C.Vasudevan vs The Accounts Officer
2021 Latest Caselaw 2361 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

           THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942

                           WP(C).No.21990 OF 2011(W)


PETITIONER:

                 C.VASUDEVAN
                 RETIRED HEADMASTER, A.U.P.SCHOOL, KARAKUNNU,, MANJERI,
                 RESIDING AT KOLOTHUMTHODI HOUSE,, P.O.KARAKUNNU, MANJERI-676
                 123.

                 BY ADVS.
                 SRI.R.HARISHANKAR
                 SMT.AMBIKA RADHAKRISHNAN
                 SMT.PARVATHY NAIR

RESPONDENTS:

       1         THE ACCOUNTS OFFICER
                 OFFICE OF THE ACCOUTNANT GENERAL,
                 THIRUVANANTHAPURAM-695 001.

       2         THE DEPUTY DIRECTOR EDUCATION
                 OFFICE OF THE DEPUTY DIRECTOR (EDUCATION),
                  MALAPPURAM-676 505.

       3         THE ASSISTANT EDUCATIONAL OFFICER
                 OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER,
                 MANJERI-676 121.



OTHER PRESENT:

                 SRI. P.M.MANOJ - SR.GP

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.21990 OF 2011(W)

                                     2




                               JUDGMENT

The petitioner, who is stated to have retired as a

Headmaster from A.U.P School, Manjeri on 30.04.1998, alleges

that even though it has been over twenty two years since he so

retired, his Death Cum Retirement Gratuity (DCRG) has not been

sanctioned or disbursed.

2. The petitioner assert that no liability has been fixed

against him as per law, but that the DCRG has been withheld

solely for the reason that there was an audit objection against

the sanctioning of higher grade to him reckoning his earlier

Military service. The petitioner says that on an earlier occasion,

he was directed to get clearance from the Military Authorities

and that he had produced the said certificates and had also

refunded the service gratuity which he had received from the Air

Force. He says that, therefore, through Exts.P4 and P5, the audit

objections were closed; but that after his retirement, same

objections were resurrected, constraining him to approach this

Court by filing W.P.(C)No.26836/2003, which culminated in

Ext.P12 judgment, directing the 1 st respondent to consider the

representation of the petitioner, after affording him an WP(C).No.21990 OF 2011(W)

opportunity of being heard.

3. The petitioner says that in spite of the specific

directions in Ext.P12 judgment, Ext.P13 proceedings have been

now issued by the 1st respondent, wherein, no reasons are given

as to why his DCRG is withheld and that the said proceedings

were, in fact, issued even without properly considering his

contentions or giving him an opportunity of being heard. The

petitioner, therefore, prays that Ext.P13 be set aside and the

respondents be directed to disburse to him his eligible DCRG.

4. In response to the afore submissions made on behalf

of the petitioner by Sri.R.Harisankar, the learned Senior

Government Pleader-Sri.P.M.Manoj, submitted that a counter

affidavit has been filed on record, wherein, the following have

been stated:

"4. It is submitted that the petitioner retired from service on 30.04.1998 the Accountant General (A&E), Kerala, Thiruvananthapuram admitted the pensionary benefits of the petitioner with a direction to regulate the pay from 7.6.1978 excluding the Military service from 9.3.1962 to 1.4.1977 which is counted for the sanction of Higher grade sanctioned on various dates. It is also directed to recover the excess amount drawn due to WP(C).No.21990 OF 2011(W)

the irregular fixation or shown as a liability in NLC produced at Treasury.

5. It may be noted that as per the direction of 1st respondent the petitioner to report whether he had opted the family pension from the Defence Department and the petitioner had stated that he had not opted the family pension from the Defence Department. The petitioner opted the revised scale of pay as per G.O.(P) 3000/98/Fin. Dated 25.11.1998 and pay fixed in the scale of pay Rs.6500-10550 with effect from 1.3.1997 at Rs.7,575/-. Due to the revision of scale of pay this respondent forwarded the revised pensionary sanction to the 1st respondent (Accountant General), Thiruvananthapuram for authorization.

Accountant General (A&E), Thiruvananthapuram as per letter No.P-

04/Revn/1265/OB/00-01-745 dated 24.10.2002 admitted the revised pension to the petitioner Rs.1771/- per month with the following remarks. "Pay at the rate of Rs.1820/- with effect from 1.6.1996 and Rs.1880/- with effect from 1.6.1997 in the scale of Rs.1640-2900 has been accepted in Audit. Pay have been revised with effect from 1.3.1997 to Rs.5,500/- reckoning pay at the rate of Rs.1820/-. Increment on 1.6.1997 raising pay to Rs.5650/- pensionary benefits have been processed accordingly and payments were arranged."

5. The learned Senior Government Pleader, therefore,

prayed that this writ petition be dismissed.

6. I have examined the afore submissions and have also

gone through the materials and pleadings available on record. WP(C).No.21990 OF 2011(W)

7. It is indubitable that the respondents themselves

admit that the objection raised by the Accountant General in

the year 1985 was dropped and that the pay of the petitioner

had been re-fixed as per the direction of the 2nd respondent -

Deputy Director of Education, after obtaining a declaration

from the petitioner that his Military pension will not be

reckoned for civil pension.

8. The State further says that the petitioner had not

opted for family pension from the Defence Department but had

opted for the revised scale of pay, as per Government Order

dated 25.11.1998 and that his scale of pay was fixed with effect

from 01.03.1997 at Rs.7575/-. They, however, contend that due

to the revision of scale of pay, the revised pensionary sanction

was forwarded to the Accountant General but that an objection

was raised to the effect that though the pay at the rate of

Rs.1820/-, with effect from 01.06.1996; and Rs.1880/- with

effect from 01.06.1997, has been accepted in audit, the pay had

been revised with effect from 01.03.1997 to Rs.5500/-,

reckoning it at the rate of Rs.1820/-. The learned Government

Pleader submits that the increment on 01.06.1997, raising the WP(C).No.21990 OF 2011(W)

pay to Rs.5650/- has been taken into account and the

pensionary benefits have been processed accordingly and

payments arranged. He says that it is, therefore, that the

Accountant General requested the Educational Authorities to

take necessary action to refund the excess payment, since

erroneous sanction of higher grade in the fixation of pay in the

higher scale has resulted in the petitioner drawing excess pay

and allowances from 01.09.1988 to 30.04.1998 and that it

amounts to Rs.63,980/-.

9. Even when I hear the learned Senior Government

Pleader on the afore lines, the fact remains that it is admitted,

even in the counter affidavit, that the objections raised by the

Accountant General as early as in the year 1995 on the same

lines have been dropped and that the pay of the petitioner had

been re-fixed as per the direction of the 2 nd respondent - Deputy

Director of Education.

10. That apart, the petitioner has now retired from

service and going by the judgment of the Hon'ble Supreme

Court in State of Punjab v. Rafiq Masih (White Washer)

[2015(4) SCC 334], it would not be possible to recover any WP(C).No.21990 OF 2011(W)

amounts from him, unless it can be established that the

amounts paid to him had been on account of any guilt or

culpability that can be attributed to him or on account of any

action for which he is responsible.

11. In the case at hand, it is evident that the petitioner's

scale of pay and grades had been fixed and the benefits

disbursed to him based on valid orders and that earlier

objections raised in the year 1995 had been dropped, which led

to re-fixation of his scale of pay.

12. Obviously, therefore, the objections now raised by

the Accountant General, much after the petitioner retired,

particularly with respect to an issue which was alive when he

was in service, cannot be granted imprimatur by this Court; and

I am, therefore, of the view that Ext.P13 order of the

Accountant General cannot be allowed to continue.

For the reasons above, since the petitioner had been paid

his emoluments and grade pay while he was in service, based

on valid orders and it being conceded that the petitioner had

retired as early as in the year 1998, I order this writ petition

and set aside Ext.P13 being guided by the affirmative WP(C).No.21990 OF 2011(W)

declaration of law by the Hon'ble Supreme Court in Rafiq

Masih (supra); with a consequential direction to the

respondents to ensure that the amount of DCRG eligible to the

petitioner is paid to him, as expeditiously as is possible but not

later than three months from the date of receipt of a copy of

this judgment.

SD/-

                                          DEVAN RAMACHANDRAN

rp                                                  JUDGE
 WP(C).No.21990 OF 2011(W)





                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE COMMUNICATION VIDE ENDT.ON

D/1730/95 FROM THE 3RD RESPONDENT DATED 04/04/1995.

EXHIBIT P2 TRUE COPY OF THE LETTER NO. D/4422/02 FROM THE 3RD RESPONDENT DATED 07/06/1995.

EXHIBIT P3 TRUE COPY OF THE COMMUNICATION NO.D/1730/95 FROM THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 05/10/1995.

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION VIDE ENDT. ON L.DIS.D/1730/95 DATED 08/02/1996 FROM THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION NO. F4/18144/92 FROM THE 2ND RESPONDENT TO THE 3RD RESPONDENT DATED 29/02/1996.

EXHIBIT P6 TRUE COPY OF THE LETTER NO. R4/PEN.A/63/B/98-99/135 OF THE ACCOUNTANT GENERAL (A&E) KERALA DATED 27/05/1998.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION FROM THE PETITIONER ADDRESSED TO THE ACCOUNTANT GENERAL DATED 17/06/1998.

EXHIBIT P8 TRUE COPY OF THE COMMUNICATION FROM THE PETITIONER TO THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM DATED 08/02/1999 INFORMING THAT THE PETITIONER HAD NOT OPTED FOR FAMILY PENSION FROM DEFENCE DEPARTMENT.

EXHIBIT P9 TRUE COPY OF THE COMMUNICATION FROM THE PETITIONER TO THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM DATED 08/02/1999 PRAYING FOR RELEASE OF DCRG AND COMMUTED VALUE OF PENSION.

EXHIBIT P10 TRUE COPY OF THE REPRESENTATION FROM THE PETITIONER TO THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM DATED 15/09/20000.

EXHIBIT P11 TRUE COPY OF THE REPRESENTATION FROM THE PETITIONER TO THE ACCOUNTANT GENERAL DATED 30/11/2002.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.26836/2003 DATED 21/10/2003.

EXHIBIT P13 TRUE COPY OF THE ORDER ISSUED BY THE ACCOUNTANT GENERAL DATED 01/10/2009.