P.N.Sasidharan vs State Of Kerala Represented By
2021 Latest Caselaw 1036 Ker

               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

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

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

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

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

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




                           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

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.