Allowed

Baby Girija P v. State of Kerala and Others

Kerala HC17 Nov 2016WP(C)/16300/2011

Case brief

AI extract

What is this about?

The High Court of Kerala quashed audit objection orders and refixation of pay directed against a petitioner teacher. Relying on prior judgments that quashed the circular upon which the audit objection was based, the Court directed the disbursement of consequential pensionary benefits, allowing recovery only of amounts already paid.

What did the court decide?

Exhibits P8 and P9 orders quashed; petitioner declared entitled to all pay, allowances, and pensionary benefits based on original fixtures within three months.

Baby Girija P Vs State of Kerala and Others — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938

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WP(C).No. 16300 of 2011 (J)

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PETITIONER(S):

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BABY GIRIJA. P., W/O. RADHAKRISHNAN, PONMALA HOUSE, P.O. KALLARMANGALAM, RANDATHANI VIA, MALAPPURAM DISTRICT.

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BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P

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RESPONDENT(S):

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1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2. THE PRINCIPAL ACCOUNTANT GENERAL (AUDIT), THIRUVANANTHAPURAM-695 001.

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3. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001.

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4. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM-676 505.

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5. THE ASSISTANT EDUCATIONAL OFFICER, KUTTIPPURAM, MALAPPURAM DISTRICT-676 505.

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6. THE HEADMASTER, AUP SCHOOL, KADAMPUZHA, KADAMPUZHA POST, MALAPPURAM DISTRICT-676 505.

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R1 TO R5 BY GOVT. PLEADER SRI.RAJI T.BHASKAR.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 16300 of 2011 (J)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE ANNEXURE III OF G.O.(P) NO.600/93/FIN. DATED 25/09/1993.

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EXT.P2 COPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED SCALE SANCTIONED IN THE YEAR 1993, IN THE NAME OF SMT.M.K. PARVATHY.

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EXT.P3 COPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED SCALE SANCTIONED IN THE YEAR 1993, IN THE NAME OF THE PETITIONER.

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EXT.P4 COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER IN TERMS OF EXT.P1 ASSESSING WITH HER JUNIOR SMT.M.K. PARVATHY.

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EXT.P5 COPY OF THE CIRCULAR NO.59151/J2/2000/G.EDN. DATED 17/05/2002. EXT.P6 COPY OF THE REPORT OF LOCAL AUDIT OF THE ACCOUNTS OF AIDED UP/LP SCHOOL UNDER RESPONDENT NO.5 FOR THE YEAR 2006-07 AND 2007-08.

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EXT.P7 COPY OF THE LETTER DATED 27/08/2010 SUBMITTED BY THE PETITIONER TO RESPONDENT NO.2.

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EXT.P8 COPY OF THE LETTER DATED 26/10/2010 SENT BY THE RESPONDENT NO.1 TO THE RESPONDENT NO.3 WITH COPY TO THE PETITIONER.

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EXT.P9 COPY OF THE COMMUNICATION ISSUED BY THE RESPONDENT NO.4 TO RESPONDENT NO.5.

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EXT.P10 COPY OF THE PARAGRAPH NO.9 OF THE STATE PAY REVISION ORDER 1997.

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EXT.P11 COPY OF THE JUDGMENT DATED 15/11/2006 PASSED IN WP(C).NO. 12285/2004 ON THE FILE OF THIS HONOURABLE COURT.

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EXT.P12 COPY OF THE JUDGMENT DATED 07/08/2006 PASSED IN WP(C).NO.20914/2003 ON THE FILE OF THIS HONOURABLE COURT.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

ANU SIVARAMAN, J.

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W.P(C).No. 16300 of 2011

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Dated this the 17^th November, 2016

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JUDGMENT

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The writ petition is filed seeking the following reliefs:

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“I) call for records relating to Exhibits P1 to P10.

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ii) issue a writ of certiorari or other appropriate writ or order or direction, quashing Exhibit P8 and Exhibit P9 and the audit objection in respect of the petitioner contained in Exhibit P6 and accept Exhibits P3 and P4 as true and correct.

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iii) issue a writ of mandamus or other appropriate writ or order or direction, directing the respondents to disburse the entire pensionary benefits including DCRG to the petitioner forthwith.”

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The contention of the petitioner is that she had joined

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service as a teacher in AUP School, Kadampuzha on 9.12.1978. M.K.Parvathy joined in the school as a Sankrit Teacher (Full Time) on 16.7.1979. The said teacher is junior to the petitioner. It is stated that in the light of paragraph 6(ii) of Exhibit P1 pay fixation order dated 25.91993, the date of increment of the petitioner, which was 1.1.1993, was advanced to 1.7.1992 so as to bring it on par with that of her junior M.K.Parvathy. A comparative statement regarding fixation of pay is produced as Exhibit P4. It is stated that on the basis of Exhibit P5 circular dated 17.5.2002,

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WP(C).16300/11 2

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the Government held that the provision of stepping up of pay to the level of junior as per paragraph 6 of Exhibit P1 and other pay revision orders would be applicable only in cases where both the junior and senior belonged to the same category. Relying on Exhibit P5, an audit objection was raised against the fixation granted to the petitioner advancing her date of increment as 1.7.1992, and directing recovery of amounts from her. Pursuant thereto, though objections were preferred by the petitioner, the educational authorities directed refixation of her pay and recovery of excess amount.

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Heard learned counsel for the petitioner and the learned Government Pleader.

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Learned counsel for the petitioner would place reliance on Exhibits P11 and P12 judgments of this Court whereby Exhibit P5 circular was found to be bad in law and had been quashed. In Exhibit P12 judgment dated 7.8.2006 it was declared that the petitioner's pay was not liable to be revised based on the audit objection raised relying on Exhibit P5 circular, which was marked as Exhibit P3.

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WP(C).16300/11

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The learned Government Pleader would submit that Sri.M.K.Parvathy, who joined service as Sanskrit Teacher with effect from 16.7.1979, is admittedly junior to the petitioner. However, it is contended that the said teacher is a language teacher whereas the petitioner is a UPSA. Therefore, it is contended on the basis of Exhibit P5 that the petitioner's fixation of pay by advancing her date of increment 1.7.1992 was not warranted.

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I have considered the contentions advanced on either side. The only contention raised against the stepping up of pay of the petitioner by advancing of the date of increment is that her junior whose date of increment has been taken into account for stepping up of the petitioner's pay, belonged to a different category being a language teacher. This was the specific question raised and considered in Exhibit P12 judgment. Exhibit P5, which was produced as Exhibit P3, was quashed by this Court in Exhibit P12 judgment. It was held, relying on the provisions of Rules 34 and 37 of Chapter XIV-A KER as it stood then, that such a circular could not have the effect of recalling the benefits given in the pay revision orders.

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WP(C).16300/11

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In the instant case, the pay of the petitioner had been stepped up with effect from 1.7.1992 on the strength of paragraph 6.(ii) of Exhibit P1 order and she had been granted all the benefits as well. The audit objection which is the basis of revision of pay in the year 2009, that too, based on Exhibit P5 circular which is also found to be invalid by this Court.

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The learned Government Pleader contends that the entire procedure was completed before the retirement of the petitioner. However, in view of the fact that Exhibit P5 was found to be bad in law and also in view of the fact that the amounts had already been drawn by the petitioner with effect from 1.1.1992, the refixation of pay and consequential recovery cannot be sustained. The audit objection, which was raised in the year 2009 long after the benefit of stepping up was granted to the petitioner, cannot be relied upon to effect the refixation especially in view of the declaration of law contained in Exhibit P12.

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In the above view of the matter, Exhibits P8 and P9 orders of refixation of pay of the petitioner stand quashed. It is declared that the petitioner is entitled to draw all pay, allowances and all consequential pensionary benefits on the basis of Exhibits P3 and

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WP(C).16300/11

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P4. All consequential benefits shall be calculated and disbursed to

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the petitioner, less any amounts already paid, within a period of three months from the date of receipt of a copy of this judgment.

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The writ petition is ordered accordingly.

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ANU SIVARAMAN

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