IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 RP.No. 1159 of 2009() --------------------- AGAINST THE JUDGEMENT IN WA.1895/2009 Dated 24/08/2009 .................... REVIEW PETITIONER(S): APPELLANT IN THE WRIT APPEAL: --------------------------------------------------- SMT.S.ROSE MARY, U.D.CLERK (HIGHER GRADE TEXTBOOK OFFICE, PADMAVILASAM ROAD, FORT P.O., THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.N.P.PRAJEESH RESPONDENT(S): RESPONDENTS: --------------------------- 1. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. NALLASIVAN PILLAI C., UPPER DIVISION CLERK, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT PLEADER SRI.LAKSHMI NARAYANAN THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 24/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & P.S.GOPINATHAN, JJ. ----------------------------------- R.P.No.1159 OF 2009 ------------------------------------ Dated this the 24th day of June, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. 1.The review petitioner who joined the Education Department in Trivandrum district as L.D. Clerk on 16.3.1985 was promoted as U.D.Clerk provisionally with effect from 28.2.1986, at a time when she had not even completed her probation. On a complaint made some time in 1989, she was reverted on a review of the erroneous promotion so granted. The appellant filed a writ petition seeking different reliefs, including for a direction that her pay shall not be re-fixed on the basis of such reversion. Learned single Judge dismissed that petition. The writ appeal filed against that judgment was also dismissed. This review petition is filed seeking review of the judgment in the writ appeal. RP.1159/09 2 2.Having gone through the judgment sought to be reviewed and having heard the learned counsel for the appellant as also learned senior Government Pleader, we do not find any ground to interfere with the views expressed in the judgment sought to be reviewed in so far as they relate to the findings as to the correctness of the reversion on rectification in 1989, of an erroneously given promotion with effect from 28.2.1986. At any rate, such issues do not fall within the realm of grounds for review as recognised in law. 3.But we find that towards the end of the judgment, there is reference about a request made by the appellant to the Bench that the excess salary paid to her may be ordered to be not recovered. The Bench was of the view that it had been paid to her by mistake and therefore, complying with the Bench decision of this Court in Santhakumari v. State of Kerala [2005(4) KLT 649], that claim of the appellant cannot sustain. May be that situation was the making of the appellant herself. We say this because a look at the request RP.1159/09 3 made by the petitioner in the writ appeal clearly shows that she claimed only a direction in relation to any re-fixation of pay and allowances on the basis of the aforesaid reversion. In fact, she challenged the reversion as groundless by pointing out that vacancies were available in the higher cadre and her promotion to that category is not ineligible. It was a consequential relief that she sought that her pay may not be re-fixed. She was not facing a situation where there was any decision by the Government or the appointing authority to order recovery of the excess or over paid amounts. Therefore, there was actually no situation for the Bench to consider the applicability of Santhakumari (supra) to the facts of the appellant or for the appellant to have made any such request to the Bench. It was rather premature in our view. As of now, learned counsel for the review petitioner says that as a consequence of the judgment, she is facing proceedings for recovery. We are clear in our mind that the judgment sought to be reviewed was delivered on 24.8.2009 and the Apex Court had spoken RP.1159/09 4 at least twice on such issue; on 10.10.2006, in Purushottam Lal Das & Others v. State of Bihar & Others [(2006) 11 SCC 492] and on 28.11.2006 in Aleyamma Varghese v. Secretary, General Education Department [2007 (3) KLT 700 (SC)] that though a mistake apparent on the face of the record may be rectified, when there is a long lapse of period of time, 17 years in Aleyamma, the State was expected to react more magnanimously and not to resort to recovery proceedings. On the facts of that case, the Apex Court granted relief to the employee. In Purushottam (supra), the Apex Court said that as regards recovery of excess amount already paid, different aspects have to be considered and in deserving cases sympathy has to be extended to employees when they have enjoyed the fruits of the salaries in the higher cadre for no fault attributable to them. 4. In the case in hand, the period for which the petitioner was found to be dis-entitled to promotion was within a couple of RP.1159/09 5 years after she was promoted as UDC immediately following her entry into service as LDC. Obviously, whatever she had earned would have been utilised by her to sustain herself or for the purpose of her family. Under such circumstances, it would be impermissible, on the totality of the facts and circumstances of the case, to order recovery. On the facts and circumstances of the case, the appellant is not liable to re-pay to the Government any amount found to have been paid to her on account of the irregular promotion which is subject matter of the writ appeal. No recovery shall be effected on that account. 5.For the aforesaid reasons, we vacate the following portion of paragraph No.5 of the judgment dated 24.8.2009 in W.A.No.1895/09: “The appellant prays, the excess salary paid to her may not be recovered. We notice that public money has been paid to her by a mistake. In view of the Division Bench decision of this Court in Santhakumari v. State of Kerala [2005 (4) KLT 649], the claim of the appellant cannot be RP.1159/09 6 sustained. Therefore, we decline to interfere with the proposal to recover the excess salary paid to the appellant.” The judgment in writ appeal will stand modified to the aforesaid extent in review. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.S.GOPINATHAN, Judge. kkb.30/6.