Loading...

The Assistant Education Oofficer vs K.N. Lakshmi on 23 November, 2009

Kerala High Court
The Assistant Education Oofficer vs K.N. Lakshmi on 23 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1920 of 2008()


1. THE ASSISTANT EDUCATION OOFFICER,
                      ...  Petitioner
2. THE DEPUTY DIRECTOR (EDUCATION),
3. THE STATE OF KERALA, REP. BY THE SPECIAL
4. THE HEAD MASTER, GOVERNMENT

                        Vs



1. K.N. LAKSHMI, W/O. V.R.GOPALAN,
                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.K.K.CHANDRAN PILLAI

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN

 Dated :23/11/2009

 O R D E R
    K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.

                  ------------------------------
                     W.A.No.1920 of 2008
                  ------------------------------

           Dated this, the 23rd day of November, 2009


                          JUDGMENT

Balakrishnan Nair, J.

The respondents in the Writ Petition are the

appellants. The respondent herein was the writ petitioner.

The brief facts of the case are the following:

The respondent was appointed as a P.D.Teacher

from 13.6.1975 to 31.3.1976. Thereafter, she was appointed

on a regular basis on 1.6.1976. She was an untrained

P.D.Teacher. Therefore, she was deputed for Teachers’

Training Course from 1.2.1977 to 31.12.1978. She passed the

Teachers’ Training Course on 30.8.1979. When her salary was

fixed, the apprentice period, i.e. from 13.6.1975 to 31.3.1976

was also reckoned. The same was against Ext.P2 circular

issued by the Government on 11.7.1984. This was realised

only in 2001. Immediately, she was served with Ext.P3 show

cause notice dated 3.11.2001 proposing to re-fix her salary

excluding her apprentice service period from 13.6.1975 to

W.A.No.1920 of 2008

– 2 –

31.3.1976. Thereafter, by Ext.P4 order dated 7.9.2002, the

proposal under Ext.P3 was affirmed. In the light of Exts.P3 and

P4, the Assistant Educational Officer, Arakulam, re-fixed her

salary by Ext.P5 proceedings dated 5.12.2002. Aggrieved, the

respondent/petitioner preferred Exts.P6 and P7

representations before the Government. Those

representations were rejected by Ext.P10 and she has been

saddled with a liability of Rs.1,19,765/- as per Exts.P11 and

P12. The respondent herein filed the Writ Petition challenging

Exts.P4, P5, P10, P11 and P12. The Government resisted the

reliefs sought, relying on Ext.P2. But, the learned Single

Judge, overruled the contention of the appellants herein and

allowed the Writ Petition, relying on Ext.P1, which is a

Government Order dealing with the benefits to be granted to

untrained teachers, i.e. those P.D. Teachers who joined service

without T.T.C. qualification and acquired the said qualification

while in service. Feeling aggrieved by the said judgment, this

appeal is preferred.

W.A.No.1920 of 2008

– 3 –

2. We heard the learned Government Pleader

Smt.R.Bindu and Sri.K.K.Chandran Pillai, who appeared for the

respondent.

3. We notice that Ext.P1 Government Order, which

deals with reckoning untrained service to P.D.Teachers, has no

application to the facts of this case. The point in dispute

between the parties was whether the period of apprenticeship

from 13.6.1975 to 31.5.1976 could be reckoned for various

service benefits. By virtue of Ext.P2, it cannot be reckoned.

The finding in the judgment under appeal that the respondent

was not an appointee under half a million jobs programme is

untenable, since, during 1975-1976, the apprentices were

appointed in Government service only under the said scheme.

Therefore, her service as an apprentice has been wrongly

reckoned. So, the State is entitled to correct the mistake.

4. Now, the next point to be considered is, whether

the State should be allowed to recover the excess salary paid

by mistake to the respondent. She submits that she was in no

W.A.No.1920 of 2008

– 4 –

way responsible for the wrong fixation. She was a low paid

employee and has expended the amounts received by her,

thinking that the amounts received were legitimately due to

her. Now, at this distance of time, if she is required to repay

the amounts received in excess, she will be put to irreparable

injury and hardship. In support of her submission, the learned

counsel for the respondent relied on the decision of the Apex

Court in Registrar of Co-operative Societies v. Israil

Khan, [2009 (4) KLT SN 61 (Case No.53) SC], wherein it was

held as follows:

“…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.

W.A.No.1920 of 2008

– 5 –

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.”

5. We notice that the respondent is a member of

the Scheduled Caste. She has already retired from service

during the pendency of the Writ Petition. If she is called

upon to pay the entire excess amount paid from 1979

onwards, the same will cause very serious hardship to her.

W.A.No.1920 of 2008

– 6 –

But, she cannot escape from the liability to refund the excess

amount received from the date of Ext.P3. i.e. 3.11.2001.

6. In the result, the judgment under appeal is

reversed. The impugned orders are restored. The re-fixation

of the salary of the respondent is also upheld. But, it is made

clear that the excess amount paid to her up to 3.11.2001

shall not be recovered from her. Any excess amount paid

thereafter to the respondent can be recovered by the

appellants.

The Writ Appeal is disposed of as above.

Sd/-

K. Balakrishnan Nair,
Judge.

Sd/-

P. Bhavadasan,
Judge.

DK.

(True copy)

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information