IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R. RAMACHANDRAN NAIR WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 WP(C).No. 15978 of 2003(B) ---------------------- PETITIONER(S): ----------------------- 1. B. SYAMALAKUMARI AMMA, W/O. KRISHNA PILLAI, AGED 53 YEARS, P.D. TEACHER, GOVERNMENT L.P. SCHOOL, PULLAYIL, P.O. PULLAYIL, KILIMANOOR SUB DISTRICT. 2. V. SULOCHANA, P.D. TEACHER, GOVERNMENT L.P. SCHOOL, PULLAYIL, P.O. PULLAYIL, KILIMANOOR SUB DISTRICT. 3. V. SAKUMTHALA, P.D. TEACHER, GOVERNMENT L.P. SCHOOL, PAPPALA, KILIMANOOR SUB DISTRICT. BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE ASSISTANT EDUCATIONAL OFFICER, KILIMANOOR, TRIVANDRUM. 3. THE HEADMISTRESS, GOVERNMENT L.P. SCHOOL, PULLAYIL, P.O. PULLAYIL, KILIMANOOR SUB DISTRICT. 4. THE HEADMISTRESS, GOVERNMENT L.P. SCHOOL, PAPPALA, KILIMANOOR SUB DISTRICT. R1 TO R4 BY GOVT. PLEADER SMT. RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2011, ALONG WITH WPC NO. 24427 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 15978 of 2003(B) -2- ORDER ON I.A. NO. 578/2003 & I.A. NO. 11273/2011 IN WP(C). NO. 15978/2003 DISMISSED 13/07/2011 SD/- T.R. RAMACHANDRAN NAIR, JUDGE //TRUE COPY// P.S. TO JUDGE Mn WP(C).No. 15978 of 2003(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE EXTRACT OF THE REPORT OF AUDIT OF ACCOUNTS OF THE 1ST AND 2ND PETITIONERS. EXT.P2 : COPY OF THE -DO- OF THE 3RD PETITIONER. EXT.P3 : COPY OF THE ORDER NO. B/390/2001 OF THE 2ND RESPONDENT. EXT.P4 : COPY OF THE INTERIM ORDER IN C.M.P. NO. 41833/2002 IN O.P. NO. 24702/2002. EXT.P5 : COPY OF THE JUDGMENT IN WP(C) NO. 17055 OF 2005 - E DATED 21-12-2009. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 15978/2003-B & 24427/2004-G - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2011. JUDGMENT Both these writ petitions raise a common question and therefore they are disposed of together. 2. The issue pertains to the counting of aided school service for the purpose of reckoning it as qualifying service for weightage for the pay revision benefits of the year 1997. The petitioners in W.P.(C) No.15978/2003 were working as P.D. Teachers at the time of filing of the writ petition and the petitioner in W.P.(C) No.24427/2004 was working as H.S.A. (Maths). All of them were working in Government schools. 3. The petitioners submitted their option in terms of the pay revision order, 1997, viz. G.O.(P) No.3000/98/G. Edn. dated 25.11.1998 which came into effect on 1.3.1997. The pay of the petitioners were fixed by the Headmasters concerned. Objections were raised in the matter, mainly that the service qualifying for normal increments in the scale of pay alone, can be reckoned as qualifying service for weightage. 4. Therefore, the objection was that the aided school service cannot be reckoned for weightage and objections were filed by the petitioners, wpc 15978/2003 & 24427/2004 2 justifying the pay fixation. When further orders were issued in the matter, with a direction to recover the excess amount, this writ petition was filed. Learned counsel for the petitioners submitted that at any rate, the recovery as ordered against the petitioners cannot be supported as they have not made any misrepresentation and reliance is placed on the judgment in W.P.(C) No.17055/2005. 5. Evidently, in the light of the judgment of this Court in W.A. No.288/2005 and connected cases, the petitioners are not entitled for grant of weightage based on aided school service. It was held therein in para 5 as follows: “Thus, the effect of G.O.(P) No.3000/98/Fin. is that the service which can be counted for increment alone will be counted for the purpose of weightage. In other words, the service which does not qualify for increment will not be taken for the grant of weightage. Consequently, aided school service cannot be tagged on to Government school service for the purpose of weightage.” Learned Govt. Pleader relied upon the very same judgment to contend for the position that the recovery is perfectly justified in the light of the undertaking given by the petitioners to the effect that they will refund the extra benefits, if any irregularity is found later. 6. Learned counsel for the petitioners relied upon the decisions of wpc 15978/2003 & 24427/2004 3 the Apex Court in Registrar of Co-operative Societies v. Israil Khan (2009 (4) KLT SN 61 (C. No.53) SC) and Syed Abdul Qadir and others v. State of Bihar and others {(2009) 3 SCC 475} which were considered in the judgment in W.P.(C) No.17055/2005. Paragraphs 6 and 7 of the said judgment reads as follows: 6. In Israil Khan's case (2009 (4) KLT SN 61), the Apex Court, after assessing various aspects, held as follows: “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 payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts wpc 15978/2003 & 24427/2004 4 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.” In the subsequent decision in Syed Abdul Qadir's case {(2009) 3 SCC 475}, 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 wpc 15978/2003 & 24427/2004 5 because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees 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.” Therefore, the court has got absolute discretion in the matter and if it is found that such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance which is subsequently found erroneous, the recovery need not be permitted. 7. Even though the Division Bench in W.A. No.288/2005 held the view that in the light of the undertaking, the parties therein are bound to repay the amount, in the light of the legal principles evolved by the Apex Court in the two decisions, the learned counsel for the petitioner is well founded in his submission that the recovery may be stopped. There is no case that the excess payment was on account of any misrepresentation or fraud on the part of the petitioner. The matter was taken up before this Court and the learned Single Judge had allowed the writ petition in O.P. NO.24702/2002 which was reversed in W.A. wpc 15978/2003 & 24427/2004 6 No.288/2005. The dispute was one concerning the interpretation of the relevant clauses of the pay revision order. In that view of the matter, the dictum laid down by the Apex Court will squarely apply. Hence, I reject the contention raised by the learned Govt. Pleader.” Going by the decisions of the Apex Court, it can be seen that as there is no plea that the excess payment was made on account of any misrepresentation or fraud on the part of the petitioners, recovery as against them cannot be justified. Therefore, the decision of the Division Bench in W.A. No.288/2005 and connected cases, is distinguishable, in the light of the later decisions of the Apex Court. Therefore, the writ petitions are allowed and the impugned orders are quashed to the extent of directing recovery of the excess amount from the petitioners. The respondents are directed not to recover any excess amount from the petitioners, based on the audit objection respect of the 1997 pay revision. No costs. (T.R. Ramachandran Nair, Judge.) kav/