IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 WP(C).No. 16850 of 2008(E) --------------------------------------- PETITIONER(S): ----------------------- V.T.GRACYKUTTY, CLERK (RETIRED), HIGH SCHOOL SEETHATHODE, PATHANAMTHITTA DISTRICT. RESIDING AT PANANGATTU HOUSE, SEETHATHODE, PATHANAMTHITTA. BY ADV. MR.MVS.NAMBOOTHIRY RESPONDENT(S): ------------------------ 1. STATE OF KERALA-REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION DIRECTORATE, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITA AT D.D.OFFICE, THIRUVALLA. 4. DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. R1 TO R4 BY GOVERNMENT PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.16850/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, QUILON DT. 29.10.81. P2:- COPY OF THE RELEVANT PAGE OF THE AUDIT REPORT. P3:- COPY OF THE LETTER SENT TO THE DEPUTY DIRECTOR OF EDUCATION BY THE HEADMISTRESS. P4:- COPY OF THE JUDGMENT DTD. 5.2.03 IN OP. 4177/03 OF THIS HONOURABLE COURT. P5:- COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DT.D 16.4.03. P6:- COPY OF THE INTIMATION SLIP OF PENSIONARY BENEFITS ISSUED BY THE ACCOUNTANT GENERAL ON 18.9.03. R3(a):- INSPECTION REPORT OF DDE, PATHANAMTHITTA AT THIRUVALLA BY THE DISTRICT FINANCE INSPECTION SUAD PATHANAMTHITTA. R3(b):- NO.V (4) 50627/06/DPI DTD. 6.2.08. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.16850 of 2008-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November, 2009. JUDGMENT Aggrieved by Ext.P7, the petitioner has filed this writ petition. The petitioner retired from service as Clerk from Seethathode High School on 31.8.2003. She entered service as Clerk on 1.6.1967. The school in question is an aided school. The appointment of the petitioner was duly approved by the District Educational Officer. On completion of one year, her probation was declared and increment was granted to her as per order dated 17.10.1968. 2. After having joined service, the petitioner passed Account Test Lower in December 1981. She also passed KER Test in June-July 1981. The petitioner was not having M.O.P. qualification. But it is pointed out that at that time by Ext.P1 communication, it was conveyed that the same was not required in respect of persons who have completed 13 years of service for granting higher grade. Accordingly, the petitioner was granted first higher grade on completion of 13 years of service. She was granted the second higher grade on completion of 20 years and the third higher grade was also granted on completion of 23years of service with effect from wpc 16850/2008 2 1.7.1990. 3. An audit objection was raised as per Ext.P2 regarding granting of higher grade on the ground that she has not passed the M.O.P. Test. The Headmistress submitted a reply to the Deputy Director of Education as per Ext.P3. Thereafter, the petitioner filed O.P.No.4167/2003 which was disposed of by Ext.P4 judgment directing the Deputy Director of Education to take a decision after considering the explanation offered by the Headmistress. Accordingly, the audit objection was dropped as per Ext.P5. Thereafter, the petitioner retired from service. The retirement benefits were disbursed to her also. 4. Ext.P7 is the order passed on 7.5.2008 by the very same Deputy Director of Education. Therein, the view taken is that in the light of Circular dated 26.12.2007 issued by the Government, the earlier order passed by the Deputy Director of Education requires review and accordingly Ext.P5 was cancelled. 5. The respondents have filed a counter affidavit justifying the order passed by the Deputy Director of Education. The stand taken is that by Ext.P5 the audit objection was dropped. The District Finance Inspection Squad, Pathanamthitta made a surprise visit in the office of the third respondent and ordered to cancel the exemption granted by the third wpc 16850/2008 3 respondent as per Ext.P5. Besides, the Director of Public Instruction also, as per communication dated 6.2.2008 directed the third respondent to cancel the exemption granted in Ext.P5. 6. Learned counsel for the petitioner submitted that during the tenure of service the audit objection raised was dropped by Ext.P5. Therein, the view taken is that the MOP is not prescribed as a qualification for promotion as U.D. Clerk in aided schools. Therefore, it cannot be said that the Deputy Director of Education, while passing Ext.P5, had done anything by way of a mistake. He had considered various aspects and then decided to drop the audit objection. It cannot therefore be said that there was any misrepresentation of facts or fraud committed by the petitioner also in the matter. 7.In Ext.P7, the view taken is that exemption was granted by the Government as per Circular dated 29.7.2006 to aided school clerks who have entered service before 19.11.1994 from passing department tests and that was cancelled by the Government by another circular dated 26.12.2007. This is the only reason shown for reviewing the order Ext.P5. 8. The petitioner is relying upon various judgments of this Court and the Apex Court to contend for the position that the petitioner obtained the benefits on the basis of a valid order and the audit objection raised after a wpc 16850/2008 4 long lapse of years, cannot be sustained. In Aleyamma Varghese v. Secretary, General Education Department and others (ILR 2007 (3) Ker. 105), it was held by the Apex Court 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. The impugned judgment is set aside and the appeal is allowed with the aforesaid observations and directions.” That was a case where an audit objection was raised regarding the payment of salary and allowances for a previous period and there was long delay. It was held that a mistake apparent on the face of the records may be rectified but the recovery proceedings cannot be sustained. 9. A Division Bench of this Court in Narayanan v. State of Kerala (2008 (3) KLT 188), considered a case of receipt of excess amount on the basis of wrong fixation. Therein, the excess pay fixed in 1989 onwards and it was held that 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. and it was further held that the excess amount paid by the Government on wpc 16850/2008 5 mistake, on the basis of wrong fixation, should not be recovered. Reliance is placed on the decisions of the Apex Court in Babulal Jain v. State of M.P. {(2007) 6 SCC 180} and Aleyamma Varghese v. Secretary, General Education Department (2007 (3) KLT 700 (SC), in the matter. 10. Herein, the circumstances show that while the petitioner was in service, the audit objection was raised and it was objected. The petitioner approached this court by filing O.P. No.4167/2003 and pursuant to the directions issued by this Court, the Deputy Director of Education considered the matter and the audit objection was dropped thereafter. The said order became final. Therefore, as on the date of retirement Ext.P5 was in force. When the audit objection was dropped once, recalling of the same by Ext.P7 relying upon a later Govt. Order cannot be justified in the light of the principles stated by the Apex Court in the above decisions. It cannot be said that there was any fraud or misrepresentation of facts by the petitioner and it cannot also be said that the Deputy Director of Education committed any mistake while passing Ext.P5. Therefore, the writ petition is allowed. Ext.P7 is quashed. N costs. (T.R. Ramachandran Nair, Judge.) kav/