IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 WP(C).No. 30685 of 2004(C) -------------------------- PETITIONER: ------------ K.MOHAMMED KUNJU, S/O.KOYAKUTTY, PRINCIPAL, RTD. FROM, T.K.M.COLLEGE OF ARTS AND SCIENCE, KOLLAM, R/A. KALEELIL PUTHENCHANDA, P.O. CHAVARA, KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN RESPONDENTS: ------------- 1. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. 2. THE DIRECTOR COLLEGIATE EDUCATION, THRISSUR. 3. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 4. THE PRINCIPAL, MES ASMABI COLLEGE, P.O.VEMBALLOOR, KODUNGALLOOR, THRISSUR DIST. 5. THE PRINCIPAL, T.K.M.COLLEGE OF ARTS AND SCIENCE, T.K.M.C.P.O. KOLLAM. 6. STATE OF KERALA, REP. BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.RENJITH THAMPAN SMT.P.A.ANITHA GOVERNMENT PLEADER SHRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 30685/04. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE REPRESENTATION DTD.14.6.02 TO R2. P2. COPY OF THE LETTER DTD.29.1.04 BY R5. P3. COPY OF THE LETTER DTD.22.1.04 BY R1. P4. COPY OF THE GOVT. ORDER DTD.4.7.00. P5. COPY OF THE ORDER DTD.5.3.2003 IN CMP NO.2758/03 IN O.P.NO.1558/03. P6. COPY OF THE MEDICAL CERTIFICATE REPORT ISSUED TO THE PETITIONER. P7. COPY OF THE JUDGMENT IN W.P.C.NO.17578/03. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.30685 of 2004 ================== Dated this the 15th day of February, 2008 J U D G M E N T The petitioner was originally appointed as a Junior Lecturer in M.E.S. College, Ponnani with effect from 10.9.1968. He was transferred to MES Asmabi College, Kodungallur, under the same management in 1976. Later on, by inter-management transfer, which was approved by the educational authorities, he took charge as Principal of the T.K.M. College of Arts & Science, Kollam, on 1.7.1997. He retied from service as such on 31.3.2001. In this writ petition, the grievance of the petitioner is that proceedings have been initiated against him for recovery of the increment granted to him pursuant to revision of scale of pay in accordance with Ext.P4 Government order dated 4.7.2000 and consequently, his terminal leave surrender salary for 160 days was not paid. His another grievance is that his U.G.C. arrears for the periods from 1.1.1986 to February, 1996 and from 1.1.1996 to 1.7.1997 onwards under two different UGC schemes, were not paid. In the above circumstances, the petitioner seeks the following reliefs: “i. to issue a writ of certiorari or any other writ or order or direction w.p.c.30685/04 2 calling for the records leading upto Ext.P3 and quash Ext.P3; ii. to issue a declaration that the pay revised and fixed in respect of the petitioner w.e.f. 1.1.1996 while revising the UGC scale of pay cannot be re-opened, re-fixed or cancelled or recover any amounts at this distance of time and also that the time available for recovering the liability is over on completion of three years from the date of retirement of the petitioner. iii. to issue a writ of mandamus or any other writ, or order or direction directing the respondents to grant the following reliefs: (a) to continue to pay the pensionary benefits as already fixed on petitioner's retirement without any reduction or recovery; (b) to disburse the leave surrender salary for 160 days. (c) to pay the UGC arrears for the period from 1.1.1986 to February, 1996. (d) to pay the UGC arrears for the period from 1.1.1996 to 1.7.1997 onwards. (e) to pay penal interest at the rate of 12% p.a. calculated from the date of retirement to the date of actual payment on the amounts due to the petitioner.” 2. The contention of the petitioner is that as per Ext.P4 order, under Note 1 of Appendix II, it is provided that where increment of a teacher falls on the 1st day of January, 1996, he shall have option to draw the increment in the existing scale or the revised scale. The petitioner opted to draw increment in the revised scale and increment in the revised scale has been sanctioned and paid to him. This is now sought to be recovered on the ground that the petitioner is not entitled to draw increment in the revised scale but only in the pre-revised scale. w.p.c.30685/04 3 The petitioner points out that this exact question was considered by this court in respect of identically situated lecturers in W.P(C). No. 17598/2003 and connected cases, the common judgment in which cases is Ext.P7. A learned Single Judge of this court in that decision upheld the entitlement of similarly placed lecturers to draw increment in the revised scale. The petitioner, therefore, submits that he is entitled to keep the fixation of pay already made and no recovery can be made from him on the ground that he is not entitled to receive increment in the revised scale of pay as per Ext.P4. He reiterates the claim for terminal leave surrender salary as also arrears of pay revision as stated above. 3. The contention of the learned Government Pleader is that subsequent to Ext.P4, by G.O(P).No.44/2001/H.Edn. dated 29.3.2001, the Government had clarified that such persons are entitled to receive increment in the revised scale only after one year and not on the normal dates of their increments. . In so far as Ext.P7 judgment has been rendered taking into account that Government order also, I do not find any merit in the contention of the learned Government Pleader. 4. I am satisfied that, in view of that decision, with which I concur, no recovery can be made from the petitioner in respect of the increment drawn by him in accordance with Ext.P4 w.p.c.30685/04 4 Government order. 5. The learned Government Pleader admits that terminal leave surrender salary has not been paid only because of the dispute regarding the recovery with regard to the increment. Therefore, now that I have held that recovery cannot be legally made, the petitioner becomes entitled to payment of terminal leave surrender salary also. As far as the pay revision benefits are concerned, in the counter affidavit filed by the 3rd respondent in paragraph 6, it is specifically stated thus: “6. .... Accordingly, the pay particulars furnished by the Principal for the period from 01.01.1986 to 30.06.1996 has been verified/countersigned and issued to him by Deputy Director of Collegiate Education, Thrissur on 31.3.2002.....” However, the learned Government Pleader is unable to say whether the amount has been disbursed, pursuant to the same. The learned counsel for the petitioner asserts that the same has not yet been paid. In so far the entitlement for pay revision arrears is now admitted, what remains is only to direct the Deputy Director of Collegiate Education, Thrissur, to take steps to pay the same to the petitioner if not already paid. In the above circumstances, this writ petition is disposed of with the following directions: (a) It is declared that no recovery can be made from the petitioner on account of the increment already granted in w.p.c.30685/04 5 accordance with Note 1 of Appendix II of Ext.P4 Government order. (b) The 5th respondent Principal of the TKM College of Arts and Science, Kollam, shall draw up the bills for payment of terminal leave surrender salary to the petitioner and forward the same to the 1st respondent, who shall verify the leave in the credit of the petitioner and take appropriate steps to disburse the leave surrender salary due to the petitioner on that account. (c) The 2nd respondent-Deputy Director of Collegiate Education, Thrissur, is directed to sanction the pay revision arrears due to the petitioner from 1.1.1986 to February, 1996. Respondents 1 and 3 shall see that the pay revision arrears due to the petitioner are drawn and paid. (d) The above directions shall be complied with within a period of two months from the date of receipt of a copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.30685/04 6