IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 WP(C).No. 17325 of 2010(M) -------------------------------- PETITIONER: -------------- P.SREELATHA, W/O.N.G.MURALEEDHARA KURUP, ARAVINDAM, ELANJIMEL P.O., VIA.CHERIYANADU, CHENGANNUR (HIGH SCHOOL ASSISTANT (MATHS), GOVERNMENT HIGH SCHOOL, NARANGANAM, PATHANAMTHITTA). BY ADVS. SRI.S.SUBHASH CHAND SRI.T.NIKLAVU RESPONDENTS: ----------------- 1. DEPUTY DIRECTOR (EDUCATION), PATHANAMTHITTA AT THIRUVALLA. 2. HEADMASTER, GOVERNMENT HIGH SCHOOL, NARANGANAM, PATHANAMTHITTA. 3. HEADMASTER, GOVERNMENT HIGHER SECONDARY SCHOOL, SREEKANTAPURAM, KANNUR. 4. ACCOUNTANT GENERAL (KERALA), THRISSUR BRANCH. BY SMT. NISHA BOSE, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.17325/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF PROCEEDINGS DTD. 7.2.1983 OF Deputy Director of Education, KANNUR. EXT. P2 : COPY OF APPOINTMENT ORDER DTD. 7.1.80 OF THE PETITIONER. EXT. P3 : COPY OF PROCEEDINGS No.25/2002-03 DTD. 12.5.10 OF R3 R1. EXT. P3(a) : COPY OF RELEVANT EXTRACT OF AUDIT OBJECTION APPENDED TO EXT.P3. EXT. P4 : COPY OF JUDGMENT DTD. 4.10.06 PASSED BY THIS COURT IN OP No.22738/2000. EXT. P5 : COPY OF SAID JUDGMENT DTD. 28.2.11 IN WP(C) 25764/2006(P). RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R.RAMACHANDRAN NAIR, J. ------------------------------------- W.P.(C)No.17325 Of 2010-M -------------------------------------------------- DATED THIS THE 4th DAY OF AUGUST, 2011 J U D G M E N T In this case the petitioner is aggrieved by the audit objection Exhibit P3 which has led to the recovery of an amount of above Rs.65,000/- after her retirement, which is now withheld from the DCRG. 2. The aided school service of the petitioner prior to her appointment in the Government service was reckoned for the purpose of granting weightage in the 1997 pay revision. Her service in the Government school started on 7.2.1983 and prior to that she had aided school service above two years. 3. The audit objection raised is dated 12.5.2010. In fact the learned counsel for the petitioner points out that in the 1997 pay revision, after granting the benefit, the pay was fixed and the successive pay revisions have taken effect and only in the eve of retirement, which was on 31.3.2011, the audit objection has been raised. Actually, the petitioner had attained superannuation on 25.5.2010, but was continued upto 31.3.2011 because of the W.P.(C)No.17325/10 -2- unification of the retirement age. 4. Evidently, the audit objection states that the Government Order G.O.(P)No.3000/98/Fin. dated 25.9.1998 provides service qualifying for normal increment alone to be counted in computing weightage and hence the aided school service not reckoned as above was not liable to be reckoned for grant of weightage. 5. The learned counsel for the petitioner relied on Exhibit P4 judgment of the Division Bench of this Court to contend for the position that this Court by relying upon Exhibit P1 produced therein, viz; Government Order dated 17.6.1999, held that the approved service in aided school was liable to be counted for all service benefits including pension. It is therefore submitted that Exhibit P3 cannot be sustained. 6. A reading of the counter affidavit shows that the audit objection is to the effect that since the aided school service did not count for normal increments, the same cannot be reckoned for the purpose of weightage. The learned Government Pleader submitted that in identical circumstances this Court in Writ Appeal No.288/05 and connected cases considered the same W.P.(C)No.17325/10 -3- issue arising under G.O.No.3000/98/Fin. Dated 25.9.1998 and held that the service which is reckoned for normal increments could be reckoned for granting weightage. Therefore, the reckoning of the aided school service so far as the petitioner is concerned which do not count for normal increment cannot be counted for granting weightage. 7. The learned counsel for the petitioner submitted that actually the pay fixation was effected and based on the pay fixation, the petitioner has drawn various benefits including the subsequent pay revision benefits. It is not due to misrepresentation or fraud on the part of the petitioner that the pay fixation was effected. Wrong application of any Government Order by the sanctioning authority cannot lead to a recovery of the benefit granted to the petitioner at this distance of time, namely after 14 years. 8. In this context the learned counsel for the petitioner relied upon the decisions of the Apex Court in Registrar of Co- operative Societies vs. Israil Khan (2009 (4) KLT SN 61 (C.No.53) SC) and Syed Abdul Qadir and others vs. State of Bihar and others [(2009) 3 SCC 475] and Exhibit P5 judgment W.P.(C)No.17325/10 -4- of this Court in W.P.(C)No.25764/06. Therein the findings are contained in paragraph No.8 onwards, which are reproduced below: “8. .......... ...... The decisions relied upon by the petitioner which are judgments of the Apex Court lay down the principle that if an employee has received excess payment which is later objected and if the employee has not contributed to the fixation by any misrepresentation, fraud or collusion, the courts can use their discretion to deny the right to recover the excess payment. The said dictum as evident from Registrar of Co-operative Societies vs. Israil Khan (2009 (4) KLT SN 61 (C.No.53) SC) lays down thus: “Such relief, restraining recovery back of excess payment is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he received for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong W.P.(C)No.17325/10 -5- payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery. What is important is recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment.” 9. In Syed Abdul Qadir and others vs. State of Bihar and others [(2009) 3 SCC 475], a similar question was considered. The legal position was reiterated in paragraphs 57 and 58 in the following terms: “There are several precedents of the Supreme Court where relief has been granted against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on he part of the employee, and (b) if such excess payment was made by the employee by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees W.P.(C)No.17325/10 -6- from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts ad circumstances of any particular case, order for recovery of the amount paid in excess.” 10. The above two decisions were followed in W.P.(C)No. 17055/2005 and the recovery was held to be barred. Of course, learned Government Pleader submitted that this Court in various decisions relied on by him held that if a mistake has contributed to the fixation of pay, the employee should not get the benefit of mistake. In Writ Appeal No.1510/2006, it was also held that if there is an undertaking given by the employee agreeing for recovery of the amount if subsequently it is found that the fixation is wrong, the recovery cannot be said to be barred. Learned Government Pleader also relied upon Rule 3C of Part III KSR which is stated as follows: Rule 3C: “Notwithstanding anything contained in these rules, recovery of excess payments made to an officer by mistake within a period of four years before his retirement and which are detected within a period of four years after retirement may be made from his pension and other amounts due to him after retirement subject to the condition that such deduction if made from his pension shall be effected only in monthly instalments in whole W.P.(C)No.17325/10 -7- rupees and that the amount of each instalment shall not exceed 10 percent of the monthly pension admissible to him”. 11. Going by the above Rule, even if excess payment is by a mistake, recovery can be effected of the amount paid for a period of four years before the date of retirement. 12. In the light of the binding decisions of the Apex Court in Registrar of Co-operative Societies vs. Israil Khan (2009 (4) KLT SN 61 (C.No.53) SC) and in Syed Abdul Qadir and others vs. State of Bihar and others [(2009) 3 SCC 475], I am of the view that the recovery ordered against the petitioner in this case cannot be supported. The option given by the petitioner was accepted and the pay fixation was made and he was granted the benefit also. It is only after eight years, audit came with an objection. The petitioner retired from service way back in the year 2004. Therefore, it will be hard to recover an amount of Rs.1,13,794/- from DCRG at this distance of time. There is no allegation that there was any collusion, mis representation or fraud from the part of the petitioner. Therefore, the dictum laid down by the Apex Court in Registrar of Co-operative Societies vs. Israil Khan (2009 (4) KLT SN 61 (C.No.53) SC) and in Syed Abdul Qadir and others vs. State of Bihar and others [(2009) 3 SCC 475] will squarely apply to the facts of this case.” W.P.(C)No.17325/10 -8- 9. The argument raised by the learned Government Pleader is that usual undertaking given at the time of pay revision order will enable recovery. This aspect was also considered in Exhibit P5 judgment. 10. For all these reasons, the petitioner is entitled to succeed in the Writ Petition. There is no allegation of misrepresentation or fraud or collusion on the part of the petitioner. Even though the challenge against Exhibit P3 to the extent of the objection regarding the fixation may not be sustainable, but the consequent recovery as against the petitioner will not be proceeded with. Therefore the recovery proceedings will stand quashed. The withheld amount of DCRG will be released to the petitioner within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn