IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 WP(C).No. 36423 of 2009(W) -------------------------- PETITIONER: ----------------- C.RADHA, (HEADMISTRESS), GMLP SCHOOL, MUTHALAMADA), ERATTE HOUSE, VITHANASSERY, NEMMARA-678 508. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.C.A.ANOOP SRI.T.C.SURESH MENON RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A&E) KERALA, TRIVANDRUM. 3. THE ASSISTANT EDUCATIONAL OFFICER, KOLLANGODE. BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.36423/09 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF NOTICE DATED 16.10.2009 ISSUED BY THE 3RD RESPONDENT. EXT.P2: TRUE COPY OF JUDGMENT DATED 17.11.2003 IN OP.NO.24702/2002. EXT.P3: TRUE COPY OF GO.(P)NO.3000/98/FIN.DATED 25.11.1998. EXT.P4: TRUE COPY OF ANNEXURE-2 OF THE GOVERNMENT ORDER G.O.85/11 DATED 26.2.2011 WHICH QUALIFIES THE AIDED SERVIC ES FOR RECKONING SERVICE WEIGHTAGE. EXT.P5: TRUE COPY OF GOVT.ORDER G.O.(P)930/93(2)/FIN.DATED 8.12.1993. RESPONDENTS' EXTS: EXT.R3(A): COPY OF SERVICE CERTIFICATE DATED 13.12.1989 EXT.R3(B): COPY OF PAY FIXATION DATED 12.2.1999. EXT.R3(C): COPY OF DECLARATION DATED 25.1.1999. TRUE COPY P.A.TO JUDGE T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.36423 Of 2009-W ----------------------------------------------------- DATED THIS THE 4TH DAY OF APRIL, 2011 J U D G M E N T The petitioner is aggrieved by Exhibit P1 notice whereby the salary of the petitioner is sought to be refixed on the basis of irregular fixation. 2. The petitioner was having aided school service from 27.6.1979 till 30.6.1987. Thereafter she was appointed in the Government service. The service in the aided school was also reckoned for fixing the pay on a higher scale. This was objected to by the Accountant General as per Exhibit P1. 3. It is the submission of the learned Senior Counsel for the petitioner that the petitioner has not contributed anything to the alleged irregular fixation of the pay by fraud or collusion. There was no misrepresentation also. It is therefore submitted that the recovery of the alleged excess pay after a long period cannot be justified at all. 4. The counter affidavit filed by the 3rd respondent shows that the petitioner resigned from the aided school service W.P.(C)No.36423/09 -2- on 30.6.1981 and joined Government service on 1.7.1981. Exhibit R3(b) is the copy of the statement of pay fixation of the petitioner dated 12.2.1999. She is now working as Primary Headmistress in the Government Mopila LPS, Muthalamada. 5. It is pointed out that the irregular sanction of service weightage to the petitioner has resulted in irregular fixation of pay of the petitioner with respect to 1997 pay revision from 1.7.1998, Senior Grade fixation from 1.7.1999, Selection Grade fixation from 1.7.2002, 2004 pay revision from 1.7.2004, HM promotion fixation from 20.5.2005 and HM refixation from 1.7.2005. Exhibit P1 is dated 16.10.2009. 6. The learned Senior Counsel appearing for the petitioner relied upon two judgments of the Apex Court in Col.B.J.Akkara(Retd.) v. Govt. of India (2006(11) SCC 709) and Co-operative Societies v. Israil Khan (2010(1) SCC 440) to contend for the position that even if there is payment of excess salary due to illegal or irregular fixation, the recovery of the same cannot be permitted. It is pointed out that the Apex Court was of the view that unless there is misappropriation, fraud or collusion, recovery cannot be justified after a long number of W.P.(C)No.36423/09 -3- years. In 2006(11)SCC 709 in paragraph No.27 it was held as follows: “The Supreme Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled: (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) 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.” After relying upon the above dictum in 2006(11) SCC 709, it was held in 2010(1) SCC 440 in paragraph No.9 as follows: “What is important, is recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud, or collusion, courts will not use their discretion to deny the right to recover the excess payment.” 7. The learned Government Pleader relied upon a judgment of the Division Bench of this Court in Writ Appeal No.288/2005. The same is to the effect that when the fixation is due to a mistake which was found out later, there is no embargo W.P.(C)No.36423/09 -4- in refixing the pay and directing recovery of excess salary paid. 8. Evidently, the aided school service of the petitioner cannot be reckoned for giving any weightage. Therefore, the fixation made was not correct. But, as regards the recovery part of the same, in the light of the decisions of the Hon'ble Supreme Court referred above, there cannot be recovery as against the petitioner. In that view of the matter, the Writ Petition is allowed to the extent to which Exhibit P1 directs recovery of excess payment. Exhibit P1 is quashed to that extent only. But, it is made clear that the salary can be refixed and the same alone will govern the payment of salary from time to time and the same will be the basis for fixing the pension and other pensionary benefits also. The refixation as proposed will be done within a period of three months from the date of receipt of a copy of this judgment. No costs. Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE) dsn