Allowed

Magi Jacob v. the Assistant Educational Officer

Kerala HC6 Mar 2017WP(C)/23005/2014

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition challenging audit objections that denied a school assistant recognition of pre-resignation service for pension and higher grades. The court held that benefits drawn under the assumption that the entire period counted as service supported the claim.

What did the court decide?

The impugned audit objection and the orders of the Director of Public Instruction and the Government denying benefits were set aside.

Magi Jacob Vs the Assistant Educational Officer — Pension and Retirement Benefits | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

¶4

MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938

¶5

WP(C).No. 23005 of 2014 (A)

¶6

PETITIONER(S):

¶7

MAGI JACOB, LOWER PRIMARY SCHOOL ASSISTANT, ST. STEPHEN'S LOWER PRIMARY SCHOOL, PARAMBENCHERY, PULINTHANAM P.O., MUVATTUPUZHA.

¶8

BY ADV. DR.GEORGE ABRAHAM

¶9

RESPONDENTS:-:

¶10

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

¶11

1. THE ASSISTANT EDUCATIONAL OFFICER, MUVATTUPUZHA - 686 661.

¶12

2. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM - 682 030.

¶13

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

¶14

4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

¶15

R1 TO R4 BY GOVERNMENT PLEADER SRI. BIJOY CHANDRAN

¶16

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/2/2017, THE COURT ON 06-03-2017 DELIVERED THE FOLLOWING:

¶17

¶18

WP(C).No. 23005 of 2014 (A)

¶19

APPENDIX

¶20

PETITIONER(S)' EXHIBITS

¶21

EXHIBIT	P1: TRUE COPY OF PETITIONER'S REQUEST DATED 16.10.1993 TO THE ASSISTANT EDUCATIONAL OFFICER, MANJERI.
EXHIBIT	P2: TRUE COPY OF THE OBJECTION RAISED BY THE AUDIT WING.
EXHIBIT	P3: TRUE COPY OF PETITIONER'S REPRESENTATION TO THE 2ND RESPONDENT, DATED 11.11.2010.
EXHIBIT	P4: TRUE COPY OF PETITIONERS APPEAL BEFORE THE DIRECTOR OF PUBLIC INSTRUCTIONS ON 31.08.2011.
EXHIBIT	P5: TRUE COPY OF THE ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTIONS DATED 23.03.2012.
EXHIBIT	P6: TRUE COPY OF REVISION FILED BY THE PETITIONER BEFORE THE GOVERNMENT BY FILING ON 04.06.2012.
EXHIBIT	P7: TRUE COPY OF THE GOVERNMENT ISSUED ORDER, G.O. (MS)122/86/G.EDN DATED 17.07.1986.
EXHIBIT	P8: TRUE COPY OF THE ORDER OF THE GOVERNMENT REJECTING THE CLAIM RAISED BY THE PETITIONER, DATED 23.08.2014.

¶22

RESPONDENT(S)' EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

ANU SIVARAMAN, J.

¶27

W.P.(C) No.23005 of 2014

¶28

Dated this the 6^th day of March, 2017

¶29

J U D G M E N T

¶30

The petitioner was appointed as Lower Primary School Assistant in an aided school on 18.11.1985. She resigned to take up appointment in another aided school under a different management and joined there on 18.10.1993. Thereafter when a regular vacancy arose in the latter management, she was appointed against that vacancy on 10.06.1996. Higher grades were granted to the petitioner reckoning the prior service rendered in the former management as well. Long thereafter, Ext.P2 audit objection was raised stating that her pre resignation service could not have been reckoned and directing recovery. Petitioner preferred Exts.P3 and P4 replies but the objections were upheld by Exts.P5 and P8 orders of the Director of Public Instruction and Government respectively. Petitioner relies on Ext.P7 order dated 17.07.1986 which specifically provides for counting pre-resignation service for higher grade.

¶31

W.P.(C) No.23005/2014

¶32

¶33

A counter affidavit has been filed by the 4^th respondent contending as follows:

¶34

“On verification of the Service Book of the petitioner it was found that the petitioner resigned from service on 16.10.1993 while working as LPSA at AMLPS Valluvanad and further the appointment of petitioner after her resignation was not in a regular vacancy. The regular service of petitioner under the new management commenced only with effect from 10.06.1996. As there was break of more than one month between relieving from the former school and joining in the new school in an approved continuous service, the Deputy Director of Education, Ernakulam raised audit objection by stating that the petitioner resigned from earlier school and her previous service cannot be reckoned for sanctioning Higher Grades”.

¶35

By interim order dated 01.09.2014, this Court had interdicted recovery pursuant to the impugned orders. Later, by the interim order dated 05.07.2016 in I.A.No.10498/2016, benefits of pay revisions of 2009 and 2014 were directed to be paid to the petitioner on his executing a bond undertaking to repay the benefits if the writ petition is ultimately dismissed.

¶36

The issue to be decided in this writ petition is the validity of Ext.P2 audit objection and of the orders upholding the same. Ext.P7 provides for condonation of break in service of more than

¶37

W.P.(C) No.23005/2014

¶38

¶39

one month between two spells of aided school service. Rule 61 (4) of Chapter XIVA KER provides for reckoning of all service in a

¶40

scale of pay for the grant of increments. The higher grades had been sanctioned to the petitioner reckoning the earlier periods of service as well. The audit objections have been raised long thereafter.

¶41

Government, in Ext.P8, held that the broken periods from 18.10.1993 to 10.11.1995 can be reckoned but the preresignation service cannot. The question whether the petitioner's relief from the earlier school was 'resignation' was also directed to be looked into. If the period from 18.10.1993 is reckoned as qualifying service, there is no doubt that the petitioner's resignation was to take up an employment in a service which counts for pension. If this position is accepted, the petitioner's relief cannot be reckoned as resignation for the purpose of forfeiting past service. In that view of the matter, petitioner would be entitled to count the pre-resignation service also for pension. Moreover, the entire period had been taken into account while granting the higher grade on the perception that they would constitute qualifying service and all benefits had been drawn by the petitioner.

¶42

W.P.(C) No.23005/2014

¶43

¶44

In the above circumstances, I am of the opinion that Ext.P2 objection and Exts.P5 and P8 orders denying the benefits to the petitioner are not sustainable. The impugned orders are therefore set aside.

¶45

This writ petition is ordered accordingly.

¶46

Sd/-

¶47

ANU SIVARAMAN JUDGE

¶48

smp

Magi Jacob v. the Assistant Educational Officer

Case brief

What is this about?

What did the court decide?

Magi Jacob v. the Assistant Educational Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Suresh R.S. Vs State of Kerala

Chithra.R Vs the State of Kerala

The Manager, Al-Syed L.P.School Vs State of Kerala & 2 Others

Sandya Vs the Director of Public Instructions & or

A.P.Jalajakumar Vs State of Kerala

Satheesan Vs the Deputy Director