IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 30356 of 2000(L)
1. P.K. CICILY
... Petitioner
Vs
1. THE SECRETARY TO GOVT.
... Respondent
For Petitioner :SRI.V.A.MUHAMMED
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :23/11/2009
O R D E R
S.SIRI JAGAN, J.
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O.P.No. 30356 of 2000
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Dated this the 23rd day of November, 2009
J U D G M E N T
The petitioner’s pay was fixed pursuant to 88 pay revision order
issued by the Government of Kerala in 1989 in the post of Staff Nurse
in the Health Department. Although in subsequent audit conducted, no
irregularity was noted in such fixation, allegedly on the basis of a test
check, the fixation was sought to be revised, consequent upon which,
the petitioner has been directed to refund certain amounts drawn by
her in excess of what was due to her. Exts.P1, P5 and P8 are orders in
this regard. Although in view of the irregularity pointed out, the
petitioner requested for a chance for re-option for the postponement of
the petitioner’s 20 year higher grade promotion from 1.7.1987 to
1.7.1988 so as to minimise the incidence of refund, the same was not
allowed. It is under the above circumstances, the petitioner has filed
this original petition seeking the following reliefs:
“(a) call for the records relating to Exhibits P1, P5 and P8 and set aside
the same by the issue of a writ of certiorari or other appropriate
writ or order.
(b) issue a writ of mandamus or other appropriate writ order or
direction commanding the Respondents to allow one more chance
for re-option changing time bound higher grade promotion from
1.7.1987 to 1.7.1988 so as to protect the Petitioner’s pay in the
light of Exhibit P4.
(c) declare that the fixation of pay of the Petitioner done by the 5th
respondent is legal and valid.”
O.P.30356/00 2
2. No counter affidavit has been filed by the respondents.
3. I have heard the learned counsel for the petitioner and the
learned Government Pleader.
4. The fact that the fixation was irregular is no longer in
dispute. The only question to be considered is whether the petitioner
should be given a chance for re-option as requested for by her and
whether the amount directed to be refunded can be recovered from
the petitioner at this point of time.
5. As far as re-option is concerned, the petitioner seeks a
chance of re-option for postponement of the petitioner’s 20 year
higher grade promotion from 1.7.1987 to 1.7.1988. It is not disputed
before me that the 20 year higher grade promotion became due to the
petitioner on 1.7.1987. There cannot be any option for postponement
of higher garde. Higher grade has to be sanctioned and given on the
date when it became due. Option is for coming over to the revised
scale as per the pay revision order. The petitioner does not request for
re-option of her pay fixation itself. That being so, the petitioner is not
entitled to re-option as prayed for by the petitioner.
6. But as regard the recovery of the excess amount drawn by
the petitioner, I think that the petitioner is entitled to succeed. The
fixation was as early as in July, 1988. Although Ext.P1 check report is
not dated, Ext.P2 communication from the District Medical Officer to
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the Director of Health Services is dated 16.3.1999. There is
unexplained delay of not less than 7 years especially in the wake of the
fact that prior to the test check an audit was conducted and no
irregularity was noticed in the audit. The petitioner had retired from
service on 31.1.1999. The law on the subject has been laid down by
the Supreme Court very recently in the decision of Registrar of Co-
operative Societies v. Israili Khan [2009 (4) KLT SN 61 (C.No.53) SC]
held thus:
“Such relief, restraining recovery back of excess payment is
granted by courts not because of any right in the employees, but in
equity, in exercise of judicial discretion, to relieve the employees, from
the hardship that will be caused if recovery is implemented. A
Government servant, particularly one in the lower rungs of service
would spend whatever emoluments he received for the upkeep of his
family. If he receives an excess payment for a long period, he would
spend it genuinely believing that he is entitled to it. As any
subsequent action to recover the excess payment will cause undue
hardship to him, relief is granted in that behalf. But where the
employee had knowledge that the payment received was in excess of
what was due or wrongly paid, or where the error is detected or
corrected within a short time of wrong payment, Courts will not grant
relief against recovery. The matter being in the realm of judicial
discretion, courts may on the facts and circumstances of any particular
case refuse to grant such relief against recovery. What is important is
recovery of excess payments from employees is refused only where
the excess payment is made by the employer by applying a wrong
method or principle for calculating the pay/allowance, or on a
particular interpretation of the applicable rules which is subsequently
found to be erroneous. But where the excess payment is made as a
result of any misrepresentation, fraud or collusion, courts will not use
their discretion to deny the right to recover the excess payment.”
Going by the law laid down by the Supreme Court on the subject, I am
satisfied that at this point of time the respondents cannot recover the
excess amount drawn by the petitioner after so many years.
O.P.30356/00 4
Therefore, while allowing the refixtion of pay on the basis of the test
check to stand, I direct that the excess amount shall not be recovered
from the petitioner. But the petitioner’s retirement benefits shall only
be in accordance with the refixed pay.
The original petition is disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
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O.P.No. . 30356/00
APPENDIX
PETITIONER(S)' EXHIBITS
P1. COPY OF THE AUDIT OBJECTION.
P2. COPY OF THE ORDER DTD.16.3.99 BY R4.
P3. COPY OF THE ORDER DTD.5.2.99 BY R4.
P4. COPY OF THE GOVT. ORDER DTD.30.1.80.
P5. COPY OF THE LETTER DTD.3.5.99 OF THE GOVT.
P6. COPY OF THE