IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 798 of 2010()
1. STATE OF KERALA,
... Petitioner
2. THE ASSISTANT EDUCATIONAL OFFICER,
Vs
1. VANAJAKUMARI, LPSA, PANCHAYATH L.P.S.,
... Respondent
2. THE HEADMISTRESS,
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.P.GOPALAKRISHNAN NAIR
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :07/10/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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W.A.No.798 OF 2010
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Dated this the 7th day of October 2010
JUDGMENT
Basheer, J.
The short question that arises for consideration in this appeal is whether
the direction issued by the learned Single Judge not to recover the excess
amount paid to the respondent – teacher, pursuant to grant of irregular higher
grade is legally sustainable or not. Learned Government Pleader, who appears
for the appellants, submits that the learned Single Judge was not justified in
allowing the respondent to retain the illegitimate benefits she had obtained
from the State.
2. Shorn of unnecessary details, relevant facts which are necessary for
disposal of this appeal may be briefly noticed.
3. Respondent, who is a Lower Primary School Assistant, started her
career in a Government School on a provisional basis. She worked in that
school for 3 years 9 months and 11 days. Thereafter, on June 21, 1991 she
joined Marangad Lower Primary School run by Aryanad Grama Panchayat. She
has been working in that school ever since.
4. It is beyond controversy that respondent was granted the benefit of
higher grade reckoning her provisional service in the Government school as
well. Later, the Accountant General noticed that respondent could not have
been allowed to tag on the provisional service in government school to the
period of service rendered by her in the Panchayat school. In other words, the
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Accountant General held that the benefit of higher grade should be reworked
and the amount paid to the respondent on the wrong fixation of higher grade
will have to be recovered from her. Accordingly, Ext.P1 order dated January
16, 2006 was issued by the Assistant Educational Officer, Nedumangadu
directing the Headmistress of the school to take necessary steps in this regard
in order to recover the excess amount drawn by the respondent from March 18,
1998.
5. Respondent challenged the said order before this court in the writ
petition filed Article 226 of the Constitution of India. The learned Single Judge
held that the respondent cannot get the benefit of her provisional service in the
Government school for grant of higher grade. A decision of this court in Writ
Appeal 337/92 was relied on by the learned Single Judge for this purpose. It
was also noticed by the learned Single Judge that Government Decision No.II
under Rule 33 Part I Kerala Service Rules amply justified the action of the
Departmental authorities. However, the learned Single Judge took the view
that the Department would not be justified in making recovery of the excess
amount received by the respondent on the basis of the irregular grant of higher
grade. The said decision taken by the learned Single Judge is impugned in this
appeal by the State.
6. Having heard the learned Government Pleader and learned counsel
for respondent, we are of the view that the direction issued by the learned
Single Judge not to effect recovery cannot be sustained. It is beyond
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controversy that the respondent had given an undertaking at the time when the
higher grade was granted to her that she would remit the excess amount, if
any, received by her if any defect was noticed in fixation of the higher grade.
7. But it is pointed out by the learned counsel for the respondent that
such an undertaking was obtained as a “matter of routine”. He further submits
that the department cannot have a case that the respondent was guilty of
misrepresentation or fraud. The higher grade was fixed by the departmental
officials pursuant to the pay revision of the year 1998. The said exercise was
carried out by the department in the case of all employees drawing salary from
the State. Therefore, it can never be said that the appellant was guilty of any
misrepresentation or fraud.
8. In this context, learned counsel has invited our attention to a decision
of their lordships of the Supreme Court in Syed Abdul Qadir and others v. State
of Bihar [2009 (3) SCC 475]. While trying to draw a parallel from the facts of
the above case, learned counsel submits that the apex court had categorically
held in the above decision that it would be unjust and improper to recover the
so called excess amount drawn by an employee after a long period.
9. We have gone through the above judgment carefully. It is true that in
the above case, a three judge bench of the apex court had made certain
observations against recovery after lapse of a long period. But it can be seen
from the above judgment, that the issue involved in that case revolved around
interpretation of two rules which governed the field. There was doubt
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regarding which rule was applicable. Two views were possible as regards the
applicability of the rules. Moreover, the employees from whom recovery was
sought to be effected had retired from service about 3= years ago. These
aspects obviously persuaded their lordships to hold that in the peculiar facts
and circumstances of the case, recovery was not warranted. While noticing
that the excess amount paid was because of erroneous interpretation of the
rule that was applicable to them, their lordships directed that no recovery be
effected from the employees in that case. At the same time, the court observed
that the relief against recovery is being granted by courts not because of any
right vested in the employees, but in equity, exercising judicial discretion to
relieve the employees from the hardship that will be caused if recovery is
ordered. It was further held thus:
“But, if in a given case, it is proved that the employee had
knowledge that the payment received was in excess of what was
due or wrongly paid, or in cases where the error is detected or
corrected within a short time of wrong payment, the matter being
in the realm of judicial discretion, courts may, on the facts and
circumstances of any particular case, order for recovery of the
amount paid in excess.”
10. The apex court had referred to the following decisions in this
context; Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India,
Union of India v. M.Bhaskar, V.Gangaram v. Director, Col. B.J.Akkara (Retd.) v.
Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v.
Manjeet Singh and Bihar SEB v. Bijay Bhadur.
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11. In State of Kerala v. Sasikala Devi and another (2010 (3) KHC 13
(DB) a Division Bench of this court has held that the State would be justified in
effecting recovery of undue benefit obtained by its employees by way irregular
grant of “double pay fixation” under Rule 28A. The Division Bench held that
the power vested in this court under Article 226 of the Constitution of India
cannot be exercised in favour of a person to retain an undeserving benefit that
he had got.
12. In the case on hand, the period of service rendered by the teacher in
a Government School before joining the Panchayat School could not have been
tagged on for the purpose of reckoning higher grade at all. This position had
been settled long time ago. The relevant provision in Rule 33 Part I KSR which
we have referred to in the earlier part of this judgment is totally unambiguous.
Moreover, this court had occasion to deal with the same issue and the position
was settled in Writ Appeal No.337/1992 referred to earlier. That being the
position, it cannot be said that the respondent was unaware of the settled legal
position.
13. More importantly the respondent had admittedly given an
undertaking that she would refund the excess, if any, received due to wrong
fixation of higher grade. Obviously the departmental officials had committed
the mistake due to oversight. The error that crept in while granting the higher
grade was noticed by the Accountant General. It was thereafter that Ext.P1
order was issued. It cannot be said that there was inordinate delay. In that
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view of the matter, we are satisfied that the direction issued by the learned
Single Judge not to effect recovery from the respondent cannot be sustained.
Therefore, the said direction is set aside.
14. However, it is brought to our notice that the respondent has been
denied annual increments for the last five years. Similarly, she has not been
given the benefit of pay revision also for the last five years, on the plea that she
had filed the Writ Petition challenging Ext.P1 order. The stand taken by the
departmental officials cannot be justified.
15. Therefore, it is directed that the department shall ensure that all the
benefits like increment and consequential pay revision benefits are released to
the petitioner with interest @ 9% as expeditiously as possible, at any rate,
within three months from the date of receipt of a copy of this judgment. At the
same time, it will be open to the department to rework the excess amount, if
any, that has been paid to the respondent pursuant to the illegal grant of
higher grade and recover the same from her in accordance with law.
Appeal is allowed to the above extent.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
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