IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WA.No. 798 of 2010 ------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.10606/2006 Dated 22/12/2009 .................... APPELLANT(S): RESPONDENTS 1 & 2 IN THE WPC ------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, NEDUMANGADU. BY GOVERNMENT PLEADER SMT.SMITHA SUKUMARAN RESPONDENT(S): PETITIONER & RESPONDENT NO.3 IN THE WPC ---------------------------------------------------------------------------------------------------------- 1. VANAJAKUMARI, LPSA, PANCHAYATH L.P.S., MARANGADU, ARYANAD, RESIDING AT S.V.BHAVAN, H.S.JUNCTION, ARUVIKKAD. 2. THE HEADMISTRESS, PANCHAYATH L.P.S., MARANGADU. ADV. SRI.P.GOPALAKRISHNAN NAIR FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.798 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of October 2010 JUDGMENT Basheer, J. The short question that arises for consideration in this appeal is whether the direction issued by the learned Single Judge not to recover the excess amount paid to the respondent - teacher, pursuant to grant of irregular higher grade is legally sustainable or not. Learned Government Pleader, who appears for the appellants, submits that the learned Single Judge was not justified in allowing the respondent to retain the illegitimate benefits she had obtained from the State. 2. Shorn of unnecessary details, relevant facts which are necessary for disposal of this appeal may be briefly noticed. 3. Respondent, who is a Lower Primary School Assistant, started her career in a Government School on a provisional basis. She worked in that school for 3 years 9 months and 11 days. Thereafter, on June 21, 1991 she joined Marangad Lower Primary School run by Aryanad Grama Panchayat. She has been working in that school ever since. 4. It is beyond controversy that respondent was granted the benefit of higher grade reckoning her provisional service in the Government school as well. Later, the Accountant General noticed that respondent could not have been allowed to tag on the provisional service in government school to the period of service rendered by her in the Panchayat school. In other words, the W.A.No.798 OF 2010 :: 2 :: Accountant General held that the benefit of higher grade should be reworked and the amount paid to the respondent on the wrong fixation of higher grade will have to be recovered from her. Accordingly, Ext.P1 order dated January 16, 2006 was issued by the Assistant Educational Officer, Nedumangadu directing the Headmistress of the school to take necessary steps in this regard in order to recover the excess amount drawn by the respondent from March 18, 1998. 5. Respondent challenged the said order before this court in the writ petition filed Article 226 of the Constitution of India. The learned Single Judge held that the respondent cannot get the benefit of her provisional service in the Government school for grant of higher grade. A decision of this court in Writ Appeal 337/92 was relied on by the learned Single Judge for this purpose. It was also noticed by the learned Single Judge that Government Decision No.II under Rule 33 Part I Kerala Service Rules amply justified the action of the Departmental authorities. However, the learned Single Judge took the view that the Department would not be justified in making recovery of the excess amount received by the respondent on the basis of the irregular grant of higher grade. The said decision taken by the learned Single Judge is impugned in this appeal by the State. 6. Having heard the learned Government Pleader and learned counsel for respondent, we are of the view that the direction issued by the learned Single Judge not to effect recovery cannot be sustained. It is beyond W.A.No.798 OF 2010 :: 3 :: controversy that the respondent had given an undertaking at the time when the higher grade was granted to her that she would remit the excess amount, if any, received by her if any defect was noticed in fixation of the higher grade. 7. But it is pointed out by the learned counsel for the respondent that such an undertaking was obtained as a “matter of routine”. He further submits that the department cannot have a case that the respondent was guilty of misrepresentation or fraud. The higher grade was fixed by the departmental officials pursuant to the pay revision of the year 1998. The said exercise was carried out by the department in the case of all employees drawing salary from the State. Therefore, it can never be said that the appellant was guilty of any misrepresentation or fraud. 8. In this context, learned counsel has invited our attention to a decision of their lordships of the Supreme Court in Syed Abdul Qadir and others v. State of Bihar [2009 (3) SCC 475]. While trying to draw a parallel from the facts of the above case, learned counsel submits that the apex court had categorically held in the above decision that it would be unjust and improper to recover the so called excess amount drawn by an employee after a long period. 9. We have gone through the above judgment carefully. It is true that in the above case, a three judge bench of the apex court had made certain observations against recovery after lapse of a long period. But it can be seen from the above judgment, that the issue involved in that case revolved around interpretation of two rules which governed the field. There was doubt W.A.No.798 OF 2010 :: 4 :: regarding which rule was applicable. Two views were possible as regards the applicability of the rules. Moreover, the employees from whom recovery was sought to be effected had retired from service about 3½ years ago. These aspects obviously persuaded their lordships to hold that in the peculiar facts and circumstances of the case, recovery was not warranted. While noticing that the excess amount paid was because of erroneous interpretation of the rule that was applicable to them, their lordships directed that no recovery be effected from the employees in that case. At the same time, the court observed that the relief against recovery is being granted by courts not because of any right vested in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. It was further held thus: “But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.” 10. The apex court had referred to the following decisions in this context; Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M.Bhaskar, V.Gangaram v. Director, Col. B.J.Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur. W.A.No.798 OF 2010 :: 5 :: 11. In State of Kerala v. Sasikala Devi and another (2010 (3) KHC 13 (DB) a Division Bench of this court has held that the State would be justified in effecting recovery of undue benefit obtained by its employees by way irregular grant of “double pay fixation” under Rule 28A. The Division Bench held that the power vested in this court under Article 226 of the Constitution of India cannot be exercised in favour of a person to retain an undeserving benefit that he had got. 12. In the case on hand, the period of service rendered by the teacher in a Government School before joining the Panchayat School could not have been tagged on for the purpose of reckoning higher grade at all. This position had been settled long time ago. The relevant provision in Rule 33 Part I KSR which we have referred to in the earlier part of this judgment is totally unambiguous. Moreover, this court had occasion to deal with the same issue and the position was settled in Writ Appeal No.337/1992 referred to earlier. That being the position, it cannot be said that the respondent was unaware of the settled legal position. 13. More importantly the respondent had admittedly given an undertaking that she would refund the excess, if any, received due to wrong fixation of higher grade. Obviously the departmental officials had committed the mistake due to oversight. The error that crept in while granting the higher grade was noticed by the Accountant General. It was thereafter that Ext.P1 order was issued. It cannot be said that there was inordinate delay. In that W.A.No.798 OF 2010 :: 6 :: view of the matter, we are satisfied that the direction issued by the learned Single Judge not to effect recovery from the respondent cannot be sustained. Therefore, the said direction is set aside. 14. However, it is brought to our notice that the respondent has been denied annual increments for the last five years. Similarly, she has not been given the benefit of pay revision also for the last five years, on the plea that she had filed the Writ Petition challenging Ext.P1 order. The stand taken by the departmental officials cannot be justified. 15. Therefore, it is directed that the department shall ensure that all the benefits like increment and consequential pay revision benefits are released to the petitioner with interest @ 9% as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. At the same time, it will be open to the department to rework the excess amount, if any, that has been paid to the respondent pursuant to the illegal grant of higher grade and recover the same from her in accordance with law. Appeal is allowed to the above extent. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes