IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 WP(C).No. 19014 of 2008(L) -------------------------------------- PETITIONER: ------------------- K.R.SUKUMARAN, S/O. RAGHAVAN, AGED 60 YEARS, RETD, HEADMASTER, CHERIYAMUNDAM A.M.L.P SCHOOL, 'SU BHAVAN' VALANCHERY P.O., MALAPPURAM DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, ADV. SRI.C.P.SIVADASAN NAIR. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, DEPT. OF GENERAL EDUCATION GOVT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, TANUR. 4. THE ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT. T.B. REMANI FOR R1 TO R4. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.19014/2008-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 08/11/2006 IN W.P.(C). NO. 17744/2003 OF THIS HONOURABLE COURT. EXT.P.2: COPY OF THE PROCEEDING NO. F4/2202/2007 DD. 17/11/2007 OF THE R.2. EXT.P.3: COPY OF THE PROCEEDING NO. E-72/07 DTD. 04/06/2008 ISSUED BY THE R.3. EXT.P.4: COPY OF THE REPRESENTATION DTD. 11/06/2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND AND 3RD RESPONDENTS. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 19014 OF 2008 L = = = = = = = = = = = = = = = Dated this the 24th day of October 2008 J U D G M E N T The challenge in this writ petition is against Exts. P2 and P3. By Ext. P2, on the basis that notional fixation of the pay of the petitioner has been given with effect from 1.7.1997 as against his entitlement to have it with effect from 1.6.1997, excess amount drawn has been called upon to be repaid. Ext. P3 is the consequential order that has been passed. 2. Initially two contentions have been raised. One is that this issue of excess amount mentioned in Ext. P3, has already been held in the petitioner's favour in Ext. P1 judgment. The second is that the fixation of liability is beyond three years of his retirement and is against the provisions contained in Note 3 to Rule 3, Part III, K.S.R. 3. As far as Ext. P1 judgment is concerned, in the counter affidavit it has been explained that by that judgment this Court has held that there was no justification to deny higher grade to the W.P.(C) No. 19014 OF 2008 -2- petitioner counting the actual service rendered by him as Headmaster. It is stated that the judgment has been implemented and the benefit has been granted. It is further stated that what led to Ext. P2 is the erroneous notional fixation given to the petitioner with effect from 1.7.1997 as against 1.6.1997. Thus it is obvious that the issue covered by Ext. P1 judgment and what led to Ext. P2 are separate issues and therefore Ext. P1 judgment has no relevance in so far as Ext. P2 is concerned. 4. As regards the second plea that Exts. P2 and P3 are in violation of Note 3 to Rule 3, Part III, K.S.R., as can be seen from Ext. P2, the Government held the view that the petitioner had received excess payment and this amount is called upon to be repaid. This in my view, does not get protection of Rule 3, as by this order no recovery from terminal benefits is proposed. In which case that contention also is unsustainable. 5. Lastly, it is contended that the quantification done in Ext. P2 was without notice to the petitioner and that his objection in Ext. P4 has not been considered. This contention, of course, has some force. If any liability is to be enforced against a person, before the W.P.(C) No. 19014 OF 2008 -3- same is quantified and demanded, he is entitled to be put on notice and his objection is bound to be considered. In this case, on receipt of Ext. P2, petitioner submits that he has filed Ext. P4. Necessarily therefore, the Deputy Director, the 2nd respondent, is bound to consider the matter in the light of objection filed by the petitioner and take a decision with notice to the petitioner. 6. This, the Deputy Director shall do and a final order should be passed and the same should be communicated to the petitioner. Further proceedings for realisation of the amount in pursuance to the claim in Ext. P2 can be made only after this exercise is completed. It is directed that until this exercise is completed, the interim order of stay passed by this Court on 2.7.2008 will remain in force. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE jan/-