IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 WP(C).No. 7736 of 2005(U) ---------------------------------------- PETITIONER(S): ------------------------- U.RAJAN, AGED 48 YEARS, U.D.TYPIST, E.K.NAYANAR MEMORIAL GOVERNMENT COLLEGE, ELERITHATTU, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.TOJAN J. VATHIKULAM RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF HIGHER EDUCATION, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. 5. THE PRINCIPAL, E.K.NAYANAR MEMORIAL GOVERNMENT COLLEGE, ELERITHATTU, KASARAGOD DISTRCIT. SPL. GOVERNMENT PLEADER SRI.N.MANOJKUMAR FOR R1TO5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7736/2005 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DTD. 6/05/1999 ISSUED BY THE SENIOR ADMINISTRATIVE OFFICER TO THE DIRECTOR OF COLLEGIATE EDUCATION. EXT.P2: COPY OF THE EXTRACT OF THE REPORT OF THE LOCAL AUDIT PARTY of the 3RD RESPONDENT. EXT.P3: COPY OF THE GOVERNMENT ORDER DTD. 1/08/1979. EXT.P4: COPY OF THE GOVERNMENT ORDER NO.1041/79/(142)/FIN. DTD. 27/11/1979. EXT.P5: COPY OF THE ORDER G.O.(P) NO.705/81/(372)/FIN. DTD. 28/10/1981. EXT.P6: COPY OF THE CIRCULAR NO.54/92/138/FIN. DTD. 6/11/1992. EXT.P7: COPY OF THE REPRESENTATION DTD. 4/01/2002 MADE BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P8: COPY OF THE ORDER NO.21142/F3/2002/H.EDN. DTD. 17/10/2002 ISSUED BY 2ND RESPONDENT. EXT.P9: COPY OF THE PETITION DTD. 20/12/2002. EXT.P10: COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DTD. 23/05/2003. EXT.P11: COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DTD. 18/11/2003. EXT.P12: COPY OF THE COMMUNICATION DTD. 2/06/2004. EXT.P13: COPY OF THE COMMUNICATION NO.OACF(a)IV/III/12-319/ 01-02/485 DTD. 7/12/2004 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.7736/2005 ----------------------------------------------------------- Dated this the 20th day of October, 2008 JUDGMENT The petitioner was appointed as a Police Constable on 4.10.1986. He continued in that post till 13.11.1990 and joined as LD Typist in the Planning Board with effect from 14.11.1990. Thereafter on inter-departmental transfer, he joined the Collegiate Education Department from 1996. Ext.P1 is an order granting to the petitioner Higher Grade with effect from 4.9.1996. Evidently qualifying service of 10 years has been reckoned with effect from 4.9.1986. 2. A reading of Ext.P1 shows that an undertaking has been obtained from the petitioner agreeing to refund amount if any which is subsequently found to be excess due to any discrepancy in paying the Higher Grade. Subsequently, by Ext.P2, the Auditor objected to the grant WP(c).No.7736/2005 2 of Higher Grade on the ground that his service with effect from 14.11.1990 also is liable to be reckoned for the said purpose. Reliance was placed on Ext.P6 circular also. It is in this background petitioner has filed this writ petition. 3. As far as the petitoner's eligibility for reckoning his service prior to 14.11.1990 is concerned, that issue is concluded against the petitioner by several judgements including the judgment in George Varghese V. State of Kerala (2006(3)KLT 852. Now what remains is the question of recovery of the amount that the petitioner was paid during the period 4.9.1996 to 30.9.2001 amounting to Rs.40,677/-. Counsel for the petitioner submits that, as he has not contributed to the mistake which lead to the excesspayment, he should not be saddled with the liability to repay the amount as ordered in Ext.P2. Counsel also relies the judgment of a Division Bench of this court in Narayan T.V. V. State of Kerala and Ors.(2008(3)Kerala High Court Cases 152). Further he also contends that the WP(c).No.7736/2005 3 benefit was extended on the basis of Exts.P4 and P5 and that as its impact was varied only by the Division Bench by the judgment rendered in George Varghese's case 2006 (3) KLT 852, the payment made during the period in question cannot be said to be erroneous. 4. I am not in a position to accept this contention of the learned counsel. The eligibility of the petitioner for reckoning the service prior to 14.11.1990 stands negatived by the judgment referred to above. The interpretation given by this court is not of any prospective effect and it is always of retrospective effect. In the above view of the matter, the payment made to the petitioner has to be accepted as erroneous. In such circumstances the petitioner is liable to refund the said amount. 5. Further the learned Government Pleader made available before me a judgment of the Division Bench in W.A.No.1510/06. In that judgment relying on an undertaking, as given by the petitioner pursuant to Ext.P1, WP(c).No.7736/2005 4 the Division Bench upheld the liability of the appellant therein to refund the amount. It is held that once an undertaking has been given and a benefit has been derived it is not open to the Government Servant to turn round and contend that he is not bound by the undertaking. Applying the law laid down by the Division Bench in the judgment referred to above, I can only reject the contention of the learned counsel for the petitioner and hold that he is not liable to make payment. Writ Petition is only to be dismissed and I do so. ANTONY DOMINIC JUDGE vi. WP(c).No.7736/2005 5