IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 13466 of 2005(C) ---------------------------------------- PETITIONER(S): ------------------------ SMT.S.ROSE MARY, U.D.CLERK (HIGHER GRADE) TEXT BOOK OFFICE, THIRUVANANTHAPURAM. BY ADV. MR.GOPAKUMAR R.THALIYAL RESPONDENT(S): ------------------------- 1. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER MR.N.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.13466/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RELEVANT PAGES OF GOVERNENT ORDER NO.G.O.(P) 515/85 /FIN. DTD. 16.9.85. P2:- COPY OF THE RELEVANT PAGES OF GOVERNENT ORDER NO.G.O.(P) 480/89/FIN. DTD. 1.11.89. P3:- COPY OF THE GOVERNENT ORDER NO.G.O.(P) 220/96/(80) / FIN. DTD. 28.2.96. P4:- COPY OF THE U.O. NOTE ISSUED BY THE IST RESPONDENT DTD. 18.6.02. P5:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 20.6.02. P6:- COPY OF THE COMMUNICATION ISSUED BY THE IST RESPONDENT DTD. 4.2.05. P7:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DT. 18.2.05. P8:- COPY OF THE NOTICE ISSUED BY THE IST RESPONDENT DTD. 11.4.05. R2(a):- COPY OF THE CIRCULAR NO.11/PAC-3/80/(168)/FIN. DTD. 2.2.1980. R2(b):- COPY OF THE G.O.(P) 147/97(120)/FIN. TD. 29.1.97. R2(c):- COPY OF THE LETTER DTD. 15.9.98. R2(d):- COPY OF THE DUE DRAWN STATEMENT. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.13466/2005-C ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23rd day of November, 2009 J U D G M E N T The writ petition is filed challenging Ext.P8 whereby the petitioner was ordered to pay back an amount of Rs.4,974/- which was irregularly paid as Special Pay. 2. At the time of filing of the writ petition, the petitioner was working as Upper Division Clerk at Text Book Office, Thiruvananthapuram. Earlier, she was working as Upper Division Clerk at Government High School, Poojappura from 1992 till 1997. 3. Based on various Government Orders, the employees handling cash were entitled for a Special Pay. As per Ext.P1 Government Order, a Special Pay for Rs.50/- per month was sanctioned and that was revised as per Ext.P2 and the amount was enhanced to Rs.60/-. Later, by Ext.P3, the amount was enhanced to Rs.75/- also. In Ext.P1, paragraph (21) shows that such Special Pay of Rs.50/- can be granted to person handling cash, if the amount handled in a month is not less than Rs.50,000/-. In Ext.P2, even though the Special Pay was enhanced to Rs.60/-, the other conditions were retained. But in Ext.P3, after enhancing to Rs.75/-, it was specified that the other conditions of the payment of Special Pay will remain the same except the quantum of W.P.(C). No.13466/2005 -:2:- average monthly transaction which will be enhanced to Rs.1,00,000/- per month. 4. After the petitioner was re-posted from the school to the office of the Deputy Director of Education, U.O.Note dated 18/06/2002 was issued stating that amount towards irregular receipt of Special Pay has to be recovered. She therefore filed Ext.P5 representation before the Government in the matter. In Ext.P5, the petitioner has stated that her continued claim even after the issuance of the Government Order No.(P).220/96/(80)/Fin, dated 28/02/1996 was on bona fide that it is legal since there was no mention in the order that those who were drawing the existed rate of Special Pay for the existed prescribed quantum of cash should not be continued to draw the same. The same was declined by Ext.P6 by the Deputy Director of Education and the petitioner was directed to repay the amount. Again she filed Ext.P7 which is replied by Ext.P8. 5. Along with the counter affidavit, the respondents have produced Ext.R2(c) which is a letter dated 15/09/1998 addressed by the Headmistress of the Government High School, Poojappura to the Deputy Director of Education, Thiruvananthapuram. Therein, it is explained that as per Government Order (P) No.220/96(80)/Fin dated 28/02/1996, (Ext.P3), the Special Pay is admissible only if the average W.P.(C). No.13466/2005 -:3:- monthly transaction exceed one lakh rupees from 04/96 onwards. From 4/96 onwards the average monthly treasury transaction in that school was less than Rs.one lakh. Hence the Clerk and the Peon were not eligible for the payment of Special Pay from 4/96. The statement of account has been produced as Ext.R2(d) also. 6. The learned counsel for the petitioner submitted that the petitioner was not given the benefit of Special Pay at the rate of Rs.75/- in implementation of Ext.P3 and as there is no restriction in Ext.P3 regarding the recipients of Rs.60/- as Special Pay as ordered in Ext.P2, there cannot be a recovery. 7. The learned Government Pleader explained that Ext.P2 stands modified by Ext.P3 and Special Pay at any rate can be paid only if conditions provided in Ext.P3 are satisfied. 8. I find force in the above submission. Going by Ext.P3, the Special Pay can be claimed only if the quantum of average monthly transaction will be enhanced by Rs. One lakh. It is not specified therein that Special Pay eligible as per Ext.P2 is protected and Ext.P3 will apply only in respect of the enhanced quantum. 9. It is clear from the above that the Special Pay was granted by wrongly applying the provisions of Ext.P3 W.P.(C). No.13466/2005 -:4:- Government Order. 10. The learned counsel for the petitioner submitted that even if by mistake the payment was made, the petitioner has not contributed anything to that. In view of valid orders payment was received. 11. The question is whether in such circumstances, the petitioner could be asked to repay the amount. 12. The entitlement for Special Pay is only in terms of Exts.P1 and P3 Government Orders. Ext.P3 Government Order is specific that the Special Pay can be claimed only if the average monthly transaction is Rs.one lakh. If the said condition does not exist, the employee is not entitled to claim Special Pay. Going by Ext.R2(c), it can be seen that average monthly transaction is below Rs.one lakh from 1996 onwards. If that be so, the payment of the said amount to the petitioner can only be a mistake. If that be so, there is nothing illegal in the audit objection and consequent recovery ordered against the petitioner. 13. The learned counsel for the petitioner submitted that at any rate the recovery after a long distance of time cannot be justified. 14. Herein, going by the facts of the case, the audit objection was raised within a period of one year after her transfer from the school going by the details narrated in W.P.(C). No.13466/2005 -:5:- Ext.P5 representation filed by the petitioner. In that view of the matter, the principles stated by the Apex Court in the various decisions that a recovery ordered after long period from the date of receipt of the benefit will not apply to the facts of this case. It is made clear that the amount will be recovered from the salary of the petitioner by way of five equal monthly instalments starting from December 2009 onwards. The writ petition is dismissed subject to the above observations. No costs. (T.R. Ramachandran Nair, Judge.) ms