Anitha G Nair and Others v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 1[ST] DAY OF JUNE 2023 / 11TH JYAISHTA, 1945 ``` ## **`WP(C) NO. 17412 OF 2023`** ## **`PETITIONER/S:`** ``` 1ANITHA G NAIR AGED 53 YEARS H.M, SAHS KALLOORKAD RESIDING AT PRANAVAM, VELLOORKUNNAM MUVATTUPUZHA, PIN - 686673 2JESSY V.P AGED 61 YEARS UPST, HGCGHS THOTTAKKATTUKARA RESIDING AT EDAYALIL HOUSE, FARM ROAD KOZHUKKULLY P.O, THRISSUR, PIN - 680751 3BABY ELIZABETH MARY T.J AGED 49 YEARS LPST, IJLPS THUNDATHUMKADAV RESIDING AT THAIPARAMBU HOUSE THUNDATHUMKADAV VARAPUZHA, ERNAKULAM, PIN - 683517 4MINI GEORGE AGED 55 YEARS LPST, IJLPS THUNDATHUMKADAV RESIDING AT KALLUVEETTIL, PIZHALA ,KADAMAKUDY ERNAKULAM, PIN - 682027 5SALOMY JOSEPH.K AGED 53 YEARS LPST, SJLPS VARAPUZHA RESIDING AT IRUMPANATH HOUSE, 7/345 PIPE LINE-2ND REACH, VARAPUZHA ERNAKULAM, PIN - 683517 6MAREENA MINI A J AGED 53 YEARS LPST, SJLPS VARAPUZHA RESIDING AT ERATHARA HOUSE, THUNDATHUMKADAVU, VARAPUZHA, ERNAKULAM, PIN - 683517 7SABEENA N K AGED 51 YEARS UPST, SMHS ALUVA CHULLY HOUSE,MANJAPRA NADAMURI ,ERNAKULAM, PIN - 683581 8LIPSY CHIRAMEL ``` -2- W.P.(C). No. 17412 of 2023 ``` AGED 57 YEARS JR.HINDI TEACHER SMUPS MANJAPRA RESIDING AT PADAYATTY HOUSE KANJOOR, KIZHAKKUMBHAGAM ALUVA, PIN - 683575 9JAIMON P ITTERA AGED 53 YEARS H.S.T, SMHS ALUVA RESIDING AT PALATTY EDASSERRY HOUSE NEERUNGAL, KARUKUTTY ERNAKULAM, PIN - 683576 ``` ``` 10ANNE THARIAN AGED 61 YEARS LPST, SRLPS MANJAPRA. RESIDING AT KOTTEPPILLYKULY HOUSE KANJOOR, KIZHAKUMBAGAM ALUVA, PIN - 683575 11NIRMALA P P AGED 58 YEARS H.M SALPS NADUVATTAM RESIDING AT PARECATTIL HOUSE, KIDANGOOR P.O, ANGAMALI , ERNAKULAM, PIN - 683572 ``` - `12 KOCHUTHRESIA M K AGED 64 YEARS LPST, SALPS NADUVATTAM RESIDING AT ACHANDY HOUSE THIRUMUDIKKUNNU KORATTI KIZHAKKUMURI, THRISSUR, PIN - 680308` - `13 NAJEERA USSAN .K AGED 54 YEARS H.M GUPS KUTTIKATTUKARA RESIDING AT THALIRKATTU HOUSE, PUTHUPALLIAPRAM, CHANGAMPUZHA NAGAR, THRIKKAKARA ERNAKULAM, PIN - 682033` ``` 14JANET FEMINA FERNANDEZ AGED 51 YEARS LPST IJLPS THUNDATHUMKADAV RESIDING AT MANJADIPARAMBIL HOUSE EDAMPADAM, VARAPUZHA VTC, ERNAKULAM, PIN - 683517 15ANNIE BINDU V X AGED 50 YEARS LPST IJLPS THUNDATHUMKADAV RESIDING AT THOTTAKATH HOUSE KADAMAKUDY, CHITTOOR ERNAKULAM, PIN - 682027 ``` ``` 16FEBEENA SHARMILA D'CRUZ AGED 51 YEARS LPST, IJLP STHUNDATHUMKADAV. RESIDING AT PANAKKAL HOUSE, THUNDATHUMKADAVU VARAPUZHA, PIN - 683517 ``` -3- W.P.(C). No. 17412 of 2023 - `17 SHYAMALA P AGED 54 YEARS H.M CHEMANCHERY KOLAKKAD UPS RESIDING AT SREERAGAM KALATHIL HOUSE KOLAKKAD,CHEMANCHERI , KOZHIKODE, PIN - 673304` - `18 SALIMOL AUGUSTINE AGED 56 YEARS LPST, SJHS MANATHOOR RESIDING AT KANDIRICKAL MADAKKATHANAM VAZHAKULAM MUVATTUPUZHA, PIN - 686670` - `19 TESSYMOL ABRAHAM AGED 54 YEARS` - `H.M GLPS VELANILAM RESIDING AT PLAPPALLIL HOUSE 31-MILE, MUNDAKAYAM P.O, KOTTAYAM, PIN - 686513` - `20 M.C MARY AGED 63 YEARS P.D TEACHER GLPS KURUKKUNNAPURAM REIDING AT KALAKKUZHIYIL HOUSE EAST MARADY MUVATTUPUZHA ERNAKULAM, PIN - 686673` - `21 N.K MAHESWARY AGED 45 YEARS H.M, GKVLPS N- PARAVUR RESIDING AT NJATTUVEETTIL HOUSE, KUNNUKARA P.O ERNAKULAM, PIN - 683578` - `22 ASHAMOL AUGUSTHY AGED 53 YEARS P.D TEACHER GLPS VELANILAM RESIDING AT EDATHINAKAM HOUSE MUNDAKAYAM P.O, KOTTAYAM, PIN - 686513` ``` 23LEELA FRANCIS AGED 61 YEARS UPST, SMUPS MANJAPRA RESIDING AT PANANCHIKKAL HOUSE, MADHURIMA JUNCTION, MALAYATTOOR ERNAKULAM, PIN - 683587 24USHA VARGHESE AGED 58 YEARS H.M, SALPS KIZHAKKAMBALAM RESIDING AT NELLAL HOUSE, NEAR THAIKKARACHIRA DEVI TEMPLE, PULLUVAZHI ERNAKULAM, PIN - 683541 25SEBASTIAN T. C AGED 52 YEARS DRAWING TEACHER GOVT DVHSS CHARAMANGALAM RESIDING AT THEKKETHAIVELAKATHU HOUSE ARTHUNKAL, CHERTHALA ``` -4- W.P.(C). No. 17412 of 2023 - `SOUTH, ALAPUZH, PIN - 688530` - `26 PRASEEDA .S AGED 40 YEARS HST, VKVM NSS HS MANJOOR RESIDING AT 7/245 VARAPRADASDAM PINDIMANA KOTHAMANGALAM, PIN - 686692` - `27 SHAI .P. NAIR AGED 53 YEARS H.M, NSS HSS VARAPPETTY, RESIDING AT VARAPRADASDAM PINDIMANA KOTHAMANGALAM, PIN - 686692` - `28 BINDHU G AGED 53 YEARS P.D TEACHER GLPS KOLENCHERY MARIBHAGATHU HOUSE, KADAMATTAM P.O, KOLLENCHERRY, PIN - 682311` ``` BY ADVS. M.A.FAYAZ M.VISHNUPRIYA C.B.ABHINAVA ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REP BY ITS PRINCIPAL SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT, ANNEXII THIRUVANANTHAPURAM, PIN - 695001` - `2 THE DIRECTOR OF CENSUS OPERATION DIRECTORATE OF CENSUS OPERATIONS, KERALA CGO COMPLEX, PONKULAM, THIRUVANANTHAPURAM, PIN - 695522` - `3 THE DIRECTOR OF GENERAL EDUCATION O/O THE DIRECTOR OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM, PIN - 695014` - `4 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR O/O THE DEPUTY DIRECTOR OF EDUCATION 2ND FLOOR, CIVIL STATION, AYYANTHOL, THRISSUR, PIN - 680003` - `5 THE DEPUTY DIRECTOR OF EDUCATION ERNAKULAM O/O THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682030` - `6 THE DEPUTY DIRECTOR OF EDUCATION KOTTAYAM /O THE DEPUTY DIRECTOR OF EDUCATION, PALACE ROAD,` -5- W.P.(C). No. 17412 of 2023 ``` KOTTAYAM, PIN - 686001 ``` - `7 THE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA O/O THE DEPUTY DIRECTOR OF EDUCATION KODIVEEDU, ALAPPUZHA, PIN - 688001` - `8 THE DEPUTY DIRECTOR OF EDUCATION KOLLAM O/O THE DEPUTY DIRECTOR OF EDUCATION ELAMBALLOOR ROAD, THEVALLY NAGAR, KOLLAM, PIN - 691009` - `9 THE DEPUTY DIRECTOR OF EDUCATION IDUKKI O/O THE DEPUTY DIRECTOR OF EDUCATION DEO COMPLEX, THODUPUZHA, IDUKKI, PIN - 685504` - `10 THE DEPUTY DIRECTOR OF EDUCATION PATHANAMTHITTA O/O THE DEPUTY DIRECTOR OF EDUCATION THIRUVALLA, PATHANAMTHITTA, PIN - 689645` - `11 DEPUTY DIRECTOR OF EDUCATION KOZHIKODE O/O THE DEPUTY DIRECTOR OF EDUCATION MANANCHIRA P.O, KOZHIKODE, PIN - 673001` - `BY ADV GOVERNMENT PLEADER` ## **`OTHER PRESENT:`** ``` SMT.SURYA BINOY, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -6- W.P.(C). No. 17412 of 2023 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 17412 of 2023 ============================================================= Dated this the 1[st] day of June, 2023 ## **JUDGMENT** The above writ petition is filed with following prayers: _i. To call for the records leading to the issuance of Ext.P4 Order of the 1[st] respondent and set aside the same by issuing a Writ of Certiorari or other appropriate writ._ _ii. To declare that the petitioners herein are entitled to get earned leave surrender for 24 days for doing census duty during the period from 12.04.2010 to 27.05.2010._ _iii. To issue a Writ of Mandamus Directing the respondents to disburse the 16 days earned leave surrender recovery made from the petitioners with interest at 12% pa from the date of recovery till the actual date of payment._ _iv. To issue a Writ of Certiorari or any order or direction setting aside Ext P11 to the extent of excluding the petitioners from whom the amounts. have been recovered by the respondents._ _v. To dispense with the filing of translated copies of Exhibits produced in the above Writ Petition. AND_ -7- W.P.(C). No. 17412 of 2023 _vi. To grant such other reliefs or orders as this Hon'ble Court may deem fit and proper in the above case, and to award costs.” (sic)_ 2. When this writ petition came up for consideration, the learned counsel for the petitioners submitted that the point raised in this writ petition is covered in favour of the petitioner in Exts.P10 and P13 judgment. It is also submitted that the Government already ordered to repay the amount to the applicant in OA No.1706 of 2021, which was pending before the Kerala Administrative Tribunal. Moreover, in Ext.P10 judgment, this Court observed as follows: _“15. I am afraid that this stand in the aforementioned Government Order cannot appeal to this Court at all since; for one, there is no reason shown in said order as to how Government concludes that the enumeration ought to have been completed within a period of 16 days, when it really took 49 days; and that for the second, it does not show how recovery is possible, particularly because the objected benefits had been granted to the petitioners under valid orders and no fault can be cited against them._ _16. That apart, as rightly stated by the learned counsel for the petitioners, the Government itself issued an order dated 14.05.2013 (Ext.P10 in W.P.(C)No.9205 of 2020 and Ext.P6 in 25514 of 2020), whereby, its instructions to_ -8- W.P.(C). No. 17412 of 2023 _effect recovery had been withdrawn. There is nothing on record to show that the subsequent order had been vacated; and as matters now stand, it appears that Government has not insisted on any recovery based on its earlier order._ _In the above circumstances, I allow these writ petitions and set aside the impugned orders; with a consequential direction to the competent respondent to ensure that all the service and retiral benefits of the petitioners are granted to them de hors the orders impugned in these writ petitions._ _The afore exercise shall be done by the competent Authority, as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment.”_ 3 In the light of the above judgment, the petitioners are entitled refund of the amount recovered. Therefore, this writ petition is allowed in the following manner: 1. Respondents are directed to refund the amount already paid by the petitioners, as expeditiously as possible at any rate within four months from the date of receipt of a certified copy of this judgment. -9- W.P.(C). No. 17412 of 2023 2. The petitioners will produce a stamped certified copy of this judgment before the respondents for compliance. 3. The question of interest for the delay is left open. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -10- W.P.(C). No. 17412 of 2023 ## **`APPENDIX OF WP(C) 17412/2023`** ``` PETITIONER EXHIBITS ``` - `Exhibit P1 TRUE COPY OF G.O(RT) NO 2851/2010/G.EDN DATED 30.06.2010` - `Exhibit P2 TRUE COPY OF G.O(MS)NO. 171/2010/GAD DATED 30/4/2010` - `Exhibit P3 TRUE COPY OF LETTER NO T-CG/2/119/2010 DATED 16.11.2010 ISSUED BY THE DIRECTOR OF DIRECTORATE OF CENSUS OPERATION` - `Exhibit P4 TRUE COPY OF G.O(P) NO 142/2013/G.EDN DATED 20.4.2013 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P5 TRUE COPY OF THE LETTER NO 42076/G3/2010/G.EDN DATED 14.05.2013 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P6 TRUE COPY OF THE LETTER NO K2/14836/2016 DATED 27.09.2018 ISSUED BY THE DDE KOTTAYAM` - `Exhibit P7 TRUE COPY OF LETTER NO.H2/51728/2010/DGE DATED 15.07.2019` - `Exhibit P8 TRUE COPY OF THE CHALLAN ISSUED BY THE SUB TREASURY KALLOORKAD TO THE 1ST PETITIONER` - `Exhibit P9 TRUE COPY OF LETTER NO B6/8225/2018 DATED 17.10.2018 ISSUED BY THE DEO KOTTAYAM` - `Exhibit P10 TRUE COPY OF THE JUDGMENT IN W.P(C)NO 25514/2020 DATED 31.03.2021` - `Exhibit P11 TRUE COPY OF G.O(MS) NO 290/2021/G.EDN DATED 30.12.2021` - `Exhibit P12 TRUE COPY OF G.O(RT) NO.8278/ 2022/G.EDN DATED 21.12.2022` - `Exhibit P13 TRUE COPY OF THE JUDGMENTS IN W.P(C)NO.2347/2023 DATED 14.02.2023`