High Court of KeralaSingle Judge2021-01-12Writ petition allowed; Exts. P2, P7 and P11 set...

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Case / Petition Number:WP(C).No.5461 OF 2011(G)

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-01-12
Court Decision / Holding: Writ petition allowed. Exts. P2, P7 and P11 set aside; no further action for recovery of any amounts from the petitioner will be pursued. The court declared that the petitioner’s valid, earlierly sanctioned benefits must not be reversed due to post-retirement audit objections; relying on Rafiq Masih (supra), the court held that such post-retirement recoveries are impermissible when the benefits were legally granted during service.
Final Disposition: Writ petition allowed; Exts. P2, P7 and P11 set aside; no recovery action.

Parties to the Case

Appellants / Petitioners

P. N. Sasidharan

Respondents

State of Kerala represented by Secretary to Government, General Education Department, Govt. Secretariat, Thiruvananthapuram-695001
The Deputy Director of Education, Thrissur-680001
The Assistant Educational Officer, Chalakudy, Thrissur-680307
The Accountant General (A&E), Kerala, Trivandrum-695039

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K. Jaju Babu (Sr.)
• Sri. Brijesh Mohan
• Sri. M. V. Joseph (Alappuzha)
• Sri. T. R. Sadeesan
• Sri. M. U. Vijayalakshmi

Counsels for Respondents

• Sri P. M. Manoj - Sr. GP

Case Synopsis & Summary

This writ petition (WP(C) No.5461/2011) challenges pension fixation and a 4th higher grade granted to the petitioner, P. N. Sasidharan, a retired peon of SNUPS. The petitioner retired on 31.08.2005; pension was sanctioned and revised by Exts. P1, P4, P5. An audit objection (Ext. P2) in 2007 questioned the 4th higher grade sanctioned on 17.03.2005, and Exts. P3–P5 reflect explanations and revisions. Ext. P11, dated 07.10.2010, reverses the higher-grade benefit. The petitioner contends Exts. P2, P7 (order) and P11 are illegal, arguing the higher grade was granted by valid pay revision orders and approved by respondents 2 and 3; Ext. P11 is issued long after retirement and contrary to the Supreme Court’s approach in State of Punjab v. Rafiq Masih (whitewasher) (2015) 4 SCC 334. Respondents contend the petitioner’s break in service was not condoned, that eligibility for the 4th higher grade required 30 years of service (reduced to 28 years by GO dated 25.03.2006, effective 01.03.2006), and that the petitioner retired before meeting this criterion. The court notes Ext. P11’s post-retirement issuance and, relying on Rafiq Masih, holds the audit objections cannot be enforced against a retired employee for benefits already granted. The writ petition is allowed; Exts. P2, P7, P11 are set aside and no recovery action is to be pursued, preserving prior, lawful benefits.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner/appearing through counsel contended that Exts. P2, P7 and P11 are illegal and unlawful because, as per Ext. P9, there was no justification for hostile discrimination against the petitioner; the higher grade was granted and pay-fixed on the basis of valid pay revision orders and had already been approved by respondents 2 and 3. It was argued that Ext. P11, issued long after retirement, is illegal and contrary to the Supreme Court's declarations in Rafiq Masih.

Contentions of Respondents

The respondents argued that the petitioner’s earlier break in service was not condoned and that eligibility for the 4th higher grade required 30 years of service, which, after GO dated 25.03.2006 reducing the requirement to 28 years, took effect from 01.03.2006; since the petitioner retired on 31.08.2005, he was not eligible. They maintained that Ext. P11 was a valid action within the given framework and that recovery of excess amounts could be warranted.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab v. Rafiq Masih (whitewasher)	2015(4) SCC 334	Positive	The court relied on this Supreme Court decision to hold that post-retirement audit objections cannot be used to recover benefits already granted during service, aligning with the principle that such retroactive reversals are improper.

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Extracted Judgment Text

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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942** ## **WP(C).No.5461 OF 2011(G)** ## **PETITIONER:** **P.N.SASIDHARAN, PEON (RETIRED), SNUPS, KUNNAPPILLY, PIN-680311, NOW RESIDING AT PARAYAN, VALAPPIL HOUSE, P.O., KUNNAPPALY, MELLOOR VIA.,, THRISSUR-680311.** **BY ADVS. SRI.K.JAJU BABU (SR.) SRI.BRIJESH MOHAN SRI.M.V.JOSEPH (ALAPPUZHA) SRI.T.R.SADEESAN SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM-695001.** **2 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR-680001.** - **3 THE ASSISTANT EDUCATIONAL OFFICER CHALAKUDY, THRISSUR-680307.** - **4 THE ACCOUNTANT GENERAL(A&E), KERALA TRIVANDRUM-695039.** **SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 5461/11 2 ## **JUDGMENT** |The petitioner says that he was retired| |---| |from the services of the SNUPS, Thrissur, on| |31.08.2005 and that pension was sanctioned to| |him as per Ext.P1, which was revised through| |Exts.P4 and P5. He says that, however, an| |audit objection was raised against the 4 th| |Higher Grade sanctioned to him on 17.03.2005,| |which is evident from Exts.P2 and P7 and that| |even though it was explained through Exts.P3| |and P8, Ext.P11 order has been issued| |reversing the benefit of the said Higher| |Grade.| |2. The petitioner, therefore, prays that| |Exts.P2, P7 and P11 be set aside and that the| |pay fixation earlier granted to him be granted| |approval, so as to enable him to obtain the| |benefits as had been already sanctioned.| |3. Smt.Athira T.S. - learned counsel for| |the petitioner, contended that Exts.P2, P7 and| WPC 5461/11 3 P11 are illegal and unlawful since, going by Ext.P9, there was no reason why her client alone should have been picked up for such a hostile discrimination. She contended that the higher grade was sanctioned and pay fixed on the basis of valid pay revision orders, as far as her client is concerned and it had already been approved by respondents 2 and 3. She, therefore, submitted that the issuance of Ext.P11, more than five years after her client had retired, is illegal and unlawful and contrary to the affirmative declarations of the Hon'ble Supreme Court in **State of Punjab v. Rafiq Masih (whitewasher) [2015(4) SCC 334].** – 4. Sri.P.M.Manoj learned Senior Government Pleader, in response, submitted that a statement has been filed by the 2nd respondent, wherein, it has been explained that the earlier break in service of the WPC 5461/11 4 |petitioner had not been condoned by the| |---| |Director of Public Instructions (presently| |designated as the Director of General| |Education) and, therefore, that it was only| |when the petitioner completed 30 years of| |service, could he have been entitled to obtain| |the higher grade with effect from 01.09.2005.| |He submitted that, however, the petitioner| |retired from service on 31.08.2005, thus| |making it clear that he is not eligible for| |the 4 th Higher Grade. He added to his| |submissions by saying that even though the| |service required for the grant of 4 th higher| |grade was reduced to 28 years through the| |Government Order dated 25.03.2006, it has| |taken effect only from 01.03.2006 and| |therefore, that the 2 nd respondent was right in| |having ordered to cancel the 4 th higher grade| |granted to the petitioner and to have the| |excess amount refunded. He, therefore, prayed| WPC 5461/11 5 that this Writ Petition be dismissed. 5. Even when I hear the learned Senior Government Pleader on the afore lines, it is indubitable that Ext.P11 has been issued much after the petitioner had retired from service. This is evident from the fact that the date borne by the said order is 07.10.2010; while, admittedly, the petitioner retired from service on 31.08.2005. Therefore, whatever be the merits of the contentions urged by the Government in favour of Ext.P11, it is vitiated on account of the conclusive declarations of the Hon'ble Supreme Court in **Rafiq Masih** (supra) particularly because, there is no case, even in the statement filed on behalf of the respondents, that the higher grade sanctioned to the petitioner was on account of any error or cause that can be attributed to the petitioner; but it is virtually conceded that it was granted, at the WPC 5461/11 6 relevant time, through valid orders, which had never been objected until such time he was in service. 6. Obviously hence, the audit objections against the grant of higher grade to the petitioner, made much after he retired, could not have applied to him and no amount could have directed to be recovered, going by **Rafiq** **Masih** (supra). 7. Ineluctably, therefore, the respondents could not issue Ext.P11 nearly five years after the retirement of the petitioner when he had received the benefits under valid order; and this is indubitable from the emphatic declaration of the Hon'ble Supreme Court in **Rafiq Masih** (supra), to which they are bound fully. In the afore circumstances, I order this writ petition and set aside Exts.P2, P7 and P11 and consequently, direct that no further WPC 5461/11 7 action for recovery of any amounts from the petitioner will be pursued by any of the respondents based on the allegation of wrong grant of grade benefits to him. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 5461/11 8 ## APPENDIX ## PETITIONER'S/S EXHIBITS: |EXHIBIT P1|TRUE COPY OF LETTER NO.17/PEN| |---|---| ||A/230/AS/05-06 DATED 04/08/2005| ||ISSUED BY THE 4TH RESPONDENT TO THE| ||AEO, CHALAKUDY.| |EXHIBIT P2|TRUE COPY OF AUDIT OBJECTION DATED| ||05/03/2007 VIDE NO. E3-20686/06(16)| ||ISSUED BY THE 2ND RESPONDENT.| |EXHIBIT P3|TRUE COPY OF EXPLANATION GIVEN BY| ||THE HEADMISTRESS OF THE SCHOOL TO| ||THE AUDIT OBJECTION THROUGH THE 3RD| ||RESPONDENT IN JUNE, 2007.| |EXHIBIT P4|TRUE COPY OF VERIFICATION REPORT| ||DATED 25/06/2008 VIDE NO.| ||PR.1250015900/P-17/3-1508920192| ||ISSUED BY THE 3RD RESPONDENT.| |EXHIBIT P5|TRUE COPY OF REVISED PENSION PAYMENT| ||ORDER DATED 26/06/2008 ISSUED BY THE| ||4TH RESPONDENT.| |EXHIBIT P6|TRUE COPY OF REPRESENTATION| ||SUBMITTED BY THE PETITIONER BEFORE| ||THE 3RD RESPONDENT DATED 21/08/2009.| |EXHIBIT P7|TRUE COPY OF ORDER NO. B-| ||1082/09/K.DIS. DATED 27/05/2010| ||ISSUED BY THE 3RD RESPONDENT.| |EXHIBIT P8|TRUE COPY OF REPRESENTATION| ||SUBMITTED BY THE PETITIONER BEFORE| ||THE 4TH RESPONDENT DATED 08/07/2010.| |EXHIBIT P9|TRUE COPY OF LETTER NO. E3-25626/09| ||DATED 18/01/2010 OF THE 2ND| ||RESPONDENT TO THE 3RD RESPONDENT.| WPC 5461/11 9 |EXHIBIT P10|TRUE COPY OF REVISED OPTION| |---|---| ||SUBMITTED BY THE PETITIONER FOR PAY| ||FIXATION BEFORE THE AEO THROUGH THE| ||HEADMISTRESS ON 21/08/2010.| |EXHIBIT P11|TRUE COPY OF LETTER NO.| ||E3/15729/2010 DATED 07/10/2010| ||ISSUED BY THE 2ND RESPONDENT TO THE| ||3RD RESPONDENT.|