IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19123 of 2008(B)
1. K.S.JACOB, HEAD MASTER,
... Petitioner
Vs
1. THE ACCOUNTANT GENERAL OF KERALA.
... Respondent
2. THE ASSITANT EDUCATIONAL OFFICER.
For Petitioner :SRI.MATHEW VALSALAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.T.SANKARAN
Dated :13/08/2010
O R D E R
K.T.SANKARAN, J.
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W.P.(C).No.19123 of 2008
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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withdrawn by the Government as per G.O.(P) No.990/2000/Fin.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
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