IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 16475 of 2002(J)
1. K.A.FRANKO,HIGH SCHOOL ASSISTANT (RETD.)
... Petitioner
Vs
1. DISTRICT EDUCATION OFFICER, THRISSUR.
... Respondent
2. THE DEPUTY DIRECTOR OF EDUCATION,
3. STATE OF KERALA REPRESENTED BY SECRETARY
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :05/11/2008
O R D E R
K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ.
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O.P. No.16475 OF 2002
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Dated this the 5th day of November, 2008
J U D G M E N T
~~~~~~~~~~~
Balakrishnan Nair, J.
The petitioner retired from St.Aloysius High School,
Elthurthu as H.S.A. on 31.5.2001. His regular service in that
school commenced on 14.12.1971. Prior to that he had got
three spells of provisional service under the Government on
appointment through Employment Exchange. Those spells are
the following:
“1. 5.8.1970 to 28.8.1970
2. 5.10.1970 to 13.4.1971
3. 7.6.1971 to 13.12.1971″.
2. The petitioner was granted 1st higher grade on
1.7.1982 and 2nd higher grade on 1.7.1991. For the grant of 2nd
higher grade, the above spells of provisional service were also
taken into account. The Accounts Officer attached to the office
of the Deputy Director of Education, Trissur raised an objection
O.P.No.16475/2002 2
as per Ext.P1 to the counting of provisional service. The said
officer directed to revise the grant of higher grade and recover
the excess salary, if any drawn. It was also ordered that next
increment due on 1.7.1993 need be released only after the grade
is revised. The petitioner filed his objection, as per Ext.P2, on
13.9.1994. While so, the Deputy Director issued a
communication to the District Education Officer, as per Ext.P3,
dated 23.3.2001, pointing out the irregularity in the fixation of
pay and also directing to revise the salary taking into account
the audit objection. The petitioner challenged that order before
this Court. This Court, by Ext.P4 judgment, directed the
Government to consider the matter. The petitioner filed Ext.P5
representation before the Government. The Government
considered and rejected it by Ext.P6. One of the grounds taken
by the Government in Ext.P6 is that the provisional service
rendered by him is not a service for which increment can be
given. As per the orders of the Government, concerning
reckoning of provisional service, the said service should satisfy
the requirement of Government Decision No.2 under Rule 33
Part I of Kerala Service Rules. The Government Decision No.2
O.P.No.16475/2002 3
was deleted with effect from 30.9.1994. The said decision reads
as follows:
“Provisional service on regularisation with or without
break in the same category or post will be treated as
officiating service ab initio for the limited purpose of
granting of increments. Provisional service followed by
a regular appointment with or without break in the same
category of post will also be treated as officiating service
ab initio for the limited purpose of granting of
increments.”
3. As stated earlier, one of the objection in Ext.P6 was
that the provisional service does not satisfy the requirement of
the above quoted Government Decision for the purpose of grant
of increment. This writ petition is filed, challenging Exts.P3 and
P6 and seeking consequential reliefs.
4. Government have filed a counter affidavit resisting
the prayers in the Original Petition. We heard the learned
counsel on both sides. The learned Senior Counsel,
Sri.N.N.Sugunapalan, submitted that in similar cases provisional
service was counted for the purpose of grant of higher grade.
Therefore, there is no reason to deny the said benefit. But, it is
not in dispute that in those decisions whether the short spells of
O.P.No.16475/2002 4
provisional service rendered will qualify for the grant of
increment was not considered.
5. The provisional service rendered by the petitioner in
Government service was not counted and could not have been
counted for the purpose of grant of increment in the aided
school, in view of the provisions contained in Rule 61 of Chapter
XIV A, Kerala Education Rules. The said Rule reads as follows:
“61. Increment: (1) Subject to rule (1A), the
Educational Officer shall be competent to sanction
the increments when they fall due to the teachers
(including Headmasters). The Headmaster will move
the Educational Officer through the Manager for
sanction of the increments as and when they fall due
and the Manager shall forward the increment
certificates within a month [with his remarks, if any
on the conduct of the teacher].” (emphasis supplied)Increments fall due only when the incumbent completes one
year’s service.
6. In view of the above position, the service rendered by
the petitioner does not satisfy the requirements of Decision No.2
under Rule 33 of Part I K.S.R., which we have already quoted
above. Therefore, we find that the provisional service rendered
O.P.No.16475/2002 5
by the petitioner could not have been counted for the grant of
higher grade also.
7. The learned counsel appearing for the petitioner
submitted that the recovery of the excess amount paid may be
set aside. The counsel submits, even after Ext.P1 audit report
and Ex.P2 objection, the increments were being released to him.
He has received them in good faith. He has already retired from
service in 2001. So, the proposed recovery of the excess
amount at this distance of the time is not proper. But, in this
case, we find that soon after the erroneous fixation, the audit
officer found out the same and raised his objection. The
petitioner filed his reply and the matter was pending. When the
matter was pending, of course, further increments were released
to him. But, any such action from the part of the respondents
should be taken as subject to the objection raised against the
fixation of pay of the petitioner. In fact, because of the delay and
laches from the part of the officials, the actual recovery was
postponed. The petitioner stood to gain by that. The same
cannot be permitted to be urged as a ground against the
O.P.No.16475/2002 6
recovery now sought to be made. The public money erroneously
received by the petitioner should be refunded by him. This view
is taken by us is supported by the Division Bench of this Court in
Santhakumari v. State of Kerala [2005(4) KLT 649]. It is
true, there are certain decisions where in this Court interdicted
recovery after long years of payment of the same. But, we are of
the view that the facts of those cases are different from the facts
of this case. In this case, soon after the payment, objection was
raised. Such a case cannot be compared with the case where
objection was taken after several years and the incumbent was
allowed to draw the payment in good faith without any demur
from the part of the competent authority. So, the prayer of the
learned senior counsel for the petitioner that the recovery may
be interdicted cannot be granted. In the result, the writ
petitioner is not entitled to get any relief. Accordingly, the
original petition is dismissed.
(K.BALAKRISHNAN NAIR, JUDGE)
(M.C.HARI RANI, JUDGE)
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