IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 OP.No. 30356 of 2000(L) ----------------------- PETITIONER(S): --------------- P.K.CICILY, W/O.C.M.PAPPACHAN, NURSING SUPERINTENDENT (RTD.), (RESIDING AT BELL SHAJ BHAVAN, KIZHAKKEEKKARA, KOTTARAKKARA. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE SECRETARY TO GOVT., DEPT. OF HEALTH, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM. 3. THE ACCOUNTANT GENERAL (A&E), KERALA, TRIVANDRUM. 4. THE DISTRICT MEDICAL OFFICER OF HEALTH, KOLLAM. 5. THE SUPDT., TALUK HEAD QUARTERS HOSPITAL, KOLLAM. GOVERNMENT PLEADER SHRI.ARAVINDAKUMAR BABU.T.K. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. . 30356/00 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE AUDIT OBJECTION. P2. COPY OF THE ORDER DTD.16.3.99 BY R4. P3. COPY OF THE ORDER DTD.5.2.99 BY R4. P4. COPY OF THE GOVT. ORDER DTD.30.1.80. P5. COPY OF THE LETTER DTD.3.5.99 OF THE GOVT. P6. COPY OF THE GOVT. ORDER DTD.1.4.2000. P7. COPY OF THE JUDGMENT IN O.P.NO.15380/99 DTD.16.12.99. P8. COPY OF THE ORDER DTD.25.8.2000 BY THE GOVT. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 30356 of 2000 ================== Dated this the 23rd day of November, 2009 J U D G M E N T The petitioner's pay was fixed pursuant to 88 pay revision order issued by the Government of Kerala in 1989 in the post of Staff Nurse in the Health Department. Although in subsequent audit conducted, no irregularity was noted in such fixation, allegedly on the basis of a test check, the fixation was sought to be revised, consequent upon which, the petitioner has been directed to refund certain amounts drawn by her in excess of what was due to her. Exts.P1, P5 and P8 are orders in this regard. Although in view of the irregularity pointed out, the petitioner requested for a chance for re-option for the postponement of the petitioner's 20 year higher grade promotion from 1.7.1987 to 1.7.1988 so as to minimise the incidence of refund, the same was not allowed. It is under the above circumstances, the petitioner has filed this original petition seeking the following reliefs: “(a) call for the records relating to Exhibits P1, P5 and P8 and set aside the same by the issue of a writ of certiorari or other appropriate writ or order. (b) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to allow one more chance for re-option changing time bound higher grade promotion from 1.7.1987 to 1.7.1988 so as to protect the Petitioner's pay in the light of Exhibit P4. (c) declare that the fixation of pay of the Petitioner done by the 5th respondent is legal and valid.” O.P.30356/00 2 2. No counter affidavit has been filed by the respondents. 3. I have heard the learned counsel for the petitioner and the learned Government Pleader. 4. The fact that the fixation was irregular is no longer in dispute. The only question to be considered is whether the petitioner should be given a chance for re-option as requested for by her and whether the amount directed to be refunded can be recovered from the petitioner at this point of time. 5. As far as re-option is concerned, the petitioner seeks a chance of re-option for postponement of the petitioner's 20 year higher grade promotion from 1.7.1987 to 1.7.1988. It is not disputed before me that the 20 year higher grade promotion became due to the petitioner on 1.7.1987. There cannot be any option for postponement of higher garde. Higher grade has to be sanctioned and given on the date when it became due. Option is for coming over to the revised scale as per the pay revision order. The petitioner does not request for re-option of her pay fixation itself. That being so, the petitioner is not entitled to re-option as prayed for by the petitioner. 6. But as regard the recovery of the excess amount drawn by the petitioner, I think that the petitioner is entitled to succeed. The fixation was as early as in July, 1988. Although Ext.P1 check report is not dated, Ext.P2 communication from the District Medical Officer to O.P.30356/00 3 the Director of Health Services is dated 16.3.1999. There is unexplained delay of not less than 7 years especially in the wake of the fact that prior to the test check an audit was conducted and no irregularity was noticed in the audit. The petitioner had retired from service on 31.1.1999. The law on the subject has been laid down by the Supreme Court very recently in the decision of Registrar of Co- operative Societies v. Israili 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 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.” Going by the law laid down by the Supreme Court on the subject, I am satisfied that at this point of time the respondents cannot recover the excess amount drawn by the petitioner after so many years. O.P.30356/00 4 Therefore, while allowing the refixtion of pay on the basis of the test check to stand, I direct that the excess amount shall not be recovered from the petitioner. But the petitioner's retirement benefits shall only be in accordance with the refixed pay. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge O.P.30356/00 5 O.P.No. . 30356/00 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE AUDIT OBJECTION. P2. COPY OF THE ORDER DTD.16.3.99 BY R4. P3. COPY OF THE ORDER DTD.5.2.99 BY R4. P4. COPY OF THE GOVT. ORDER DTD.30.1.80. P5. COPY OF THE LETTER DTD.3.5.99 OF THE GOVT. P6. COPY OF THE