IVY PAUL v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 29TH DAY OF FEBRUARY 2016/10TH PHALGUNA, 1937 WP(C).No. 9339 of 2015 (N) --------------------------- PETITIONER(S): -------------------------- IVY PAUL LIBRARIAN-GRADE IV (HIGHER GRADE) MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR. BY ADVS.SRI.ASOK M.CHERIAN SRI.R.ROHITH SRI.K.JANARDHANA SHENOY SRI.V.K.PRASAD RESPONDENT(S): ---------------------------- ## 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA HIGHER EDUCATION (D) DEPARTMENT, THIRUVANANTHAPURAM.695001 2. THE DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM.695 001 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION - ERNAKULAM.682 030 ## 4. THE PRINCIPAL MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR-683542. R1-R3 BY ADV. GOVERNMENT PLEADER SRI M A FAYAZ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9339 of 2015 (N) ::2:: --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT. P1 : TRUE COPY OF THE GO(P) NO.36/71/EDN.DT.23-3-1971. EXT. P2 : TRUE COPY OF THE GO DT.31-7-1971. EXT. P3 : TRUE COPY OF THE LETTER DT.8-5-1989 SENT TO THE DIRECTOR OF COLLEGIATE EDUCATION. EXT. P4 : TRUE COPY OF THE LETTER DT.19-10-1989 OF R2 DIRECTOR OF COLLEGIATE EDUCATION TO THE PRINCIPAL, MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR. EXT. P5 : TRUE COPY OF THE G.O.(MS)NO.117/90/H.EDN. DT.17-5-1990. EXT. P6 : TRUE COPY OF THE LETTER OF R2 DT.2-6-1990 RECEIVED IN THE OFFICE OF R4. EXT. P7 : TRUE COPY OF THE LETTER DT.27-11-1990 OF R4 PRINCIPAL, ADDRESSED TO R2 DIRECTOR OF COLLEGIATE EDUCATION. EXT. P8 : TRUE COPY OF THE LETTER DT.16-1-1992 OF R3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION ERNAKULAM DT.16-1-1992 ADDRESSED TO R4 INFORMING OF PHYSICAL VERIFICATION OF BOOKS AND SCRUTINY OF RECORDS OF THE LIBRARY OF THE COLLEGE SCHEDULED TO BE HELD FROM 20-1-1992 TO 221-1992. EXT. P9 : TRUE COPY OF THE ORDER DT.16-6-1992 ISSUED BY R1. EXT. P10 : TRUE COPY OF THE ORDER OF R3 DT.12-3-1996 SANCTIONING HIGHER SCALE OF PAY APPLICABLE TO LIBRARIAN GRADE III TO THE PETITIONER. EXT. P11 : TRUE COPY OF THE LETTER DT.26-9-2006 OF R2 ADDRESSED TO R3. EXT. P12 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R1 DT.5-3-2007. EXT. P13 : TRUE COPY OF THE JUDGMENT OF HIGH COURT OF KERALA DT.7.1.2008 IN WPC 33524/2006. EXT. P14 : TRUE COPY OF THE ORDER OF R1 DT.16-9-2008. EXT. P15 : TRUE COPY OF THE JUDGMENT IN HON'BLE HIGH COURT OF KERALA IN WPC 24167/2009 DT.30-9-2014. WP(C).No. 9339 of 2015 (N) ::3:: EXT. P16 : TRUE COPY OF THE GO(RT)NO.334/2015/H.EDN DT.20-2-2015. EXT.P17: TRUE COPY OF THE ORDER NO.A5.5944/03 DT 29.12.2006 OF THE 3RD RESPONDENT DEPUTY DIRECTOR OF EDUCATION EXT.P18: TRUE COPY OF THE VERFICATION REPORT ON THE RETIREMENT BENEFITS DUE TO THE PETITIONER ISSUED BY THE INDIAN AUDIT ACCOUNTS DEPARTMENT EXT.P19: A TRUE COPY OF THE GRATUITY PAYMENT ORDER IN FAVOUR OF THE PETITIONER ISSUED BY THE OFFICE OF THE ACCOUNTANT GENERAL (A&E) KERALA DATED 29.4.2015 EXT.P20: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, DT 19.09.2015 EXT.P21: TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT DATED 15.10.2015 ADDRESSED TO THE PETITIONER RESPONDENT(S)' EXHIBITS: NIL --------------------------------------- TRUE COPY P.A TO JUDGE jma ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 9339 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of February, 2016 ## J U D G M E N T The petitioner is aggrieved with Ext.P16 order. The petitioners contentions are two fold. One that the library in the College in which the petitioner was working as a Librarian, was entitled to be granted Grade III classification as per Ext.P1 Government Order. The petitioner also has a contention that the re-fixation ordered is ten years afterwards and hence recovery cannot be effectuated going by the decision of the Hon'ble Supreme Court reported in State of Punjab v. Rafiq Masih (White Washer) [(2015(1) KLT 429 (SC)]. 2. The petitioner was working as a Librarian in the 4[th] respondent College. The categorisation of Libraries from Grade I to Grade IV was on the basis of the number of books in circulation. As early as in 1989 by Ext.P3, the Director of Collegiate Education had informed the 4[th] respondent College that the Library in the 4[th] WPC.No.9339/2015 ## : Page numbers : respondent College is only to be graded as Grade IV. Subsequent to the request made by the Principal, there was also a review conducted which also did not generate any result. The petitioner's grievance was insofar as being granted a promotion to Grade III, in the event of the Library being classified as Grade III. The petitioner in any event was entitled to grade promotion on completion of ten years. The petitioner was granted the said grade promotion as indicated in Ext.P10 dated 12.03.1996 and the petitioner was fixed in the pay scale of Grade III Librarians. The petitioner hence was not, at that point of time, concerned with the up-gradation of the Library as such, since the petitioner had been given the benefits of the higher Grade. 3. Later on, on completion of 18 years, the petitioner sought for the 2[nd] higher grade at which point it was noticed by the Deputy Director that the petitioner was not entitled to the higher grade, in the scale of pay of Grade III Librarian. Grade III is not a promotion post in an aided college wherein there is no upgradation made of the Library. The petitioner on grant of higher WPC.No.9339/2015 : Page numbers : grade was only eligible for the pay scale of Rs.1,200-2040. Erroneously the petitioner was fixed in the scale of pay applicable to the Librarian Grade III being Rs.1560-3360. This anomaly was noticed after eight years. The Deputy Director wrote to the Directior and the Director by Ext.P11 dated 26.09.2006; after a further period of two years, revised the pay scale of the petitioner. Recovery was also threatened. 4. It was in such circumstance that the petitioner approached the Government with Ext.P12 representation and filed a writ petition which was disposed of by Ext.P13. Ext.P13 noticed the contention of the petitioner and directed consideration of the representation. By Ext.P14, the petitioner's claim was rejected on the ground that there was no case for up-gradation of the Library of the 4[th] respondents college in the year 1992. The petitioner challenged Ext.P14 in another writ petition, in which Ext.P14 was and reconsideration was directed. The quashed again reconsideration made as per Ext.P16 is challenged herein. 5. The Director of Collegiate Education made a report WPC.No.9339/2015 : Page numbers : to the Government on the basis of which the petitioners claim was considered. It was found that the 4[th] respondent College included periodicals also to show the books distributed at 10759. On the basis of the stock register, it was found that the effective number of books in the Library was only 5224 and 95% of the books purchased were under the classification of novels and books of general nature. The distribution register for books also showed only distribution of 4727 books and the distribution of periodicals of 6032 was only to enhance the figure of distribution was the finding. It was also noticed at the decision relating to the grading of the colleges after inspection held in accordance with the order G.O(Ms)117/90/H.Edn. Dated 17.05.1990 was conveyed through letter dated 16.06.1992 read as 7[th] paper in Ext.P16 order. The College authorities having not moved any appeal against the same, it was found that the same has become final. The petitioner cannot re-agitate the issue when the college itself had not agitated the issue, was the finding. In such circumstance, the petitioner cannot have any claim for up-gradation of the Library of the 4[th] WPC.No.9339/2015 : Page numbers : respondent to Grade III in the year 1992. Ext.P16 is hence upheld. 6. The next issue to be considered is as to whether the recovery can be effected. Admittedly the petitioner was granted higher grade in the pay scale of Librarian Grade III in 1996. The erroneous grant was noticed only in the year 2004 and the revision effected in 2006. In such circumstance, the question of recovery is squarely covered by the decision in Rafiq Masih (supra) wherein paragraph (iii)of the operative portion is extracted herein: (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. In such circumstance, no recovery can be effected from the petitioner from 1996 to the year 2006 on the basis of the revision effected after 10 years. The revision as such would be upheld with the above directions. Writ petition is partly allowed. No costs. ## Sd/- jma - (K. VINOD CHANDRAN, JUDGE) - P.A to Judge //true copy//