IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 WA.No. 2662 of 2007() ------------------------------- AGAINST THE JUDGEMENT/ORDER IN OP.38521/2002 Dated 05/09/2007 .................... APPELLANT: PETITIONER --------------------- T.K.NARAYANAN, HEADMASTER, B.E.M.L.P.SCHOOL, PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: RESPONDENTS ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ASSISTANT EDUCATIONAL OFFICER, PAYYANNUR. 3. THE ACCOUNTANT GENERAL OFFICE OF THE ACCOUNTANT GENERAL (A & E) THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.SANDESH RAJA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- W.A.No.2662 OF 2007 ------------------------------------- Dated 29th May, 2008 JUDGMENT Koshy,J . Petitioner retired as a Headmaster of a Government Lower Primary School. Before joining in the Government school, he was teaching in an aided school for six months and 15 days between 4.9.1973 and 30.7.1974. He was promoted as Headmaster with effect from 28.5.1987 in the Government L.P. School. The pay of Headmaster was allowed to him on completion of 15 years of continuous service with effect from 1.8.1989. The audit party, after a decade, came to the conclusion that his continuous service in the aided school and the Government school cannot be taken for counting 15 years of service for granting the pay of Headmaster as there is broken service and finally by Ext.P3 order dated 20.12.1999 it was decided to recover the excess pay. His representations and appeals were finally dismissed by Ext.P6 dated 8.8.2001 which reads as follows: “In inviting your attention to the letter under reference, I am to inform that provisional service rendered prior to 1.10.94 will be reckoned as qualifying service for sanctioning higher grade subject to satisfaction of the condition stipulated in G.D.No.2 below Rule 33 Part I KSRs. Since the W.A.2662/2007 2 method of appointment of Aided School teachers and Government school teachers are not the same, provisional service rendered by Aided School teachers cannot be reckoned for sanctioning them higher grade. Hence objection raised by the AG is in order and therefore the request of the petitioner cannot be conceded to.” Petitioner approached this court against the recovery of the amount from the petitioner's retiral benefits and also reduction of pay. Contention of the petitioner is that no misrepresentation was made by him. Only on the basis of audit objection it was decided that petitioner has drawn excess pay and he was not responsible for granting him higher wages. If the wages granted him from 1989 is recovered after the retirement, at this distance of time, it will cause undue miseries and difficulties as now he is getting only the pension. 2. In Sivankutty Nair v. Secretary to Government (2005 (3) KLT 512) a learned single Judge of this court held that excess amount paid on account of wrong fixation of pay cannot be recovered unless the employee has in any way contributed to the mistake. That view was overruled by a Division Bench of this court in Santhakumari. v. State of Kerala (2005 (4) KLT 649), but, even in that case in was observed that in certain cases sympathetic consideration may be required. At paragraph six of the above W.A.2662/2007 3 judgment it was observed as follows: “6. Principle laid down by the learned Judge in Sivankutty Nair's case (2005 (3) KLT 512), in our view cannot be of general application. Reasoning of the learned single Judge that the excess amount paid on account of wrong fixation of pay cannot be recovered unless the employee has in any way contributed to the mistake, in our view, is an over statement of law. We may hasten to add, unless there is statutory bar in recovering the amount, any amount paid by mistake could be recovered depending upon the facts and circumstances of each case. To hold that only in a case where employee has contributed to the mistake amount could be recovered cannot be sustained. Facts situation may warrant a sympathetic consideration but cannot be accepted as a general principle of law.” So, even when Sivankutty Nair's case (supra) was overruled, it was held that in appropriate cases relief can be granted in not recovering the amount. 3. We note that the Hon'ble Supreme Court in Babulal Jain v. State of M.P. ((2007) 6 SCC 180) held that in the case of higher salary paid due to mistake, no recovery should be directed to be made. The Apex Court held as follows: W.A.2662/2007 4 “15. We, however, are of the opinion that in a case of this nature, no recovery should be directed to be made. The appellant has discharged higher responsibilities. It is not a case where he obtained higher salary on committing any fraud or misrepresentation. The mistake, if any, took place on a misconception of law. He was at least entitled to some allowances. In refixing his pay, his claim to that effect has not been considered. He has since retired. A sum of Rs.22,000 has been recovered from him. Such recovery has been effected without issuing any show-cause notice. His case on merit in this behalf had not been considered by the Government and even by the Tribunal.” In Aleyamma Varghese v. Secretary, General Education Department (2007 (3) KLT 700 (SC)) the Hon'ble Supreme Court held as follows: “A mistake apparent on the face of the record may be rectified but in a matter of this nature, we would expect the State to react more magnanimously and not resort to recovery proceedings after a period of 17 years. We, therefore, in the peculiar facts and circumstances of this case, are of the opinion that with a view to do complete justice to the parties, the amount sought to be recovered may not be recovered from the appellant and we direct accordingly. The impugned judgment is set aside and the appeal is allowed with the aforesaid observations and directions.” In that case also the appellant was appointed as a Lower Primary W.A.2662/2007 5 school assistant and recovery proceedings were initiated only after audit objection was raised . It is submitted that the petitioner herein received notional pay as a teacher. If the excess pay fixed in 1989 onwards is recovered from the petitioner's retiral benefits, it will be a very heavy blow on him. On the facts and circumstances of this case, we are of the view that the excess amount paid by the Government on mistake, on the basis of wrong fixation, should not be recovered. The appeal is allowed to the above extent. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks