SATYANARAYANA, J.,

1. The DDPI, Udupi District, 1st respondent in W.P.No.27555/2003 has come up in this appeal impugning the order dated 11.2.2005 passed in the said writ petition, wherein recovery of excess payment made to the petitioner pursuant to Annexure-A is upheld with a direction to 1st respondent/appellant herein to confirm the benefit provided under Annexure-A to petitioner and also to refund the recovery, if any, with reference to excess payment made to him.

2. Brief facts leading to this appeal are as under:

Respondent herein was working as Assistant Teacher in Durgaparameshwari Higher Primary School, Bantakallu, Udupi Taluk. Since his appointment was found to be in excess of the sanctioned limit, his service was taken out from the said school. However, to accommodate him, he was re-deployed in K.M. Aided Higher Primary School, Karkala Taluk, Udupi District in terms of the order of redeployment. Admittedly, the said redeployment is pursuant to the conditions stipulated under Rule 11 Sub-Rule 6 proviso 3 to Karnataka Educational Institution (Recruitment and Terms and Conditions of Service of Employees in Private Aided Primary and Secondary Educational Institutions) Rules, 1999, which reads as under:

“(6) On receipt of the vacancy position, the Government Authority shall without prejudice to initiating action under sub-rule (1) allot through computerized counseling, the retrenched employee on the basis of seniority and after taking into consideration the subject requirement and reservation and roster point, to any other institution where a regular sanctioned vacancy exists and direct the concerned management to issue appointment order to such candidates to report for duty in the said institution.

Provided that in all cases where no person is available in the reservation category and roster as per the requirement of the institution, then the senior-most candidate irrespective of reservation and roster shall be allotted.

Provided further that no recruitment shall be made by any aided institution, until the list of retrenched teacher are exhausted.

Provided also that the retrenched employees so appointed in the new institution will get seniority in the new institution from the date of joining the institution. However, the services rendered in the earlier institution will count for pay, leave and pensionary benefits.

Provided also further that the retrenched employee who is allotted to a new institution shall not be entitled to any compensation provided under the Act.

Provided also that no retrenched employees/staff shall be allotted to a minority institution for being appointed against a vacancy.

Provided also that in so far as minority institutions are concerned, the competent authority on his own verification or on the report of his subordinate officers finds that there is an excess strength of teachers/staff on account of reasons mentioned in the above rules, shall take action to retrench the excess teachers/staff following the same procedure as specified under these rules. The Competent Authority shall withdraw salary grants in respect of such excess/retrenched staff”.

3. In terms of said provision of law, respondent herein will get seniority in the new institution from the date of joining with prospective effect pursuant to the order of redeployment. His earlier service in previous school will be taken into consideration for the purpose of pay, leave and pensionary benefits only. As such, last pay drawn by him in the previous school is saved for the purpose of fixing his pay in the new school in pursuance of aforesaid proviso referred to supra.

4. When matter stood thus, subsequent to respondent’s redeployment in KM Aided Higher Primary School a Government Order cam to be passed on 21.1.2002, wherein the Government decided to provide one increment to teachers who have put in more than 20 years and have not received any promotion during the said period. In terms of the said G.O. one increment was also pr