALAPPURAM DTD. 20/06/2001. EXT.P.7: COPY OF THE REPRESENTATION FROM THE PETITIONER BEFORE THE GOVERNMENT DTD. 01/02/2003. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== O.P.No. 12771 of 2003 ================== Dated this the 1st day of October, 2009 J U D G M E N T The petitioner retired from service while working as a peon in Vettom Grama Panchayat on 31.3.2001. The petitioner entered service as a full time sweeper on 22.1.1966. He was promoted as peon on 17.5.1969. Originally he was granted 13 years higher grade as per Ext.P1 order dated 16.3.1983, in which for the purpose of granting higher grade, his service as a full time contingent employee was not reckoned. When the same was noticed, by Ext.P2 order dated 28.1.1986, this mistake was rectified and the petitioner was granted higher grade taking into account the full time contingent service also. However, by Exts.P3 and P4 orders dated 12.11.1986 and 17.5.1991 respectively, the petitioner was given 20 years and 25 years' higher grades respectively. However, by Ext.P5 dated 29.3.2000, the Deputy Director of the Local Fund Audit raised an audit objection as follows. “3. Sri.A.Damodara Panicker, Peon:- The incumbent joined duty as full time contingent sweeper on 17.5.69 FN. But as per entry made in page No.6 of Service Book Vol.II he won't get higher grade on completion of 20 years service. The sanction of Higher Grade w.e.f 1.7.86 is given after reckoning his service as Full Time Contingent Sweeper. The fixation on 1.7.88 which got the approval is also erroneous. The Last Grade Servants are authorised Higher Grade only on completion of 25 years of service as per standing orders. So the excess pay drawn on the basis of fixation on 1.7.88 at Rs.1050/- should be refunded. A due-drawn-excess statement may also be forwarded.” The petitioner is aggrieved by the same. 2. The contention of the petitioner is that in Ext.P5 also the very same mistake committed in Ext.P1 has been repeated in so far as 2 Ext.P5 objection also is based on the premise that the petitioner joined service on 17.5.1969 whereas the petitioner joined service on 22.1.1966. The petitioner has got a contention that Ext.P5 is issued barely one year prior to the petitioner's retirement that too after 12 years of sanctioning the higher grades. According to the petitioner, by the decisions of this Court and of the Supreme Court, it is settled law that no recovery can be made on the basis of wrong fixation of pay after a long lapse of time. 3. No counter affidavit has been filed. The learned Government Pleader would argue for sustaining Ext.P5 order. 4. I have considered the rival considered in detail. 5. First of all the audit objection itself is vague. It does not give any reason as such for the objection. As rightly pointed out by the petitioner, Ext.P5 goes on the premise that the petitioner joined only on 17.5.1969. In view of Exts.P2 to P4 it cannot now be disputed that the petitioner joined service as a full time contingent employee on 22.1.1966. Therefore, the very premise on which Ext.P5 objection has been raised is without any basis. Accordingly, Ext.P5 is quashed. The petitioner would be entitled to all consequential benefits. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 3 S.SIRI JAGAN, J. ================== O.P.No. 12771 of 2003-U ================== J U D G M E N T 1st October, 2009