IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 WA.No. 2210 of 2008 --------------------- AGAINST THE JUDGEMENT IN WPC.20458/2008 Dated 14/07/2008 .................... APPELLANT(S): PETITIONERS ------------------------- 1. Y. MARYKUTTY, STAFF NURSE, MEDICAL COLEGE HOSPITAL, THIRUVANANTHAPURAM. 2. P. VIJAYALAKSHMY, STAFF NURSE, PRIMARY HEALTH CENTRE, MARANALLOOR. 3. R. SREELATHAKUMARI, STAFF NURSE, MENTAL HEALTH CENTRE, PEROORKADA.P.O, THIRUVANANTHAPURAM. 4. P. GEETHA, STAFF NURSE, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. 5. R. SHARMILA, STAFF NURSE, ASHA BHAVAN, POOJAPURA, THIRUVANANTHAPURAM. 6. P.R. JAYASREE, STAFF NURSE, GOVERNMENT OPTHALMIC HOSPITAL, THIRUVANANTHAPURAM. 7. C.P. SHYLAJA, STAFF NURSE, GOVERNMENT HOSPITAL, PEROORKADA. BY ADV. SRI.M.V.BOSE RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFATE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. WA 2210/2008 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER OF HEALTH, THIRUVANANTHAPURAM. . BY GOVERNMENT PLEADER SMT.R.BINDU FOR R1 TO 3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.NO.2210/2008 ------------------------------ Dated this, the 18th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The writ petitioners are the appellants. They were advised by the Public Service Commission (for short “PSC”) for appointment to the post of Staff Nurse and they joined service on different dates in 1996. All of them had provisional service as Staff Nurse before 1.10.1994. They continued as provisional hands till they were regularly appointed to the said post pursuant to the advice of the PSC. While granting higher grade to them, the provisional service rendered by them before 1.10.1994 was added to the regular service they rendered after their appointments in 1996. Later, the competent authority found that the reckoning of provisional service for grant of higher grade was illegal. The proceedings of the competent authority in this regard are Exts.P3, P4 and P5. Challenging those proceedings, the Writ Petition was filed. The learned Single Judge took the view that the point raised by the WA No.2210/2008 - 2 - appellants is covered against them by the decision of this Court in State of Kerala v. Ponnamma [2005(4) KLT 987 (FB)]. The appellants alternatively prayed that, at any rate, the recovery of the amounts already paid may be interdicted. The learned Single Judge declined to grant that relief also and dismissed the Writ Petition. Hence this appeal by the writ petitioners. 2. The provisional service rendered prior to 1.10.1994 could not have been reckoned for grant of service benefits to the appellants. That point is covered against them by the aforementioned Full Bench decision. The point mainly canvassed before us is whether the excess payments already made could be recovered from them. According to the appellants, they are innocent. They have not played any fraud on the controlling officer. Therefore, the recovery is unjustified. In support of that submission, the appellants relied on the decision of the Apex Court in Syed Abdul Qadir v. State of Bihar [(2009)3 SCC 475]. We went through that decision. The said decision does not lay down any binding general principle WA No.2210/2008 - 3 - that if the payment is made without any fraud being played by the beneficiaries, the same cannot be recovered. In this case, because of the mistake of the controlling officer, public money has been paid. It should be either recovered from the appellants or from the controlling officer, who ordered to release the amount. Since the appellants are the beneficiaries of the wrong fixation, it will be inequitable to direct the controlling officer to pay the entire amount. We think, it is only just and proper that the beneficiaries who received public money should be directed to repay it. This view taken by us is supported by the decision of the Division Bench of this Court in Santhakumari v. State of Kerala [2005(4) KLT 649] In the result, the Writ Appeal fails and it is dismissed. K. Balakrishnan Nair, Judge. C.T.Ravikumar, Judge. nm.