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2022 Supreme(Online)(KER) 50049
HIGH COURT OF KERALA
OMANA C.K. – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/28399/2019
ADVOCATE GENERAL OFFICE KERALA SMT. ANIMA M, GP
The court established that broken periods of service can qualify for pay increments under relevant government orders, affirming prior case law.
Headnote:
Employment - Writ Petition - G.O.(P) No. 7/2016/Fin. - Clauses on service weightage and increments.
Fact of the Case:
The petitioner sought increments due as per pay fixation and challenged the recovery of amounts based on an audit objection questioning the inclusion of a broken period of service in pay calculations.
Finding of the Court:
The court held that the petitioner’s broken period of service should be recognized for pay increments, agreeing with previous judgments that supported the inclusion of such service in the calculation of benefits.
Issues: Whether the petitioner is entitled to annual increments and if the broken period of service can be considered for service weightage.
Ratio Decidendi: The Court interpreted the rules to include broken periods of service as qualifying for normal increments, consistent with prior judgments.
Final Decision: The court directed the release of annual increments and quashed recovery measures against the petitioner.
JUDGMENT
The petitioner has approached this Court with this writ petition seeking issuance of directions to the respondents to release the annual increments due to the petitioner in April 2018 and April 2019 by recognizing the pay fixation approved in Exhibit P2 and to release all consequential benefits and for ancillary reliefs.
2. Short facts are as under :
1.The petitioner joined service as UPSA at the Vannery HSS, Punnayurkulam with effect from 24.08.1989. Her service was terminated on 27.10.1989 for want of vacancy. Thereafter, she was regularly appointed as a UPSA with effect from 01.08.1990. She asserts that she was promoted as High School Assistant on 07.06.1993. In the writ petition filed on 22.10.2019, it is stated she is due to attain superannuation in the year 2021.
2. According to the petitioner the Government has come out with Ext.P1 Government Order, G.O.(P) No.7/2016/Fin. dated 20.01.2016, making it clear that service for fitment benefit and service weightage would mean full-time service, including broken periods of service qualifying for normal increments in the scale of pay. It has also been made clear that prior regular service in aided schools/colleges/polytechnics, Municipal Common service, University service, Panchayat service and High Court of Kerala Service would also be reckoned.
3.On the strength of Ext.P1, the petitioner is stated to have submitted her option counting 24 years of service as of 01.07.2014 by reckoning the broken period of service in a leave vacancy during the period from 24.08.1989 to 27.10.1989. Ext.P2 is the copy of the statement of fixation, which stands approved by the DEO, Tirur.
4. Subsequent to the disbursement of benefits, the Educational Officer has forwarded Exhibit P3 audit objection to the 5th respondent wherein, insofar as the petitioner is concerned, it is stated that the grant of weightage for a period of 24 years by considering the broken period of service from 24.08.1989 to 27.10.1989 was irregular. It is also stated in Ext.P3 that the broken period of service cannot be considered for service weightage. A further direction was issued to revise the staff fixation and to direct the petitioner to refund the excess amount that has been realized by her and also to revise the grade.
5. The petitioner asserts that she submitted Ext.P4 explanation to Ext.P3. According to the petitioner, none of the explanations submitted by the petitioner was considered. This led the RDD to issue Ext.P10, ordering recovery of amounts and calling for an explanation for the delay.
3. It is in the afore circumstances that this writ petition is filed seeking the following reliefs:
I. To issue a writ of Mandamus or other appropriate writ,order or direction commanding the Respondents to release the annual increments due to the Petitioner in April 2018 and April 2019 by recognizing the pay fixation approved in Exhibit P2 and to release all consequential benefits, II. To issue a writ of mandamus or other appropriate writ, order or direction commanding the Respondents to not to effect any recovery from the Petitioner without following the due process of law.
4. A counter affidavit has been filed by the 3rd respondent wherein it is stated that in terms of Paragraph 6 of Annexure II of Ext.P1, only regular service (uninterrupted and broken) can be calculated for service weightage. According to the 3rd respondent, the petitioner is entitled to draw a pay in terms of the 2014 pay revision only after excluding the leave vacancy service. It is also stated that excluding the said period, the pension proposal which is received from the Headmaster is being processed.
5. Sri.V. Sajith Kumar, the learned counsel appearing for the petitioner, urged that the stand taken by the respondent cannot be sustained. According to the learned counsel, Note to Clause 6 of Annexure II in Ext.P1 is emphatically clear, and it states that service for the purpose of this rule means the Full-Time Regular Service, including a broken period of
