G. Sobhana v. Assistant Educational Officer, Valappad; Deputy Director of Education, Thrissur; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945** ## **WP(C) NO. 2860 OF 2016** ## **PETITIONER:** **G.SOBHANA AGED 57 YEARS** **LPSA (RETIRED), SVUP SCHOOL, TRIPRAYAR, RESIDING AT SOBHA NIVAS, TRIPRAYAR, VALAPPAD PO, THRISSUR 680 567.** **BY ADVS.** **SRI.K.B.GANGESH SMT.ATHIRA A.MENON SMT.SMITHA CHATHANARAMBATH** ## **RESPONDENTS:** **1 ASSISTANT EDUCATIONAL OFFICER VALAPPAD 680 568. 2 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR 680003. 3 STATE OF KERALA REP. BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECERETARIAT, THIRUVANANTHAPURAM 695 001.** ## **OTHER PRESENT:** **SMT. B. VINITHA -SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.2860 of 2016 :-2-: **J U D G M E N T** The writ petition is filed with the following prayers:- “a writ of certiorari or any other appropriate writ, order or direction quashing Exts.P3,P5,P7 and P8 orders passed by the respondents; b writ of mandamus or any other appropriate writ, order or direction commanding the respondents to refund the amount repaid by the petitioner vide Ext.P9 and to refix the petitioner's monthly pension and other pensionary benefits upon dropping an audit objection raised in Ext.P3 and to pay arrears of monthly pension and attendant pensionary benefits to her forthwith;” ## 2. The petitioner retired as LPSA from SVUP School, Triprayar, an aided UP school on 31.03.2015. In 2013, an audit objection had been raised for the first time in respect of her pay fixation pursuant to 2004 pay revision, which was concluded against her in 2005. Pursuant to implementation of 2004 Pay Revision with effect from 25.3.2006, the petitioner opted for revised pay scale with service on completion of 16 years as on 10.11.2005 and on completion, the petitioner was also sanctioned time bound higher grade. As per Ext.P3, the petitioner's fixation was objected in audit objection conducted by the office of the third respondent. Pursuant to Ext.P3 audit objection, Ext.P4 explanation was given by the petitioner and Ext.P5 order was passed. Subsequently, Ext.P6 representation was filed by the petitioner. On the basis of Ext.P6, clarification was given by the second respondent stating WP(C) No.2860 of 2016 :-3-: that the petitioner would only complete 15 years 11 months and 29 days of service as on 9.11.2005. Thereafter, Ext.P8 order was passed upholding the audit objection raised against the petitioner's fixation of pay pursuant to 2004 pay revision. Pursuant to Ext.P8, the petitioner remitted an amount of Rs.49.263/- to the Government vide Ext.P9 chellan. Aggrieved by Exts.P3,P5,P7 and P8 orders, the petitioner has approached this Court. 3. The second respondent has filed a counter affidavit stating as follows:- The petitioner's service begins from 4.6.1990, her probation of one year was also declared as completed considering the continuous service from 4.6.1990 to 3.6.1991. The petitioner's first increment was sanctioned w.e.f.4.6.1991. During the implementation of 2004 pay revision, the petitioner opted for revised pay with effect from 10.11.2005 and pay was fixed by availing service weightage for completing 16 years of service. Due to the retirement of the petitioner, retirement audit conducted from the office of Deputy Director of Education found that the 4 weightage increments granted to the petitioner was not correct, as the petitioner did not complete 16 years of service as on 10.11.2005. The actual period of service as on 10.11.2005 is calculated as below:- WP(C) No.2860 of 2016 :-4-: |Period of Service Calculated for Pay Fixation|Period of Service Calculated for Pay Fixation|Period of Service Calculated for Pay Fixation|Period of Service Calculated for Pay Fixation| |---|---|---|---| |From|To|No. of days|Remarks| |08/09/89|30/03/1990|0 years 6 months 23<br>days|Temporary<br>Service| |04/06/90|09/11/05|15 years 5 months 6<br>days|Continuous<br>Service| |Total service||15 years 11 months<br>29 days|| It is submitted that the petitioner had completed 15 years 11 months 29 days of service including temporary service as on 10.11.2005 and was eligible only for 3 increments for 15 years of service weightage. As it is falling short one day for 16 years of service, instruction was issued to rectify the defect and to revise the pay revision granted to the petitioner and to recover the excess amount drawn by the petitioner. In the appeal petition filed by the petitioner, Government vide letter No.7806/82/2014/G.Edn. dated 20.09.2014, has issued directions to dismiss the appeal petition on the ground that the petitioner was eligible for 3 increments. Pursuant to the above audit objection, the amount of excess payment was calculated and the petitioner was instructed to pay the amount. Accordingly, an amount of Rs.49,263/- was repaid by the WP(C) No.2860 of 2016 :-5-: petitioner on 12.01.2015. Now the petitioner has approached this Court to set aside the above audit objection and consequential recovery of Rs.49,263/-. The petitioner contended that pay revision was sanctioned on 16.09.2006 and the audit objection was raised after a gap of more than six years and hence the recovery is impermissible. 4. Heard the learned counsel for the petitioner as well as the learned Senior Government Pleader. 5. Learned counsel for the petitioner submits that the finding of the second respondent that the petitioner is found short of one day for completing 16 years of service is incorrect. It is also submitted by the learned counsel for the petitioner that the calculation made by the respondents has been made without taking into account the leap years in between, which would give additional days to the service of the petitioner. 6. The learned counsel for the petitioner submitted the following calculation:- The total number of days between 4.6.1990 and 9.11.2005 is 5637 days. For the purpose of calculation of 15 years, the second respondent has only taken into account 365 days for a year. Extra one WP(C) No.2860 of 2016 :-6-: day available for every leap year has not been accounted to. Thus, 365 X 15 would come to 5475 days. The balance days available after calculation of 15 years as above should be 5637-5475 = 162 days. 7. Learned counsel for the petitioner, relying on the decision of this Court in **Mathai.M.D.** v. **Accountant General** [I.L.R (2015) 4 Kerala 682], submitted that for computing qualifying service, extra days which got accumulated by virtue of leap years have also to be computed. 8. Further, the learned Government Pleader submits that on the basis of the calculation made by the respondents, there is a shortage of one day for 16 years of service since the total service period of the petitioner is considered to be 15 years 11 months and 29 days. 9. The fact that during the period of 16 years, the leap years with extra one day have not been calculated in the order passed by the respondents is admitted. It is also settled position that if the period of service has crossed six months, instead of 15 years, it has to be calculated as 16 years. It is not discernible from the counter affidavit whether the leap year days were calculated or not, while considering the case of the petitioner. Hence, I am of the opinion that the matter has to WP(C) No.2860 of 2016 :-7-: be reconsidered by the competent authority and for enabling the respondents to pass appropriate orders, the impugned orders have to be set aside. Hence, the writ petition is allowed with the following directions:- i)Exts.P3,P5,P7 and P8 orders are set aside. ii)The competent authority is directed to reconsider the matter afresh after issuing notice to the petitioner and also after affording an opportunity of being heard to the petitioner within a period of three months from the date of receipt of a copy of this judgment. iii)The petitioner shall produce a copy of this judgment along with a copy of the writ petition before the competent authority for information and compliance. Sd/- **SHOBA ANNAMMA EAPEN, JUDGE** MBS/ WP(C) No.2860 of 2016 :-8-: ## **APPENDIX OF WP(C) 2860/2016** ## **PETITIONER'S EXHIBITS:** **P1- TRUE COPY OF THE RELEVANT POTION OF THE SERVICE BOOK OF THE PETITONER CERTIFYING APPROVAL OF THE ABOVE APPOINTMENTS** **P2- TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETIITONER PURSUANT TO 2004 PAY FIXATION DTED 16.9.2006** **P3- TRUE COPY OF THE AUDIT OBJECTION DATED 22.1.2013** **P4- TRUE COPY OF EXPLANATION DATED NIL PREFERRED BY THE PETIITONER TO THE 1ST RESPONDENT** **P5- TRUE COPY OF ORDER DATED 30.8.2013 PASSED BY THE 1ST RESPONDENT** **P6- TRUE COPY OF REPRESENTATION DATED 24.9.2013 PREFERRED BY THE PETIITONER TO THE 3RD RESPONDENT** **P7- TRUE COPY OF LETTER DATED 25.1.2014 SUBMITTED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT** **P8- TRUE COPY OF ORDER DATED 20.9.2014 ISUED BY THE 3RD RESPONDENT** **P9- TRUE COPY OF THE CHELAN DATED 12.1.2015 EVIDENICING REPAYMENT OF RS.49,263/- TO THE GOVERNMENT BY THE PETITIONER**