IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 10305 of 2009(G) ---------------------------------------- PETITIONER(S): ------------------------ M.P.KURIACHAN, H.S.A.(SOCIAL STUDIES) ST.MARY'S HIGH SCHOOL, ALUVA. BY ADVS.MR.A.JAYASANKAR MR.MANU GOVIND RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 3. THE DISTRICT EDUCATIONAL OFFICER, ALUVA. 4. HEADMASTER, ST.MARY'S HIGH SCHOOL, ALUVA. SR. GOVT. PLEADER, MR.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------------- W.P.(C).No.10305 of 2009 -------------------------------------- Dated 31st March, 2009 JUDGMENT Heard Sri.Manu Govind, the learned counsel appearing for the petitioner and Sri.A.J.Varghese, the learned counsel appearing for respondents 1 to3. In the nature of the order that I propose to pass, it is not necessary to issue notice to or hear the fourth respondent. 2. The petitioner is presently working as High School Assistant in St.Mary's High School, Aluva. He commenced continuous service as UPSA with effect from 29.8.1986. He was temporarily promoted as H.S.A. during the period from 22.6.1993 to 31.5.1994. Thereafter he was reverted as UPSA and continued as UPSA till 14.1.2001. With effect from 15.1.2001 he was again promoted as H.S.A and continued as H.S.A. till 22.10.2001 when he was again reverted as UPSA. He was thereafter promoted as H.S.A. with effect from 5.6.2002 and is continuing in service as H.S.A. 3. While the petitioner was working as UPSA, he was given the first time bound higher grade promotion with effect from 14.9.2005 reckoning the service rendered by him as H.S.A. during the period from 22.6.1993 to 31.5.1994. On completion of 18 years of service, he was given the second time bound higher grade with effect from 14.9.2003 WP(C).No.10305/2009 2 and his pay was fixed accordingly. While granting the second time bound higher grade on completion of 18 years of service, the petitioner's service as H.S.A. during the period from 22.6.1993 to 31.5.1994, which had been reckoned for the purpose of grant of first time bound higher grade when the petitioner was working as UPSA was once again reckoned for the purpose of grant of second time bound higher grade after the petitioner was promoted as H.S.A. Under the rules governing grant of higher grade, the second time bound higher grade could have been granted only after completion of eight years of service in the promoted post of H.S.A. Since the spell of service as H.S.A. during the period from 22.6.1993 to 31.5.1994 had been initially reckoned for the purpose of grant of first time bound higher grade, the very same spell of service could not have been reckoned to compute eight years service as H.S.A. for the purpose of grant of second time bound higher grade. The fixation of pay was therefore objected to by the audit party by Ext.P2. Ext.P3 pay fixation order was accordingly issued by the Headmaster of the school who directed refund of a sum of Rs.39701/= drawn by the petitioner in excess during the period from 14.9.2003 to 31.1.2009. Ext.P3 is under challenge in this writ petition. 4. Sri.Manu Govind, the learned counsel appearing for the petitioner contends that even if the fixation of pay consequent on the WP(C).No.10305/2009 3 grant of second time bound higher grade is irregular, the Government cannot seek to recover the excess amount received by the petitioner in lump. The learned counsel for the petitioner submits that the petitioner received the excess payment over a period of 64 months and that such payment was not as a result of any act attributable to the petitioner. He contends that since the petitioner received the excess payment over a period of 64 months, the Government cannot recover the excess payment in lump. 5. Rule 1A of Chapter XXVI of the Kerala Education Rules empowers the Government or the Educational Officer concerned to order refund of the salary paid to teachers in excess of the amount legally due to them or if payment is made irregularly. The petitioner commenced regular service as H.S.A. only on 5.6.2002. Prior to that he had served as H.S.A. during two spells namely during the period from 22.6.1993 to 31.5.1994 and from 15.1.2001 to 22.10.2001. He entered service as UPSA on 29.8.1986. He completed 10 years of service, making him eligible for the first time bound higher grade promotion in the year 1996. During that 10 year period he had served as H.S.A. during the period from 22.6.1993 to 31.5.1994. It was reckoning such service as H.S.A. also that the first time bound higher grade was granted to the petitioner. However, due to oversight, when the second time bound higher grade was granted, for the purpose of WP(C).No.10305/2009 4 reckoning eight years of service in the promoted post of H.S.A., the very same spell of service during the period from 22.6.1993 to 31.5.1994 was once again reckoned. Such reckoning was in my opinion patently illegal. The attempt now made is to rectify the mistake and to recover the excess salary drawn by the petitioner. In the light of the facts noticed above, the action taken by the official respondents to recover the excess salary drawn by the petitioner cannot be faulted. The challenge to Exts.P2 and P3 cannot therefore be entertained. 6. I shall now deal with the question whether the petitioner is entitled to contend that recovery should be made only in installments over a period of 64 months as contended by him. The learned counsel appearing for the petitioner contends that as excess payment was made over a period of 64 months and as such excess payment was not due to any overt act on the part of the petitioner, the Government can recover the excess payment only in similar monthly instalments. I am afraid there is no merit in such contention. The petitioner admittedly had received excess payment. The Government is now seeking to recover the excess payment thus received by the petitioner without levying interest. The petitioner cannot therefore be heard to contend that he should be permitted to continue to enjoy the excess payment received by him for a period of WP(C).No.10305/2009 5 64 months. However, sub-rule (2) to Rule 1A of Chapter XXVI of the KER permits recovery by adjustment in the pay bills or in any other manner as the Government or the Educational Officer concerned may deem fit. Taking note of the fact that the petitioner had no role in the fixation of pay or in the irregular grant of second time bound higher grade, I am of the opinion that though not as requested by the learned counsel for the petitioner, the petitioner should be permitted to pay the excess amount drawn by him in instalments. I accordingly direct that the excess payment of the sum of Rs.39,701/= referred to in Ext.P3 shall be recovered from the salary and allowances payable to the petitioner, in equal instalments commencing from the salary payable for the month of April, 2009 and ending with December, 2009. The writ petition is dismissed subject to the above observation. P.N.RAVINDRAN Judge TKS