M.R. Mohanachandran Ushus v. The Principal Secretary to Government, Home Department, Secretariat, Thiruvananthapuram and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 OP.No. 14999 of 2002(I) ----------------------- PETITIONER(S): --------------- M.R.MOHANACHANDRAN USHUS,KAKKANAD, KOCHI-30 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO RESPONDENT(S): --------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM 2. THE REGISTRAR,HIGH COURT OF KERALA, ERNAKULAM 3. THE ACCOUNTANT GENERAL,THE OFFICER OF THE ACCOUNTANT GENERAL (AUDIT) KERALA, THIRUVANANTHAPURAM 4. THE SUB TREASURY OFFICER,SUB TREASURY, ERNAKULAM. GOVERNMENT PLEADER SRI.M.R.SABU SRI.KRB.KAIMAL (SR.) FOR R2 SRI.B.UNNIKRISHNA KAIMAL FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## O.P.NO.14999/2002. ## APPENDIX ## PETITIONER'S EXHIBITS: - P1. COPY OF THE OFFICE MEMORANDUM BY ASST. REGISTRAR DTD.23.2.99. - P2. COPY OF THE OFFICE MEMORANDUM DTD.22.10.01. - P3. COPY OF THE RELEVANT PORTION OF AUDIT PARTY. - P4. COPY OF THE COMMUNICATION DTD.22.9.01 OF THE ACCOUNTANT GENERAL. - P5. COPY OF THE -DO- 9.12.01 OF -DO- - P6. COPY OF THE JUDGMENT IN O.P.NO.33967/01 OF THIS COURT. - P7. COPY OF THE REPRESENTATION DTD.15.11.01. - P8. COPY OF THE COMMUNICATION DTD.19.11.01 OF R2 TO R1. - P9. COPY OF THE COMMENTS OF R2 DTD.2.1.2002. - P10. COPY OF THE COMMUNICATION DTD.18.5.2002. - P11. COPY OF THE PENSION PAPERS. - P12. COPY OF THE COMMUNICATION FROM R2 DTD.11.6.2000. ## Sdk+ ///True copy/// P.A. to Judge ## S.SIRI JAGAN, J. ================== ## O.P.No.14999 of 2002 ================== Dated this the 26[th] day of November, 2008 J U D G M E N T The petitioner retired from the service of the Kerala High Court on 28.2.2002 as a Selection Grade Assistant. The petitioner is aggrieved by the withholding of an amount of Rs.88,358/- from his DCRG on the basis of the audit objection raised by the Accountant General with respect to the fixation of pay on the sanctioning of higher grade of 20 years with effect from 1.7.1989. The objection was that the 20 year higher grade to be granted to the petitioner was in the scale of pay Rs.1250-2230 whereas he was granted only the scale of pay of Rs.1220-2150 with effect from 1.7.1989. In the scale of pay of Rs.1220-2150 he was given a fixation under Rule 28A of Part I of KSR, whereas in the scale of pay of Rs.1250-2230 he was not entitled to such fixation. This resulted in the alleged excess pay of Rs.88,358/-, which is withheld from his DCRG. The petitioner challenges Exts.P3, P5 and P10 orders in this regard. 2. I have heard the learned counsel for the petitioner, the learned counsel appearing for the High Court of Kerala and the 2 o.p.14999/02 learned Government Pleader. 3. The imbroglio occurred because of the following facts. The petitioner entered service as Assistant Grade II in the service of the High Court of Kerala, on 27.2.1968. He was granted 13 years' grade on 1.9.1981. The next promotion is that of Assistant Grade I. The petitioner did not have the requisite qualification for promotion to the post since he did not pass the account test prescribed for the same. Therefore, he was not granted that promotion. While so, he became eligible for 20 years' higher grade on 1.7.1989. At that time since he was not eligible for promotion to the post of Senior Grade Assistant having scale of Rs.1250-2230, he was given the higher grade in the intermediate scale of Rs.1220-2150, which was perfectly in order at the time of granting 20 years' higher grade. But the Assistants Grade I on attaining the age of 40 years were eligible to be considered for exemption on certain conditions. On satisfying those conditions, by an order passed in the year 1993, the petitioner was given promotion retrospectively as Assistant Grade I with effect from 15.9.1988 and as Senior Grade Assistant with effect from 1.1.1992. It is on account of this order that the 3 o.p.14999/02 petitioner became entitled to the higher scale of pay of Rs.12502230 applicable to Senior Grade Assistants, for which he was not eligible on the date when the higher grade was given. As on the date of grant of 20 years' higher grade, admittedly the petitioner was eligible only for the scale of pay of Rs.1220-2150 and therefore, the grant of higher grade and fixation of pay consequent thereto was perfectly in order. It is only because of the retrospective promotion granted in 1993, that too, because of the exemption from possessing the test qualification required for the higher post, it became irregular. That higher grade was given and pay fixed accordingly as early as on 1.7.1989. This is sought to be objected to only on 9.10.2001. In the peculiar facts and circumstances of the case, I am inclined to apply the ratio of the Division Bench decision of this Court in _**Narayanan v. State of Kerala**_ [2008 (3) KLT 188] wherein this Court held that amounts cannot be recovered from an employee on account of wrong fixation of pay on the basis of audit objection raised after a long time. In this case the audit objection against his fixation of pay consequent to grant of 20 years' higher grade on 1.7.1989 was raised after 12 years. That being so, applying the ratio of the 4 o.p.14999/02 above decision, I quash Exts.P3, P4 and P10 orders holding that the petitioner is entitled to get the fixation of pay in the scale of pay of Rs.1220-2150 and that no amount is recoverable from the petitioner's DCRG on the basis of the objection of the Accountant General. Accordingly, the original petition is disposed of as follows: The Accountant General shall issue appropriate orders dropping the objections on the fixation of pay in accordance with the above findings, within a period of two weeks from the date of receipt of a certified copy of this judgment. Based on the authorisation to be issued by the Accountant General, the 4[th] respondent shall release the said amount to the petitioner within another period of two weeks from the date of receipt of communication from the Accountant General in that regard. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 5 o.p.14999/02 S.SIRI JAGAN, J. ================ O.P.No.14999 of 2002-R ================ J U D G M E N T 26[th] November, 2008 o.p.14999/02 6