Allowed

Mohammed Iqbal K.M. v. State of Kerala

Kerala HC22 Mar 2017WP(C)/17188/2010

Case brief

AI extract

What is this about?

Single Judge Bench held that retrospective application of newer Government orders cannot divest a retired employee of pay benefits already drawn under valid orders existing at the time of grant. Petitioner entitled to benefits and no recovery.

What did the court decide?

Order P7 set aside, no recovery, petitioner entitled to benefits, dues to be calculated and disbursed within three months.

Mohammed Iqbal K.M. Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2017)

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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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WEDNESDAY, THE 22ND DAY OF MARCH 2017/1ST CHAITHRA, 1939

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WP(C).No. 17188 of 2010 (W)

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PETITIONER:

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MOHAMMED IQBAL K.M., SAYANS HOUSE, PONNANI P.O., PINCODE - 679 577.

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BY ADVS.SRI.V.M.KURIAN SRI.K.T.THOMAS

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RESPONDENTS:

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1. STATE OF KERALA, REP.BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM.

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3. THE HEAD MASTER, M.I.HIGHER SECONDARY SCHOOL, PONNANI.

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R1 & R2 BY SPECIAL GOVT. PLEADER SRI.SURESH BABU R3 BY ADVS.SRI.K.M.FIROZ

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SMT.M.SHAJNA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 17188 of 2010 (W)

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APPENDIX

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PETITIONERS' EXHIBITS:

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EXT.P1-	TRUE COPY OF THE RELEVANT EXTRACT OF SERVICE BOOK OF PETITIONER SANCTIONING SENIOR GRADE.
EXT.P2-	TRUE COPY OF ORDER DATED 4.7.2008 ISSUED BY THE DEO, TIRUR.
EXT.P3-	TRUE COPY OF THE STATEMENT REGARDING OLD SCALE OF PAY AND REFIXED SCALE OF PAY OF THE PETITIONER.
EXT.P4-	TRUE COPY OF THE ORDER DATED 27.9.2008 ISSUED BY 3RD RESPONDENT TO THE HEADMASTER.
EXT.P5-	TRUE COPY OF THE ORDER DATED 18.1.2010 PASSED BY THE 1ST RESPONDENT.
EXT.P6-	TRUE COPY OF THE JUDGMENT DATED 19.2.2010 IN WPC.NO.10498/2009.
EXT.P7-	TRUE COPY OF THE ORDER DATED 29.3.2010 PASSED BY THE 2ND RESPONDENT.
EXT.P8-	TRUE COPY OF THE OBJECTION DATED 9.4.2010 SUBMITTED BY THE PETITIONER.
EXT.P9-	TRUE COPY OF THE ORDER DATED 12.11.2001 ISSUED BY THE GOVERNMENT.
RESPONDENT	S' EXHIBITS :
EXT.R1A-	TRUE COPY OF THE LETTER DATED 21.12.2002.
EXT.R1B-	TRUE COPY OF THE CIRCULAR NO.34378/J3/07/G.EDN. DATED 26.12.2007.
EXT.R1C-	TRUE COPY OF THE JUDGMENT DATED 24.6.2009 IN WRIT APPEAL NO.1209/2009.

//TRUE COPY//

P.S. TO JUDGE

mbr/

ANU SIVARAMAN, J.

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W.P.(C) No.17188 of 2010

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Dated this the 22^nd day of March, 2017

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J U D G M E N T

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The prayers in this writ petition are as follows:

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a) To issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P7 order issued by the 2^nd respondent.

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b) To issue a writ of mandamus or other appropriate writ, order or direction directing the 2^nd respondent to disburse the pensionary benefits due to the petitioner immediately.

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The petitioner was appointed as full time menial in an

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aided school on 01.09.1975. He was promoted as L.D Clerk in 1983. On completion of ten years of service as L.D Clerk, he was granted ten years higher grade on 16.01.1993. Later, taking note of the earlier service rendered as full time menial as well, he was granted 20 years higher grade as L.D Clerk from 01.09.1995. On 30.09.2008, the petitioner availed voluntary retirement from service and was permitted to retire from service

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W.P.(C) No.17188/2010

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with effect from that date. By Ext.P4 dated 27.09.2008, a communication was issued by the Deputy Director of Education, Malappuram informing the petitioner that the exemption granted to L.D Clerks appointed before 19.11.1994 had been withdrawn by the Government and therefore, fixation of the petitioner's pay was irregular. The said notice had been challenged by the petitioner before this Court and by Ext.P6 judgment dated 19.02.2010, the respondents were directed to grant the petitioner the reliefs as contemplated in Ext.P15 Government Order produced therein. The proposals for recovery made against the petitioner were also quashed.

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Pursuant to Ext.P6, on 29.03.2010, a communication

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was issued by the Deputy Director of Education to the Headmaster of the school in which the petitioner had been working stating that, on verification of the petitioner's service book, it was found that the petitioner was entitled to fixation of pay in the scale of Rs.1200-2040 only with effect from 16.01.1993 and that he was not entitled to fixation of pay in the scale of Rs.1400-2300 from 01.09.1995. In the above circumstances, recovery was proposed against the petitioner. Though the petitioner preferred Ext.P8 representation, no orders

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W.P.(C) No.17188/2010

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were passed thereon and the petitioner had approached this Court filing this writ petition and an interim stay of recovery was

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ordered on 03.06.2010 which was extended until further orders.

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Learned counsel for the petitioner would submit that the petitioner's pay had been fixed and he had been granted the benefit of ten years higher grade in the post of L.D Clerk with effect from 16.01.1993. He had been granted 20 years higher grade taking into account his service in the post of full time menial and L.D Clerk, with effect from 01.09.1995. This fixation of pay was done taking note of the provisions of the Government Orders which were in existence at the relevant time. It is submitted that long after the petitioner had drawn all the benefits consequent on the fixation of his pay, which was counter checked by the educational officers and also after he had been permitted to voluntarily retire from service, proposals now made to recover amounts from him on account of errors in fixation of pay are not permissible in law. Learned counsel placed reliance on the decision of the Apex Court in State of Punjab vs. Rafiq Masih (White Washer) (2015 (1) KLT 429(SC)).

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A counter affidavit has been filed on behalf of the 1^st respondent contending that the petitioner had entered service as

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W.P.(C) No.17188/2010

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full time menial on 01.09.1975 and was promoted as L.D Clerk initially on 15.01.1983 and reverted with effect from 30.07.1983

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and again promoted on 01.08.1983. He was granted first higher grade in the post of L.D Clerk with effect from 16.01.1993, on completion of ten years of service, and 20 years higher grade with effect from 01.09.1995. It is stated that the grant of 20 years higher grade considering his service as full time menial also was found irregular in view of the instructions given in the Government letter dated 21.12.2002. It is therefore contended that going by Ext.R1(a) Government letter dated 21.12.2002 and Ext.R1(b) Government circular dated 26.12.2007, the petitioner was not entitled to 20 years higher grade counting the service put in by him as full time menial as well.

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I have considered the contentions advanced. It is clear that the petitioner had been granted 10 years higher grade in the post of L.D Clerk with effect from 16.01.1993. He had also been granted the benefit of 20 years higher grade taking note of his earlier service rendered as full time menial as well, with effect from 01.09.1995. These benefits had been granted to the petitioner evidently on the basis of Government Orders and Circulars in force at the relevant time. It is contended in the

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W.P.(C) No.17188/2010

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counter affidavit that the benefits are not available in view of the Government letter and circular of the years 2002 and 2007 respectively. Since the petitioner was a person who had drawn the benefits with effect from 1993 and 1995 and the orders relied on to contend that those benefits are not available are of the years 2002 and 2007 respectively, I am of the view that the benefits drawn by the petitioners could not have been recalled by giving retrospective operation of the Government Orders relied on by the respondents.

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From a reading of Exts.R1(a) and R1(b), it is clear that no retrospective operation is intended for those orders which are evidently orders passed in respect of pay revisions effected subsequently.

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In the above view of the matter, I am of the opinion that the objections raised to the fixation of the petitioner's pay with effect from 16.01.1993 and 20 years higher grade with effect from 01.09.1995 cannot be sustained at this late date, especially after the petitioner had been permitted to voluntarily retire from service. This is more so in view of the fact that the post held by the petitioner was L.D Clerk and that the pay fixation had been long effected and the benefits enjoyed by the petitioner.

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W.P.(C) No.17188/2010

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In the above view of the matter, Ext.P7 is set aside. It is directed that no recovery shall be made from the petitioner's salary and the petitioner shall be entitled to the benefits of pay fixation effected in the ten years higher grade with effect from 16.01.1993 and 20 years higher grade with effect from 01.09.1995. If any payments are due to the petitioner, the same shall be calculated and disbursed to him 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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Sd/-

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ANU SIVARAMAN JUDGE

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smp

Mohammed Iqbal K.M. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mohammed Iqbal K.M. v. State of Kerala

Case brief

What is this about?

What did the court decide?

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