{"id":147860,"date":"2010-10-07T00:00:00","date_gmt":"2010-10-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-vanajakumari-on-7-october-2010"},"modified":"2017-10-19T09:39:48","modified_gmt":"2017-10-19T04:09:48","slug":"state-of-kerala-vs-vanajakumari-on-7-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-vanajakumari-on-7-october-2010","title":{"rendered":"State Of Kerala vs Vanajakumari on 7 October, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
State Of Kerala vs Vanajakumari on 7 October, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA.No. 798 of 2010()\n\n\n1. STATE OF KERALA,\n                      ...  Petitioner\n2. THE ASSISTANT EDUCATIONAL OFFICER,\n\n                        Vs\n\n\n\n1. VANAJAKUMARI, LPSA, PANCHAYATH L.P.S.,\n                       ...       Respondent\n\n2. THE HEADMISTRESS,\n\n                For Petitioner  :GOVERNMENT PLEADER\n\n                For Respondent  :SRI.P.GOPALAKRISHNAN NAIR\n\nThe Hon'ble MR. Justice A.K.BASHEER\nThe Hon'ble MR. Justice P.Q.BARKATH ALI\n\n Dated :07\/10\/2010\n\n O R D E R\n                   A.K.BASHEER & P.Q.BARKATH ALI, JJ.\n                     - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                                   W.A.No.798 OF 2010\n                     - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                      Dated this the 7th day of October 2010\n\n                                         JUDGMENT\n<\/pre>\n
Basheer, J.\n<\/p>\n<\/p>\n
      The short question that arises for consideration in this appeal is whether<\/p>\n
the direction issued by the learned Single Judge not to recover the excess<\/p>\n
amount paid to the respondent – teacher, pursuant to grant of irregular higher<\/p>\n
grade is legally sustainable or not. Learned Government Pleader, who appears<\/p>\n
for the appellants, submits that the learned Single Judge was not justified in<\/p>\n
allowing the respondent to retain the illegitimate benefits she had obtained<\/p>\n
from the State.\n<\/p>\n
      2. Shorn of unnecessary details, relevant facts which are necessary for<\/p>\n
disposal of this appeal may be briefly noticed.\n<\/p>\n
      3. Respondent, who is a Lower Primary School Assistant, started her<\/p>\n
career in a Government School on a provisional basis. She worked in that<\/p>\n
school for 3 years 9 months and 11 days. Thereafter, on June 21, 1991 she<\/p>\n
joined Marangad Lower Primary School run by Aryanad Grama Panchayat. She<\/p>\n
has been working in that school ever since.\n<\/p>\n
      4. It is beyond controversy that respondent was granted the benefit of<\/p>\n
higher grade reckoning her provisional service in the Government school as<\/p>\n
well. Later, the Accountant General noticed that respondent could not have<\/p>\n
been allowed to tag on the provisional service in government school to the<\/p>\n
period of service rendered by her in the Panchayat school. In other words, the<\/p>\n
W.A.No.798 OF 2010
\n                                      :: 2 ::\n<\/p>\n
Accountant General held that the benefit of higher grade should be reworked<\/p>\n
and the amount paid to the respondent on the wrong fixation of higher grade<\/p>\n
will have to be recovered from her. Accordingly, Ext.P1 order dated January<\/p>\n
16, 2006 was issued by the Assistant Educational Officer, Nedumangadu<\/p>\n
directing the Headmistress of the school to take necessary steps in this regard<\/p>\n
in order to recover the excess amount drawn by the respondent from March 18,<\/p>\n
1998.\n<\/p>\n
      5. Respondent challenged the said order before this court in the writ<\/p>\n
petition filed Article 226 of the Constitution of India. The learned Single Judge<\/p>\n
held that the respondent cannot get the benefit of her provisional service in the<\/p>\n
Government school for grant of higher grade. A decision of this court in Writ<\/p>\n
Appeal 337\/92 was relied on by the learned Single Judge for this purpose. It<\/p>\n
was also noticed by the learned Single Judge that Government Decision No.II<\/p>\n
under Rule 33 Part I Kerala Service Rules amply justified the action of the<\/p>\n
Departmental authorities. However, the learned Single Judge took the view<\/p>\n
that the Department would not be justified in making recovery of the excess<\/p>\n
amount received by the respondent on the basis of the irregular grant of higher<\/p>\n
grade. The said decision taken by the learned Single Judge is impugned in this<\/p>\n
appeal by the State.\n<\/p>\n
      6. Having heard the learned Government Pleader and learned counsel<\/p>\n
for respondent, we are of the view that the direction issued by the learned<\/p>\n
Single Judge not to effect recovery cannot be sustained.           It is beyond<\/p>\n
W.A.No.798 OF 2010
\n                                      :: 3 ::\n<\/p>\n
controversy that the respondent had given an undertaking at the time when the<\/p>\n
higher grade was granted to her that she would remit the excess amount, if<\/p>\n
any, received by her if any defect was noticed in fixation of the higher grade.<\/p>\n
      7. But it is pointed out by the learned counsel for the respondent that<\/p>\n
such an undertaking was obtained as a “matter of routine”. He further submits<\/p>\n
that the department cannot have a case that the respondent was guilty of<\/p>\n
misrepresentation or fraud. The higher grade was fixed by the departmental<\/p>\n
officials pursuant to the pay revision of the year 1998. The said exercise was<\/p>\n
carried out by the department in the case of all employees drawing salary from<\/p>\n
the State. Therefore, it can never be said that the appellant was guilty of any<\/p>\n
misrepresentation or fraud.\n<\/p>\n
      8. In this context, learned counsel has invited our attention to a decision<\/p>\n
of their lordships of the Supreme Court in Syed Abdul Qadir and others v. State<\/p>\n
of Bihar<\/a> [2009 (3) SCC 475]. While trying to draw a parallel from the facts of<\/p>\n
the above case, learned counsel submits that the apex court had categorically<\/p>\n
held in the above decision that it would be unjust and improper to recover the<\/p>\n
so called excess amount drawn by an employee after a long period.<\/p>\n
      9. We have gone through the above judgment carefully. It is true that in<\/p>\n
the above case, a three judge bench of the apex court had made certain<\/p>\n
observations against recovery after lapse of a long period. But it can be seen<\/p>\n
from the above judgment, that the issue involved in that case revolved around<\/p>\n
interpretation of two rules which governed the field.          There was doubt<\/p>\n
W.A.No.798 OF 2010
\n                                     :: 4 ::\n<\/p>\n
regarding which rule was applicable. Two views were possible as regards the<\/p>\n
applicability of the rules. Moreover, the employees from whom recovery was<\/p>\n
sought to be effected had retired from service about 3= years ago. These<\/p>\n
aspects obviously persuaded their lordships to hold that in the peculiar facts<\/p>\n
and circumstances of the case, recovery was not warranted. While noticing<\/p>\n
that the excess amount paid was because of erroneous interpretation of the<\/p>\n
rule that was applicable to them, their lordships directed that no recovery be<\/p>\n
effected from the employees in that case. At the same time, the court observed<\/p>\n
that the relief against recovery is being granted by courts not because of any<\/p>\n
right vested in the employees, but in equity, exercising judicial discretion to<\/p>\n
relieve the employees from the hardship that will be caused if recovery is<\/p>\n
ordered. It was further held thus:\n<\/p>\n
      “But, if in a given case, it is proved that the employee had<\/p>\n
      knowledge that the payment received was in excess of what was<\/p>\n
      due or wrongly paid, or in cases where the error is detected or<\/p>\n
      corrected within a short time of wrong payment, the matter being<\/p>\n
      in the realm of judicial discretion, courts may, on the facts and<\/p>\n
      circumstances of any particular case, order for recovery of the<\/p>\n
      amount paid in excess.”<\/p><\/blockquote>\n
      10.   The apex court had referred to the following decisions in this<\/p>\n
context; Sahib Ram v. State of Haryana, Shyam Babu Verma<\/a> v. Union of India,<\/p>\n
Union of India v. M.Bhaskar, V.Gangaram<\/a> v. Director, Col. B.J.Akkara (Retd.) v.<\/p>\n
Govt. of India, Purshottam Lal Das<\/a> v. State of Bihar, Punjab National Bank v.<\/p>\n
Manjeet Singh and Bihar SEB<\/a> v. Bijay Bhadur.\n<\/p>\n
W.A.No.798 OF 2010
\n                                      :: 5 ::\n<\/p>\n<\/p>\n
      11. In State of Kerala v. Sasikala Devi and<\/a> another (2010 (3) KHC 13<\/p>\n
(DB) a Division Bench of this court has held that the State would be justified in<\/p>\n
effecting recovery of undue benefit obtained by its employees by way irregular<\/p>\n
grant of “double pay fixation” under Rule 28A. The Division Bench held that<\/p>\n
the power vested in this court under Article 226 of the Constitution of India<\/p>\n
cannot be exercised in favour of a person to retain an undeserving benefit that<\/p>\n
he had got.\n<\/p>\n
      12. In the case on hand, the period of service rendered by the teacher in<\/p>\n
a Government School before joining the Panchayat School could not have been<\/p>\n
tagged on for the purpose of reckoning higher grade at all. This position had<\/p>\n
been settled long time ago. The relevant provision in Rule 33 Part I KSR which<\/p>\n
we have referred to in the earlier part of this judgment is totally unambiguous.<\/p>\n
Moreover, this court had occasion to deal with the same issue and the position<\/p>\n
was settled in Writ Appeal No.337\/1992 referred to earlier. That being the<\/p>\n
position, it cannot be said that the respondent was unaware of the settled legal<\/p>\n
position.\n<\/p>\n
      13.     More importantly the respondent had admittedly given an<\/p>\n
undertaking that she would refund the excess, if any, received due to wrong<\/p>\n
fixation of higher grade. Obviously the departmental officials had committed<\/p>\n
the mistake due to oversight. The error that crept in while granting the higher<\/p>\n
grade was noticed by the Accountant General. It was thereafter that Ext.P1<\/p>\n
order was issued. It cannot be said that there was inordinate delay. In that<\/p>\n
W.A.No.798 OF 2010
\n                                       :: 6 ::\n<\/p>\n
view of the matter, we are satisfied that the direction issued by the learned<\/p>\n
Single Judge not to effect recovery from the respondent cannot be sustained.<\/p>\n
Therefore, the said direction is set aside.\n<\/p>\n
      14. However, it is brought to our notice that the respondent has been<\/p>\n
denied annual increments for the last five years. Similarly, she has not been<\/p>\n
given the benefit of pay revision also for the last five years, on the plea that she<\/p>\n
had filed the Writ Petition challenging Ext.P1 order. The stand taken by the<\/p>\n
departmental officials cannot be justified.\n<\/p>\n
      15. Therefore, it is directed that the department shall ensure that all the<\/p>\n
benefits like increment and consequential pay revision benefits are released to<\/p>\n
the petitioner with interest @ 9% as expeditiously as possible, at any rate,<\/p>\n
within three months from the date of receipt of a copy of this judgment. At the<\/p>\n
same time, it will be open to the department to rework the excess amount, if<\/p>\n
any, that has been paid to the respondent pursuant to the illegal grant of<\/p>\n
higher grade and recover the same from her in accordance with law.<\/p>\n
      Appeal is allowed to the above extent.\n<\/p>\n<\/p>\n
                                                          A.K.BASHEER, JUDGE<\/p>\n
                                                      P.Q.BARKATH ALI, JUDGE
\njes<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court State Of Kerala vs Vanajakumari on 7 October, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-147860","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nState Of Kerala vs Vanajakumari on 7 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-vs-vanajakumari-on-7-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Kerala vs Vanajakumari on 7 October, 2010 - 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