Anoop V.P. and Others v. State of Kerala and Others

**WP(C) NO. 25696 OF 2020** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943** ## **WP(C) NO. 25696 OF 2020** ## **PETITIONER/S:** 1 ANOOP V.P., AGED 41 YEARS S/O.PUSHKARAN, HIGH SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513, (RESIDING AT VELIYATHUPARAMBIL (H), MOOTHAKUNNAM P.O., ERNAKULAM-683516. 2 SHIBU N.D. HIGH SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. 3 JAIDEEP C.S. UPPER PRIMARY SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. 4 SUJATHA C.S. UPPER PRIMARY SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. 5 DEEPTHI K.S. HIGH SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. 6 SUNITHA VENUGOPAL, HIGH SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. 7 DIVYA K.I. HIGH SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. 8 MANJU E.P. UPPER PRIMARY SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. 9 RENA RAVINDRAN, HIGH SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. 10 PREETHA K.P. HIGH SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, **WP(C) NO. 25696 OF 2020** **2** ERNAKULAM DISTRICT-683 513. 11 MANJU N.S. UPPER PRIMARY SCHOOL TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. 12 NIMNA T.P. LG SANSKRIT TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. 13 LACTODAS K.V., LG HINDI TEACHER, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. BY ADV G.VIDYA ## **RESPONDENTS :** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXURE II, THIRUVANANTHAPURAM-695 001. 2 THE DIRECTOR OF CENSUS OPERATION, DIRECTORATE OF CENSUS OPERATIONS, KERALA, CGO COMPLEX, PONKULAM, THIRUVANANTHAPURAM-695 522. 3 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014. 4 THE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD, ERNAKULAM-682 030. 5 THE DISTRICT EDUCAITONAL OFFICER, ALUVA, ERNAKULAM DISTRICT-683 101. 6 THE HEADMASTER/HEAD MISTRESS, SNV SKT HSS, NORTH PARAVUR, ERNAKULAM DISTRICT-683 513. SMT. NISHA BOSE, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 25696 OF 2020** **3** ## **JUDGMENT** The petitioners herein are aided school teachers serving in the Lower Primary, Upper Primary, High School and Higher Secondary sections under 6th respondent, under the administrative jurisdiction of the 4th respondent. They have approached this Court being aggrieved by the order issued by the respondents directing them to return the amounts paid to them for undertaking the enumerator work in connection with the preparation of the National Population Register (NPR) on the ground that they had been granted Higher Earned Leave than what was eligible to them. 2. It is the case of the petitioners that they are aided school teachers (Vacation Department). They contend that they had undertaken the enumerator work in connection with the preparation of the NPR on the basis of the list prepared by the District Administration. It is their contention that they had attended 3 days of Census training and 49 days Census duty during vacation. The Tahsildar, Paravur, issued Ext.P1 duty certificate and based on the same, 24 days earned leave was granted. It is contended that the leave was granted as aforesaid based on Ext.P3 Government Order. The petitioner contends that after about 10 years from the date of grant of leave, Ext.P4 letter was issued by the 4th respondent directing the 5th respondent to initiate steps to recover the excess amount paid towards earned leave **WP(C) NO. 25696 OF 2020** **4** surrender. The petitioner contends that Ext.P4 was issued purportedly on the basis of an audit report of the Accountant General. The petitioner contends that though on 20.4.2013, the Government had come out with Ext.P8 Government Order, immediately thereafter by Ext.P9, Ext.P8 was ordered to be kept in abeyance. The petitioner contends that insofar as teachers and other staff in departments other than vacation departments are concerned, the Government has issued Ext.P10 order ordering that the period of Census duty cannot be surrendered by them for obtaining earned leave. The petitioner contends that this was clarified by the 2nd respondent in Ext.P11 letter dated 16.11.2010. The petitioner contends that without taking note of implications of Ext.P8 and P11 orders, Ext.P4 has been issued to the petitioners. The petitioners contend that the teachers from Kottayam district had approached this Court and by judgment dated 22.3.2021, this Court had set aside the orders as per which, recovery was ordered and the respondents were directed to ensure that all service and retiral benefits of the petitioners therein are disbursed. It is in the afore circumstances that the petitioners are before this Court seeking the following reliefs: (i) issue a writ of certiorari or any other appropriate writ or order to call for the records relating to Exhibits P4, P5, P6 and P7 and set aside the same. (ii) Issue a writ of mandamus or any other appropriate writ or order declare that the Exhibit P10 is not applicable to the petitioners. iii) Issue a writ of mandamus or any other appropriate writ or order direct the 4th and 5th respondents to stay all further proceedings of **WP(C) NO. 25696 OF 2020** **5** Exhibits P4 and P5. iv) Issue a writ of mandamus or any other appropriate writ or order direct the 3rd respondent to declare that the earned leave surrender sanctioned to the petitioners based on Exhibit P3 is legal and valid. 3. I have heard Smt.Vidya.G, the learned counsel appearing for the petitioners and Smt. Nisha Bose, the learned Senior Government Pleader. 4. I have considered the submissions advanced and have perused the records. 5. The materials placed on record reveals that the petitioners were engaged as enumerators and after undergoing training, they had conducted house listing and housing census operations in connection with the preparation of NPR from 12.04.2010 to 27.05.2010. At the time of engaging the petitioners as enumerators, they had been granted the benefit of earned leave as per the relevant provisions of Part I of the KSR. There is no case for the respondents that any benefit was obtained by the petitioners on account of any fault or error or reasons that can be attributed to him/her so as to initiate recovery of the amount which is stated to have been paid in excess. 6. I find that an identical issue was raised by teachers in various schools under the Education Department in Ernakulam District and a learned Single Judge of this Court relying on the declaration of law in State of Punjab v. Rafiq Masih (White Washer) (2015(4)SCC 334)had interfered with the **WP(C) NO. 25696 OF 2020** **6** orders passed by the Deputy Director. While disposing of the writ petition, this Court had occasion to observe as follows in paragraph Nos. 8 to 13 of the judgment in W.P.(C) No. 9205/2020. “8. The petitioners specifically contend that they had been engaged as Enumerators in the year 2010 and they had been given the benefit of earned leave as per Rule 81 of Part I KSR; and that this was offered to them on the strength of valid orders, without any misrepresentation or reasons that can be attributed against them. 9. They say that, therefore, merely because Government now says that the process of Enumeration could have been done in 16 days and therefore, that teachers are entitled only to 8 days of earned leave, the Deputy Director could not have recovered any amount from them on such basis. 10. They say that this is more so because the Government themselves have issued an order dated 14.05.2013, freezing their earlier order directing recovery; and that this is still in force. 11. As a corollary adjunct to the afore contentions, petitioners say that even if any recovery is possible, the same is impermissible at this time on account of the ratio of the Hon'ble Supreme Court in Rafiq Masih (Supra) and that therefore, the impugned orders be set aside. 12. There can be no doubt that the ratio in Rafiq Masih (Supra) is unmistakable that unless a benefit has been obtained by an employee on account of any fault or error or reasons that can be attributed to him/her, such recovery is not possible after more than eight or nine years, as has been attempted in this case. **WP(C) NO. 25696 OF 2020** **7** 13. The declarations in Rafiq Masih (Supra) make it further indubitable that the recovery ordered against persons who are nearing retirement, with respect to benefits that were given to them under valid and legal orders, cannot be recovered merely on the ground that such sanctions were in error at the time when they were issued.” I respectfully concur with the observations and findings of the learned Single Judge. In that view of the matter, the petitioners are entitled to succeed. Ext.P4 to P7 will stand quashed. It is held that the earned leave surrender sanctioned to the petitioners on the strength of Ext.P3 is legal and valid. This writ petition is accordingly disposed of. There will be no order as to costs. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** IAP **WP(C) NO. 25696 OF 2020** **8** ## **APPENDIX OF WP(C) 25696/2020** PETITIONER(S) EXHIBITS : EXHIBIT P1 THE TRUE COPY OF THE DUTY CERTIFICATE OF 2ND PETITIONER DATED 12.08.2010. EXHIBIT P2 THE TRUE COPY OF THE RELEVANT PAGE OF SERVICE BOOK OF THE 2ND PETITIONER SANCTIONING OF EARNED LEAVE. EXHIBIT P3 THE TRUE COPY OF THE GOVERNMENT ORDER DATED 30.06.2010. EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 21.01.2020. EXHIBIT P5 THE TRUE COPY OF THE COVERING NOTES DATED 17.02.2020. EXHIBIT P6 THE TRUE COPY OF THE LETTER DATED 02.03.2020. EXHIBIT P7 THE TRUE COPY OF THE LETTER ISSUED TO THE 6TH RESPONDENT DATED 18.09.2020. EXHIBIT P8 THE TRUE COPY OF THE GOVERNMENT ORDER DATED 20.04.2013. EXHIBIT P9 THE TRUE COPY OF THE GOVERNMENT LETTER DATED 14.05.2013. EXHIBIT P10 THE TRUE COPY OF THE GOVERNMENT ORDER DATED 30.04.2010. EXHIBIT P11 THE TRUE COPY OF THE LETTER DATED 16.11.2010. EXHIBIT P12 TRUE COPY OF THE INTERIM ORDER IN WPC NO.34624/2019 DATED 17.12.2019. RESPONDENT(S) EXHIBITS : NIL