IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 OP.No. 10757 of 2001(E) ----------------------- PETITIONER(S): --------------- V.R. RAJAN BABUO, PRINCIPAL, ST. AUGUSTIN'S HIGHER SECONDARY SCHOOL, AROOR BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. THE ACCOUONTANT GENERAL, TRIVANDRUM. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 4. DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 5. THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA. GOVERNMENT PLEADER SMT. N. SUDHA DEVI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 10757/2001. ----------------------------------------------------------------- EXT.P1 STRUE COPY OF ORDER DT. 5-4-1997. EXT.P2 LETTER DT. 25-1-1999. EXT.P3 LETTER DT. 3-2-2000. EXT.P4 LETTER DT. 29-12-2000. EXT.P5 TRUE COPY OF TABULAR FORM. EXT.P6 LETTER DT. 17-2-1999. EXT.P7 ORDER DT. 9-6-1994. EXT.P8 ORDER DT. 11-9-1996. EXT.P9 CIRCULAR DT. 29-2-1994. EXT.P10 LETTER DT. 1-1-1996. EXT.P11 ORDER DT. 25-9-1993. EXT.P12 ORDER DT. 8-12-1993. EXT.P13 ORDER DT. 21-11-2001. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 10757 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 8th October, 2009. J U D G M E N T The petitioner entered service as a High School Assistant on 19-9-1967. He was promoted as Headmaster on 1-4-1992. He completed 25 years of service on 12-2-1992. Since he was promoted as Headmaster prior to his becoming eligible for selection grade, he became eligible for the benefits of G.O.(P) 380/94/(137) Fin dated 9-6- 1994 read with G.O (P) 566/96/(105) Fin dated 11-9-1996. As per those Government Orders, since the petitioner's date of promotion was prior to his becoming eligible for selection grade, he was entitled to fixation of pay in the Headmaster's scale in accordance with the said Government Orders, as per which, he was entitled to continue in the revised scale of pay applicable to senior grade H.S.A till the date when he became eligible for selection grade and fixation of pay in the selection grade. Thereafter, based on the pay so fixed in the selection grade, his pay in the Headmaster's scale has to be fixed applying Rule 28A of Part I of KSR. Purportedly, in accordance with the said Government Orders, the petitioner's pay was so fixed in the Headmaster's scale. But while doing so, what was taken into account was a pre-revised scale applicable to senior grade and not revised scale as provided in the Government Orders. Therefore, by Ext. P2, audit objection was raised regarding fixation of pay of the petitioner and consequently, it was directed to revise his pay in accordance with audit objection and to recover the excess pay received by him. The petitioner is challenging the orders in this regard seeking the following reliefs: “(i) To issue a writ in the nature of mandamus, directing the 2nd respondent to drop the observation; (ii) to issue a writ in nature of mandamus directing the O.P. No. 10757/2001. -: 2 :- respondents to implement Ext. P1 order and to direct disbursement of increment; (iii) to issue an interim stay of recovery of any amount from the petitioner towards excess pay drawn; (iv) to issue an interim direction directing respondents to prepare and take necessary steps to disburse pension and other service benefits at least which is admissible on the basis of the observation of Accountant General.” 2. The contention of the petitioner is that the pay was rightly fixed in accordance with the Government Orders as clarified in Ext. P12. He would submit that in any event insofar as the petitioner has not made any misrepresentation or committed any fraud in the matter of fixation of pay, he cannot be directed to refund the excess pay drawn, especially after several years. 3. The learned Government Pleader opposes the contentions of the petitioner. According to her, the petitioner's pay was originally wrongly fixed by taking pre-revised scale of pay in the senior grade, whereas the Government Order specifically stated that fixation of pay in the selection grade has to be on the basis of the revised scale of pay applicable to senior grade, which only has been corrected by the audit objection. She would submit that there is no delay in the matter since the fixation was by order dated 5-4-1997 and the audit objection is dated 20-1-1999. 4. I have considered the rival contentions in detail. 5. Clause 2(d) of the relevant Government Order reads thus: “(d) Graduate Teachers who got promotion as Headmasters before 1-3-1992 and who would have been eligible for the Selection Grade but for their promotion as headmasters will also be permitted to have their pay notionally fixed in the selection grade first on 1-3-1992 or on the date on which they become eligible for the selection grade after 1-3-1992 on the basis of the pay in the revised scale which they would have drawn had they continued as Senior Grade High School Assistants and then based on the pay so fixed in the Selection Grade, their pay in the O.P. No. 10757/2001. -: 3 :- revised scale of Headmaster will be fixed under Rule 28A, Part I, K.S.Rs.” Going by the same, the petitioner's pay in the selection grade has to be fixed on the basis of the revised scale of senior grade High School Assistant and then his pay in the Headmaster's scale under Rule 28A has to be fixed. Admittedly, the pay of the petitioner in the selection grade was fixed based on the pre-revised scale of pay of senior grade High School Assistant, which, going by the Government Order is clearly wrong. Therefore, there is no merit in the challenge against Ext. P2 audit objection. 6. Of course, there are decisions to the effect that if the employee has not contributed to the wrong fixation of pay after years, he should not be directed to refund the excess pay. But that is only if there is inordinate delay in correcting the mistake. In this case, as rightly pointed out by the learned Government Pleader, the pay was fixed by Ext. P1 on 5-4-1997 and the audit objection is dated 20-1- 1999. Therefore, the wrong fixation was detected and corrected within a period of one year and eight months, which cannot be stated to be after a long delay so as to attract the ratio of the decisions referred to by the petitioner. In view of my above findings, I do not find any merit in the original petition and accordingly the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/