IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 WA.No. 642 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.5263/2002 DATED 19/01/2010 .................... APPELLANT(S): APPELLANT 1,2,3, & 5. ---------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,TRIVANDRUM. 2. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,TRIVANDRUM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. 4. THE ACCOUNTANT GENERAL, KERALA, TRIVANDRUM. BY GOVERNMENT PLEADER SMT. T.B.RAMANI RESPONDENT(S): PETITIONER & 4TH RESPONDEDNT: --------------------------------------------------------------------------------- 1. MARYKUTTY SAMUEL, W/O.V.JOHN KUTTY, PADIPPURA HOUSE, KIZHAKKE THERUVU P.O., KOTTARAKKARA, KOLLAM DISTRICT. 2. THE HEAD MASTER, ST.MARY'S H.S.KIZHAKKEKKARA, KOTTARAKKARA. R1 BY ADV. SRI.MATHEW JOHN (K) THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.N.RAMACHANDRAN NAIR & B.P.RAY, JJ. -------------------------------------------------------------- W.A. No. 642 of 2010 ---------------------------------------------------------------- Dated this the 21st day of June, 2011. J U D G M E N T Ramachandran Nair, J. This writ appeal is filed by the State challenging judgment of the learned single Judge prohibiting recovery of excess salary drawn by the respondent. 2. We have heard the Government Pleader for the State and the learned counsel appearing for the respondents. 3. The 1st respondent after joining as a Lower Primary School Teacher in 1998, resigned from the school after nearly 8 years of service. After a lapse of around 4 months, she took up a new employment in an U.P.School in the year 1990. In 1994 the appellant was given higher grade by taking into account her previous service in the school wherefrom she resigned. The benefit is something like a stagnation allowance for 2 W.A.642/2010 long service in the same grade. However the audit wing noticed that 1st respondent was not entitled to the relief and therefore it is based on the audit objection, the D.E.O issued direction to recover the excess benefit drawn from the 1st respondent from 1994 onwards. It is seen that the mistake was found out by the Department at the time of auditing and the relief was quantified and proposed to be withdrawn by Ext.P13 which was impugned in the W.P.C. It is seen from the judgment that the learned single Judge upheld the 1st respondent's ineligibility to get higher grade. However, since the amount has already been paid to the 1st respondent, the Single Judge interdicted the appellants from recovering the arrears of excess salary drawn by the 1st respondent. 4. After hearing both sides we are unable to uphold the judgment of the learned Single Judge 3 W.A.642/2010 because admittedly the 1st respondent was not entitled to higher grade in 1994, as she is not entitled to reckon the previous service in the school wherefrom she resigned. The question is whether the payment made by a mistake should go to the respondent. We do not think there is any justification for the 1st respondent to claim benefit of excess pay given under a mistake, which is contrary to the Rule. In fact recovery also will not adversely affect the 1st respondent because she had the advantage of retaining the amounts which was not due to her. It is not known as to what is the amount involved, that is, the excess amount drawn. Since the mistake was committed by the appellant, no interest could be recovered from the 1st respondent. We feel that recovery in lump may adversely affect the 1st respondent. We therefore direct the appellant to quantify the excess amount drawn and recover the 4 W.A.642/2010 same in 10 equal installments from the monthly salary being paid to the 1st respondent from August onwards. However, if the 1st respondent retires in between recovery will be made from her terminal benefits. The writ appeal is allowed vacating the judgment in the W.P.(C) but with the above directions. Sd/- C.N.RAMACHANDRAN NAIR, JUDGE. Sd/- B.P. RAY, JUDGE. rka /true copy/ 5 W.A.642/2010