IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 28967 of 2004(W) ------------------------------------ PETITIONER(S): ------------------------- S.RAMACHANDRAN, AGED 54 YEARS, S/O. GOPALAN, GOVT.HIGHER SECONDARY SCHOOL, PALLIMON, KOLLAM RESIDING AT KAVILAZHAKOM, PALLIMON P.O., KANNANALLOOR, KOLLAM. BY ADVS. MR.C.UNNIKRISHNAN (KOLLAM) MR.S.HARIKRISHNAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY (FINANCE) FINANCE (RULES) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (AUDIT), BRANCH OFFICE, TRICHUR. 3. THE DEPUTY DIRECTOR OF EDUCATION,KOLLAM. 4. THE HEADMASTER, GOVERNMENT HIGH SCHOOL, PALLIMON, KOLLAM. R1 TO R4 BY SPL. GOVT. PLEADER MR.N.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.28967/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE G.O.(P) NO.1480/99/FIN. DTD. 17.6.99 ISSUED BY THE IST RESPONDENT. P2:- COPY OF THE ORDER NO.5/99 DTD. 6.9.99 ISSUED BY THE 4TH RESPONDENT. P3:- COPY OF THE G.O.(P) NO.2196/99/FIN. DTD. 9.11.99 ISSUED BY THE IST RESPONDENT. P4:- COPY OF THE AUDIT OBJECTION ISSUED BY THE 2ND RESPONDENT. P5:- COPY OF THE REPLY DTD. 6.1.04 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. P6:- COPY OF THE JUDGMENT DTD. 23.9.2000 IN OP. 27171/2000. P7:- COPY OF THE LETTER NO.OA I (2) 18107/03 DTD. 26.6.04 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. P8:- COPY OF THE LETTER NO.OA(HQ) III/I/120513/03-04 DTD. 18.3.04 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.28967/2004-W ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 20th day of November, 2009 J U D G M E N T At the time of filing of the writ petition, the petitioner herein had been working as P.D Teacher in the fourth respondent's school. The petitioner had commenced service as P.D. Teacher with effect from 03/08/1970 and without any break he was appointed in Government service with effect from 05/03/1976 in the very same post and thus he was having five years seven months and two days of aided school service in his record. 2. By Ext.P1, the Government had ordered that approved service put in by teaching and non-teaching staff of all educational institutions coming under the Direct Payment Scheme prior to the entry in Government service will be counted for all service benefits including pension subject to the condition laid down in K.S.R from time to time. Accordingly, his pay was revised and refixed by the fourth respondent as per Ext.P2 by reckoning his aided school service also. Ext.P1 order was modified by the Government as per Ext.P3. Thereafter, an audit objection was raised to which the petitioner submitted a reply. Having failed to get a positive order, the petitioner approached this Court challenging Exts.P4 and P8. It is W.P.(C). No.28967/2004 -:2:- the case of the petitioner that a similarly placed teacher had approached this Court by filing O.P.No.27171/2000 wherein by Ext.P6 Judgment it was held that the recovery portion cannot be sustained. 3. A reading of Ext.P6 Judgment shows that the very same question was considered by this Court. This Court was pleased to hold that grant of increment and fixation of pay etc. is statutorily covered by provisions contained in the Kerala Service Rules and therefore, the audit objection cannot be faulted. But in the operative portion of the Judgment, regarding the refund of the amount, it was held thus:- “Of course the petitioner had been paid at a higher rate not because of the petitioner made any wrong representation before the respondent, but only because of the respondent's own action. The petitioner had been paid at higher rate. The petitioner had expended that money. Now the petitioner cannot be asked to refund anything. But at the same time her pay can be scaled down taking into account the service put in by her in Government service alone.” W.P.(C). No.28967/2004 -:3:- 4. The learned counsel for the petitioner therefore, submitted that the petitioner may also be granted the said benefit. 5. In the light of Ext.P6 Judgment, the legal issue raised by the petitioner is covered against him. But as directed by the said Judgment, the refund of the amount paid need not be insisted. The petitioner will be entitled only for the pay as refixed by excluding the aided school service. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms