IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).No. 19123 of 2008(B) -------------------------- PETITIONER(S): --------------------- K.S.JACOB, HEAD MASTER, GOVERNMENT UP SCHOOL, AROOR, KARIMPANA P.O., KOOTHATTUKULAM. BY ADV. SRI.MATHEW VALSALAN SRI.K.S.MOHAMED HASHIM RESPONDENT(S): ----------------------- 1. THE ACCOUNTANT GENERAL OF KERALA. 2. THE ASSITANT EDUCATIONAL OFFICER. KOOTHATTUKULAM, ERNAKULAM DT. GOVERNMENT PLEADER FOR R1 & R2 SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 19123/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS DATED 26.2.2008 OF THE SECOND RESPONDENT. EXT.P2: COPY OF THE STATEMENT DATED 7.1.2008 SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.19123 of 2008 --------------------------------------------- Dated this the 13th day of August, 2010 JUDGMENT The petitioner was working as Headmaster of Government UP school, Aroor. After the Writ Petition was filed, he retired from service. 2. The petitioner was working in an aided school for the period from 22.8.1974 to 10.8.1978. Thereafter, he was appointed as PD teacher in a Government school on 19.10.1978. His pay was refixed with effect from 19.10.1978, taking into account the pay drawn by him while working in the aided school. That was done on the basis of G.O.(P) No.1480/99/Fin. dated 17.6.1999. The arrears on account of refixation were also drawn and disbursed to the petitioner. G.O.(P) No.1480/99/Fin. was withdrawn by the Government as per G.O.(P) No.990/2000/Fin. dated 27.6.2000. The Assistant Educational Officer, Koothattukulam passed Ext.P1 order dated 26.2.2008 revising and refixing the pay of the petitioner and directing the petitioner to refund the excess pay drawn by him for the period from W.P.(C) No.19123/2008 2 19.10.1978 in lump on the basis of the revised pay fixation. Ext.P1 is under challenge in this Writ Petition. The learned counsel for the petitioner relied on the decisions in Stanley vs. State of Kerala (2002(2) KLT 431), Narayanan vs. State of Kerala (2008(3) KLT 188) and the judgment dated 28th May, 2010 in O.P.No.24000 of 2000. In Stanley vs. State of Kerala (2002(2) KLT 431), the petitioner therein challenged the Government Order cancelling G.O.(P) No.1480/99/Fin. dated 17.6.1999. The challenge was not accepted by this Court. However, it was held that the amount, if any paid on misunderstanding of the provisions by the authorities could not be recovered. In Narayanan vs. State of Kerala (2008(3) KLT 188), the Division Bench dealt with the case of a Headmaster of Government LP School, who retired from service. Before joining in Government service, he was a teacher in an aided school. His pay was fixed taking into account his service in the aided school. Later, the Government passed an order to recover the excess amount paid to him. The Division Bench held, relying on the Supreme Court decision in Aleyamma Varghese vs. Secretary, General Education Department (2007(3) KLT 700), that the W.P.(C) No.19123/2008 3 excess amount paid by the Government on the basis of the wrong fixation of salary should not be recovered. In O.P.No. 24000/2000, validity of G.O.(P) No.990/2000/Fin. was challenged. The learned Single Judge held that in another Writ Petition (O.P.No.22738/2000), a learned Single Judge had taken the view that the Government Order cancelling G.O.(P) No.1480 of 1999 was not arbitrary or illegal. In O.P.No.22738 of 2000, the learned Single Judge relied on the judgment of the Division Bench in Writ Appeal No.3030 of 2003 wherein the Division Bench had rejected the contention that G.O.(P) No.990/2000 was arbitrary and illegal. On the basis of this decision, the learned Single Judge held in O.P.No.24000/2000 that the challenge against the Government Order would not stand. However, it was also held that the monetary benefits disbursed to the petitioner therein should not be recovered. 3. The learned Government Pleader submitted that the petitioner had given an undertaking that any excess pay drawn by him shall be liable to be refunded. In reply, the learned counsel for the petitioner submitted such undertakings were given by all similarly situated persons and in spite of such W.P.(C) No.19123/2008 4 undertakings, this Court consistently took the view that in the facts and circumstances of the cases, the excess pay drawn by the respective persons on the basis of the Government Order then in existence, which was subsequently withdrawn, could not be recovered. In view of the above consistent view taken by this Court in the case of several similarly situated persons, I am of the view that the petitioner is also entitled to the limited relief of setting aside that part of Exhibit P1 order directing the petitioner to refund the excess pay drawn by him. I hold so. In all other respects, Ext.P1 order and the refixation of pay as made in Ext.P1 would stand. The Writ Petition is allowed in part as above. K.T.SANKARAN, JUDGE csl