E.E. Sebastian v. State of Kerala and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devān Ramachandran, J.
Judgment Date: 2017-05-30
Court Decision / Holding: Exts.P12 and P15 quashed; no recovery steps may be initiated; respondents directed to disburse pensionary benefits to the petitioner expeditiously, taking into account Exts.P1–P11, within two months of receipt of a copy of the judgment.
Final Disposition: Writ petition allowed; Exts. P12 and P15 quashed; pension disbursement to be processed within two months; no recovery from retirement benefits.

Parties to the Case

Appellants / Petitioners

E.E. Sebastian s/o E.T. Enasu, aged 55 years, Headmaster (Retired) Sree Durga Vilasam High School, Peramangalam-680545, Thrissur District (residing at Edakkalathur House, P.O., Eyyal, Kecheri, Thrissur District).

Respondents

The State of Kerala represented by its Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram-695 001.
The Deputy Director of Education, Thrissur at AYYANTHOLE-680 003.
The District Educational Officer, Thrissur-680 001.

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Sri. V.A. Muhammed

Counsels for Respondents

• Adv. Government Pleader Sri. Sunilkumar KuriaKose

Case Synopsis & Summary

The petitioner, E.E. Sebastian, a retired headmaster, filed this writ petition challenging an audit-driven recovery of alleged excess payments. He joined service as a High School Assistant in 1981, was confirmed in a substantive vacancy in 1982 after serving several broken spells, and retired on 30 April 2012. He asserts that his broken service and the related increments were regularly reckoned for emoluments and pensionary benefits, as reflected in his service book (Ext.P1) and pay fixation records (Exts.P2–P11). Shortly before retirement, an audit enquiry flagged that his broken spells in 1982 had been reckoned illegally, resulting in a recovery claim (Ext.P12) for amounts drawn in excess, followed by Ext.P15, a Government order. He challenged Exts.P12 and P15 as illegal and unlawful. The State and education officials argued for recovery, citing audit requirements. The High Court, relying on the Supreme Court’s decision in State of Punjab & Others v. Rafiq Masih (White Washer) & Others, held that benefits conferred during service under valid orders and not obtained through misrepresentation or fraud cannot be recovered merely because they were irregular. It quashes Ext.P12 and Ext.P15, declares that no recovery steps may be initiated, and directs expeditious disbursement of pensionary benefits consistent with Exts.P1–P11 within two months. The judgment safeguards long-standing service benefits and curtails retroactive recovery after retirement.

Provisions of Law Cited

Rule 28-A Part I, Kerala Service Rules

Legal Doctrines & Maxims

Rafiq Masih doctrine: Benefits granted in service based on valid orders cannot be recovered merely for irregularity.

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that his service record includes broken spells that were duly reckon ed for service benefits, including increments, as reflected in Exts.P1–P11. He asserts that the audit objection (Ext.P12) was raised after a long delay and that recovery would undermine long-standing benefits. Ext.P15 (government order) did not alter the legal position. He prays for quashing Exts.P12 and P15 and for disbursement of pensionary benefits.

Contentions of Respondents

Respondents contend that the audit report disclosed irregularities and that Ext.P12 and Ext.P15 authorize recovery of sums drawn in excess. They submit that recoveries are necessary to correct misallocations and that public resources must be safeguarded.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Punjab & Others v. Rafiq Masih (White Washer) & Others	(2015) 4 SCC 334	Positive	The court applied the principle that benefits conferred in service under valid orders cannot be recovered merely for irregularity or audit-based objections.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 30TH DAY OF MAY 2017/9TH JYAISHTA, 1939** ## **WP(C).No. 5974 of 2013 (V)** ## **---------------------------** ## **PETITIONER: ---------------------** **E.E.SEBASTIAN S/O. E.T. ENASU, AGED 55 YEARS, HEADMASTER (RETIRED) SREE DURGA VILASAM HIGH SCHOOL, PERAMANGALAM-680545, THRISSUR DISTRICT (RESIDING AT EDAKKALATHUR HOUSE, P.O., EYYAL, KECHERI, THRISSUR DISTRICT.)** ## **BY ADV. SRI.V.A.MUHAMMED** |**RESPONDENT(S):**|**RESPONDENT(S):**| |---|---| |**------------------------**|| |**1.**|**THE STATE OF KERALA**| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL**| ||**EDUCATION DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2.**|**THE DEPUTY DIRECTOR OF EDUCATION**| ||**THRISSUR AT AYYANTHOLE-680 003.**| |**3.**|**THE DISTRICT EDUCATIONAL OFFICER**| ||**THRISSUR-680 001.**| ||**R BY ADV. GOVERNMENT PLEADER SRI. SUNILKUMAR KURIAKOSE**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 5974 of 2013 (V) -------------------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** |**EXT.P1**|**TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF**| |---|---| ||**THE PETITIONER.**| |**EXT.P2**|**TRUE COPY OF THE PERIODICAL INCREMENT CERTIFICATE.**| |**EXT.P3**|**TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE**| ||**PETITIONER DATED 13-2-1989.**| |**EXT.P4**|**TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE**| ||**PETITIONER DATED 01-02-1990.**| |**EXT.P5**|**TRUE COPY OF THE FORM OF OPTION DATED 4-10-1991 ALONG WITH**| ||**FIXATION STATEMENT DATED 8-10-1991.**| |**EXT.P6**|**TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE**| ||**PETITIONER DATED NIL.**| |**EXT.P7**|**TRUE COPY OF THE statement OF FIXATION OF PAY OF THE**| ||**PETITIONER DATED NIL.**| |**EXT.P8**|**TRUE COPY OF THE statement OF FIXATION OF PAY OF THE**| ||**PETITIONER DATED NIL.**| |**EXT.P9**|**TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE**| ||**PETITIONER 5-8-2006.**| |**EXT.P10**|**TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE**| ||**PETITIONER.**| |**EXT.P10A**|**TRUE COPY OF THE OPTION IN TERMS OF RULE 28-A PART I KERALA**| ||**SERVICE RULES DATED 29-5-2010**| |**EXT.P11**|**TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE**| ||**PETITIONER.**| |**EXT.P12**|**TRUE COPY OF THE AUDIT ENQUIRY NO. 17 OF THE DEPUTY**| ||**DIRECTOR OF EDUCATION DATED 14-11-2011.**| |**EXT.P13**|**TRUE COPY OF THE APPEAL FILED BEFORE THE GOVERNMENT**| ||**DATED 10-02-2012.**| |**EXT.P14**|**TRUE COPY OF THE JUDGMENT IN WPC NO. 6954 OF 2012**| ||**DATED 20-3-12.**| **-2-** **-2-** **EXT.P15 TRUE COPY OF THE G.O. (P) NO. 5799/12 G. EDN. DATED 4-12-2012 OF THE GOVERNMENT.** **EXT.P16 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 18578/2007-J DATED 12.12.2011** **EXT.P17 TRUE COPY OF THE TREATMENT CERTIFICATE DATED 17.06.2015** **RESPONDENTS' EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** ## **DEVAN RAMACHANDRAN, J.** -------------------------------------------------- W.P.(C) No. 5974 of 2013 -------------------------------------------------Dated this the 30[th] day of May, 2017 ## **J U D G M E N T** 1.The petitioner says that he has entered service as High School Assistant (HSA) in the Sree Durga Vilasam High School, Peramangalam on 05.06.1981. This appointment was for a short period. He says that thereafter, he was appointed for similar spells until 01.06.1982 when he was appointed in a regular substantive vacancy. According to the petitioner, his broken service had also been reckoned for the purpose of service benefits including increments. He says that he has retired from service on 30.04.2012 and that a day before his retirement, proceedings were initiated against him as per Ext.P12 order for recovery of the amounts, that were alleged to have been drawn by him in excess, on the allegation that an objection has been raised in audit pointing out that his broken spells of W.P.(C) No. 5974 of 2013 **==> picture [20 x 8] intentionally omitted <==** service in the year 1982 had been reckoned illegally. The petitioner says that he challenged this order before the Government, which culminated in Ext.P15. The petitioner has, therefore, filed this writ petition challenging Exts.P12 and P15 as illegal and unlawful. - 2.I have heard the learned counsel appearing for the petitioner, Sri.Rajasekharan Nair, and the learned Government Pleader. - 3.I see that the petitioner entered service in 1981 and he was confirmed in service in a substantive vacancy on 01.06.1982 after serving certain broken spells. These spells were reckoned by the educational authorities while calculating his service and all his subsequent benefits including increments, promotion etc. were based on such reckoning. I notice that his service had been approved by orders validly issued and that his broken service has also been reckoned, as evident from Ext.P1 service book. If that be so, the action of the Deputy Director of Education, the 2[nd] respondent, in W.P.(C) No. 5974 of 2013 **==> picture [20 x 8] intentionally omitted <==** issuing Ext.P12 would not be sustainable for more reasons than one. For the first, Ext.P12 has been issued after more than 30 years after the benefits were given to the petitioner. For the second, the benefits that have been now objected to by audit were not secured by the petitioner either by misrepresentation or by fraud. For the third, the petitioner having retired from service on 30.04.2012, any action for recovery against him would not be justified. 4.I am fortified in my view by the decision of the Hon'ble Supreme Court in **State of Punjab & Others** v. **Rafiq Masih (White Washer) & Others** [(2015) 4 SCC 334], wherein the Hon'ble Supreme Court has declared the law that the benefits that have been given to employees while in service based on valid orders, which were issued without any misrepresentation or fraud being attributed to them and for reasons that cannot be imputed against them, cannot be recovered merely on the ground that they were given irregularly. The case W.P.(C) No. 5974 of 2013 ..4.. of the petitioner at hand falls squarely within the confines of the judgment of the Hon'ble Supreme Court in **Rafiq Masih** (supra) case. - 5.I am, therefore, of the firm opinion that no step for recovery, pursuant to either Ext.P12 or Ext.P15, can be initiated or continued against the petitioner on the basis of the audit objection. I do not deem it necessary to set aside the audit objection since what has been stated in the said report is only from the angle of audit requirements and not taking into account the other relevant factors including the service conditions of the petitioner. - 6.In such circumstances, I quash Exts.P12 & P15 and declare that no steps can be initiated or pursued against the petitioner for recovery of the amounts that have been allegedly drawn in excess. Since Exts.P12 & P15 stand quashed, it is only appropriate that the respondents issue appropriate orders without any other delay to disburse the pensionary benefits to the W.P.(C) No. 5974 of 2013 **==> picture [20 x 8] intentionally omitted <==** petitioner, taking into account Exts.P1 to P11 relating to his service from the year 1981. This shall be done by the 2[nd] respondent as expeditiously as possible, but, not later than two months from the date of receipt of a copy of this judgment. This writ petition is ordered as above. Sd/- **DEVAN RAMACHANDRAN JUDGE** bka/-