Vijayakumar K.G. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN`** ``` THURSDAY, THE 20[TH] DAY OF JULY 2023 / 29TH ASHADHA, 1945 ``` ## **`WP(C) NO. 3133 OF 2022`** ## **`PETITIONER/S:`** ``` VIJAYAKUMAR K.G., AGED 57 YEARS ``` ``` CLERK (RETD), MGM NSS HIGH SCHOOL LAKATTOOR, LAKKATTOOR P.O., KOTTAYAM-686502, RESIDING AT NANDANAM, LAKKATTOOR P.O., KOTTAYAM-686502. ``` ``` BY ADVS. M.A.FAYAZ M.VISHNUPRIYA C.B.ABHINAVA ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.`** - **`2 THE DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR GENERAL OF EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695001.`** - **`3 THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM686001.`** - **`4 THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM-686001.`** - **`5 THE MANAGER, MGM NSS HIGH SCHOOL LAKATTOOR, LAKKATTOOR P.O., KOTTAYAM. BY ADV ADVOCATE GENERAL OFFICE KERALA`** ## **`OTHER PRESENT:`** ## **`SMT.NISHA BOSE-SR.GP`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 3133 OF 2022 ``` ``` 2 ``` ## **J U D G M E N T** ## **Dated this the 20[th] day of July, 2023** This writ petition is filed seeking the following releifs:- “i) to call for the records leading to the issuance of Exhibit P8 proceedings of the 3[rd] respondent and set aside the same by issuing a writ of certiorari. ii)to issue Writ of Mandamus directing the 3[rd] respondent to disburse the DCRG amount already sanctioned vide Ext.P6 and P7 order with 18% interest w.e.f 31.05.2020 onwards forthwith. iii)To declare that the scale of Rs.4000-6090 granted to the petitioner w.e.f 28.07.2002 at the time of 1[st] Time Bound Higher Grade is in order and cannot be altered or modified. iv)To declare that in view of Exhibit. P3,P4,P9,P10,P11,P12 P13, P14 and P15 Government orders petitioner is eligible to get the scale of 4000-6090 on petitioner becoming eligible for 1[st] Time Bound Higher Grade. v) to issue a Writ of Mandamus directing the 3[rd] respondent to sanction the 4[th] Time Bound Higher Grade on completion of 27 years of service w.e.f 01.04.2018, in accordance with G.O(P) No.7/2016/Fin dated 20.01.2016 vi) To declare that petitioner is also eligible to get the scale of Rs.4000-6090 on petitioner becoming eligible for 1[st] Time Bound Higher Grade as allowed to petitioners juniors, vide Exhibits P16,P17 and P18 vii) To declare that petitioner being similarly placed like that of the petitioner in Ext.P21 interim order and Ext.P22 judgment, is entitled ``` WP(C) NO. 3133 OF 2022 ``` ``` 3 ``` for the very same reliefs therein. viii) To restrain the official respondents from taking any recovery steps from the sanctioned DCRG amount as evidenced by Ext.P6 before disbursing the same to the petitioners” 2. Heard the learned counsel for the petitioner and the learned Government Pleader. It is submitted that the petitioner was working as a clerk in the MGM NSS High School, Lakattoor. He retired from service on 31.05.2020. It is submitted that the petitioner had been appointed by the 5[th] respondent on 30.04.1991. He was granted ten years Time Bound Higher Grade with effect from 01.04.2001 in the scale of pay Rs.3350-5275 by Ext.P5. After passing the departmental test, his salary was refixed in the scale of U D clerk at Rs.4000 with effect from 28.07.2002 by Ext.P5(a). Later, the petitioner was granted second and third Time Bound Higher Grades and his pay was revised on the basis of Pay Revision Orders. It is contended that no objections with regard to the fixation of pay was raised till the petitioner’s retirement on 31.05.2020. It is submitted that when the petitioner is ``` WP(C) NO. 3133 OF 2022 ``` ``` 4 ``` due to retire, he had forwarded pension proposal and the 3[rd] respondent had sanctioned the pension and forwarded to the Accountant General and the pension proposal was approved by Ext.P6 order dated 14.10.2020. The last pay certificate was also forwarded to the Sub Treasury Officer for disbursing terminal benefits by Exhibits P7 and P7(a). While so, the 3[rd] respondent issued Ext.P8 order stating that the petitioner was not eligible for fixation of pay in this scale of pay of Rs.4000-6090 with effect from 28.07.2002 and the Headmistress was directed to recover the alleged excess amount drawn by the petitioner from 28.07.2002 onwards. 3. Learned counsel for the petitioner submits that the said communication dated 13.04.2021, which is passed long after the benefits have been granted to the petitioner without even audit objections being raised and after the retirement of the petitioner, is completely untenable. Learned Counsel for the petitioner also relies on Exhibit P3 Government Order as also Ext.P22 ``` WP(C) NO. 3133 OF 2022 ``` ``` 5 ``` judgment of this Court to contend that the benefit which had been granted to the petitioner had been properly granted and that the same could not have been withdrawn after 20 years from the grant of the benefit and after the petitioner’s retirement. 4. A counter affidavit has been filed by the 3[rd] respondent admitting that the petitioner was appointed as Clerk in a regular vacancy with effect from 01.04.1991 and that he had retired from service on 31.05.2020. It is however submitted that the sanction of ten years Time Bound Higher Grade in the scale of pay Rs.4000-6090 which is the scale equivalent to that of Upper Division Clerk to the petitioner in 2002 is irregular. It is submitted that the Government had issued G.O.(Rt) No.1016/2021/ G.Edn dated 03.02.2021, which is produced as Ext.R3(a) and it is contended that in the said Government Order it is clarified that aided school clerks are re-entitled to claim the pay scales of the respective pay revision orders as Time Bound Higher Grades and the sanction of the first ``` WP(C) NO. 3133 OF 2022 ``` Time Bound Higher Grade on completion of ten years of service in the scale of pay of Upper Division Clerk was irregular. 5. It is further contended that in Ext.R3(e) judgment in W.A No.9/2022 as against Ext.P22 judgment in which it was specifically made clear that Ext.P22 would not be treated as a precedent. It is further contended that the petitioner was actually not entitled to a scale of pay drawn by him from the year 2002 onwards and therefore even if it is found that no recovery is processed, the refixation may be allowed. 6. Learned Government Pleader also relies on the judgment of this court in **Admnistrator Guruvayoor Devaswom & others v. Aravindan P.C and another** **[2021 (6) KHC 200] ,** to contend that where a person is given an undertaking in terms of the pay fixation orders, then the monetary benefits illegally granted can be subjected to re fixation, if it is later found to have been wrongly granted. ``` WP(C) NO. 3133 OF 2022 ``` ``` 7 ``` 7. Having considered the contentions advanced, I notice that the instant case is one where the benefit, according to the 3[rd] respondent, had been wrongly extended to the petitioner from 28.07.2002 onwards. 8. Even if all the other contentions raised by the learned Government Pleader are accepted, I notice that the objection has been raised for the first time by Ext.P8, i.e on 13.04.2021, after nearly twenty years from the wrong fixation, that too, only after the petitioner retired from the service on 31.05.2020. It also noticed that the Accountant General has accorded sanction for the approval of the pension by Ext.P6 order. Devoid of all other details, I am of the opinion that the re-fixation attempted, after nearly twenty years of grant of benefits to the petitioner, and that too, without hearing the petitioner or considering his objections, is completely illegal and cannot be relied upon to deny pensionary benefits which have already been approved and sanctioned by Exts.P5 and P6. ``` WP(C) NO. 3133 OF 2022 ``` 9. Though detailed counter affidavits has been placed on record, I fail to see any explanation with regard to the inordinate long delay of nearly twenty years in pointing out the defect, if any, in grant of scale of pay Rs.4000-6000 with effect from 28.07.2002. The Government Order relied on by the Government Pleader which is produced as Ext.R3(a) is also dated 03.02.2021, which is also passed after the retirement of the petitioner and the approval of his pension by Ext.P6. 10. In the above factual situation, I am of the opinion that Ext.P8 which directs recovery from the petitioner's pension on account of a wrong fixation with effect from 28.07.2002 passed after the petitioner’s retirement is completely illegal and cannot be relied on to make any recovery from the pensionary benefits due to the petitioner. In the above view of the matter, Ext.P8 is set aside. There will be a direction to the respondents to grant the pension as approved by the 3[rd] respondent and admitted ``` WP(C) NO. 3133 OF 2022 ``` ``` 9 ``` by the Accountant General in Ext.P6 without making any deductions. All benefits shall be calculated and disbursed to the petitioner in terms of this judgment within a period of three months from the date of a receipt of a copy of this judgment. ## **Sd/-** **ANU SIVARAMAN JUDGE** **SJ** ``` WP(C) NO. 3133 OF 2022 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 3133/2022`** ``` PETITIONER EXHIBITS Exhibit P1PHOTOCOPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT DATED 30/04/1991, CONTAINING THE ENDORSEMENT OF APPROVAL BY THE DEO, KOTTAYAM. Exhibit P2PHOTOCOPY OF RELEVANT EXTRACT OF THE PETITIONER'S SERVICE BOOK EVIDENCING PETITIONER CLEARING THE DEPARTMENTAL TESTS. Exhibit P3PHOTOCOPY OF THE GO(MS) NO.96/73/G.EDN. DATED 22/06/1973. Exhibit P4PHOTOCOPY OF THE GO(MS) NO. 438/80(212)/FIN DATED 07/07/1980. Exhibit P5PHOTOCOPY OF THE FIXATION DONE IN RESPECT OF THE PETITIONER W.E.F 01/04/2001. Exhibit P5(A)PHOTOCOPY OF THE PROCEEDINGS NO. B3- 5609/03/K.DIS ISSUED BY THE 4TH RESPONDENT DATED 20/10/2003. Exhibit P5(B)//PHOTOCOPY OF THE CIRCULAR NO.26790/J3//G.EDN. DATED 29/07/2006. Exhibit P5(C)PHOTOCOPY OF THE PAY FIXATION IN THE HIGHER GRADE SCALE W.E.F. 01/04/2001 IN ACCORDANCE WITH GO(MS) NO. 16/2010. Exhibit P5(D)PHOTOCOPY OF THE STATEMENT OF REVISED FIXATION OF PAY DATED 24/08/2006 IN ACCORDANCE WITH GO(P) NO.145/2006. Exhibit P5(E)PHOTOCOPY OF THE PROCEEDINGS GRANTING 2ND TIME BOUND HIGHER GRADE W.E.F. 01/04/2007. Exhibit P5(F)PHOTOCOPY OF THE STATEMENT OF REVISED FIXATION OF PAY DATED 06/06/2011 IN ACCORDANCE WITH GO)P) NO. 85/2011/FIN. Exhibit P5(G)PHOTOCOPY OF THE PROCEEDINGS GRANTING 3RD TIME BOUND HIGHER GRADE W.E.F. 01/04/2013. Exhibit P5(H)PHOTOCOPY OF THE STATEMENT OF REVISED FIXATION OF PAY DATED 18/06/2016 IN ACCORDANCE WITH GO(P) NO. 7/2016. Exhibit P6PHOTOCOPY OF ORDER ISSUED BY THE ``` ``` WP(C) NO. 3133 OF 2022 ``` ``` 11 ``` - **`ACCOUNTANT GENERAL DATED 14/10/2020.`** - **`Exhibit P7 PHOTOCOPY OF THE LAST PAY CERTIFICATE COUNTER SIGNED BY THE 3RD RESPONDENT.`** - **`Exhibit P7(A) PHOTOCOPY OF THE COVERING LETTER OF THE 3RD RESPONDNT ADDRESSED TO THE SUB TREASURY OFFICER AYARKUNNAM (D3/7527/2020) DATED 12/02/2021.`** - **`Exhibit P8 PHOTOCOPY OF THE LETTER NO. D3/7527/2020 DATED 13/04/2021 ISSUED BY THE 3RD RESPONDENT.`** - **`Exhibit P8(A) PHOTOCOPY OF THE LETTER NO. D3/7527/2020 DATED 05/07/2021.`** - **`Exhibit P9 PHOTOCOPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30/09/2021.`** - **`Exhibit P9(A) PHOTOCOPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 30/09/2021.`** - **`Exhibit P9(B) PHOTOCOPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 01/09/2021.`** - **`Exhibit P10 PHOTOCOPY OF THE RELEVANT EXTRACT OF THE GO(P) NO. 3000/98/FIN. DATED 25/11/1998.`** - **`Exhibit P11 PHOTOCOPY OF THE CLARIFICATION LETTER NO.92248/PRC.A3/02/FIN DATED 21/02/2002 ISSUED BY THE PRINCIPAL SECRETARY OF GOVERNMENT (FINANCE DEPARTMENT).`** - **`Exhibit P12 PHOTOCOPY OF THE GO(P) NO.145/2006/FIN. DATED 25/03/2006.`** - **`Exhibit P13 PHOTOCOPY OF THE CIRCULAR NO. 114/2018/FIN DATED 03/12/2018.`** - **`Exhibit P14 PHOTOCOPY OF THE GO(MS) NO.16/10/G.EDN. DATED 18/01/2010.`** - **`Exhibit P15 PHOTOCOPY OF THE GO(MS) NO.216/14/(192)/FIN DATED 11/06/2014.`** - **`Exhibit P16 PHOTOCOPY OF THE PAY FIXATION STATEMENT IN RESPECT OF SRI. STEPHEN P. GEORGE.`** - **`Exhibit P17 PHOTOCOPY OF THE PAY FIXATION STATEMENT IN RESPECT OF SRI. JIBI CHERIAN.`** - **`Exhibit P18 PHOTOCOPY OF THE PAY FIXATION STATEMENT IN RESPECT OF SMT. THANKAMMA P.C.`** - **`Exhibit P19 PHOTOCOPY OF THE RELEVANT EXTRACT OF`** ``` WP(C) NO. 3133 OF 2022 ``` ``` 12 ``` ``` GO(P) NO.27/2021/FIN DATED 10/02/2021. Exhibit P20PHOTOCOPY OF GO(RT) NO.675/2017/H&FWD DATED 15/03/2017. Exhibit P21PHOTOCOPY OF THE INTERIM ORDER IN WPC NO.9292/2021 DATED 08/04/2021. Exhibit P22PHOTOCOPY OF THE JUDGMENT IN WPC NO.9292/2021 DATED 28/10/2021. RESPONDENT EXHIBITS Exhibit R3(a)TRUE COPY OF THE ORDER G.O (Rt) No.1016/2021/G.Edn DATED 03.02.2021 Exhibit R3(b)TRUE COPY OF THE UNDERTAKING GIVEN BY PETITIONER WHILE GRANTING 1ST HIGHER GRADE Exhibit R3(c)TRUE COPY OF JUDGMENT IN W.A 1987/2016 Exhibit R3(d)TRUE COPY OF JUDGMENT IN W.A 1469/2016 Exhibit R3(e)TRUE COPY OF THE JUDGMENT IN W.A 9/2022 Exhibit R3(f)TRUE COPY OF THE LETTER NO.551/20 DATED 14.01.2021 OF H.M TO THE DDE, KOTTAYAM Exhibit R3(g)TRUE COPY OF THE LETTER NO. D3/7527/2020O OF THE DDE, KOTTAYAM TO THE PETITIONER DATED 12.2.2021 PETITIONER EXHIBITS Exhibit P23PHOTOCOPY OF ORDER NO. K.DIS/19472/73/C2 DATED 07/11/1973 ISSUED IN RESPECT OF SRI. V.C. VARKEY BY DEO, MOOVATTUPUZHA. RESPONDENT EXHIBITS ExhibitExhibit R3(g) PETITIONER EXHIBITS Exhibit P24TRUE COPY OF THE JUDGMENT IN SLP.NO.10365/2022 DATED 15.6.2022. Exhibit P25TRUE COPY OF THE JUDGMENT IN WP(C) NO.33450/2018 DATED 16.8.2022. Exhibit P26TRUE COPY OF THE G.O.(RT) NO.4736/2022/G.EDN DATED 12.8.2022. ```