IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WP(C).No. 10606 of 2006(K) ---------------------------------------- PETITIONER(S): ------------------------ VANAJAKUMARI, LPSA,PANCHAYATH L.P.S., MARANGADU, ARYANAD, RESIDING AT S.V. BHAVAN, H.S. JUNCTION, ARUVIKKAD. BY ADV. MR.P.GOPALAKRISHNAN NAIR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. ASSISTANT EDUCATIONAL OFFICER, NEDUMANGADU. 3. THE HEADMISTRESS, PANCHAYTH L.P.S., MARANGADU. R1 & R2 BY GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON 22/12/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.10606/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.C.1724/2005 DTD. 16.1.06. P2:- COPY OF THE ORDER NO.C.1460/08 DTD. 10.10.08. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.10606 of 2006-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2009. JUDGMENT The petitioner who is working as an L.P.S.A. in Panchayat L.P. School, Marangad, is faced with reduction of pay as well as refund of excess salary received by her during a specified period. 2. The petitioner was appointed in the above school with effect from 21.6.1991. She had prior service in Govt. Schools provisionally for a total period of 3 years, 9 months and 11 days. After reckoning the said period, she was granted higher grade on 2.6.2001. Accordingly, her pay was fixed at Rs.4500/- in the scale of Rs.4500 - 7000 and increments were also granted based on the pay revision. This was sanctioned by the competent authority. After five years, by Ext.P1 dated 16.1.2006 the same was sought to be withdrawn, on the ground that provisional service rendered in Govt. Schools will not qualify for service based higher grades of aided school teachers. Reliance is placed on the judgment in O.P.No.11293/91. 3. Learned counsel for the petitioner submitted that as far as Panchayat Schools and appointment in Govt. Schools are concerned, the appointment is through Public Service Commission and unlike the other wpc 10606/2006 2 private aided schools, there cannot be a total bar in reckoning the provisional service. It is also submitted that at any rate, recovery ordered cannot be supported in the light of the decision of the Apex Court in Babulal Jain v. State of M.P. and others {(2007) 6 SCC 180} which was followed by a Division Bench of this Court in Narayanan v. State of Kerala (2008 (3) KLT 188), which was rendered under similar circumstances. 4. The counter affidavit shows that Ext.P1 was passed after finding that even though the provisional service of the teacher in the category of P.D. Teacher is somewhat identical to that of LPSA in aided schools, it cannot be taken to sanction increment or higher grade, because of Government Decision No.II under Rule 33 Part I KSR. The said position has been settled by the judgment of this Court in O.P.No.11293/1991 which was confirmed in W.A. No.337/1992. 5. In that view of the matter, the petitioner cannot be said to be entitled to reckon the period of provisional service for the purpose of higher grade and increment. Therefore, Ext.P1 to the extent of refixation of pay, is perfectly in order. 6. What remains is the direction to recover excess salary received due wpc 10606/2006 3 to the above fixation. A Division Bench of this Court in Narayanan's case (2008 (3) KLT 188) considered a similar case where the provisional service of a teacher was reckoned as qualifying service for sanctioning higher grade and accordingly his pay was fixed, but later, the same was sought to be reversed. With regard to the question of recovery, after considering the decisions of the Apex Court in Babulal Jain's case {(2007) 6 SCC 180} and that in Aleyamma Varghese v. Secretary, General Education Department (2007 (3) KLT 700 - SC) it was held thus: “If the excess pay fixed in 1989 onwards is recovered from the petitioner's retiral benefits, it will be a very heavy blow on him. On the facts and circumstances of this case, we are of th view that the excess amount paid by the Government on mistake, on the basis of wrong fixation, should not be recovered.” The said dictum will squarely apply to the facts of this case. In Babulal Jain's case (supra), the Apex Court took the view that as the appellant had obtained the higher salary not on the basis of any fraud or misrepresentation, recovery cannot be effected. Para 15 of the judgment lays down the principle as follows: “We, however, are of the opinion that in a case of this nature, no recovery should be directed to be made. The appellant has discharged higher responsibilities. It is not a case where he wpc 10606/2006 4 obtained higher salary on committing any fraud or misrepresentation. The mistake, if any, took place on a misconception of law. He was at least entitled to some allowances. In refixing his pay, his claim to that effect has not been considered. He has since retired. A sum of Rs.22,000 has been recovered from him. Such recovery has been effected without issuing any show cause notice. His case on merit in this behalf had not been considered by the Government and even by the Tribunal,” 7. Again, Aleyamma Varghese's case (2007 (3) KLT 700 - SC), in similar circumstances, it was held that the recovery after along period of time, cannot be justified. The Head Note reads thus: “A mistake apparent on the face of the record may be rectified, but in a matter of this nature, we would expect the State to react more magnanimously and not resort to recovery proceedings after a period of 17 years. We, therefore, in the peculiar facts and circumstances of this case, are of the opinion that with a view to do complete justice to the parties, the amount sought to be recovered may not be recovered from the appellant and we direct accordingly.” 8. Apart from the above decisions of the Apex Court, there is a recent decision in Syed Abdul Qadir and others v. State of Bihar and others {(2009) 3 SCC 475} The legal position was reiterated in paragraphs 57 and 58 in the following terms: wpc 10606/2006 5 “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 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. 9. Learned Govt. Pleader submitted that the facts of the case considered by the Apex Court are totally different and therefore, the wpc 10606/2006 6 principals laid down therein are distinguishable. The Dictum laid down therein is to the effect that if the excess payment was made to the employee by applying a wrong principle and that too based on a particular interpretation of the rule which was found to be erroneous, then unless it is shown that there was any misrepresentation or fraud, this Court has got a discretion to direct stopping of recovery as it will cause hardship to the employee. Herein, there is no case that the employee contributed anything for the mistake and misrepresented any facts. In that view of the matter, the dictum laid down therein will apply. Therefore, the validity of Ext.P1 to the extent to which the petitioner's pay is refixed, is upheld, but the direction to refund the excess amount drawn by her from 23.4.1997 is vacated. The writ petition is allowed to the above extent. No costs. (T.R. Ramachandran Nair, Judge.) kav/