IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE B.P.RAY WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 WP(C).No. 31985 of 2004(G) -------------------------- PETITIONER(S): ----------------------- DAISY THOMAS, STAFF NURSE, PUBLIC HEALTH CENTRE, ELANJI. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY,DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER, ERNAKULAM. BY GOVERNMENT PLEADER SRI. VIJULAL FOR R1-R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ds WP(C).No. 31985 of 2004(G) APPENDIX PETITIONERS EXHIBITS: P1: COPY OF GO (P)930/93(2)/FIN DATED 08-12-1993. P2: COPY OF THE NOTE PREPARED BY THE AUDIT PARTY. P3: COPY OF GO(P)NO. 615/(138)97/FIN DATED 28/06/1997. P4: COPY OF REPRESENTATION DATED 12-05-2003 MADE BY THE PETITIONER TO RESPONDENTS 2 AND 3. P5: COPY OF LETTER DATED 13-05-2004 FROM THE 3RD RESPONDENT TO THE 2ND RESPONDENT. P6: COPY OF LETTER DATED 05-07-2004 FROM THE 1ST RESPONDENT TO THE PETITIONER. RESPONDENTS EXHIBITS: NIL /TRUE COPY/ PA TO JUDGE B.P.RAY, J. - - - - - - - - - - W.P.C. NO. 31985 OF 2004 - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December, 2011 J U D G M E N T Heard the learned counsel for the petitioner and the learned Government Pleader. 2. The petitioner has filed this writ petition with the following prayers: “a) Issue a writ of certiorari or other appropriate writ or order quashing and setting aside Exhibits P-2, P-5 and P-6, b) In the alternative, hold that the petitioner is entitled to exercise re-option in accordance with Exhibit P-3 Government Order, c) Issue a writ of mandamus or other appropriate writ or order directing the respondents not to recover the alleged excess pay from the petitioner, and d) Issue such other writs, orders and directions as are deemed fit in the facts and circumstances of the case.” 3. The case of the petitioner is as follows: W.P.C.No.31985/2004 -2- The petitioner commenced service as a Staff Nurse Grade-II in the scale of ` 420-720 on 25-02-1982. On completion of ten years service, she was granted higher grade with effect from 01-07-1992 and her pay was fixed in the pre-revised scale of ` 1220-2150/-. 4. The scale of pay of Government employees was revised with effect from 01-03-1992 vide Ext. P1 G.O.(P) No. 600/93/Fin dated 25-09-1993. Thereafter, the said orders were amended by G.O.(P) 930/93(2)/Fin dated 08-12-1993. Pursuant to Ext. P1, the petitioner opted to continue in the pre-revised scale till 01-07-1993 and her pay was fixed at ` 1750/- in the revised scale of pay of `1520-2660. After a long period of 7 years, fixation of pay has been objected by the Accountant General on the ground that the petitioner could continue in the pre-revised scale upto 30-06-1992, since she was granted time bound higher grade with effect from 01-07-1992. Aggrieved by the same, the petitioner approached respondents 2 and 3 by filing Ext. P4 representation. By Ext. P5 order dated 13-05-2004, the 3rd W.P.C.No.31985/2004 -3- respondent rejected the same. By Ext. P6 order dated 05- 07-2004, the representation submitted by the petitioner was rejected by the 1st respondent. Hence this writ petition. 5. The learned counsel for the petitioner submitted that since the petitioner had exercised option in accordance with the prevalent rules, clause 4(IX) of Ext. P1 permitted the course adopted by the petitioner. The objection raised on the ground that the petitioner could have exercised option to remain only in the pre-revised scale only till 30-06- 1992 is without basis. The ten years higher grade had been granted only with effect from 01-07-1992 and when pay revision orders were issued in September1993 and modified as per Ext. P1, the petitioner was enjoying the ten years higher grade. According to the petitioner Ext.P1 permits exercise of option to come over to the revised scale and the audit objection is arbitrary and illegal. 6. The learned Government Pleader on the other hand submits that the delay in conducting audit cannot be pointed out as a reason for not complying with the audit W.P.C.No.31985/2004 -4- objection. At the time of exercising option for Pay Revision, each and every Government employee should tender a declaration to the effect that he/she is ready to refund any payment received in excess due to the wrong fixation of pay found out in subsequent scrutiny. The employees are not eligible for inadmissible amount. 7. The learned counsel for the petitioner relied on the decision in Syed Abdul Qudir and others Versus State of Bihar and Others reported in (2009) 3 Supreme Court Cases 475 in which it is held as follows: “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowances or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.” W.P.C.No.31985/2004 -5- Following the aforesaid decision I am of the considered view that mistake of this nature may be rectified and the Government could extend justice to the parties. Accordingly, I set aside Exts. P2, P5 and P6 and direct that the excess amount paid to the petitioners cannot be recovered. This writ petition is allowed as above. B.P. RAY, JUDGE. ds