Rajendra Kumar N.P. v. District Educational Officer, Tirur; Deputy Director of Education, Malappuram; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939** **WP(C).No. 21509 of 2016 (K)** **----------------------------** ## **PETITIONER(S):** **-------------** **RAJENDRA KUMAR N.P., AGED 56 YEARS, S/O.PARAMESWARAN PILLAI, H.S.A (MATHEMATICS), P.K.M.M.HIGHER SECONDARY SCHOOL, EDARIKODE P.O., MALAPPURAM DISTRICT.** ## **BY ADV. DR.GEORGE ABRAHAM** **RESPONDENT(S):** **--------------** **1.DISTRICT EDUCATIONAL OFFICER, TIRUR 679 101.** **2.DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM - 679 505.** - **3.STATE OF KERALA,** **REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** ## **BY SR. GOVERNMENT PLEADER SMT. MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 21509 of 2016 (K)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **-----------------------** - **P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 31/7/1997 OF THE PETITIONER** - **P2 TRUE COPY OF THE AUDIT OBJECTION RAISED BY THE 2ND RESPONDENT DATED 8/9/2009.** - **P3 TRUE COPY OF THE CIRCULAR ISSUED BY THE 3RD RESPONDENT** - **P4 THE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT DATED 9/4/2012.** - **P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE GOVERNMENT DATED 10/5/2012** - **P6 TRUE COPY OF THE ORDER ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION DATED 20/12/2012.** - **P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 9/7/2012 TO THE HON'BLE MINISTER** - **P8 TRUE COPY OF THE ORDER DATED 25/7/2014 ISSUED BY THE 3RD RESPONDENT** - **P9 TRUE COPY OF THE CLARIFICATION SOUGHT FOR BY THE 2RD RESPONDENT DATED 17/8/2015** **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** ## **TRUE COPY** **P.S. TO JUDGE** ## **EL** ## **P.V.ASHA J.** **-------------------------------------------W.P.(C).No.21509 of 2016** **---------------------------------------------** Dated this the 5[th] day of June, 2017 ## **J U D G M E N T** The petitioner challenges the objections raised against the fixation of his pay initially in Ext.P2 audit report and thereafter in Ext.P8 letter of Government. 2. Petitioner was initially appointed as H.S.A (Mathematics) for the period from 05.09.1996 to 31.03.1997 as a leave substitute in P.K.M.M Higher Secondary School, Edarikode, which is an aided School. Thereafter, as per Ext.P1 order dated 31.07.1997, he was appointed against a regular vacancy from 31.07.1997 onwards. He retired from service on 31.05.2017. Both the appointments were approved from the respective dates of appointments. On completion of 8 years of service he was granted higher grade with effect from 01.05.2005. 3. While so, in the audit conducted, an objection was raised with respect to the fixation of his pay consequent to 2004 pay revision, stating that the petitioner completed 8 years duty only on 02.5.2005 and therefore, the pay fixed in W.P.(C).No.21509 of 2016 2 his case at Rs.9590/- in the scale of pay of 8390-13,270/- as on 01.05.2005 was not correct. Accordingly, it was directed to refix his pay and get the excess pay drawn by him refunded. As against the audit objection raised for shortage of one day for completing 8 years of service, petitioner had approached the Educational Authorities. 4. While so, Government issued Ext.P3 Circular No.44060/J2/11/G.Edn. dated 26.09.2012, where it was ordered that broken service for a period of one year within a continuous period of two years would be treated as duty for the purpose of declaration of probation and that such service which can be counted for increments can also be reckoned for service weightage. Government further ordered that such broken service can be considered for granting increments, as provided under Rule 61 (4) of Chapter XIV A, even if there is difference in the scale of pay, in case such difference is on account of pay revision. Petitioner points out that Government had dropped objections in fixation of pay, raised in several cases and issued orders like Ext.P4 dated 09.04.2012 directing to count the service rendered by them in different scale of pay for increments and service weightage, notwithstanding the difference in the scale of pay, where the reason for the W.P.(C).No.21509 of 2016 3 difference was pay revision alone. By Ext.P5 letter dated 10.05.2012 Govt. informed the Deputy Director of Education, Malappuram that the case of the petitioner can be finalized in accordance with G.O.(P) No.8/2012 Fin dated 15.01.2012. Thereafter, the Deputy Director of Education, Malappuram as per Ext.P6 letter dated 20.12.2012, informed the Headmaster that objection raised against him in the audit has been dropped and the higher grade as well as the fixation of pay had been approved. In the meanwhile, the petitioner has approached the Government with Ext.P7 representation, requesting for fixing his pay dropping the audit report. Government thereafter issued Ext.P8 letter , stating that petitioner's service during the first spell was as a leave substitute and such service cannot be counted for increment or probation. Therefore, the pay fixed in the case of the petitioner counting broken period of his service was not proper. The Government stated that after rendering service in the leave vacancies when the teachers joined regular service, years after getting relieved from the leave vacancies. The period as leave substitute cannot be reckoned for the purpose of probation as well as for increment. Thereupon, the Deputy Director of Education sought a clarification from Government W.P.(C).No.21509 of 2016 4 and did not implement Ext.P5 letter. Writ petition was filed in the above circumstances. 5. The 2[nd] respondent-the Deputy Director of Education, has filed a counter affidavit admitting the service rendered by the petitioner as leave substitute as well as the regular H.SA. The objection raised by the second respondent was on the ground that he would have completed 8 years of service only on 02.05.2005 and as on 01.05.2005 the fixation of pay in accordance with the revised scale of pay 2004 was not admissible and he would not have completed 8 years of service as on that day. However, it is stated that 3[rd] respondent had in Ext.P5 letter directed the second respondent to finalize the case of the petitioner in accordance with the G.O.(P) No.8/2012/Fin dated 15.1.2012. While so, Government as per Ext.P3 circular dated 26.09.2012, made it clear that prior service rendered in a different scale of pay can be counted for service benefits in cases where the change of scale occurred due to pay revision orders. Accordingly the 3[rd] respondent, as per Ext.P6 letter, informed that the the pay fixed in the case of petitioner as per 2004 pay revision and grant of higher grade were approved dropping the audit objection in the light of Ext.P3 circular. But the Government W.P.(C).No.21509 of 2016 5 thereafter, considering a representation, which petitioner had submitted in the meanwhile, issued Ext.P8 letter, directing that the service rendered by him as leave substitute shall not be counted for service benefits along with regular appointment. According to the second respondent, they have sought clarification from the 3[rd] respondent fixation of pay in accordance with 2009 pay revision. 6. Petitioner has filed a reply affidavit pointing out that the only objection raised against the fixation of pay was in respect of the difference in pay of scale. 7. Heard the learned counsel for the petitioner as well as the learned Government Pleader and considered the contentions. 8. In Ext.P2 report, objection raised by the audit party was with respect to the reckoning of petitioner's service in two different scale of pay. Audit party found that there was deficiency of one day for the petitioner to complete 8 years' service as on 1.5.2005, seeing that the first spell of his service was in two different pay scales and the service rendered in the same pay scale i.e from 1.3.1997 onwards alone can be reckoned for increments. The objection was against the pay fixed on grant of 8 years' higher grade and under the revised W.P.(C).No.21509 of 2016 6 scale of 2004 pay revision. There was no objection with respect to the nature of appointment or fixation of pay based on that. There was no dispute with respect to his service as leave substitute for the period from 05.09.1996 to 31.03.1997 followed by his service as a regular incumbent in the post of HSA from 02.06.1997 onwards. The objection in the audit report was only to the effect that petitioner was granted higher grade from 1.5.2005 whereas he became eligible for higher grade only on 2.5.2005 on completion of 8 years of service. As explained by the petitioner, he had rendered 6 months and 27 days of service as a leave substitute and 7 years, 10 months and 29 days during 02.06.1997 to 30.04.2005. The total service rendered by him as on 01.05.2005 as 8 years 5 months and 26 days. The objection raised was that the pay drawn by him from 05.09.1996 to 28.02.1997 was in the scale under 1992 pay revision whereas the period from 01.03.1997 to 30.04.2005 was in the scale of pay of 1997 pay revision. The said objection was dropped on the basis of Ext.P3 circular issued by Government, as directed in Ext.P5 letter. 9. Even otherwise, as rightly contended by Dr.George Abraham, the learned Counsel for the petitioner, it W.P.(C).No.21509 of 2016 7 is settled law that increment cannot be denied on the ground that the incumbent has drawn pay in different pay scale when service was rendered in the same post and change in the pay and scale of pay was consequent to revision of pay (see **Hussain v. Kerala Water Authority** [1996 (2) KLT 555], **Jose Jacob v. State of Kerala** [1998 (2) KLT 873], etc. 10. The action of Government in Ext.P8, raising objections on grounds which were not complained of by the petitioner was absolutely unwarranted. There was no reason for the Government to raise objections on new grounds, when the grievance of the petitioner in the representation was against the audit objection. Petitioner should not have been put in a position worse than that when he approached Government. It is pointed out that petitioner has already retired from service on 31.05.2017 and on the basis of the objections raised in Ext.P2 and thereafter in Ext.P8, he was not getting the benefits legitimately due to him. In the above circumstances, the order Ext.P8 is set aside. There shall be a direction to the second respondent to re-store the pay of the petitioner as it was fixed before objections were raised in Ext.P2 audit report and to fix the pay of petitioner based on that in accordance with the subsequent pay revision W.P.(C).No.21509 of 2016 8 orders issued from time to time after granting the petitioner an opportunity to opt and thereafter settle the terminal benefits of the petitioner based on the pay thus re-fixed. The second respondent shall finalise the proceedings in respect of fixation of pay within a period 'two months' from the date of receipt of a copy of the judgment and his pensionary benefits shall be settled and disbursed within a further period of 'one month'. Writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS