IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WP(C).No. 32528 of 2006(V) -------------------------- PETITIONER(S): --------------- P.K. KAUMUDI, RETD. HEADMISTRESS, VENGAD L.P.SCHOOL, P.O.VENGAD, KANNUR DISTRICT. (R/AT SREESHYLAM, VELLAMPOIL, KANNUR). BY ADV. SRI.M.VIJAYAKUMAR RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR EDUCATION, KANNUR. 3. ASSISTANT EDUCATIONAL OFFICER, MATTANNUR BY GOVERNMENT PLEADER SMT.M.T.SHEEBA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 32528 of 2006(V) --------------------------------- APPENDIX ----------- PETITIONER'S EXHIBITS --------------------------- EXT.P1. COPY OF THE ORDER DATED 17.2.2005. EXT.P2. COPY OF THE JUDGMENT IN WPC 9261/05 OF THE HON'BLE HIGH COURT DAED 12.1.2006. EXT.P3. COPY OF THE ORDER NO.G.O. (RT) N.O3362/06/GED DATED 2.8.2006. EXT.P4. COPY OF THE ORDER G.O. (P) NO.543/89/FIN DATED 20.11.1989. EXT.P5. COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO.19844/1996 DAED 13.6.2003. RESPONDENT'S EXHIBITS : NIL ----------------------------- / TRUE COPY / P.A. TO JUDGE VK T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.32528/2006-V ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10th day of November, 2011 J U D G M E N T The petitioner is aggrieved by Ext.P1 proceedings whereby the grant of Higher Grade has been interfered with on the plea that the provisional service cannot be reckoned for the sanction of Higher Grade and Senior Grade. 2. The petitioner has already retired from service on 30/04/2005. 3. By interim order dated 17/01/2007, this Court issued a direction for disbursal of D.C.R.G less the liability of an amount of Rs.1,14,000/-. Therefore, obviously, the said amount has been withheld. 4. The learned counsel for the petitioner submitted that the question whether the provisional service could be reckoned for the purpose of Higher Grade is covered in favour of the petitioner in the light of the decision of this Court in Rajendran v. State of Kerala [2004 (3) KLT 533]. W.P.(C). No.32528/2006 -:2:- 5. I had an occasion to consider the matter in the Judgment in W.P.(C).No.8208/2009 wherein the view taken is that the provisional service rendered by Government employees and aided school teachers prior to 27.11.1979 is liable to be counted for the purpose of grade promotions. The judgment in Rajendran's case [2004 (3) KLT 533] has been upheld by a Division Bench of this Court in W.A. No.1224/2005. 6. Herein, the provisional service of the petitioner is from 04/11/1969 to 31/03/1970. Therefore, the petitioner is entitled for reckoning of the said period and evidently, Higher Grade and Senior Grade granted to the petitioner were proper. 7. In Ext.P1, another objection raised is regarding the reoption submitted to the past pay revisions. Since the option submitted by the petitioner was accepted and pay was fixed, evidently, the petitioner had to be given an opportunity to submit a revised option in the light of the principle stated in various Judgments of this Court that non-grant of another opportunity in such cases will result in W.P.(C). No.32528/2006 -:3:- discrimination. Apart from that by Ext.P1 dated 17/02/2005, the pay fixed from 01/07/1983 is revised. There is no plea that petitioner had misrepresented or played any fraud in fixing the pay. Hence the recovery ordered is illegal. 8. In that view of the matter, the writ petition is allowed. Ext.P1 which is affirmed by Ext.P3 are quashed. It is declared that the provisional service of the petitioner is liable to be reckoned for the purpose of Higher Grade and Senior Grade. Therefore, revised option to the past pay revision will be accepted by the second respondent. If such an option is submitted by the petitioner within three weeks from today, the same will also be accepted and the pay will be regularised accordingly. Appropriate proceedings will be issued within two months from the date of receipt of a copy of this Judgment and depending upon the final order thus passed, the pensionery benefits will be recomputed and the withheld amount of D.C.R.G. and other benefits if any, subject to any adjustment after the refixation of pay ordered as above will be W.P.(C). No.32528/2006 -:4:- disbursed to the petitioner. If, ultimately, it is found that there is any amount to be recovered from the petitioner as a liability, if any, the petitioner is free to challenge the same. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms