High Court of KeralaSingle Judge2016-02-16Writ petition allowed; No costs.

P.R. Vasumathy v. Assistant Educational Officer, Valappad & Others

Case / Petition Number:WP(C).No. 36085 of 2005 (U)

Neutral Citation::null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-02-16
Court Decision / Holding: The writ petition is allowed. The objection at Ext.P1 is upheld only to the first portion, i.e., fixation by Ext.P2. The fixation as per Ext.P3 in the pre-revised scale, existing on that date, is found to be correct. The petitioner’s fixation in the pre-revised scale as per Ext.P2 was erroneous; however, the fixation as per Ext.P3 in the pre-revised scale should stand. The amounts deducted from the DCRG shall be recomputed and refunded within six months from receipt of a certified copy of the judgment, and the pension shall be recomputed with arrears paid within the same period. No costs.
Final Disposition: Writ petition allowed; No costs.

Parties to the Case

Appellants / Petitioners

P.R. Vasumathy

Respondents

Assistant Educational Officer, Valappad, P.O. Chentrappini, Thrissur
The Deputy Director (Education), Office of the Deputy Director, Collectorate, Thrissur
The Accountant General, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Sri.K.B.Ganesh
• Sri.Anil George

Counsels for Respondents

• Sri.M.A. Fayaz

Case Synopsis & Summary

The petition challenges an audit objection that fixed liability of Rs. 89,738 on the petitioner, a retired headmistress, based on fixation of pay under the senior and selection grade schemes. The core issue is the proper basis of pay fixation after promotion to Headmistress in the LPSA stream and the applicability of Government orders authorizing time-bound higher-grade fixation. The petitioner joined service on 22 June 1972, was promoted to Headmistress on 1 May 1989, and exercised options for higher grades on completion of 20 years, as reflected in Exts P2 and P3. The government’s audit (Ext P1) contends that fixation must be on the revised scale, and that notional fixation in the pre-revised scale was improper. The Government eventually issued GO(P) No.380/94 (13) dated 9 June 1994, allowing higher-grade fixation and re-option for those promoted prior to certain dates; subsequent GO(P) No.1811/99 (38) dated 15 September 1999 and GO 600/93 dated 25 September 1993 continued with revisions. The court notes that Ext.P2’s option was exercised when the petitioner did not have the revised benefit, and that Ext.P3 fixation pertains to the pre-revised scale in effect before the 1997 revision. The audit objection cannot be sustained; the court holds Ext.P2 fixation erroneous but Ext.P3 fixation in the pre-revised scale is correct and directs recomputation of DCRG deductions and pension arrears within six months, with no costs.

Provisions of Law Cited

G.O(P) No.380/94 (13) dated 09.06.1994G.O(P) No.1811/99/38/Fin. dated 15.09.1999G.O(P) No.600/93 dated 25.09.1993G.O(P)No.480/89/Fin. dated 01.11.1989Circular No.4890/PRC-A3/93/Fin. dated 23.03.1993

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the audit objection (Ext. P1) is unsustainable since the fixation was guided by GO 380/94 and subsequent orders correcting anomalous pay scales for those promoted as Headmasters in the LP section. She argues that she exercised options under Exts. P2 and P3 to obtain higher grades, and that GO 380/94 necessitated time-bound fixation and re-option; Ext. P3 fixed her in the pre-revised scale, which was effective before the 1997 revision. The petitioner contends that the undertaking to deduction does not bar redress, and that the fixation, though initially misapplied via Ext. P2, should be corrected with Ext. P3 as the valid basis, leading to refund of excess deductions and recomputation of pension and DCRG arrears within six months. The argument relies on the anomaly correction measures adopted by the Government and emphasizes equity for those promoted before the revisions.

Contentions of Respondents

The respondents contend that fixation should align with revised scales post-revision; they rely on GO 380/94 (13) to justify higher-grade fixation and on subsequent G.O.s (1811/99, 600/93) to govern revisions. They argue the audit objection properly targets Ext. P2’s fixation in light of revised scales, while Ext. P3’s fixation should be treated as in the pre-revised scale only insofar as it did not contravene the revised framework. They maintain the petitioner’s consent to deduction does not bar correction but seek proper recomputation of DCRG and pension, with relief to be implemented within six months and no costs beyond that."

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab v. Rafiq Masih	2015 (4) SCC 334	Distinguished	Cited by counsel to argue that recovery of excess payments for a period longer than five years cannot be effected, but the court distinguishes it due to undertaking and the factual context, ultimately not applying it to the present case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 16TH DAY OF FEBRUARY 2016/27TH MAGHA, 1937** ## **WP(C).No. 36085 of 2005 (U)** **----------------------------** **PETITIONER:** ## **------------------** **P.R.VASUMATHY, KOZHIPARAMBIUL HOUSE VALAPPAD, (RETD.HEAD MISTRESS, NATIONAL L.P.SCHOOL PAINOOR, VALAPPAD)** **BY ADVS.SRI.K.B.GANGESH SRI.ANIL GEORGE** ## **RESPONDENTS:** - **----------------------** ## **1. ASSISTANT EDUCATIONAL OFFICER, VALAPPAD, P.O.CHENTRAPPINI, THISSUR.** **2. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR, COLLECTORATE, THRISSUR.** **3. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI. M.A. FAYAZ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 36085 of 2005 (U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :-** ## **-----------------------------------** **EXT.P1 - COPY OF THE LETTER FROM THE 2ND RESPONDENT INTIMATING PENDENCY OF AUDIT OBJECTION ALONG WITH THE COVERING NOTE OF THE 1ST RESPONDENT DATED 23.08.2004. EXT.P2 - COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 30.07.1992 FIXING PETITIONER'S PAY PURSUANT TO GRANT OF SENIOR GRADE. EXT.P3 - COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 18.07.1998 FIXING PETITIONER'S PAY PURSUANT TO GRANT OF SENIOR GRADE. EXT.P4 - COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 22.08.2005 DETERMINING THE PENSIONARY BENEFITS OF THE PETITIONER.. EXT.P5 - COPY OF THE EXPLANATION OFFERED BY THE PETITIONER DATED 01.11.2004.** **RESPONDENTS' EXHIBITS:- NIL ---------------------------------------** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **sp** **K. VINOD CHANDRAN, J. ---------------------------------W.P(C). No.36085 of 2005-U ---------------------------------Dated this the 16[th] day of February, 2016** ## **JUDGMENT** The petitioner, a retired Headmistress, challenges Ext.P1 Audit Objection and the liability fixed on that basis, of Rs.89,738/-, as is revealed from Ext.P4. The audit objection at Ext.P1 is on the ground that the petitioner's Senior Grade and Selection Grade has to be fixed on the basis of G.O(P) No.380/94(13) dated 09.06.1994 and G.O(P) No.1811/99(38) dated 15.09.1999. It is also seen from Ext.P1 that the teachers who were promoted as Headmaster/Headmistress prior to _W.P(C). No.36085 of 2005-U_ **2** 1.3.1992 or 1.3.1997, would be eligible for senior grade/selection grade. However they would be permitted fixation of their pay notionally in the Senior grade or selection grade on 1.3.1992 or 1.3.1997, or on the date on which they become eligible for senior grade or selection grade. The audit objection is that notional fixation made under the pre-revised scale is not in order and that the fixation has to be made on the revised scale. 2. The brief facts to be noticed are that the petitioner joined as LPSA on 22.06.1972 and was promoted as Headmistress on 01.05.1989. If the petitioner had continued as LPSA, she would have been entitled to higher grade on completion of 15 years, and senior grade on completion of 20 years, and selection grade on _W.P(C). No.36085 of 2005-U_ **3** completion of 25 years. The petitioner by reason of her promotion, was not entitled to the said higher grades and in such circumstance, was dis-entitled from exercising option, initially granted as per G.O(P) No. 600/93 dated 25.09.1993. The Government took into consideration the difficulties of such teachers who were promoted to the post of Headmaster/ Headmistress in LP section and the anomaly insofar as the junior who remains in the LPSA being entitled to such higher grade, as a consequence of which, the junior would be entitled to higher pay than the seniors who were promoted as Headmasters. It was hence that the Government brought out G.O No.380/94 (13) dated 09.08.1994 wherein such teachers who were promoted, were also granted the facility _W.P(C). No.36085 of 2005-U_ **4** of higher grade fixation and re-option. 3. The petitioner was admittedly granted the first Higher Grade on completion of 15 years, when she was continuing as an LPSA itself. The petitioner was promoted as Headmistress on 01.05.1989. The petitioner is said to have exercised her option to be granted Senior Grade as per Ext.P20, on completion of 20 years. The said option is said to have been exercised on the basis of GO(P) No.480/89/Fin. dated 01.11.1989, GO(P) No.180/91/100/Fin. dated 07.03.1991 and Circular No.4890/PRC-A3/93/Fin. dated 23.03.1993. 4. The Government Order dated 07.03.1993 and Circular dated 23.03.1993 does not grant any such benefit for exercising an option on completion of 20 years to those LPSAs promoted _W.P(C). No.36085 of 2005-U_ **5** as Headmistress prior to completion of 20 years. The specific benefit allowed in the aforesaid G.O. and Circular is for Selection Grade for those persons, who got promotion as Headmaster, prior to 01.07.1988. The petitioner admittedly got promoted only on 01.05.1989. Hence, the exercise of option as per Ext.P2 could not have been made. 5. Be that as it may, subsequently, the persons, who were so promoted prior to 20 years, were granted the benefit of all the time bound Higher Grades, falling due on or after 01.03.1992 by GO(P) No.380/94/(13)/Fin. Dated 09.06.1994. Ext. P2 option is said to have been exercised in 1992, when the petitioner did not have the benefit. The revision in scales were effected before the benefit was conferred on _W.P(C). No.36085 of 2005-U_ **6** the petitioner. The petitioner's Higher Grade was then granted in the pre-revised scale on the revision being effected and the petitioner was granted fixation in the revised scale with effect from 01.03.1992. This is definitely erroneous, since the benefit for Higher Grade to the petitioner, who was promoted as Headmistress on 01.05.1989 was specifically by virtue of the G.O. dated 09.06.1994. Hence, such Higher Grade could have been granted only in the revised scale and not in the pre-revised scale, since by the time the benefit was imposed to the pay stood revised. 6. Subsequently, the petitioner's Selection Grade fell due on completion of 25 years on 21.06.1997. The petitioner is said to have exercised an option as per Ext.P3 on 18.07.1998 _W.P(C). No.36085 of 2005-U_ **7** and the petitioner is said to have been granted the Selection Grade. Subsequent to which, a revision came by GO(P) No.1811/99/38/Fin. dated 15.09.1999. With respect to the aforesaid pay revision also, there was an audit objection on the ground that the petitioner had to be fixed in the revised scale granted as per the Government Order dated 15.09.1999. The said objection cannot be sustained, since even prior to the revision, the petitioner was granted the Selection Grade in the pre-revised scale as per the earlier G.O. of 09.06.1994. The fixation as per Ext.P3 was in the pre-revised scale and the revision by Government Order dated 15.09.1999 though effective from 01.03.1997, the petitioner could not be fixed in the revised scale, since already fixation was made in the _W.P(C). No.36085 of 2005-U_ **8** pre-revised scale. Hence, the objection with respect to the fixation as per GO(P) No.1811/99/38/Fin. dated 15.09.1999 cannot be sustained. The said objection would be considered as dropped. 7. The learned counsel would rely on the decision of the Hon'ble Supreme Court reported in **State of Punjab v. Rafiq Masih [2015 (4) SCC 334]** to contend that the recovery from employees of excess payment for a period in excess of five years before the order issued, cannot be effected. Herein, admittedly, the audit objection was on 23.08.2004 raised by Ext.P1, when the date of retirement was on 30.06.2005. However, in the present case, the Counter Affidavit of the Government shows that the petitioner had given a consent to deduct _W.P(C). No.36085 of 2005-U_ **9** the excess amount drawn from the DCRG, at the time of sanction of pension. The learned counsel for the petitioner would submit that such a consent was only in the event of the objection being upheld legally. 8. In any event, this Court is not able to countenance the arguments of the petitioner that the Supreme Court decision would be applicable in the case of the petitioner, especially since an undertaking had been given to the contrary. But the consent would not fetter the right of the petitioner in challenging the order of suspension, especially when issued at the eve of her retirement. 9. In such circumstances, the petitioner’s fixation of pay in the pre-revised scale as per Ext.P2 is found to be wrong, but however the _W.P(C). No.36085 of 2005-U_ **10** fixation as per Ext.P3 in the pre-revised scale, existing on that date, is found to be correct. The objection at Ext.P1 is upheld only to the first portion, ie. the fixation by Ext.P2. In the context of deductions having been made, the fixation granted as per Ext.P3 shall be re-computed and the amounts due to the petitioner, from the amount deducted from DCRG, shall be refunded to her within six months from the date of receipt of the certified copy of this judgment. The pension of the petitioner shall also be re-computed and the arrears shall also be paid within the aforesaid time frame. The writ petition is allowed. No costs. Sd/- **K. VINOD CHANDRAN, JUDGE.** //True Copy// P.A. to Judge. sp/20/02/16