Kerala High Court
P.N.Sasidharan vs State Of Kerala Represented By on 12 January, 2021
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942
WP(C).No.5461 OF 2011(G)
PETITIONER:
P.N.SASIDHARAN, PEON (RETIRED), SNUPS,
KUNNAPPILLY, PIN-680311, NOW RESIDING AT PARAYAN,
VALAPPIL HOUSE, P.O., KUNNAPPALY, MELLOOR VIA.,,
THRISSUR-680311.
BY ADVS.
SRI.K.JAJU BABU (SR.)
SRI.BRIJESH MOHAN
SRI.M.V.JOSEPH (ALAPPUZHA)
SRI.T.R.SADEESAN
SMT.M.U.VIJAYALAKSHMI
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY
SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
GOVT.SECRETARIAT, TRIVANDRUM-695001.
2 THE DEPUTY DIRECTOR OF EDUCATION
THRISSUR-680001.
3 THE ASSISTANT EDUCATIONAL OFFICER
CHALAKUDY, THRISSUR-680307.
4 THE ACCOUNTANT GENERAL(A&E), KERALA
TRIVANDRUM-695039.
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 5461/11
2
JUDGMENT
The petitioner says that he was retired from the services of the SNUPS, Thrissur, on 31.08.2005 and that pension was sanctioned to him as per Ext.P1, which was revised through Exts.P4 and P5. He says that, however, an audit objection was raised against the 4th Higher Grade sanctioned to him on 17.03.2005, which is evident from Exts.P2 and P7 and that even though it was explained through Exts.P3 and P8, Ext.P11 order has been issued reversing the benefit of the said Higher Grade.
2. The petitioner, therefore, prays that Exts.P2, P7 and P11 be set aside and that the pay fixation earlier granted to him be granted approval, so as to enable him to obtain the benefits as had been already sanctioned.
3. Smt.Athira T.S. - learned counsel for the petitioner, contended that Exts.P2, P7 and WPC 5461/11 3 P11 are illegal and unlawful since, going by Ext.P9, there was no reason why her client alone should have been picked up for such a hostile discrimination. She contended that the higher grade was sanctioned and pay fixed on the basis of valid pay revision orders, as far as her client is concerned and it had already been approved by respondents 2 and 3. She, therefore, submitted that the issuance of Ext.P11, more than five years after her client had retired, is illegal and unlawful and contrary to the affirmative declarations of the Hon'ble Supreme Court in State of Punjab v. Rafiq Masih (whitewasher) [2015(4) SCC 334].
4. Sri.P.M.Manoj - learned Senior Government Pleader, in response, submitted that a statement has been filed by the 2nd respondent, wherein, it has been explained that the earlier break in service of the WPC 5461/11 4 petitioner had not been condoned by the Director of Public Instructions (presently designated as the Director of General Education) and, therefore, that it was only when the petitioner completed 30 years of service, could he have been entitled to obtain the higher grade with effect from 01.09.2005. He submitted that, however, the petitioner retired from service on 31.08.2005, thus making it clear that he is not eligible for the 4th Higher Grade. He added to his submissions by saying that even though the service required for the grant of 4th higher grade was reduced to 28 years through the Government Order dated 25.03.2006, it has taken effect only from 01.03.2006 and therefore, that the 2nd respondent was right in having ordered to cancel the 4th higher grade granted to the petitioner and to have the excess amount refunded. He, therefore, prayed WPC 5461/11 5 that this Writ Petition be dismissed.
5. Even when I hear the learned Senior Government Pleader on the afore lines, it is indubitable that Ext.P11 has been issued much after the petitioner had retired from service. This is evident from the fact that the date borne by the said order is 07.10.2010; while, admittedly, the petitioner retired from service on 31.08.2005. Therefore, whatever be the merits of the contentions urged by the Government in favour of Ext.P11, it is vitiated on account of the conclusive declarations of the Hon'ble Supreme Court in Rafiq Masih (supra) particularly because, there is no case, even in the statement filed on behalf of the respondents, that the higher grade sanctioned to the petitioner was on account of any error or cause that can be attributed to the petitioner; but it is virtually conceded that it was granted, at the WPC 5461/11 6 relevant time, through valid orders, which had never been objected until such time he was in service.
6. Obviously hence, the audit objections against the grant of higher grade to the petitioner, made much after he retired, could not have applied to him and no amount could have directed to be recovered, going by Rafiq Masih (supra).
7. Ineluctably, therefore, the respondents could not issue Ext.P11 nearly five years after the retirement of the petitioner when he had received the benefits under valid order; and this is indubitable from the emphatic declaration of the Hon'ble Supreme Court in Rafiq Masih (supra), to which they are bound fully.
In the afore circumstances, I order this writ petition and set aside Exts.P2, P7 and P11 and consequently, direct that no further WPC 5461/11 7 action for recovery of any amounts from the petitioner will be pursued by any of the respondents based on the allegation of wrong grant of grade benefits to him.
Sd/-
DEVAN RAMACHANDRAN
RR JUDGE
WPC 5461/11
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF LETTER NO.17/PEN
A/230/AS/05-06 DATED 04/08/2005 ISSUED BY THE 4TH RESPONDENT TO THE AEO, CHALAKUDY.
EXHIBIT P2 TRUE COPY OF AUDIT OBJECTION DATED 05/03/2007 VIDE NO. E3-20686/06(16) ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF EXPLANATION GIVEN BY THE HEADMISTRESS OF THE SCHOOL TO THE AUDIT OBJECTION THROUGH THE 3RD RESPONDENT IN JUNE, 2007.
EXHIBIT P4 TRUE COPY OF VERIFICATION REPORT DATED 25/06/2008 VIDE NO.
PR.1250015900/P-17/3-1508920192 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF REVISED PENSION PAYMENT ORDER DATED 26/06/2008 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 21/08/2009. EXHIBIT P7 TRUE COPY OF ORDER NO. B-
1082/09/K.DIS. DATED 27/05/2010 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 08/07/2010. EXHIBIT P9 TRUE COPY OF LETTER NO. E3-25626/09 DATED 18/01/2010 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT. WPC 5461/11 9 EXHIBIT P10 TRUE COPY OF REVISED OPTION SUBMITTED BY THE PETITIONER FOR PAY FIXATION BEFORE THE AEO THROUGH THE HEADMISTRESS ON 21/08/2010.
EXHIBIT P11 TRUE COPY OF LETTER NO.
E3/15729/2010 DATED 07/10/2010 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.