Allowed

K.G.Sebastian v. State

Kerala HC10 Sept 2009WP(C)/9374/2007

Case brief

AI extract

What is this about?

The Court quashed an audit objection raised promptly against a retired headmaster regarding an irregular 1999 pay option exercise. While permitting revision of pensionary benefits, the Court directed payment of the petitioner's gratuity based on the last pay drawn and barred recovery of any dues.

What did the court decide?

Recovery under the audit reports quashed; gratuity paid based on last pay drawn; pensionary benefits open for revision.

K.G.Sebastian Vs State — Pension and Retirement Benefits | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE ANTONY DOMINIC

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THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931

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WP(C).No. 9374 of 2007(N)

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PETITIONER(S):

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------------------

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K.J.SEBASTIAN,HEADMASTER,C.K.M.H.S.S KORUTHODE P.O,KOTTAYAM DISTRICT.

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BY ADV. SRI.V.B.PREMACHANDRAN

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SRI.P.K.SIVADASAN NAIR SRI.S.MOHANDAS SRI.K.N.GOVINDANKUTTY MENON

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RESPONDENT(S):

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-------------------

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1. THE STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.

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2. THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY.

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3. THE ACCOUNTANT GENERAL KERALA,TRIVANDRUM

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SPL.GOVT.PLEADER SRI.N.MANOJ KUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC NO.9374/07

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1: TRUE COPY OF THE G.O(MS) NO.72/76/G.EDN. DT 29.4.76. EXT.P2: TRUE COPY OF THE G.O(P) NO.1811/99/(38)/FIN.DTD. 15.9.99. EXT.P3: TRUE COPY OF THE ORDER NO.7605/99/K.DIV.DTD.14.10.99. EXT.P4: TRUE COPY OF THE EXTRACT OF THE AUDIT REPORT OF THE 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE LETTER NO.B1-2726/O4/DTD 19.1.2007.

//TRUE COPY//

P.A. TO JUDGE

ANTONY DOMINIC, J. ================ W.P.(C) NO. 9374 OF 2007 (N)

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=====================

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Dated this the 10^th day of September, 2009

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J U D G M E N T

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Petitioner joined as HSA on 14/6/76. He was promoted as Headmaster on 19/4/1994. It would appear that thereafter while availing of the benefit of Ext.P2 Government order, he opted for fixation of notional pay of Headmaster w.e.f. 1/7/99, immediately after Selection Grade became due to him on 14/6/99. Petitioner continued in service drawing salary on that basis and long thereafter, Ext.P4 audit objection was sent to him sometime in 2004 stating that the option exercised by him in 1999 was erroneous. Subsequently, he was issued Ext.P5 calling for rectification. It is in these circumstances, petitioner filed this writ petition praying for quashing Exts.P4 and P5 and directing the respondents to sanction the increment due to the petitioner.

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It is pointed out that during the pendency of this writ petition, petitioner retired from service and his gratuity is also withheld.

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A reading of Ext.P2 Government order referred to above shows that it does not contemplate an option as exercised

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WPC 9374/07

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by the petitioner. That apart, in my view, in the context of Ext.P2, Ext.P1 Government order relied on by the petitioner to sustain the option is also irrelevant. Even Rule 30 of Part I KSR which applies in normal cases of promotion also may not be of any relevance. If that be so, necessarily the option exercised by the petitioner was irregular and should not have been acted upon. Therefore, the audit objection as such cannot be faulted.

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However, fact remains that the option exercised by the petitioner was way back in 1999 and audit objection was raised by the first time only in 2004 and that is now sought to be enforced at this late stage, when the petitioner has even retired from service.

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In my view, if at all there was any rectification called for, necessary steps should have been taken within a reasonable time from the occurrence of the circumstances giving rise to such rectification. This is the purport of the judgment of this Court in Narayanan v. State of Kerala (2008(3) KLT 188) and the Apex Court judgment in Aleyamma Varghese v. Secretary, General Education Department (2007(3) KLT 700(SC). In such circumstances, I do not think it just or reasonable to permit the

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WPC 9374/07

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respondents to give effect to Exts.P4 or P5.

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True, the learned Government Pleader relied on the Division Bench judgment of this Court in Santhakumari v. State of Kerala (2005(4) KLT 649) and State of Kerala v. Saiful Islam (2006(1) KLT 619. In view of the facts as stated above, I think the Division Bench judgment in the case of Narayanan (supra) and the Apex Court judgment in Aleyamma Varghese (supra) are more appropriate to the facts of this case.

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Therefore, the writ petition is disposed of with the following directions:

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(1) That recovery if any in pursuance to Exts.P4 and P5 shall not be effected against the petitioner. But however, taking into account the audit objection as above, it would be open to the respondents to revise the pensionary benefits of the petitioner.

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(2) The gratuity that is due to the petitioner based on the last pay as drawn by him shall be quantified and paid to him, as expeditiously as possible, at any rate within 2 months of production of a copy of this judgment.

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ANTONY DOMINIC, JUDGE

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K.G.Sebastian v. State

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K.G.Sebastian v. State

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