A.S. Beena v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **WP(C).No.14589 OF 2014(W)** ## **PETITIONER/S:** **A.S. BEENA, AGED 57 YEARS, WIFE OF SADANANDAN,** **HIGH SCHOOL ASSISTANT (NATURAL SCIENCE)(RETIRED), S.N.V. HIGHER SECONDARY SCHOOL, ALOOR, THRISSUR DISTRICT (RESIDING AT THATHAMPILLY HOUSE, THAZHAKKAD, IRINJALAKUDA, THRISSUR DISTRICT)** **BY ADVS. SRI.V.A.MUHAMMED SRI.V.RAJASEKHARAN NAIR** ## **RESPONDENT/S:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM - 695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR AT AYYANTHOLE - 680 003.** - **4 THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT-680 121.** - **5 THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURAM-695 039** - **6 THE MANAGER, S.N.V. HIGHER SECONDARY SCHOOL, ALOOR, THRISSUR DISTRICT - 680 683** **BY ADVS.** - **R1 TO R5 - SRI. JESTIN MATHEW, GOVERNMENT PLEADER R6 - SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI** **W.P.(C)No.14589 of 2014** **2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.14589 of 2014** **3** ## **JUDGMENT** This writ petition is filed by the petitioner who is a retired High School Assistant (H.S.A) (Natural Science) from S.N.V Higher Secondary School, Aloor, an aided school in Irinjalakuda Educational District, seeking to quash Exts.P2 and P3, directing the petitioner to repay the excess amount paid to the petitioner towards salary, failing which, recovery action is comprehended against the petitioner. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner retired from service on 31.03.2011. According to the petitioner, the Deputy Director of Education, Thrissur and the Accountant General had verified the pay fixations of the petitioner till retirement and the pensionary benefits due to the petitioner were released, evident from Ext.P1. But the revised pensionary benefits due to the petitioner on the basis of 2009 Pay Revision order have not been released on the reason that the period from 12.01.1988 to 04.02.1988 is not reckonable for higher grade granted from 31.07.1990 and 23 years grade sanctioned from 3.07.2003 and hence the grade fixation are to be revised on the basis of an objection dated 20.12.2011 **W.P.(C)No.14589 of 2014** **4** of the Deputy Director of Education, Thrissur, evident from Ext.P2. 3. According to the petitioner, petitioner was granted leave not due for 24 days from 12.01.1988 to 04.02.1988 under Rule 85 of Part-I Kerala Service Rules (K.S.R). Later, during the year 2005, the sanction of leave not due for the aforesaid period was objected for the reason that petitioner was not continued and hence the excess salary drawn for the period from 12.01.1988 to 04.02.1988 was re-fixed treating the period as Leave Without Allowances other than on Medical Certificate, evident from Ext.P3. Case of the petitioner is that, the objection in granting grade from 31.07.1990 and from 30.07.2003 was raised only on 20.12.2011 i.e., much after her retirement. 4. Therefore, as per Rule 3(C) Part-III K.S.R., recovery of excess payment made to an officer by mistake beyond a period of 4 years prior to his retirement cannot be done. Therefore, the case projected by the petitioner is that, Ext.P2 and the consequential orders to recover the amount from the petitioner cannot be sustained under law. It is also submitted that, the satisfactory completion of the period of probation of the petitioner in the cadre of **W.P.(C)No.14589 of 2014 5** H.S.A was declared on 13.08.1981, and hence as per Rule 41 of Chapter XIV-A K.E.R., she is deemed to have been confirmed in the cadre of H.S.A. Hence, she is entitled for leave not due from 12.01.1988 to 04.02.1988 under Rule 85 of Part-I K.S.R. Therefore, the conversion of her leave not due to leave without allowances other than on Medical Certificate is illegal, unjust and unsustainable. 5. Even though petitioner has submitted a representation before the Deputy Director of Education, Thrissur, requesting to release her sanctioned pensionary benefits such as revised pension, revised gratuity and revised commutation on the basis of 2009 Pay Revision, it was not considered. Thereupon, petitioner has submitted Ext.P5 representation before the State Government, which was also not taken into account. However, later, Government have declined Ext.P5 as per Ext.P7 order and thereafter steps are taken to recover the amount from the petitioner. 6. The 3[rd] respondent, i.e., the Deputy Director of Education, Thrissur has filed a detailed counter affidavit, refuting the claims raised by the petitioner and also justifying the stand adopted by the educational authorities and the State Government. **W.P.(C)No.14589 of 2014** **6** Among other contentions, it is stated that, the revised pensionary benefits due on the basis of 2009 Pay Revision was not released to the petitioner for the reason that petitioner was granted leave not due for 24 days under Rule 85 of Part-I K.S.R., which was later objected for the reason that petitioner was not confirmed in service. Hence the excess salary drawn for that period is later treated as Leave Without Allowances other than on Medical Certificate, and directed to refund the amount. 7. Petitioner's pay was fixed at Rs.14,370/- with effect from 01.07.2014 under 2004 Pay Revision in the scale of pay of Rs.10790-18000 and the same has been admitted by the 3[rd] respondent prior to her retirement. Ext.P1 is issued by the 5[th] respondent in order to release pensionary benefits of the petitioner based on the pension proposal submitted by the petitioner. In the meanwhile, Government introduced 2009 Pay Revision with effect from 01.07.2009 as per Government Order dated 26.02.2011. Accordingly, the pay fixation of the petitioner was revised as per 2009 Pay Revision with effect from 30.07.2009 by the 4[th] respondent on the basis of option exercised on 15.06.2011 by the petitioner after her retirement. Thereafter, it was **W.P.(C)No.14589 of 2014** **7** sent to the 3[rd] respondent for verifying and admitting the pay fixation of the petitioner in order to get pay arrears and pensionary benefits. 8. It was scrutinizing the pay fixation done after the retirement of the petitioner, it was noticed by the 3[rd] respondent that the petitioner availed leave without allowances on private affairs for the period from 12.01.1988 to 04.02.1988 and the said period has been reckoned for weightage of 2009 pay revision and allowed weightage of 29 years instead of 28 years, which is after her retirement. It was thereupon that 3[rd] respondent directed to regularize 2009 Pay Revision by excluding the period of L.W.A, which is reckoned for the weightage and instructed to exclude L.W.A period from higher, selection grade through Audit Enquiry No.44 _vide_ letter No.E3-17385/11. Therefore, in order to have an expeditious settlement to audit objection, the Deputy Director of Education, Thrissur has conducted an Adalath at the office of the District Educational Officer, after serving notice to the petitioner and the petitioner attended the same. In the said Adalath, the pay of the petitioner had been regularized as directed and regularized pay fixation of the petitioner had been admitted by the Deputy Director **W.P.(C)No.14589 of 2014** **8** of Education, on condition that the excess drawn from the Government due to erroneous pay fixation amounting to Rs.3,18,147/- to be recovered from revised pensionary benefits. 9. It is also the case of the Government that as per Rule 85 of Part-I K.S.R., the leave not due is admissible only to the incumbents who got confirmation to the appointment and post. However, in the case of the petitioner, she did not get confirmation in the appointment and post from the departmental authorities till date. It was with the intention to drop the said audit objection, the leave not due for 24 days from 12.01.1988 to 04.02.1988 was converted to leave without allowances on private affairs for 24 days. Thereafter only, petitioner has exercised her option on 15.06.2011, i.e., after the retirement from service for electing 2009 pay revision with effect from 30.07.2009. That apart, it is submitted that, as per Ext.R3(a) Form of Option dated 15.06.2011, petitioner has undertaken and agreed to refund the excess pay and allowances, if any, drawn by her, in case it is found so later. Therefore, it is submitted that, the decision taken by the Government as per Ext.P7 order dated 24.07.2015 is in accordance with law. **W.P.(C)No.14589 of 2014** **9** 10. I have heard learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the Manager of the school, and perused the pleadings and the documents on record. 11. Even though contentions are advanced by learned counsel for the petitioner in respect of 24 days leave not due availed by the petitioner, in my considered opinion, the said issue was considered by the Government on the basis of the factual circumstances and taking into account Rule 85 of Part-I K.S.R. It is clearly found thereunder that the service of the petitioner during the period of 24 days from 12.01.1988 to 04.02.1988 was not in terms of law, and therefore, petitioner is not entitled to get the benefit of leave not due, and on understanding the said situation alone, it was converted to Leave Without Allowances on private affairs for 24 days availed by the petitioner. It is also clear that, petitioner has undertaken as per Ext.R3(a) Form of Option dated 15.06.2011 that, in the event of any excess payment effected, the same shall be refunded by the petitioner. 12. Learned counsel for the petitioner has invited my attention to the judgment of the apex court in ' _**Aleyamma Varghese v. Secretary, General Education**_ **W.P.(C)No.14589 of 2014** **10** _**Department**_ ' [2007 (3) KLT 700 (SC)], wherein recovery initiated against a teacher was interfered with by the apex court. However, I find that interference was made by the apex court, since the claim was raised 17 years after the retirement of the teacher. Learned counsel has also invited my attention to the judgment of the apex court in ' _**State of Punjab v. Rafiq Masih (White Washer)**_ ' [2015 (1) KLT 429 (SC)], wherein the apex court has considered the question with respect to recovery of amounts excessively paid to the workers, and held as follows in paragraph 12: _“_ _**12** . It is not possible to postulate all situations of hardship, which 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 herein-above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:_ _“(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service)._ _(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery._ _(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued._ **W.P.(C)No.14589 of 2014** **11** _(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. Therefore, according to the petitioner, petitioner will come under category (ii) thereunder, i.e., recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. However, the judgment in ' _**Rafiq Masih'**_ ( _supra_ ) was explained by the apex court in ' _**High Court**_ _**of Punjab and Haryana v. Jagdev Singh**_ ' [(2016) 14 SCC 267] and held as follows in paragraphs 10 and 11: _“_ _**10** . In State of Punjab v. Rafiq Masih, this Court held that while it is not possible to postulate all situations of hardship where payments have mistakenly been made by an employer, in the following situations, a recovery by the employer would be impermissible in law: (SCC pp. 334-35)._ _(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service)._ _(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery._ _(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued._ **W.P.(C)No.14589 of 2014** **12** _(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. (emphasis supplied)_ _**11** . The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.”_ 14. Learned Government Pleader pointed out that, by virtue of the proposition laid down in paragraph 11 of the judgment in _**'Jagdev Singh**_ ' ( _supra_ ), petitioner is not entitled to get the benefit of ' _**Rafiq Masih'**_ (supra). Learned Government Pleader has also invited my attention to Ext.R3(a) Form of Option signed by the petitioner on 15.06.2011, agreeing to refund the excess pay and allowances, if any, drawn by her. 15. Taking into account the respective submissions made across the Bar and realizing the situations in accordance with the provisions of law and the factual circumstances on account of the leave not due and the rule thereto, and also the proposition of law laid down **13** ## **W.P.(C)No.14589 of 2014** by the apex court in the afore-quoted judgments, I am of the considered opinion that, petitioner has not made out any case justifying interference as is sought for in the writ petition. Resultantly, the writ petition fails, accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **St/-28.11.2019** **W.P.(C)No.14589 of 2014** **14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PENSION PAYMENT ORDER DATED 18-4-2011 OF THE ACCOUNTANT GENERAL.** **EXHIBIT P2 TRUE COPY OF THE OBJECTION OF THE DEPUTY DIRECTOR DATED 20-12-2011.** **EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE PETITION FILED BEFORE THE DEPUTY DIRECTOR DATED 17-01-2014.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE GOVERNMENT DATED 31-5-2014 WITHOUT ANNEXURE.** - **EXHIBIT P6 TRUE COPY OF THE ARGUMENT NOTES WITHOUT ANNEXURE.** **EXHIBIT P7 TRUE COPY OF THE G.O. (RT)NO.3007/2015/G.EDN. DATED 24.7.2015.** - **EXHIBIT P8 TRUE COPY OF LETTER OF THE DEPUTY DIRECTOR OF EDUCATION DATED 8.12.2015.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(A)** **TRUE COPY OF THE FORM OF OPTION WHEREBY PETITIONER EXERCISED HER OPTION TO ADOPT PAY SCALE 2009 PAY REVISION WITH EFFECT FROM 30.7.2009.**