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Judgment
The petitioners say that they have all retired as Headmasters/Headmistresses from various aided schools. According to them, they have been
granted the benefit of Selection Grade in the year 1996, but that the Accountant General (A&E), Kerala raised audit objections against this fixation
through Exhibits P5, P9, P13, P16 and P20 citing the reason that the Selection Grade (notional) and Headmasters' scale fixations are admissible only in
the revised scale and consequently their pay had been re-fixed by the jurisdictional Assistant Educational Officer (AEO), on account of which, certain
amounts were found to have been paid in excess to them, which they had remitted at the Sub Treasury, Kodungallur.
The petitioners assert that the afore audit objection raised against their fixation of pay was wholly erroneous, since it was done pursuant to Exhibits
P23 Circular and P23(a) Government Order. They point out that, as per Exhibit P23 Circular, the Director of Public Instructions (now re-designated
as Director of General Education (DGE)) has clarified that the teachers promoted as Headmasters/ Headmistresses before 01.03.1992 and who
would have been eligible for Selection Grade in the pre-revised scale (either on the due date or on the date on which the teacher wishes to postpone
the Selection Grade) can be allowed to opt for the revised scale on the same day, on which the Selection Grade is opted. They say that this was, in
fact, sanctioned by the Government through Exhibit P23 (a) order also.
After saying as afore, the petitioners submit that certain similarly placed persons had approached this Court by filing O.P.No. 11658/2001, which
was disposed of through Exhibit P23(b) judgment, wherein, noticing Exhibit P23 Circular (marked as Exhibit P3 therein), this Court had held that 'grant
of higher grade in the light of the circular and the Government Order was in order'.
The petitioners say that in spite of this, based on the earlier mentioned audit objections and consequent to the re-fixation of pay, the AEO worked
out a liability against each of them in the year 2002, which prejudicially affected their pension benefits also. They say that, therefore, they moved the
first respondent for re-fixation of their pay through Exhibit P24 series representations, followed by W.P. (C)No.15448/2009 being filed, which was
disposed of through Exhibit P25 judgment, directing the Government to take a decision on their claims made in the aforesaid representations.
The petitioners allege that, however, the Government disallowed all their claims and that, while doing so, it relied upon Exhibit P27 Circular issued
on 15.03.2004, whereby, Exhibit P23 Circular issued by the DGE has been treated as being null and void, thus cancelling it with effect from the date
on which it was issued, namely 29.12.1994.
The petitioners contend that Exhibit P26 order is in grave error because Exhibit P27 could not have been applied to their case, when they had
exercised their options as early as in the years 1995-96. They say that this is more so because, as is evident from Exhibit P23(b) judgment, similarly
placed persons have already been granted the same benefits, especially because exercise of option by them in the year 1995-96 was in conformity
with the then extant Circulars and Government Orders.
The petitioners thus pray that Exhibits P5, P9, P13, P16, P20 and P26 be quashed and the respondents be directed to restore their original fixation of
pay granted by the AEO, Valappad. In addition, the petitioners have also prayed that Exhibit P27 order, to the extent to which it grants retrospectivity,
be also quashed.
In response, the learned Senior Government Pleader submitted that a counter affidavit has been filed on record, wherein it has been pointed out that
all the petitioners were promoted as Headmasters/Headmistresses before 01.03.1992 and that on account of this promotion, they were not granted
Senior/Selection Grades. He then added that, as per order dated 09.06.2004, Government allowed notional fixation to the teachers promoted before
01.03.1992, which was followed by Exhibit P23 Circular being issued by the DGE clarifying that all such teachers are eligible for their Senior/Selection
Grade notionally in their pre-revised scale. He, however, added that this Circular has been cancelled by the DGE himself through Exhibit P27 order
and consequently that objections were raised to the fixations granted to the petitioners, leading to excess amounts drawn by them ordered to be
refunded. He thus contended that none of the petitioners can seek the benefits of a cancelled Circular and therefore, they are bound to refund the
excess amounts drawn by them due to irregular pay fixation. He submits that this is also because the petitioners have, at the time of filing objections,
given declarations that they will refund all excess amounts, if any, on account of irregular pay fixation. He thus prayed that this writ petition be
dismissed.
On an analysis of the rival contentions as recorded afore, it is without doubt that the sole reason why Exhibit P26 has been issued is because Exhibit
P23 Circular had been cancelled by the DGE himself through Exhibit P27 order dated 15.03.2004. However, it is expressly conceded that petitioners
had been granted their benefits as early as in the year 1996 at a time when Exhibit P23 Circular was in force and that it was withdrawn several years
later through Exhibit P27 order. Therefore, it is evident that when the objected fixations were made, it was without error since Exhibit P23 Circular
was, admittedly, in force and the real question, therefore, is whether the DGE could have issued Exhibit P27 order retrospectively, thereby unsettling
the benefits granted to the petitioners nearly ten years earlier.
In this regard, it does not require a great amount of expatiation to conclude that an executive order cannot be issued in a manner so as to withdraw
or obliterate the benefits already acquired by the employees in service, which were given under valid orders of sanction. The fact that similarly placed
persons like the petitioners were granted the benefits under Exhibit P23 is unmistakable from Exhibit P23(b) judgment of this Court, whereby, a
learned Single Judge approved the pay fixations granted to the petitioners therein based on this Circular as also the Government Order, namely Exhibit
P23(a). There is nothing on record to show that Exhibit P23(b) judgment has been subsequently varied or modified and consequently, I do not see how
the petitioners alone can be singled out to deny them the benefits granted more than ten years ago. This is more so because, it is admitted that Exhibit
P23(b) judgment had been complied with by the authorities.
In the afore circumstances, it is ineluctable that since Exhibit P26 order relies exclusively on Exhibit P27 proceedings of the DGE dated
15.03.2004, same cannot be granted imprimatur by this Court. The reasoning in Exhibit P26 is that even though the petitioners were granted their
grade fixations in 1996, it became irregular on account of Exhibit P27 order issued by the DGE more than eight to nine years later and therefore, it is
perspicuous that Government also admits that, but for Exhibit P27, the fixation made in favour of the petitioners in the year 1996 was in order.
That apart, Exhibit P26 order further says that since Exhibit P23 Circular was issued by the DGE without consulting the Government, it is not
binding on them and therefore, that the amounts paid to the petitioners are liable to be recovered based on their undertakings. However, said order is
silent as to the grant of benefits to similarly placed persons until Exhibit P27 had been issued, which is evident from Exhibit P23(b) judgment as also
the other judgment mentioned therein. It is, therefore, inscrutable that Government has ordered recovery of the benefits granted to the petitioners in
the year 1996, based on an order issued by the DGE in the year 2004, when it is expressly conceded that, at the time when such benefits were so
granted, it was as per the extant Circular and Order, namely Exhibit P23 and P23(a). Since the Circular and order have already been noticed and
approved by this Court in Exhibit P23(b) judgment and because the petitioners therein were granted reliefs based on the same, I am certain that
fixation of pay granted to the petitioners herein in the year 1996, based on Exhibit P23 and P23(a), cannot be taken away in view of the subsequent
order of the DGE in the year 2004.
In the afore circumstances, Exhibit P26 order as also Exhibits P5, P9, P13, P16 and P20 proceedings are quashed and the competent respondent is
directed to grant eligible benefits to the petitioners de hors Exhibit P27, which shall be done, as expeditiously as possible, but not later than four months
from the date of receipt of a copy of this judgment.
This writ petition is thus ordered.