George P.U v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941** ## **WP(C).No.34890 OF 2015(I)** ## **PETITIONER:** **GEORGE P.U AGED 56 YEARS H.S.A.(RETIRED), STAR JESUS H.S.KARUKUTTY, ERNAKULAM DT.683578, RESIDING AT PANTHALLUKARAN HOUSE, NALUKETTU P.O., KORATTY, THRISSUR-680308.** **BY ADVS. SRI.S.PRASANTH (AYYAPPANKAVU) SMT.VARSHA BHASKAR** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695005.** **2 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, KAKKANAD, ERNAKULAM-682030.** - **3 THE DISTRICT EDUCATIONAL OFFICER NEAR TALUK OFFICE, OPPOSITE MUNICIPAL LIBRARY, ALUVA, PIN-683101.** - **4 THE ACCOUNTANT GENERAL (A&E) M.G.ROAD, THIRUVANANTHAPURAM-695039. SRI.JESTIN MATHEW,GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.34890 OF 2015(I) 2 ## **J U D G M E N T** This writ petition is filed by the petitioner seeking to quash the directions contained in Ext.P5 verification report to revise the pay fixation statement as per the form of option to regulate the pay accordingly, to quash Ext.P6 order dated 7.9.2015 passed by the Deputy Director (Education) whereby pay fixation was regularised in accordance with Ext.P5 verification report of the office of Accountant General and for other related reliefs. Brief material facts for the disposal of the writ petition are as follows; 2. Petitioner is retired as HSA from Star Jesus High School, Karukutty, Ernakulam District on 31.3.2015. As per Government Order bearing No.G.O. (P)85/2011/Fin.dated 26.2.2011, the pay and allowances of the State Government employees was revised as per the recommendations of the 9[th] Pay Revision Commission. Subsequently the Government issued G.O.(P) No.176/2012/(56)/Fin. dated 24.3.2012 permitting the employees to exercise re-option, evident from Ext.P1. WP(C).No.34890 OF 2015(I) 3 3. According to the petitioner, in Exts.P2 and P3 dated 2.6.2011, the date of option for coming over to the revised scale of pay was mistakenly noted as 1.7.2009. However, the option was correctly marked as 26.7.2009 in the statement of fixation submitted by the Headmaster of the school and countersigned by the 3[rd] respondent. Even in the service book, the date of option is marked as 26.7.2009. However, as per Ext.P5 verification report dated 18.4.2015 the 4[th] respondent i.e., the Accountant General noted that the date of option marked in the petitioner's option statement was 1.7.2009 and it was accordingly directed to revise the petitioner's pay fixation statement based on the form of option and to regulate the pay accordingly. Case of the petitioner is that, consequent to the same, an amount of Rs.63,380/- was withheld from the DCRG of the petitioner towards the excess pay drawn and only the remaining amount was disbursed to the petitioner. Therefore, petitioner is aggrieved by the action of respondents in re-fixing his pay affecting his salary and pensionary benefits at this distance of time. WP(C).No.34890 OF 2015(I) 4 4. The Deputy Director of Education i.e., the 2[nd] respondent has filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioner. True copy of the option and the statement submitted by the petitioner is produced as Exts.R2(a) and R2(b) respectively. Among other contentions it is submitted that, according to the option submitted by the petitioner, he has elected to come over to the revised scale w.e.f.1.7.2009, so the pay of the petitioner shall have to be fixed accordingly. Instead of that in the fixation statement, the date of option was noted as 26.7.2009 and consequential benefits was granted. It was also pointed out that, option once exercised shall be final and the District Educational Officer has no authority to change the option date exercised by the petitioner. 5. The option form furnished by the petitioner and fixation statement approved by the Controlling Officer was thoroughly verified by the Accountant General and has issued direction to revise the pay according to the option submitted by the petitioner. As such the excess pay and allowance paid to the petitioner consequent to irregular fixation WP(C).No.34890 OF 2015(I) 5 was fixed as liability of the petitioner. Since petitioner was due to retire from the service on 31.3.2015, pension proposal along with service book of the petitioner was forwarded to the 4[th] respondent, who have noticed that, petitioner has exercised option to come over to revised scale w.e.f.1.7.2009 and in the fixation submitted, the option date was recorded as 26.7.2009 instead of 1.7.2009. Therefore, according to the Accountant General, consequential benefits were granted to the petitioner based on the option exercised to come over to the revised scale from 26.7.2009. So in compliance with the direction issued by the Accountant General, the District Educational Officer issued necessary direction to the Headmaster to recover Rs.63,680/- from the petitioner to regulate the excess pay and allowances drawn by the petitioner. It was accordingly that Headmaster furnished the statement of excess payment made to the petitioner for the period from 1.7.2009 to 31.3.2015 along with the liability certificate. 6. That apart it is submitted that the petitioner has submitted a written statement stating that consequent to the revision of pay, the excess pay and WP(C).No.34890 OF 2015(I) 6 allowances drawn by him for the period specified above comes to Rs.63,680/- which may be adjusted from the DCRG sanctioned to him, evident from Ext.R2(c). Therefore, according to the 2[nd] respondent, petitioner has not made out any case justifying interference of this court exercising the discretionary power conferred under Article 226 of the Constitution of India. 7. I have heard learned counsel for petitioner Sri.Prasanth.S., learned Government Pleader Sri.Jestin Mathew and perused the pleadings and documents on record. 8. Ext.P2 is the form of option from where it is evident that in the printed form the date of option exercised by the petitioner is shown as 1.7.2009, which form is signed by the petitioner and attested by the Headmaster as well as District Educational Officer. However, the case projected by the petitioner is that, the mistake happened consequent to the date printed in the form of option as 1.7.2009 and in the statement of fixation of pay in the revised scale dated 2.6.2011, it is clear that, 1.7.2009 is shown as the date of option against the WP(C).No.34890 OF 2015(I) 7 post held. However, from Sl.No.4, the date elected to come over to the revised scale is clearly shown as 26.7.2009. These are exactly the documents produced as Exts.R2(a)and (b) by the 2[nd] respondent along with the counter affidavit. Therefore, in my considered opinion, since the date of option is exercised in Ext.P3 statement as 26.7.2009, in the form of option the date shown as 1.7.2009 can only be a mistake came on the part of either officials or on the part of the petitioner. Anyhow, since in the statement of option the date is shown as 26.7.2009, in my considered opinion, the benefit of doubt has to go in favour of the petitioner especially due to the fact that, in the statement of fixation of pay, the date 1.7.2009 is shown against the post held. Therefore, the action of the 4[th] respondent in finding fault with the petitioner in the matter of submission of form of option cannot be sustained. 9. Yet another reason for the petitioner to succeed in this writ petition, is on the basis of the proposition of law laid down by the Apex Court in **State of Punjab and others v. Rafiq Masih (White Washer) and others** [(2015)4 SCC 334] wherein WP(C).No.34890 OF 2015(I) 8 following directions were issued: _(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service)._ _(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery._ _(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued._ _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._ 10. The said judgment along with other judgments rendered by the Apex Court was considered by a Division Bench of this Court in **State of Kerala and** **others v. Sreedevi. T.R.** [I.L.R 2019(4) Kerala 791] and held that the employee therein is entitled to get benefit of the judgment in **Rafiq Masih** _(supra)_ . Here in the case on hand, the liability was fixed WP(C).No.34890 OF 2015(I) 9 and recovery was effected from the DCRG of the petitioner after a period of 5 years and therefore, petitioner is entitled to get the benefit of the proposition No.(iii) and (v) in **Rafiq Masih** _(supra)_ **.** In that view of the matter, the writ petition is allowed and there will be a direction to the respondents to pay all amounts due to the petitioner treating the option exercised by the petitioner to come over to the revised scale of pay as 26.7.2009, at the earliest possible time and at any rate within two months from the date of receipt of a copy of this judgment. **Sd/-** **SHAJI P.CHALY** Smv 19.12.2019 **JUDGE** WP(C).No.34890 OF 2015(I) 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 P1 : TRUE COPY OF THE GO(P)NO.176/2012(56)/FIN.DT.24-3-2012. EXHIBIT P2 P2 : TRUE COPY OF THE FORM OF OPTION DT. 2-6-2011 SUBMITTED BY THE PETITIONER. EXHIBIT P3 P3 : TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER DT.2-6-2011. EXHIBIT P4 P4 : TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK SHOWING THE DATE OF OPTION COUNTER-SIGNED BY 3RD RESPONDENT. EXHIBIT P5 P5 : TRUE COPY OF THE VERIFICATION REPORT DT.18-4-2015 ISSUED BY 4TH RESPONDENT. EXHIBIT P6 P6 : TRUE COPY OF THE ORDER NO.D3/20894/2014 DT.7-9-2015 ISSUED BY 3RD RESPONDENT. EXHIBIT P7 P7 : TRUE COPY OF THE JUDGMENT DT.1-8-2013 IN WPC 29514/2009. RESPONDENTS' EXHIBITS EXHIBIT R2(a) P7 : TRUE COPY OF THE OPTION SUBMITTED BY THE PETITIONER EXHIBIT R2(b) P7 : TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER EXHIBIT R2(c) P7 : TRUE COPY OF THE WRITTEN STATEMENT STATING THE EXCESS PAY AND ALLOWANCES DRAWN BY THE PETITIONER FOR THE PERIOD FROM 1.7.2009 TO 31.3.2015.**