IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 WP(C).No. 10809 of 2010(A) ---------------------------------------- PETITIONER(S): ----------------------- V. LUKOSE, RETIRED PRINCIPAL, ST. JEROME'S HIGHER SECONDARY SCHOOL, VALIPLACKAL HOUSE, VELLAYAMKUDY P.O., KATTAPPANA, IDUKKI DISTRICT. BY ADV. SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN, SRI.K.T.THOMAS. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION (A) DEPARTMENT, SECRETARIAT ANNEXE, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, IDUKKI, THODUPUZHA. 3. THE DISTRICT EDUCATIONAL OFFICER, KATTAPPANA, IDUKKI DISTRICT. BY GOVT. PLEADER SMT.RANI DIOTHIMA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 10809 of 2010(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE ORDER DATED 06/12/2006 PASSED BY THE 2ND RESPONDENT. EXT.P2 COPY OF THE INTIMATION SLIP DATED 24/01/2007 TOGETHER WITH ORDER RELATING TO PENSIONARY BENEFITS ISSUED BY ACCOUNTANT GENERAL'S OFFICE. EXT.P3 COPY OF THE CHALAN RECEIPT EVIDENCING PAYMENT OF Rs.1,64,215/- BY THE PETITIONER. EXT.P4 COPY OF THE JUDGMENT DATED 27/11/2007 IN WP(C) NO. 20192/2007. EXT.P5 COPY OF THE LETTER DATED 05/01/2008 ISSUED BY 2ND RESPONDENT. EXT.P6 COPY OF THE ORDER DATED 29/02/2008 PASSED BY THE 2ND RESPONDENT. EXT.P7 COPY OF THE ORDER DATED 06/01/2010 PASSED BY THE FIRST RESPONDENT. EXT.P8 COPY OF THE G.O.(P) NO.930/93/(2)/FIN. DATED 08/12/1993 ISSUED BY THE GOVERNMENT. EXT.P9 COPY OF THE G.O.(P) NO.380/94/(13)/FIN. DATED 09/06/1994 ISSUED BY THE GOVERNMENT. EXT.P10 COPY OF THE LETTER NO.10949/J2/94/G.EDN. DATED 19/08/1994 ISSUED BY THE GOVERNMENT. EXT.P11 COPY OF THE G.O.(P) NO.475/1996(97) FIN. DATED 06/07/1996 ISSUED BY THE GOVERNMENT. EXT.P12 COPY OF THE G.O.(P) NO.2637/173/98/FIN. DATED 29/10/1998 ISSUED BY THE GOVERNMENT. EXT.P13 COPY OF THE G.O.(P) NO.1811/99/(38)/FIN. DATED 15/09/1999 ISSUED BY THE GOVERNMENT. EXT.P14 COPY OF THE ORDER DATED 04/05/1999 ISSUED BY DEO, WAYANAD. EXT.P15 COPY OF THE ORDER DATED 15/12/1999 ISSUED BY DEO, WAYANAD. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs C..K.ABDUL REHIM,J. ------------------------------------ W.P(C) No.10809 OF 2010 ------------------------------------ Dated this the 8th day of December, 2011 J U D G M E N T The petitioner commenced his service as High School Assistant on 1-6-1976, in an aided school. He was promoted as Headmaster with effect from 01-06-1988 and further as Principal of Higher Secondary School under the same management, in August 2000. The petitioner retired while working in the said post on 31/3/2006. When payment of pension and other terminal benefits was delayed ,the petitioner made complaints to the Director of Public Instructions and to the first respondent herein. Then the second respondent issued Ext.P1 proceedings effecting re-fixation of his pay and allowances with effect from 1992 and ordered to recover the alleged excess amount, as liability fixed on the petitioner. In Exts.P2 and P3 orders the Accountant General had sanctioned pensionary benefits and gratuity, after effecting recovery of the alleged excess amount to the tune of Rs.1,64,215/-. 2. Aggrieved by Ext.P1 order the petitioner had approached this court in WP(C) No.20192/2007. In Ext.P4 Judgment this court observed that Ext.P1 was issued without W.P.(C).10809/2010-A -2- notice to the petitioner and without affording him any opportunity of hearing. Finding that Ext.P1 is violative of the principles of natural justice,this court had quashed Ext.P1, subject to reserving liberty to the respondents to pass fresh orders in accordance with law, after affording an opportunity of hearing to the petitioner. 3. Pursuant to Ext.P4 the second respondent had issued Ext.P5 notice and Ext.P6 proceedings was issued after hearing the petitioner. It is mentioned in Ext.P6 that, the option exercised by the petitioner for fixation of the scale of pay of senior grade with effect from 01-07-1996, was not in order and the acceptance of the option and fixation ordered by the District Educational Officer during that time was irregular. It is stated that the pay fixation was effected by the District Educational Officer in terms of (G.O(P)No.2637/173/98 Fin. Dated 29/10/1998). But according to the second respondent the said Government Order ought to have been read along with (G.O.(P) No.475/96(97) Fin. dated 06/07/1996. It is the said Government Order that the teachers in the primary schools promoted as Headmasters prior to 1-3-1992 without getting benefits of senior/selection grade will be permitted to have their pay fixed notionally in the senior /selection grade, W.P.(C).10809/2010-A -3- when it falls due first and thereafter in the revised scale of pay of Headmaster's under Rule 28A KSR. Giving an interpretation to the wordings “when it falls due”, it is indicated that the petitioner was eligible only for a notional fixation with effect from 01/06/1996, i.e: the date on which his grade has fallen due. The notional fixation granted with effect from 01/07/1996 was found as irregular. According to the second respondent, there existed no provision for exercise of option with effect from 01/07/1996. Hence fixation of the pay was ordered with effect from 01/03/1992 onwards. 4. The petitioner had produced Exts.P8 to P12 Government Orders in order to prove that the option exercised by him for senior grade with effect from 01/07/1996 was in order and he was entitled for exercise of such option. He also produced Ext.P14 and P15 orders to show that in an identical situation the Government had accepted such options, with effect from 01-07-1996, in the case of two other teachers. 5. Aggrieved by Ext.P6, the petitioner had preferred appeal before the Government. The appeal was rejected through a highly cryptic order, Ext.P7. It is evident that the contentions raised by the petitioner on the merits of the issue have not been considered in Ext. P7. Hence the petitioner is W.P.(C).10809/2010-A -4- challenging Ext.P6 and P7 orders. 6. Contention of the petitioner is that, the recovery of pay now ordered on the basis of an audit objection relying on interpretation of the Government Orders, after a long lapse of time, is not at all sustainable. According to the petitioner, even assuming that any higher pay and allowances were paid on the basis of a misconception of law, which was not due to any mistake, misrepresentation or fraud on the part of the petitioner, cannot be recovered after a long lapse of time. He relies on a decision of the Honourable Supreme Court in Babulal Jain Vs. State of M.P. and others ((2007) 6 Supreme Court Cases 180) wherein it is held that if the higher salary is obtained not by committing any fraud or misrepresentation and if it is by virtue of a mistake on a misconception of law, refund of such amount cannot be effected. 7. It is evident that a Division Bench of this court has taken a contrary view in Santhakumari Vs. State of Kerala (2005 (4) KLT 649). While overruling decision of a learned Single Judge in Sivankutty Nair Vs. Secretary to Government (2005 (3) KLT 512), it is observed that, “Principle laid down by the learned Judge in Sivankutty Nair's W.P.(C).10809/2010-A -5- case, in our view cannot be of general application. Reasoning of the learned Single Judge that the excess amount paid on account of wrong fixation of pay cannot be recovered unless the employee has in any way contributed to the mistake, in our view, is an over statement of law. We may hasten to add, unless there is statutory bar in recovering the amount, any amount paid by mistake could be recovered depending upon the facts and circumstances of each case. To hold that only in a case where employee has contributed to the mistake, amount could be recovered cannot be sustained. Facts situation may warrant a sympathetic consideration but cannot be accepted as a general principle of law.” In another decision of the Hon'ble Supreme Court in Aleyamma Varghese Vs. Secretary, General Education Department (2007 (3) KLT 700 (SC)) it was held that “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 W.P.(C).10809/2010-A -6- impugned judgment is set aside and the appeal is allowed with the aforesaid observations and directions.” In almost an identical situation another Division Bench of this court in a later decision in Narayanan Vs. State of Kerala (2008 (3) KLT 188), after considering the principles in Babulal Jane's case and Aleyamma Varghese's case observed that, even when Sivankutty Nair's case was overruled, it was held that in appropriate cases relief can be granted in not recovering the amount. On the facts situation, it was observed 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 therefore the excess amount paid by the Government on mistake, on the basis of wrong fixation, cannot be recovered. 8. In the case at hand, it is evident that the option was exercised long back and it was accepted and fixation was effected on that basis much prior to retirement of the petitioner. Now the re-fixation and recovery is ordered based on an interpretation given to relevant Government Orders, that too, on the basis of an audit objection. It is evidently clear that the recovery is sought for only on the basis of a mistake allegedly happened on a misconception of law. The respondents have no case that the petitioner had in any W.P.(C).10809/2010-A -7- manner obtained the higher fixation of salary by committing any fraud or misrepresentation. Therefore I am inclined to hold that the re-fixation and recovery ordered in Ext.P6 which is confirmed in appeal through Ext.P7 is not at all sustainable when evaluated on the basis of settled legal principle as mentioned above. Hence I am inclined to allow this writ petition. 9. Under the above mentioned circumstances the writ petition is allowed and Ext.P5 and P7 orders are hereby quashed. The respondents are directed to fix the pensionary benefits due to the petitioner on the basis of his original fixation of pay made by the 3rd respondent, without effecting any recovery as ordered in Ext.P1, P2 & P3. Necessary steps for implementation of the above directions and for payment of the balance amount of pensionary benefits shall be made at the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. smm/okb