IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 WP(C).No. 27203 of 2006(L) -------------------------------------- PETITIONER: ------------------- V.P.MOHAMMED (RETIRED HEADMASTER), `VAHEEDAS', MUNDERI, KALPATTA, WYNAD DISTRICT. BY ADV. SRI.P.J.MATHEW. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A & E) OF KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, WYNAD, KALPATTA. 4. THE ASSISTANT EDUCATIONAL OFFICER, VYTHIRI, WYNAD DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.27203/2006: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CERTIFICATE OF THE PETITIONER HAS PASSED THE ACCOUNTANT TEST (LOWER) CONDUCTED BY THE P.S.C. DTD. 22/10/1981. EXT.P.2: COPY OF THE ORDER NO. 19893/93/A4 DTD. 13/01/1994 ISSUED BY THE R.3. EXT.P.3: COPY OF THE ORDER NO. A4/19893/93 ISSUED BY THE R.3. DTD. 31/03/1995. EXT.P.4: COPY OF THE PROCEEDINGS OF THE R.4. DTD. 05/05/1995. EXT.P.5: COPY OF THE PROCEEDINGS OF THE R.2. EXT.P.6: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE R.4 DTD. 02/02/2005. EXT.P.7: COPY OF THE LIABILITY CERTIFICATE ISSUED BY THE R.4. DTD. 02/08/2005. EXT.P.8: COPY OF THE G.O.(MS).NO.32/71/S. EDN. DTD. 19/03/1971 ISSUED BY THE GOVT. OF KERALA. EXT.P.9: COPY OF THE G.O.(MS).NO.55/73/S. EDN. DTD. 24/04/1973 ISSUED BY THE GOVT. OF KERALA. EXT.P.10: COPY OF THE G.O.(MS).NO.53/74/G. EDN. DTD. 14/03/1974 ISSUED BY THE GOVT. OF KERALA. EXT.P.11: COPY OF THE G.O.(MS).NO.242/74/G. EDN. DTD. 11/12/1974 ISSUED BY THE GOVT. OF KERALA. EXT.P.12: COPY OF THE G.O.(P).NO.191/80/G. EDN. DTD. 18/11/1980 ISSUED BY THE GOVT. OF KERALA. EXT.P.13: COPY OF THE G.O.(P).NO.136/88/G. EDN. DTD. 08/09/1988 ISSUED BY THE GOVT. OF KERALA PUBLISHED IN THE KERALA GAZETTE DTD. 15/09/1988. EXT.P.14: COPY OF THE G.O.(P).NO.127/99/G. EDN. DTD. 04/06/1999 ISSUED BY THE GOVT. OF KERALA. EXT.P.15: COPY OF THE LETTER R4-53128/03/DPI DTD. 15/07/2005 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. EXT.P.16: COPY OF THE ORDER NO. 42650/B2/05/GE ISSUED BY THE DEPUTY SECRETARY, GOVERNMENT OF KERALA DTD. 14/12/2005. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.SIRI JAGAN, J. ================== W.P.(C).No. 27203 of 2006 ================== Dated this the 10th day of August, 2011 J U D G M E N T The petitioner retired from service on 31.3.2005 from Government L.P. School, Kalapatta, as a headmaster. He commenced service from 5.3.1976. He claimed earlier date of promotion to the post of headmaster. Pursuant to the orders of this Court, the same was granted retrospectively without monetary benefits. Later on, it was found that the petitioner was wrongly given headmaster's scale without completing 15 years of service. Therefore, the petitioner's pay was refixed and excess salary drawn by the petitioner was adjusted against his DCRG. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) call for the entire records which lead to the passing of Exhibits P5, P7, P11 and P12 orders and quash the same by the issuance of a writ in the nature of certiorari or any other appropriate writs, orders of directions; ii) declare that the petitioner is entitled (sic) draw salary in the scale of pay of the post of headmaster in government primary school from 01.06.1982 onwards; iii) issue a writ of mandamus commanding the respondents to sanction and disburse the salary of the petitioner in the scale of pay of headmaster of government L.P.School from 01.06.1982 onwards and to refix their pay and disburse the entire arrears including pensionary benefits forthwith. iv) direct the respondents to grant 10 years grade promotion in the H.M. Scale with effect from 01.06.1982 and 20 years grade promotion with effect from 01.06.2002.” But, at this point of time, the petitioner does not dispute the fact that w.p.c.27203/06 2 the petitioner was not entitled to headmaster's scale without completing 15 years of service. Therefore, he now confines his prayers only against recovery of the excess salary. His contention is that pursuant to the orders of retrospective promotion, the petitioner's pay was fixed by Ext.P4 order dated 5.5.1995. It was only in 2005 that the proceedings were initiated to refix the salary, that too, after his retirement. Therefore, according to the petitioner, insofar as the petitioner did not contribute to the wrong fixation, going by the various decisions of the Supreme Court on the subject, in view of the long efflux of time, the petitioner cannot be saddled with the liability to refund the excess salary paid to him on account of the wrong fixation. 2. A counter affidavit has been filed by the 1st respondent, wherein the contention of the petitioner is sought to be refuted. 3. I have considered the rival contentions in detail. 4. It is not disputed before me that the petitioner's pay was originally fixed by Ext.P4 dated 5.5.1995. The first objection raised against the fixation was by Ext.P5 dated 10.5.2005, which was after the petitioner retired from service. Pursuant to the same, Ext.P7 liability certificate has been issued for an amount of ` 34,311/-, which was recovered from the petitioner's DCRG. The Supreme Court has time and again and even very recently, held that when the Government servant has not contributed to the wrong fixation, after a w.p.c.27203/06 3 long period of time, the excess salary paid to him cannot be recovered. Here there is a delay of 10 years, that too, till after the retirement of the petitioner. That being so, it is unjust to recover the excess salary paid to the petitioner. Therefore, I am of opinion that the recovery of ` 34,311/- from the DCRG of the petitioner is unsustainable. Accordingly, the respondents are directed to see that the amount of ` 34,311/- deducted from the DCRG of the petitioner is refunded to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. However, the refixation done would stand. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge