C.C. James v. District Educational Officer, Thodupuzha & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** ## **WP(C).No.34012 OF 2017(B)** ## **PETITIONER:** **C.C. JAMES AGED 56 YEARS, S/O. JAMES, CLERK, ST. JOSEPH'S HIGHER SECONDARY SCHOOL, KARIMANNOOR, THODUPUZHA.** **BY ADVS. SRI.MATHEW JOHN (K) SRI.MATHEW DEVASSI** ## **RESPONDENTS:** |**1**|**THE DISTRICT EDUCATIONAL OFFICER**| |---|---| ||**THODUPUZHA.**| |**2**|**THE HEADMASTER**| ||**ST. JOSEPH'S HIGHER SECONDARY SCHOOL,**| ||**KARIMANNOOR, THODUPUZHA.**| |**3**|**ADDL.R3 DEPUTY DIRECTOR OF EDUCATION**| ||**IDUKKI.**| ||**(ADDL.R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED**| ||**28/11/2018)**| ## **SRI.SUNIL KURIAKOSE, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.34012 OF 2017** **2** ## **JUDGMENT** This writ petition is filed seeking the following reliefs: _“(i) To call for the records leading to Ext.P2 and issue a writ of certiorari or other appropriate writ, direction or order quashing Ext.P1_ _(ii) Issue a writ in the nature or mandamus or other appropriate writ or order forbearing the 1[st] respondent from proceeding pursuant to Ext.P1;”_ 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. It is submitted by the learned counsel for the petitioner that the petitioner was working as a clerk in the St.Joseph's Higher Secondary School which is an aided school. It is stated that on the eve of his retirement, Ext.P1 proceedings had been issued to the petitioner with regard to fixation of pay on the ground that time bound higher grade granted to him from the year 2004 onwards were erroneous. It was stated in Ext.P1 that the grant of the higher grades in the scales of pay of the higher post was irregular and that the excess amounts are liable to be refunded. Petitioner submitted Ext.P2 reply relying on the **WP(C).No.34012 OF 2017** **3** decisions of the Apex Court including the decision of **State of Punjab and Others v. Rafiq Masih (White Washer) and Others [(2015) 4 SCC 334]** and contended that the petitioner had not committed any mistake or fraud in fixing of his pay and the error had occurred with the respondents while verifying his statements of fixation. It is contended that the action of the respondents to recover amounts from the petitioner having been at the fag end of his career and since the petitioner was only a clerical employee in an aided school, the conditions postulated by the Apex Court in the above cited decision would squarely apply and that no recovery would be possible. 4. It is submitted by the learned counsel for the petitioner that the amounts alleged as excess drawals have been withheld from the petitioner's pensionary benefits and that the said procedure is completely illegal and unsustainable. It is contended, relying on the decisions of the Apex Court in **Col. B.J.Akkara (Retd.) v. Government of India and Others [(2006) 11 SCC 709]** as also a decision of the Division Bench of this Court in **State of Kerala v. Vinod Kumar [2020 (4) KLT 230]** where this court considered the effect of the decision of the Apex Court in **High Court Of Punjab & Haryana vs Jagdev Singh** **WP(C).No.34012 OF 2017** **4** **[2016 (14) SCC 267]** and held that even in a case where an undertaking had been submitted by the employee that recovery can be ordered if there was an error in fixation of pay, such recovery cannot take effect long years after the erroneous fixation and proximate in point of time to the retirement of the employee. 5. A counter affidavit has been placed on record by the 1[st] respondent. It is admitted that the petitioner retired from service on 31.01.2018 and that it was on verification of the service book in connection to retirement of the petitioner, irregularities were noticed in the fixation of the petitioner's pay from 01.07.2004. It is contended that the petitioner was not entitled to time bound higher grades in the scale of pay of the promotion post and that only the time bound higher grades available as per the pay revision order could have been paid. It is stated that by Ext.P1 order dated 15.03.2017, the petitioner was directed to refund the excess pay drawn by him. It is stated that Ext.P4 Government Order relied on by the petitioner in the case of identically situated employees was issued specifically in respect of the persons noted in the said order and is not applicable to the petitioner. It is further submitted that the petitioner had retired on 31.01.2018 and the **WP(C).No.34012 OF 2017** **5** excess amount drawn by him amounting to Rs.1,12,567/- (Rupees One Lakh Twelve Thousand Five Hundred and Sixty Seven only) was fixed as his liability and has been withheld from his retirement benefits. 6. I have considered the contentions advanced. It is not in dispute before me that the time bound higher grade which is now stated to be erroneous had been granted to the petitioner with effect from 01.07.2004, 2009 and 2013 respectively. It is evident from Ext.P4 order that in respect of 13 similarly situated persons, recovery had been interdicted, though it was found that the fixation of pay was erroneous. In the petitioner's case, it is not in dispute that he had retired as clerk from the aided school on 31.01.2018. Ext.P1, which seeks to recover amounts from the petitioner was apparently issued to him only on 19.06.2017, well within one year from the date of his retirement. Petitioner in Ext.P2 had specifically pointed out that he was due to retire from service and since the error in fixation had occurred in the year 2004 onwards, he was not liable to repay any amounts. The petitioner has not objected to the refixation of his pay and only challenge is against the recovery made in respect of amounts paid from the year 2004 onwards. **WP(C).No.34012 OF 2017** **6** 7. Having considered the contentions advanced on either side, I am of the opinion that the petitioner's case would squarely come within the conditions postulated by the Apex Court in **State of Punjab and Others v. Rafiq Masih (White Washer) and Others [(2015) 4 SCC 334]** case. The Apex Court had specifically held that the recovery from pay would not be possible if the employee has retired from service or is due to retire within one year. Recovery from employees belonging to Class III and Class IV services had also been interdicted by the Apex Court. It is also held that recovery from employees when the excess payment has been made for a period in excess of five years, d before the order of recovery is issue is also not justified. In the instant case also, the error noticed in Ext.P1 is stated to have occurred in the pay fixation from 01.07.2004 onwards. The petitioner was informed of the error and was required to refund the amounts only by Ext.P1 which was communicated in the year 2017. The petitioner retired from service on 31.01.2018. 8. I am of the opinion that the contention that the petitioner had executed an undertaking to the effect that excess amounts could be refunded if any error in fixation is noticed at any later date cannot **WP(C).No.34012 OF 2017** **7** by itself justify the recovery of amounts after long years. This is more so in the petitioner's case since the specific contention that Ext.P4 Government Order interdicted recovery in the case of similarly situated persons has been admitted in the counter affidavit filed by the 1[st] respondent. 9. In the above view of the matter, I am of the opinion that the respondents are not justified in effecting recovery of amounts on account of erroneous fixation from the petitioner who retired from service on 31.01.2018. The orders of recovery are set aside. There will be a direction to the respondents to refund the amounts recovered from the petitioner's pensionary benefits to the petitioner within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. **Sd/-** ## **ANU SIVARAMAN** ## **JUDGE** NP **WP(C).No.34012 OF 2017** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PROCEEDING DATED 15/3/2017 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE REPLY DATED 26/5/2017 TO EXT P1** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 23/6/2016 PASSED BY THIS HON'BLE COURT IN WP(C) NO.4361/2012.** **EXHIBIT P4 A TRUE COPY OF THE GOVERNMENT ORDER GO. (M.S)NO.108/12 G.ED. DATED 2.4.12** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(a): A TRUE COPY OF THE FORM OF OPTION DATED 30/06/2006.** **EXHIBIT R3(b): A TRUE COPY OF THE FORM OF OPTION DATED 01/07/2011. EXHIBIT R3(c): A TRUE COPY OF THE FORM OF OPTION DATED 20/08/2014.**