Manoj D Vazhapilly v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942** ## **WP(C).No.4926 OF 2020(M)** ## **PETITIONER:** **MANOJ D VAZHAPPILLY, AGED 55 YEARS S/O.DHARMAN, CLERK, HIGH SCHOOL, CHENTRAPPINNI, THRISSUR DSITRICT, RESIDING AT VAZHAPPILLY HOUSE, KAZHIBRAM P.O., THRISSUR-680 568.** **BY ADVS. SHRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH SMT.ATHIRA A.MENON SRI.AMAL S KUMAR SHRI.AJMAL AHMED R.** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DIRECTOR OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM-695 014.** - **3 DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR DISTRICT-680 003.** - **4 DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR-680 506.** ## **SRI.P.M.MANOJ-SR.GP.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 4926/20 2 ## **JUDGMENT** The petitioner, who is stated to be working as a Clerk in the High School, Chentrappinni, assails Ext.P1 Audit objection raised against him by the 3[rd] respondent–Deputy Director of Education, asserting that same is illegal and untenable; further contending that no recovery is permissible as per the ratio in the judgment of the Honourable Supreme Court in **State of Punjab v. Rafiq Masih (White Washer)** [2015(4) SCC 334]. 2. Sri.K.B.Gangesh - learned counsel for the petitioner, explains that his client entered the service as a Clerk and was given the first Time Bound Higher Grade benefit on 01.04.2000 in the scale of LD Clerk; the 16 year Time Bound Higher Grade benefit on 01.04.2006 in the scale of Head Clerk; and finally, the 22 year Time Bound Higher Grade benefit on 01.04.2012 in the pay WPC 4926/20 3 scale of Junior Superintendent. He says that since all these benefits were given to his client under valid orders, no recovery is possible; but that, in spite of this, the 3rd respondent has now issued Ext.P1 stating that the afore benefits ought not have been granted, since Aided Schools have no posts of LD Clerk/Head Clerk/Junior Superintendent and consequently that he was entitled only to the 'Table Scale' of pay. He argues that Ext.P1 is untenable because, as is evident from Ext.P3, the Time Bound Higher Grade benefits were always granted to the Clerks in Aided Schools, including the 3rd Time Bound Higher Grade in the Scale of Pay of Junior Superintendent. He, therefore, prayed that Ext.P1 be quashed and the recovery ordered by the 3rd respondent be interdicted. 3. In response, Sri.P.M.Manoj – learned Senior Government Pleader, submitted that a WPC 4926/20 4 |counter affidavit has been filed on record, in| |---| |which, it has been explained that Ext.P1 Audit| |objections were warranted because the| |petitioner had been granted his first <br>Time| |Bound Higher Grade in the Scale of Pay of| |Senior Clerk; while his second Time Bound| |Higher Grade was fixed in the pay of the Head| |Clerk. He then submitted that the 3<br>rd<br>Time| |Bound Higher Grade was fixed for the| |petitioner in the Scale of Pay of Junior| |Superintendent, but that since none of these| |posts are existing in Aided Schools, the 3<br>rd| |respondent had no other option but to raise an| |objection, as has been made in Ext.P1. He then| |added that, as regards the Scale of Pay of| |Junior Superintendent availed of by the| |petitioner is concerned, he could not have| |been granted the same - even if it is assumed| |that he is entitled to it - earlier than the| |date fixed in Ext.P4<br>Government Order, namely| WPC 4926/20 5 11.06.2014, but that he had availed of the said benefit with effect from 02.04.2012. He, therefore, submitted that, going by any account, the petitioner is liable to refund the amounts as has been mentioned in Ext.P1. 4. I have considered the afore submissions and have also examined the materials available on record. 5. Even going by the counter affidavit filed by the official respondents, it is evident that petitioner had been granted his first, second and third Time Bound Higher Grade benefits validly and under orders issued by the competent Authorities without any fault or misrepresentation attributable to him. These benefits were given to him in the years 2000, 2006 and 2007 respectively and Ext.P1 objection has been raised only in the year 2019. Therefore, even assuming, for the sake of argument, that petitioner was not entitled WPC 4926/20 6 to such benefits, its recovery would stand interdicted on account of the declaration of law of the Honourable Supreme Court in **Rafiq Masih** ( _supra_ ). 6. That apart, the fact that benefits were given to the petitioner based on valid orders being admitted and since Ext.P4 order of the Government, dated 11.06.2014, makes it clear that Clerks in Aided Schools were enjoying the benefits of 2nd and 3rd Time Bound Higher Grades prior to the issuance of eighth Pay Revision order being conceded, I fail to understand how the 3rd respondent can now contend that such benefits were not eligible to the petitioner merely because the posts of Senior Clerk, Head Clerk and Junior Superintendent are not available in Aided Schools. 7. That said, the further contention of the learned Senior Government Pleader that the WPC 4926/20 7 petitioner is liable to refund the benefits of the third Time Bound Higher Grade given in the year 2012, because he was entitled to the same only from 10.06.2014, cannot appeal to this Court since when one reads Ext.P4 closely, it is rendered indubitable that those Clerks who did not receive these benefits until then, would be entitled to it from the date of the said order, namely 11.06.2014. This is manifest because Ext.P4 order says that even though Time Bound Higher Grade benefits were permissible to Clerks in Aided Schools prior to the eighth Pay Revision Order, it was not extended for the subsequent 2004 and 2009 Pay Revision recommendations and therefore, that, on the basis of the request made by employees, it was decided that the third Time Bound Higher Grade in the Pay Scale of Junior Superintendent will continue, though the monetary benefits under it will be offered WPC 4926/20 8 only from the date of the said order, namely 11.06.2014. 8. It is, therefore, ineluctable that Ext.P4 relates to those persons who had not obtained their third Time Bound Higher Grade benefits until then, making it limpid that such persons would be entitled to the same only after 11.06.2014, being the date of Ext.P4. However, the case of the petitioner herein is different, since he had already been given this benefit earlier and hence it is luculent that the restrictive rigour of Ext.P4 would not apply to him. 9. I am, therefore, clear in my mind that the objection now raised against the petitioner, through Ext.P1 by the 3rd respondent, is incompetent in law and that no recovery can be ordered against him after more than eight years since the benefits had been granted to him validly and through legally WPC 4926/20 9 sanctioned orders, going by the ratio in **Rafiq** **Masih** (supra). Resultantly, this Writ Petition will stand allowed; consequently, directing the respondents not to effect any recovery against the petitioner based on Ext.P1. **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 4926/20 10 ## APPENDIX ||APPENDIX| |---|---| |PETITIONER'S/S|EXHIBITS:| |EXHIBIT P1|TRUE COPY OF AUDIT OBJECTION DATED| ||26.02.2019 ISSUED BY THE 3RD| ||RESPONDENT.| |EXHIBIT P2|TRUE COPY OF PETITIONER'S REQUEST| ||DATED 10.07.2019 PREFERRED TO THE| ||3RD RESPONDENT WITH COVERING LETTER| ||OF THE HEADMASTER, HIGH SCHOOL,| ||CHENTRAPPINNI.| |EXHIBIT P3|TRUE COPY OF CIRCULAR| ||NO.R1/15980/2012/DPI/L.DIS DATED| ||29.03.2014.| |EXHIBIT P4|TRUE COPY OF GO(MS) NO.216/14/| ||(192)/FIN DATED 11.06.2014.| |EXHIBIT P5|RELEVANT PORTIOH OF GO(P)| ||NO.7/2016/FIN DATED 20.01.2016.| |EXHIBIT P6|TRUE COPY OF INTERIM ORDER PASSED BY| ||THIS HON'BLE COURT IN WPC| ||NO.3099/2018 DATED 22.02.2018.|