IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 WP(C).No. 10282 of 2006(Y) ------------------------------ PETITIONER(S): --------------- R.GOPINATHAN NAIR, REJITH NIVAS, KALARKODU, SANADHANAPURAM P.O. ALLEPPEY 3. BY ADV. SRI.V.B.HARI NARAYANAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT , SURVEY AND LAND RECORDS (RESURVEY), MANCOMBU, ALAPPUZHA. 3. THE TREASURY OFFICER (PENSION), ALAPPUZHA. GOVERNMENT PLEADER FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C. NO. 10282 of 2006 APPENDIX PETITIONER'S EXHIBITS: EXT. P1 TRUE COPY OF THE PROCEEDINGS DATED 18.1.2001 ISSUED BY DY.COLLECTOR, ALAPPUZHA. EXT.P2 TRUE COPY OF THE COVERING LETTER AND PROCEEDINGS DTD.23.6.2005 OF 2ND RESPONDENT. EXT.P3 TRUE COPY OF THE COMMUNICATION DTD.21.12.2005 OF ACCOUNTANT GENERAL. RESPONDENT'S EXHIBITS: NIL [ True copy ] P.S. to Judge. ul/- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 10282 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd day of December, 2011. J U D G M E N T The petitioner retired from service as a U.D. Clerk of the Revenue Department of the Government of Kerala on 28.2.2001. After five years of his retirement, the respondents initiated proceedings for recovery of certain alleged excess amounts paid to the petitioner on account of alleged wrong fixation of pay while granting higher grade on completion of 25 years of service. The petitioner challenges the proceedings in respect thereof seeking the following reliefs: “i. issue a writ of mandamus or any other appropriate writ, order or direction, to quash Ext.P2 proceedings since the same is vitiated by material irregularity and non application of mind; ii. issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents not to recover any amount from the pension payable to the the petitioner on account of the alleged wrong fixation; iii. to declare that the respondents cannot recover the alleged excess payment from the pension of the petitioner on account of a wrong fixation of pay.” Ext.P2 is the proceedings by which the recovery has been initiated. 2. The question as to whether excess payment on account of wrong fixation on the basis of audit objection can be made years after retirement is no more res integra. The Supreme Court has in umpteen judgments held that W.P(C) No. 10282 of 2006 -: 2 :- such excess amount demanded cannot be recovered, if the same is not on account of any misrepresentation by the employee. One of those decisions is Syed Abdul Qudir & Others v. State of Bihar and others, (2009) 3 SCC 475. In paragraph 57 of that judgment, the Supreme Court held thus: “This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/ allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.” The decision is squarely applicable to this case. The respondents have no case that the petitioner contributed to the mistake committed by the respondents in the wrong fixation. Therefore, going by the ratio of the above said decision, the excess payment cannot be recovered from the petitioner. It is declared so. Consequently, Ext.P2 is quashed to the extent it directs recovery of the excess pay drawn by the petitioner. But the fixation would stand. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/