IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 WP(C).No. 5842 of 2007(U) ------------------------- PETITIONER(S): --------------- C.H. LAILABEEVI, AGED ABOUT 56, (RETIRED HEADMISTRESS S.N.V.T.T.I., KAKKAZHOM, ALAPPUZHA) W/O.M. BASHEER, KALATHIL HOUSE, KAKKAZHOM P.O., ALAPPUZHA DISTRICT. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.K.V.VIMAL SRI.S.A.ANAND RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR, DIRECTORATE OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. SECRETARY, DIRECTORATE OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. DISTRICT EDUCATIONAL OFFICER, DISTRICT EDUCATION OFFICE, ALAPPUZHA. 5. ACCOUNTANT GENERAL, STATE OF KERALA, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI ANTONY MUKKATH FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.7.2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No.5842 OF 2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER APPOINTING PETITIONER AS TSA ORDER No.28/78 DATED 31.7.1978. EXT.P2 : COPY OF THE ORDER PROMOTING PETITIONER AS HEDMISTRESS S.N.V.T.T.I. KAKKAZHAM ALAPPUZHA ORDER No.18/91-92 DATED 2.9.1991. EXT.P3 : COPY OF THE G.O.(P) 380/94(13 Fin DATED 9.6.1994. EXT.P4 : COPY OF THE G.O.(P) 566/96/105/Fin DATED 11.9.1996. EXT.P5 : COPY OF THE RESPONSE OF DISTRICT EDUCATION OFFICER TO THE REPRESENTATIONS SUBMITTED BY THE PETITIOENR AS NOB-3-1685/05 ALLEPPEY DATED 19.3.2005 No.B. EXT.P6 : COPY OF THE REPRESENTATION. EXT.P7 : PHOTOSTAT COPY OF THE STATEMENT OF FIXATION OF SALARY DATED 14.8.2002. EXT.P8 : COPY OF THE G.O.(P) No.1811/99/(38)/Fin. DATED 15.9.1999. RESPONDENTS' EXHIBITS: EXT.R4(a) : COPY OF THE G.O.(P) No.81/94/(5)/Fin DATED 2.2.94. //TRUE COPY// P.A. TO JUDGE Kp S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.5842 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of July, 2011 J U D G M E N T The petitioner was appointed as a Training School Assistant in the scale of pay of High School Assistants on 31.07.1978 in an aided school. She was granted time bound higher grade applicable to High School Assistants with effect from 31.07.1988 after 10 years. On 02.09.1991, the petitioner was promoted as Headmistress of S.N.V. T.T.T. Kakkazham, Alappuzha. But at that time the petitioner did not have 16 years of service and therefore she was not entitled to Headmaster's scale of pay. She became entitled to Headmaster's scale of pay with effect from 31.07.1994. The petitioner retired from service on 31.05.2005 after putting in 27 years of qualifying service. In the pay revision orders applicable to the petitioner while she was in service, graduate teachers were given a benefit W.P.(C)No.5842 of 2007 -2- as per Ext.P3 (ii) (d) which reads as follows: “(d) Graduate Teachers who got promotion as Headmasters before 1.3.1992 and who would have been eligible for the selection grade but for their promotion as Headmasters will also be permitted to have their pay notionally fixed in the selection grade first on 1.3.1992 or on the date on which they become eligible for the selection grade after 1.3.1992 on the basis of the pay in the revised scale which they would have drawn had they continued as Senior Grade High School Assistants and then based on the pay so fixed in the Selection Grade, their pay in the revised scale of Headmaster will be fixed under Rule 28A, Part I, KSRs.” That was partially modified by Ext.P4 as follows: “In partial modification of the orders issued in para 2 (ii) (c) & (d) of the G.O. read above, Government are pleased to order that teachers - both P.D. and Graduate who - got promotion as Headmasters after 1.3.1992 and would have been eligible for Senior/Selection Grade but for their promotion as Headmaster will also be permitted to fix their pay notionaly as specified in the above paras.” 2. The petitioner was given the benefit of Exts.P3 and P4 and the petitioner's pay was fixed accordingly. The petitioner now submits that without passing any orders, the fixation of pay granted to the petitioner in accordance with Exts.P3 & P4 Government orders was stated to be cancelled and the petitioner was orally directed to refund an amount of Rs.35,566/- which she was compelled to do. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: W.P.(C)No.5842 of 2007 -3- “1. To issue a writ of mandamus or any other writ or order directing the respondents to refix the pay, pension and other allowances of the petitioner as per exhibit P3 and P4. 2. To declare that the decision of the 2nd and 4th respondents in exhibit P5 and P6 are arbitrary and illegal and the petitioner is entitled to get his pay refixed as ordered in exhibit P3 and P4 orders. 3. To issue a writ of mandamus or any other writ or order directing the 5th respondent to withdraw objection regarding the benefit under exhibit P3 and P4 to the petitioner 4. To issue a writ of mandamus or any other writ to call for the service, book and other service record of the petitioner.” 3. A counter affidavit has been filed by the 4th respondent wherein the stand taken is that the petitioner is bound to repay the amount insofar as the petitioner's pay was wrongly fixed originally. 4. I have considered the rival contentions in detail. 5. I am totally surprised that the respondents have chosen to cancel the fixation made without passing an order, at any rate without communicating one to the petitioner and demanded refund of amounts by an oral direction. I am of the opinion that the respondents have forgotten that our country is still governed by rule of law. W.P.(C)No.5842 of 2007 -4- The Government or any of its officers cannot refix pay and obtain refund of excess pay without a written order. Here there is no order either cancelling the fixation made or directing the petitioner to refund any amount. Further I am of opinion that as per the facts disclosed the petitioner is entitled to the benefit of Exts.P3 and P4 and the petitioner's fixation of pay as per Exts.P3 and P4 is correct and therefore she was not liable to refund any amount. Therefore the petitioner is not bound to take into account the cancellation of the fixation or the direction to refund any amount. It is declared so and the writ petition is allowed. 6. It is submitted that the amount has already been recovered from the petitioner. The said amount shall be refunded to the petitioner and petitioner's retirement benefits shall be recomputed as per the original fixation without taking into account the cancellation of the fixation. Orders in this regard shall be passed and the recovered amount and arrears of retirement benefits shall be W.P.(C)No.5842 of 2007 -5- disbursed to the petitioner, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/