IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 WP(C).No. 8601 of 2004(Y) ----------------------------------- PETITIONER(S): --------------- M.J.JOSE, MEKKUNNEL HOUSE, PARAPUZHA P.O., THODUPUZHA IDUKKI (RETIRED HEADMASTER, ST.JOSEPH'S L.P.SCHOOL, PARAPPUZHA, THODUPUZHA, IDUKKI DISTRICT. BY ADV. MR.M.P.MADHAVANKUTTY MR.S.VISHNU RESPONDENT(S): --------------- 1. SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, IDUKKI. 4. THE ASSISTANT EDUCATIONAL OFFICER, THODUPUZHA. 5. THE HEADMASTER, ST.JOSEPH'S L.P.SCHOOL, PARAPUZHA, THODUPUZHA, IDUKKI DISTRICT. 6. THE ACCOUNTANT GENERAL, ACCOUNTANT GENERAL'S OFFICE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8601 of 2004(Y) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE PHOTOSTAT COPY OF THE GOVT. ORDER G.O.(P) NO. 380/94/(13)/FIN. DATED 9.6.1994 MODIFYING GOVT. ORDERS DT. 25.9.1993 AND 8.12.1993 ISSUED BY THE 1ST RESPONDENT. EXT.P2 - TRUE PHOTOSTAT COPY OF THE CIRCULAR NO. R1/91407/93 DATED 29.12.1994 ISSUED BY THE 2ND RESPONDENT. EXT.P3 - TRUE COPY OF THE LETTER NO.F/1528/01 DATED 24.7.2001 ADDRESSED TO THE 4TH RESPONDENT. EXT.P4 - TRUE COPY OF THE AUDIT ENQUIRY NO. 8 OF THE 6TH RESPONDENT THAT PETITIONER'S PAY HAS TO BE FIXED. EXT.P5 - TRUE PHOTOSTAT COPY OF THE LETTER NO.F/1528/00 DATED 21.5.2002 ISSUED BY THE 4TH RESPONDENT. EXT.P6 - TRUE COPY OF THE REPRESENTATION DATED 10.9.2002 ADDRESSED TO THE 1ST RESPONDENT. EXT.P7 - TRUE COPY OF THE G.O.(Rt) NO. 343/2004/G.EDN. DATED20.1.2004. EXT.P8 - TRUE PHOTOSTAT COPY OF THE GOVERNMENT ORDER G.O.(P) NO.952/95/(63)/ FIN. DATED 5.12.1995 ISSUED BY THE 1ST RESPONDENT. EXT.P9 - TRUE COPY OF THE COMMUNICATION ISSUED BY THE 4TH RESPONDENT TO THE HEADMASTER DATED 30.1.2004. EXT.P10 - TRUE COPY OF THE FORM OF OPTION DATED 6.1.1994. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 8601 of 2004 ................................................. Dated this the 16th day of November, 2009 J U D G M E N T The petitioner entered service as a LPSA with continuous service from 3.8.1970. He was promoted as a Headmaster on 3.6.1985. He completed 20 years of service on 2.8.1990 becoming eligible for senior grade. He completed 25 years of service on 2.8.1995 becoming eligible for selection grade. But even before completing 20 years of service, the petitioner was promoted as headmaster on 3.6.1985. While so, the Government issued pay revision order for Government employees and toachers with effect from 1.3.1990. A question arose as to whether persons who were promoted as headmasters before becoming eligible for senior grade and selection grade should be given benefit of senior grade and selection grade also. The Government issued Ext.P1 order dated 9.6.1994 wherein it has been held thus: “(c) Teachers (PD) who were promoted as Headmasters prior to 1.3.1992 and who would have been eligible for the selection grade of PD Teacher but for their promotion as Headmasters will be permitted to have their pay filed notionally in the Selection Grade first on 1.3.92 or on the date on which they become eligible for the Selection Grade after 1.3.1992 on the basis of the pay in the revised scale which they would W.P(C) No. 8601 of 2004 -2- have drawn had they continue as Senior Grade Primary Teachers and, then, based on the pay so fixed in the Selection Grade, their pay in the revised scale which they would have drawn had they continue as Senior Grade Primary Teachers and, then, based on the pay so fixed in the Selection Grade, their pay in the revised scale of pay of Headmaster will be fixed under Rule 28-A, Part I. KSRs. (d) Graduate Teachers who got promotion as Headmasters before 1.3.1992 and who would have been eligible for the Selection Grade but for their promotion as headmasters will also be permitted to have their pay notionally fixed in the selection grade first on 1.3.1992 or on the date on which they become eligible for the selection grade after 1.3.1992 on the basis of the pay in the revised scale which they would have drawn had they continued as Senior Grade High School Assistants and then based on the pay so fixed in the Selection Grade, their pay in the revised scale of Headmaster will be fixed under Rule 28-A Part I KSRs.” 2. As per the same, the pay of Headmasters who were promoted as such prior to their becoming eligible for senior grade and selection grade, were given the benefit of fixation of their pay firstly in the senior and selection grades, on the basis of pay in the revised scale applicable to senior grade and selection grade and then to fix their pay in the Headmaster's scale under Rule 28A of part I of the KSR. The Government by Ext.P2 circular dated 29.12.1994 issued some clarification also in respect of the same. But while fixing the pay as per the said orders, the petitioner's pay in the senior grade and selection W.P(C) No. 8601 of 2004 -3- grade were fixed on the basis of the pre-revised scales of pay applicable to those grades instead of the revised scales of pay. The petitioner opted for 1.8.1999 was as the date to come over to the Headmaster's scale. Based on that option the pay was fixed. While so the audit party found out this mistake in fixation of pay of the petitioner and by Ext.P3 the Assistant Educational Officer, Thodupuzha enclosed Ext.P4 audit objection seeking explanation from the petitioner. The petitioner submitted Ext.P6 explanation, wherein while admitting the mistake he requested a chance for re-option so as to minimise the refund of excess pay drawn by the petitioner on account of rectification of the mistake. By Ext.P7 order, the Government rejected the prayer of the petitioner and directed refixation of the petitioner's pay and recovery of the excess pay drawn by the petitioner. It is under the above circumstances, the petitioner has approached this court seeking the following reliefs: “(i) to issue a writ of certiorari quashing Exhibit P7 as illegal and arbitrary. (ii) to issue a declaration that the revised pay fixation granted to the petitioner is correct and legal. (iii) to issue a writ of mandamus directing the respondents to refrain from recovering the alleged excess salary paid to the petitioner. W.P(C) No. 8601 of 2004 -4- (iv) to issue a writ of mandamus directing respondents to grant the pensionary benefits to the petitioner.” 3. Petitioner's contention is that in so far as the petitioner has not in any way contributed to the mistake committed by the officers in fixing the petitioner's pay, after years, the petitioner cannot be mulcted with the liability to refund large sums of money. The petitioner relies on the decision of this court in Narayanan T.K. v. State of Kerala and Others [2008(3) KHC 152 (DB)]. The petitioner therefore submits that even if there is any mistake in fixation of pay the petitioner should not be prejudiced by the mistake and the petitioner should not be directed to refund any excess pay drawn by the petitioner. The learned Government Pleader opposes the contentions of the petitioner. According to her, the Government has ample power to rectify a mistake in fixation of pay of one of its employees. She specifically points out that in the form of option submitted by the petitioner there is also a declaration undertaking to refund excess payment if any drawn on fixation of pay if any mistake is noticed as a result of subsequent scrutiny and audit. She submits that the decision in Narayanan's case is W.P(C) No. 8601 of 2004 -5- not applicable to the petitioner's case insofar as in that case the delay in finding out the mistake was more than ten years, whereas in this case the petitioner's pay was fixed with effect from 1.8.1997 and the audit party detected the mistake in 2000. According to her, three years is not culpable delay so as to prevent the Government from correcting the mistake and recovering excess pay drawn by the petitioner. The learned Government Pleader also objects to the request of re-option submitted by the petitioner in so far as the pay revision was in 1990 and even the extended time fixed by the Government for re-option is long over. 4. I have considered the rival contentions in detail. 5. The Supreme Court has, very recently, in the decision of Registrar of Co-operative Societies v. Israil Khan [2009 (4) KLT SN 61 (C.No. 53) SC] held 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 W.P(C) No. 8601 of 2004 -6- 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 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.” 6. The petitioner cannot now dispute the fact that the fixation of his pay was wrongly made, in so far as the petitioner's pay in the senior grade and selection grade was fixed on the basis of the pre-revised scales of pay, whereas Exts.P1 and P2 specifically stipulated that the same shall be in the revised scale of pay. The petitioner cannot also on the basis of Narayanan's case contend that the Government cannot recover the excess pay drawn by the petitioner. That decision was rendered in the wake of a delay of more than ten years. In the petitioner's case the delay is hardly three years, which cannot be stated to be a delay at all. The Government would require at least three years time to complete the audit relating to the relevant year. As such the W.P(C) No. 8601 of 2004 -7- petitioner cannot claim that because of the delay, the petitioner has been prejudiced and therefore the excess amount drawn by the petitioner cannot be recovered from the petitioner. Therefore there is nothing wrong in ordering recovery of the excess pay received by the petitioner on account of the wrong fixation of pay. 7. However, I find merit in the claim of the petitioner regarding re-option. Several cases have come up before this court regarding identical recoveries, wherein the audit party detected fixation of pay wrongly on the basis of pre-revised scale of pay for granting senior grade and selection grade to teachers. I myself have disposed of not less than ten such cases. Therefore, it is abundantly clear that the officers who have fixed the pay in accordance with Exts.P1 and P2 order were under the impression that the pay had to be fixed in the senior grade and selection grade on the basis of the pre-revised scale of pay. Nobody has any case that the petitioner contributed to the mistake. When the officers themselves were under that impression the petitioner cannot be faulted for filing option accordingly. If that be so, when the mistake is found out justice W.P(C) No. 8601 of 2004 -8- demands that petitioner should be given at least a chance for re- option notwithstanding the fact that the time fixed by the Government for submitting re-option is long over. Accordingly, the writ petition is disposed of with the following directions: 8. It is only just and appropriate that the respondents accept that option and refix the petitioner's pay on the basis of that option in terms of Exts.P1 and P2. It appears that the petitioner has submitted such an option. However, the petitioner shall submit a fresh re-option within one month from today. The competent among the 1st respondent shall accept the said re- option and refix the pay in terms of Exts.P1 and P2 accordingly, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Only excess pay, if any, on the basis of such fixation shall be recovered from the petitioner. S. SIRI JAGAN, JUDGE rhs