Alpho Varghese Pellisserry v State of Kerala and Others

**WP(C) NO. 11557 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA, 1944 WP(C) NO. 11557 OF 2021** ## **PETITIONER/S:** ALPHO VARGHESE PELLISSERRY HOUSE, MANNAMPETTA, VATTANATHARA P.O., THRISSUR-680 302. BY ADVS. MATHEW B. KURIAN K.T.THOMAS ## **RESPONDENT/S:** 1 STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE, THIRUVANANTHAPURAM-695 001. 2 DEPUTY DIRECTOR OF EDUCATION, OFFICE OF DEPUTY DIRECTOR OF EDUCATION, THRISSUR-680 020. 3 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF DISTRICT EDUCATIONAL OFFICER, IRINJALAKKUAD, THRISSUR-680 121. 4 THE MANAGER, PCG HIGH SCHOOL, VELLIKULANGARA, THRISSUR-680 684. **WP(C) NO. 11557 OF 2021 2** 5 THE HEADMISTRESS, PCG HIGH SCHOOL, VELLIKULANGARA, THRISSUR-680 684. BY ADV SMT. ANIMA M, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 11557 OF 2021** **3** ## **JUDGMENT** While working as a High School Teacher (Maths) in the PCG High School, Vellikulangara, the petitioner attained superannuation on 30.04.2021. This writ petition is filed by the petitioner herein, being aggrieved by the cancellation of the pay fixation after 32 years and the further direction to refund a sum of Rs.4,00,416/- which allegedly was paid in excess. 2. The brief facts of the case are as under: a) The petitioner states that she was initially appointed as a High School Teacher (Maths) in a short-term vacancy for the period from 22.09.1988 to 23.12.1988 in the St. Antony’s Girls High School, South Tanissery. The respondents approved the said appointment. Later, the petitioner was appointed in the leave vacancy for the period from 03.01.1989 to 31.03.1989 in St. Antony’s Girls High School, South Tanissery, which also stands approved. The petitioner states that though she joined duty on 03.01.1989, she had to avail leave for the **WP(C) NO. 11557 OF 2021** **4** period from 25.01.1989 to 22.02.1989, as she was laid up with viral fever. The petitioner asserts that she is entitled to Leave Without Allowance for which she submitted Ext.P2 application for leave in terms of Rule 113 of Part I of the KSR, which was duly granted. The petitioner has placed on record Exts.P3 and P4 medical certificates issued from the Primary Health Centre, Muppliyam, to substantiate that the absence of duty for a period of 29 days was absolutely necessary for the restoration of her health. b) According to the petitioner, she was later appointed in a leave vacancy, and the said appointment was also approved. Thereafter with effect from 05.06.1995, the petitioner was appointed as HST (Maths) in a regular vacancy, and the same stands approved. The petitioner states that the pay scale was fixed, and the grades were sanctioned, taking note of the approved short-term appointment as well. The petitioner completed 10 years of service on 09.08.2002, and she was granted a higher grade. When she completed 16 years of service on 11.08.2008, she was granted senior grade. The petitioner completed **WP(C) NO. 11557 OF 2021** **5** 22 years of service on 10.08.2014, and the 3rd respondent, as per proceedings dated 06.11.2014, sanctioned selection grade with effect from 01.10.2014 to the petitioner. To substantiate the same, the petitioner has placed on record Ext.P5 pay fixation statement along with the approval order. c) The petitioner states that in connection with the retirement of the petitioner herein, the service book of the petitioner was audited by the 2nd respondent. The 2nd respondent, after evaluating the records, took the view that leave cannot be granted for short-term appointments as per Appendix VIII Rule 1 of the KSR, and directions were issued to refix the salary after excluding the period from 25.01.1989 to 22.02.1989, which was availed as medical leave by the petitioner. d) In terms of the directions issued by the 2nd respondent, the 5th respondent has refixed the salary, and the petitioner was held liable to refund an amount of Rs.4,00,416/- to the Government. e) Being aggrieved by the cancellation of grades, the petitioner **WP(C) NO. 11557 OF 2021** **6** approached the Government and filed Ext.P9 representation as early as on 05.04.2021. When no action was taken, the petitioner approached this Court, seeking directions. 3. In the counter affidavit filed by the 3rd respondent, it is stated that during pay fixation admission, the Deputy Director of Education raised an objection with regard to the leave vacancy appointment for the period from 3.1.1989 to 31.3.1989 and directions were issued to exclude that period of service for the purpose of calculation of service benefits. Directions were also issued to refix the pay and to refund the excess amount. In terms of Appendix VIII Rule 1 of KSR Part-1, no leave can be granted for short-term appointments. For employees appointed for one year or less in the vacation department, continuous leave is not admissible. It is further stated that if during short-term appointments, an employee takes leave, he/she will be terminated from service, but by mistake, the appointment was approved. It is stated that though the petitioner was appointed as HST (Maths) in a regular vacancy with effect from 5.6.1995, it was by mistake that the entire service benefits were sanctioned, including for the appointment in the leave vacancy for **WP(C) NO. 11557 OF 2021** **7** the period from 3.1.1989 to 31.3.1989. 4. Sri. KT Thomas, the learned counsel appearing for the petitioner, submitted that Ext.P6 order was issued without affording an opportunity of being heard to the petitioner. According to the learned counsel, under Rule 88 of Part I of the KSR as it stood then, LWA could be granted in special circumstances when (a) no other leave is by rule admissible (b) when other leave is admissible, but the officer concerned applies in writing for the grant of Leave Without Allowance. It is also stated therein that except in the case of an officer in permanent employment, the duration of leave without allowance shall not exceed three months on any one occasion. The learned counsel would further contend by relying on Rule 1 in Appendix VIII of Part I and II of the KSR and it is argued that in case of limited period appointments, a total period of 30 days can be claimed during the term of service as leave on production of medical certificate. The learned counsel would also rely on the law laid down by this Court in Maya v. State of Kerala [2000 KHC 688], and it is argued that even temporary appointees appointed under Rule 9(a) (i), are entitled to leave without allowance for a period not exceeding three months. The learned counsel **WP(C) NO. 11557 OF 2021** **8** urged that when the respondents have no case that the higher grade was granted and amounts were disbursed due to any misrepresentation on the part of the petitioner, no steps could have been taken to recover the excess amount alleged to have been disbursed. Relying on the principles laid down in State of Punjab v. Rafiq Masih (White Washer) [(2014) 8 SCC 883], as clarified in High Court of Punjab and Haryana and Ors. v. Jagdev Singh [(2016) 14 SCC 267], and M.P.Medical Officers Association v. State of M.P. and Ors. [judgment dated 26.8.2022 in Civil Appeal No. 5527/2022], it is contended that it would be iniquitous to permit recovery of excess payment made to an employee like the petitioner herein, particularly when the amounts were disbursed strictly in tune with the Government Orders. 5. The learned Government Pleader has reiterated the contentions in the counter. 6. I have considered the submissions and have gone through the records. 7. The records reveal that the objection now raised by the respondents is with regard to the grant of leave without allowance for the period from **WP(C) NO. 11557 OF 2021** **9** 25.1.1989 to 22.2.1989, while she was working in a leave vacancy. Holding that the said period ought to have been excluded from service benefits, directions were issued to refix the pay and refund a sum of Rs.4,00,416/- to the Government. ## 8. Rule 88, as it stood then, reads as follows: - "88. Leave without allowances:- (i) Leave without allowances may be granted to any officer in special circumstances - - (a) when no other leave is by rule admissible, or - (b) when other leave is admissible but the officer concerned applies in writing for the grant of leave without allowances. - (ii) Except in the case of an officer in permanent employment, the duration of leave without allowances shall not exceed 3 months on any one occasion." ## 9. Appendix VIII Rule 1 of Part I and II KSR reads thus: 1. Where the appointment is for one year or less, earned leave on full pay calculated at 1/11th of the period spent on duty may be granted subject to a maximum of 15 days on production of medical certificate. If earned leave has been exhausted, leave on medical certificate, on half pay upto 15 days may be granted subject to the condition that the total period of the two kinds of leave does not exceed one month in the officer's term of service. **WP(C) NO. 11557 OF 2021** **10** If the officer serves in a vacation department, earned leave will not be admissible; but he may be granted, if absolutely necessary leave on medical certificate on half pay not exceeding 1/11th of the time spent on duty, subject to a maximum of 15 days during the officer's term of service. 10. The specific contention of the respondents is that the petitioner having been appointed in a leave vacancy from 3.1.1989 to 31.3.1989, she could not have been granted leave in view of Rule 1 of Appendix VIII and therefore, the service benefits granted to the petitioner which include the appointment of leave vacancy was irregular and was mistakenly granted. 11. A reading of Appendix VIII and Note I below Rule 63 of Part I of KSR would reveal that Appendix VIII deals with persons who have been described as officers appointed for limited periods. As reiterated above, sub rule (ii) of Rule 88 specifically says that except in the case of an officer in permanent employment, the duration of leave without allowances shall not exceed three months on any one occasion. It appears that Rule 88 was amended with effect from 11.5.2000 and “any officer” was substituted with “any officer in regular employment” and it was without taking note of this aspect that objections were **WP(C) NO. 11557 OF 2021** **11** raised and a refund was ordered. This Court in Maya (Supra) had held, after evaluating the provisions of the Rules, that persons who are appointed temporarily are also entitled to leave without allowance not exceeding three months. 12. Furthermore, admittedly, the petitioner has attained superannuation on 30.4.2021. The objection raised by the respondents is with regard to sanctioning of leave for the period from 25.1.1989 to 22.2.1989. The respondents contend that by mistake, the service benefits were sanctioned to the petitioner by counting the said period as well. In Rafiq Masih (Supra), the Apex Court had occasion to postulate the situations of hardship that would govern employees on the issue of recovery, where payments have mistakenly been made by the employer in excess of his entitlement. After balancing the conflicting claims and the hardship likely to be caused, the Hon’ble Supreme Court summarized the situations wherein recovery of the amounts by the employers would be impermissible under law. It was held as follows in paragraph No. 18 of the judgment. 18. It is not possible to postulate all situations of hardship which **WP(C) NO. 11557 OF 2021** **12** would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. 13. There is no case for the respondents that there was any misrepresentation or fraud on the part of the petitioner. As held by the Apex Court, when payments have been made for a long duration of time, the logic of **WP(C) NO. 11557 OF 2021 13** recovery of the excess amount paid would be iniquitous, arbitrary, and violative of Article 14 of the Constitution of India. There cannot be any doubt that it would be next to impossible for a person such as the petitioner to bear the financial burden of a refund of payment received for a long period as she would have spent the emoluments that she would have received for the upkeep of her family under the bonafide belief that she is entitled to the said amount. I am of the considered opinion that calling upon the petitioner to refund any amount would be iniquitous. In view of the discussion above, the petitioner is entitled to succeed. Ext.P6 will stand quashed. There will be a direction to the respondents to release the retirement benefits due to the petitioner as originally fixed. Appropriate orders shall be passed and amounts disbursed within eight weeks from the date of receipt of a copy of this judgment. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** NS **WP(C) NO. 11557 OF 2021** **14** ## **APPENDIX OF WP(C) 11557/2021** PETITIONER(S) EXHIBITS : Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 3.1.1989 ISSUED BY 4TH RESPONDENT ALONGWITH ORDER OF APPROVAL DATED 27.4.1989 OF 3RD RESPONDENT Exhibit P2 TRUE COPY OF THE APPLICATION FOR LEAVE DATED 25.1.1989 SUBMITED BY PETITIONER Exhibit P3 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 25.1.1989 ISSUED BY PRIMARY HEALTH CENTRE, MUPLIYAM Exhibit P4 TRUE COPY OF THE CERTIFICATE DATED 23.2.1989 ISSUED BY PRIMARY HEALTH CENTRE, MUPLIYAM Exhibit P5 TRUE COPY OF THE PAY FIXATION STATEMENT ALONG WITH APPROVAL ORDER DATED 6.11.2014 OF 3RD RESPONDENT Exhibit P6 TRUE COPY OF THE ORDER DATED 10.3.2021 ISSUED BY 2ND RESPONDENT Exhibit P7 TRUE COPY OF THE STATEMENT SHOWING EXCESS DRAWAL OF PAY OF PETITIONER Exhibit P8 TRUE COPY OF NTHE STATEMENT SHOWING FIXATION OF PAY OF PETITIONER Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED 5.4.2021 SUBMITTED BY PETITIONER RESPONDENT(S) EXHIBITS : NIL