IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 16144 of 2004(V) PETITIONER: ------------ ITTIAVIRAH JOSEPH, PEON, ST. MARIA GORAITHEE HIGH SCHOOL, CHENNADU. BY ADV. SRI.SHAJI THOMAS PORKKATTIL RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. BY GOVERNMENT PLEADER SRI.K.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE G.O.(P)NO.828/81/(397)/Fin. DATED 9.12.1981. EXT.P2 TRUE COPY OF THE REPRESENTATION DATED 26.6.2002 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT. EXT.P3 TRUE COPY OF THE LETTER NO.R2/72735/02/DPI/L.Dis. OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. EXT.P4 TRUE COPY OF THE ORDER NO.E4/8647/01 DATED 22.12.2003 ISSUED BY THE SECOND RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- W.P.(C) NO. 16144 OF 2004 V -------------------------------------------- Dated this the 12th June, 2008 JUDGMENT The petitioner is working as Peon in St.Maria Goraithee High School, Chennadu. He has got continuous service as Peon with effect from 15.7.1969. The petitioner availed leave without allowance on personal affairs for various periods ranging from 1979 to 1988. A total of 236 days’ leave was being taken. On completion of thirteen years of service, higher grade was sanctioned to him with effect from 1.1.1983. Leave without allowance taken during that period was also reckoned for the calculation of qualifying service. The subsequent grade promotions were also given to the petitioner. Following facts are also revealed from paragraph 3 of the counter affidavit filed on behalf of the second respondent: “3. On completion of 20 years of service pay was fixed at Rs.1075/- with effect from 15.7.’89 in the scale of Rs.805-1190 and on completion of 23 years of service pay was fixed at Rs.1300/- with effect from 15.7.92 in the scale of Rs.950-1500. The petitioner re-opted 92 pay revision and 23 years grade with effect from 15.7.’92 and pay was fixed at Rs.1325/- in the scale of Rs.950-1650. Further his pay was fixed at Rs.4765/- with effect from 1.7.2000 in the scale of Rs.3350-5275 on completion of 30 years of service. Leave without allowance taken by the petitioner was also reckoned as qualifying service for sanctioning 20 and 23 year grades. But for sanctioning 30 year grade leave without allowance was excluded.” 2. The Deputy Director of Education, Kottayam, while conducting the audit of accounts, objected to the sanction of 20 and 23 year grade, W.P.(C) NO.16144 OF 2004 :: 2 :: reckoning leave without allowance availed by the petitioner as qualifying service. The Deputy Director passed Ext.P4 order dated 22.12.2003, wherein it is stated that the petitioner has to refund a sum of Rs.24,236/- drawn in excess than due to him. A perusal of Ext.P4 would show that the petitioner made a request to the Headmaster to permit the petitioner to pay the amount in monthly instalments of Rs.1,000/-. The petitioner has stated in the Writ Petition that such a request was made under threat of substantial deduction/recovery from the salary of the petitioner. 3. The petitioner challenges Ext.P4 order in this Writ Petition. His grievance is that he was not afforded an opportunity of being heard before deciding that he has to refund a sum of Rs.24,236/-. According to the petitioner, the grade promotions given to him were duly made and that there is no irregularity in the same. 4. A counter affidavit is filed by the second respondent wherein it is stated that sanction of 13 year and 30 year grades were in order. As regards the other grade promotions, it is stated thus: “But sanction of 20 year and 23 year grades reckoning leave without allowance as qualifying service are not in order as per directions issued vide para XV of Government Circular No.54/92/(138)/Fin., dated 6.11.92 of Fin (PRC-C) Department. It was specified therein that all other kinds of leave without allowances except the leave without allowance availed of by officers for taking up W.P.(C) NO.16144 OF 2004 :: 3 :: appointment, Outside Government service and also that availed of by female officers for accompanying their husbands abroad will be reckoned as qualifying service for the then existed 13 years time bound grade for administrative convenience and not for the revised 10, 20 and 25 years of grade promotions. Hence the objection raised by the 2nd respondent is in order.” 5. Before passing Ext.P4, the petitioner was not afforded an opportunity of being heard. The Circular referred to in the counter affidavit is also not seen produced. Ext.P4 does not disclose as to how the Deputy Director of Education arrived at the conclusion that the petitioner is liable to refund a sum of Rs.24,236/-. 6. In the facts and circumstances of the case, I am of the view that the Deputy Director of Education ought to have afforded an opportunity of being heard to the petitioner before fixing the liability on him. Therefore, Ext.P4 order is quashed. The petitioner shall file a detailed representation/objection before the Deputy Director within a period of one month. The Deputy Director shall hear the petitioner and pass orders afresh within a period of three months from the date of receipt of the representation/objection. The Writ Petition is disposed of as above. No order as to costs. (K.T.SANKARAN) Judge ahz/