IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 WP(C).No. 35517 of 2005(C) -------------------------------- PETITIONER: -------------- V.S.PADMINI, HEADMISTRESS, U.P.S., KARAYAMUTTAM, KARAYAMUTTAM POST, VALAPPAD, THRISSUR DISTRICT. BY MR.ELVIN PETER P.J., ADVOCATE. RESPONDENTS: ------------------ 1. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD. 2. THE ASSISTANT EDUCATIONAL OFFICER, VALAPPAD. 3. THE MANAGER, U.P.S., KARAYAMUTTAM, THRISSUR DISTRICT. BY MR.V.V.SURENDRAN, ADVOCATE, FOR R3. MR.P.A.HARISH, ADVOCATE, FOR R3. MS. T.B. REMANI, SR. GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.35517/2005 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF APPOINTMENT ORDER DTD. 4.4.2003 ISSUED TO THE PETITIONER. EXT. P2 : COPY OF ORDER No.C/1600/03 DTD. 8.7.03 ISSUED BY R2. EXT. P3 : COPY OF G.O.(Rt) No.244/04/G.EDN. DTD. 15.1.04 ISSUED BY GOVERNMENT. EXT. P4 : COPY OF THE INTERIM ORDER RENDERED BY THIS HON'BLE COURT IN W.P.(C) No.2912/2004 DTD. 23.1.2004. EXT. P5 : COPY OF APPOINTMENT ORDER DTD. 11.11.2005 ISSUED TO THE PETITIONER. EXT. P6 : COPY OF JUDGMENT IN W.A.No.471/2004. EXT. P7 : COPY OF ORDER DTD. 18.11.2005 ISSUED BY R2. EXT. P8 : COPY OF OBJECTION DTD. 15.9.06 RAISED BY THE SENIOR SUPERINTENDENT, OFFICER OF R2. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.35517 OF 2005 --------------------------------------- Dated this the 24th day of July, 2009. J U D G M E N T Aggrieved by Exhibit P7 by which the petitioner was directed to refund the monetary benefits drawn by her in the post of Headmistress, this writ petition is filed. The petitioner was appointed as Headmistress as per Exhibit P1 order. The said appointment was approved by the 2nd respondent as per order dated 08.07.2003 with effect from 01.04.2003. There was a rival claimant namely, M.Bhavani who challenged the same and the appeal filed by her was dismissed as per Exhibit P2. The matter was challenged before the Government by way of a revision which was allowed by the Government. 2. The petitioner thereafter approached this Court by filing W.P.(C) No.2912/2004 and pursuant to the interim order passed by this Court in Exhibit P4, the petitioner continued as Headmistress in the U.P.S, Karayamuttam. It is stated in the writ petition that W.P.(C) No.2912/2004 was allowed in favour of the petitioner. W.P.(C) No.35517/2005 2 3. The judgment of the learned Single Judge was challenged by the aggrieved claimant M.Bhavani in Writ Appeal No.471/2004, and Exhibit P6 is the judgment rendered by the Division Bench in that writ appeal. The Division Bench allowed the writ appeal in favour of M.Bhavani. It was held that the appellant therein was entitled to be posted as Headmistress. It was also made clear that the 1st respondent in the appeal, the petitioner herein, can claim the post of Headmistress for the period from 01.04.2004 onwards only. There was also a direction to pay all the monetary benefits to the appellant therein if it was not paid already. Thereafter Exhibit P7 was issued to the petitioner directing to refund the entire amount received by her as monetary benefit in the post of Headmistress. 4. It is submitted by the learned counsel for the petitioner that the petitioner had actually worked in the post of Headmistress for the period in question and her appointment was approved also. The order of promotion was not one issued under any mistake or misrepresentation in the sense that the petitioner had not contributed anything towards that. It is also submitted that the petitioner continued in the post on the basis of the W.P.(C) No.35517/2005 3 competent orders passed by the authorities concerned and even though the writ appeal was allowed in favour of the rival claimant, there was no direction by this Court to refund the monetary benefits drawn by the petitioner. Therefore, it is further submitted that in the absence of a misrepresentation also on the part of the petitioner, there cannot be any decision to order refund of the amount claimed by her. Reliance is placed on the decisions in Padmanabha Pillai vs. University of Kerala & Others (1982 KLT 503), Satyapalan vs. Deputy Director of Education (1998(1) KLT 399) and Sreedharan vs. Union of India (2002(1) KLT 444). 5. Learned Government Pleader by relying upon the averments in the counter affidavit submitted that since the petitioner is found eligible to be appointed as Headmistress only with effect from 01.04.2004 and as the appellant in Writ Appeal No.471/2004 was directed to be paid all the monetary benefits, naturally the petitioner has to refund the monetary benefits that was paid to her. It is pointed out that otherwise it may result in an additional liability on the part of the Government. W.P.(C) No.35517/2005 4 6. Going by Exhibit P6 judgment, it is true that there was a direction that the appellant therein is entitled to be paid all the monetary benefits. But it is also clear from the said judgment that there was no direction to the effect that the petitioner herein should refund the amounts received by way of salary and allowances in the promoted post of Headmistress. 7. The petitioner was promoted by the Manager as per Exhibit P1 order which was approved at that point of time. After the Government ordered against her, she continued in the light of the order of stay granted by this Court as per Exhibit P4. The writ petition was allowed as per judgment dated 25.02.2004. Therefore, the petitioner was continuing in the light of competent orders issued from time to time by the authorities and in the light of the judgment of this Court. Even though ultimately in Exhibit P6, the entitlement of the petitioner was found only from 01.04.2004, the petitioner has actually worked in the post of Headmistress for the disputed period and the benefit of her service was also available to the school. Her rival did not occupy the post. W.P.(C) No.35517/2005 5 8. In that view of the matter, the question is whether the petitioner is liable to refund the entire amount. In fact, in Padmanabha Pillai vs. University of Kerala & Others (1982 KLT 503) it was held thus: “........There is no allegation that the petitioner had supplied the wrong information to the Manager or to the University and thus misled either of them. If by a genuine mistake of the competent authority, a promotion was offered to the petitioner with the necessary approval, and if he consequently acted in the higher cadre and was paid for the work rendered by him in such capacity, to call upon him to repay all the excess amount thus received by him merely because a mistake had been committed by someone other then himself is to punish him for someone else's mistake. The petitioner is entitled to be paid for the work which he did during the relevant period in a higher capacity. He worked in such capacity because he was ordered to do so. To have refused to work as a Lecturer would have amounted to disobedience of lawful orders of his superior. Legitimately he expected to be paid for the work which he rendered, and legitimately he never expected that he would one day be asked to repay the amounts received. To be subsequently called upon to repay, what one received bona fide for the W.P.(C) No.35517/2005 6 work rendered bona fide is not only unjust and unfair, but unwarranted by any provision of the law..........” In the light of the above legal position and also in the light of the fact that in Exhibit P6 there was no direction to the petitioner to refund the entire amount, I am of the view that the order passed as per Exhibit P7 cannot be justified. Therefore, Exhibit P7 is quashed. If the petitioner is entitled for any arrears of pay as claimed in I.A.No.8920/2009, the same will be considered by the appropriate authority and eligible benefits will be disbursed accordingly. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp