IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 WP(C).No. 26307 of 2005(F) ----------------------------------------- PETITIONER(S): ------------------------ K.R. SREEKUMAR, HEADMASTER, GOVERNMENT U.P. SCHOOL, HARIPPAD, RESIDING AT KALLURATHU HOUSE, KUMARAPURAM P.O., HARIPAD. BY ADV. SRI.P.V.BABY RESPONDENT(S): --------------------------- 1. THE ASSISTANT EDUCATIONAL OFFICER,HARIPAD. 2. THE DEPUTY DIRECTOR OF EDUCATION,ALAPPUZHA. 3. THE ACCOUNTANT GENERAL (AUDIT) KERALA, THIRUVANANTHAPURAM. 4. THE HEADMISTRESS, GOVERNMENT HIGH SCHOOL FOR BOYS, HARIPAD. R1 TO R4 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26307/2005 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REPRESENTATION DTD. 12/01/2004 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. P2: COPY OF COMMUNICATION DTD. 8/07/2004 SENT BY THE 4TH RESPONDENT TO THE PETITIONER. P3: COPY OF COMMUNICATION DTD. 6/08/2005 SENT BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 26307 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 26th day of July, 2011. J U D G M E N T The petitioner originally joined the Panchayat Common Service as a Bill Collector and was working as such from 3.3.1981 to 17.6.1985. He was appointed as a P.D. Teacher from 18.6.1986 onwards. As a Bill Collector, he was drawing the basic pay of Rs. 700 in the scale of pay of Rs. 640-1000. The scale of pay of P.D. Teacher was Rs. 660-1050. Since the petitioner was appointed from a lower scale of pay to a higher scale of pay, the Headmaster fixed the pay of the petitioner in accordance with Rule 28A of Part I of K.S.R. Later on, the audit party objected to the same consequent to which the fixation was cancelled and the petitioner was directed to refund the excess pay. That is under challenge in this writ petition. The petitioner seeks the following reliefs: “i) Issue a writ of certiorari or any other writ, order or direction, calling for the records leading to Exts. P2 and P3 and quash the same; ii) declare that the pay of the petitioner fixed at Rs. 700/- in the scale of pay at Rs. 660/1050 is perfectly in accordance with Rule 28A read with Ruling to Rule 159 of Part I KSR; iii) Issue a writ of prohibition or order appropriate writ, order or direction, prohibiting the respondents from re-fixing the pay of the petitioner and to recover the same on the basis of the said re-fixation.” According to the petitioner, the pay was correctly fixed in accordance with Rule 28A of Part I of KSR and is not liable to be cancelled as has been done in this case. W.P(C) No. 26307 of 2005 -: 2 :- 2. The learned Government Pleader submits that it is not the fixation as such, but counting of the Panchayat service along with Government service, was objected to. He points out that as per Rule 159 of Part I of KSR, the Government has decided that Panchayat service after 3.2.1987 alone would be counted for benefits in Government service and since the petitioner's service in the Panchayat service was prior to 3.2.1987, he is not eligible for counting the Panchayat service along with the Government service for service benefits. 3. After hearing both sides, I am inclined to agree with the learned Government Pleader. It is not disputed before me that as per the Government orders applicable, only Panchayat service after 3.2.1987 is liable to be counted for service benefits in Government service. That being so, the audit objection cannot be faulted and therefore the petitioner's service and fixation of pay are liable to be re-fixed. Therefore, I do not find anything wrong in the re-fixation of the pay of the petitioner. 4. But the petitioner's pay in the post of P.D Teacher taking into account the Panchayat service also was fixed as early as in 1986. Audit objections were raised only subsequent to 2003, 17 years after the original fixation. The respondents have no case that the petitioner has in any way contributed to the wrong fixation. If at all anybody is responsible, that was the Headmistress. It is settled law that where the Government servant has not contributed to W.P(C) No. 26307 of 2005 -: 3 :- to wrong fixation of pay, the Government servant should not be visited with the liability to refund the excess pay drawn by him/her on account of the wrong fixation years after the wrong fixation. In the above circumstances, I am of opinion that the petitioner should not be asked to refund the excess pay drawn by him although the re-fixation would stand. Accordingly, the writ petition is disposed of upholding re- fixation but restraining the respondents from recovering the excess pay drawn by the petitioner on account of the wrong fixation. Sd/- S. Siri Jagan, Judge. Tds/