High Court of KeralaSingle Judge2021-07-26Writ petition disposed with directions for fres...

Jessy M. John v. State of Kerala & Others

Case / Petition Number:WP(C) NO. 12510 OF 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-07-26
Court Decision / Holding: This writ petition is ordered. The court sets aside Exts.P3 and P5 and directs the 3rd respondent to re-consider the petitioner’s case, including reckoning broken periods of service from the year 1987 and refund of any amounts recovered, after considering Sabu Mathew (supra) and GO(MS) No.401/2019/Fin, if applicable to the petitioner’s facts. The 3rd respondent must afford her an opportunity of hearing (physically or via video conferencing) and issue a fresh decision within three months. If the new decision is in the petitioner’s favor, all related benefits, including broken periods and any refunds, shall be made available without undue delay but not later than two months from the date of the order resultant to these directions." ,
Final Disposition: Writ petition disposed with directions for fresh consideration of the petitioner’s pension fixation in light of Sabu Mathew and GO(MS) 401/2019/Fin; Exts.P3 and P5 set aside; three months for reconsideration and two months for implementing if favorable.

Parties to the Case

Appellants / Petitioners

Jessy M. John W/o Reji Thomas P., Panjikkattill House, Veliyanadu P.O., Arakkunnam, Ernakulam - 682 313 (Head Mistress (Retd) St. Pauls High School, Veliyanad)

Respondents

The State of Kerala represented by the Secretary to Government, Department of General Education, Government Secretariat, Thiruvananthapuram 695 001
The Director of Public Instruction, Office of the Director of Public Instruction, Thiruvananthapuram 695 001
The Deputy Director (Education), Office of the Deputy Director of Education, Ernakulam 682 030
The District Educational Officer, Office of the District Educational Officer, Muvattupuzha 686 661
The Accountant General (A & E) Kerala, Office of the Accountant General Kerala, Thiruvananthapuram 695 001

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Subhash Chand

Counsels for Respondents

• Sri P.M. Manoj - Sr.GP

Case Synopsis & Summary

The petitioner, Jessy M. John, is a retired headmistress who challenges the pension fixation finalized after a 2009 pay revision and the subsequent recoveries effected from 21.07.2011. She contends that the Deputy Director of Education (DDE) re-fixed her salary and initiated recovery because her broken periods of service from 15.09.1992 to 19.03.1996 were not counted for weightage, resulting in an erroneous Ext.P2 fixation. She alleges that Exts.P3 (pay fixation) and Ext.P5 (order) were issued without hearing and in contravention of several court judgments (Kadeeja A., Lilly V.A., Havvaumma K.V.), as well as judgments later referred to in her pleadings, including the Supreme Court’s observations on recoveries in State of Punjab & others v. Rafiq Masih and related precedents. She further submits that recoveries already made were illegal. Relying on Sabu Mathew (2017) and its confirmation by a Division Bench in 2019, along with GO(MS) No.401/2019/Fin, she seeks counting of broken service from 1987 and restoration of pension fixation with refunds of recovered amounts, if any. The Government Pleader argues reconsideration is necessary, without granting a direct declaration in her favor. The court ultimately orders a fresh consideration by the 3rd respondent within three months, directing adherence to the contours of GO(MS) 401/2019/Fin and ensuring benefits if the petition is ultimately found in her favor within two months of the resulting order.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P3 Pay Fixation is erroneous because the 2009 Pay Revision was not properly applied for weightage of broken service. She asserts that Exts.P3 and P5 were issued without hearing and in contravention of several judgments (Kadeeja A., Lilly V.A., Havvaumma K.V.) and the principle laid down in State of Punjab v. Rafiq Masih regarding recoveries. She also argues for counting broken periods of service from 1987, seeking re-fixation of pension and refund of amounts recovered, supported by Sabu Mathew (2017) and its affirmation in State of Kerala & others v. Sabu Mathew (2019) and the GO(MS) 401/2019/Fin. She seeks a mandamus to reconsider with opportunity of hearing and to grant benefits expeditiously if found in her favor.

Contentions of Respondents

The respondents/State argue for reconsideration by the 3rd respondent after considering the petitioner’s contentions, noting that Exts.P3 and P5 were issued prior to Sabu Mathew (supra) and the Government has issued GO(MS) 401/2019. They request liberty to the 3rd respondent to decide in light of the cited precedents, without granting a direct relief in the petitioner’s favor, pending proper reassessment of pension fixation.

Cited Precedents (7)

Case Name	Citation	Treatment	Explanation
Kadeeja A. v. State of Kerala & Another	2014 (4) KLT 349	Mentioned Only	Cited by petitioner; court does not rely on it to grant relief but references it in background.
Lilly V.A. v. State of Kerala & Others	2016 KHC 414; 2016(2) KLT 649	Mentioned Only	Cited by petitioner; not a basis for immediate relief in judgment.
Havvaumma K.V. v. State of Kerala & Others	2016(5) KHC 880; 2016(4) KLT 895	Mentioned Only	Cited as part of petitioner’s argument; not relied upon directly for the decision.
Sabu Mathew & Others v. State of Kerala & Others	2017(4) KLT 501	Positive	Foundational precedent for benefit and related actions; cited as authority that influenced remedy in light of the 2019 ruling.
State of Kerala & Others v. Sabu Mathew & Others	2019 (3) KHC 972	Positive	Confirmed by Division Bench; used to justify GO 401/2019 and to guide reconsideration in light of the present case.
State of Punjab & Others v. Rafiq Masih & Others	(2015) 4 SCC 334	Mentioned Only	Supreme Court principle cited regarding recoveries; not directly controlling the outcome here.
Kasaragod District Cooperative Bank Ltd. v. Radha K.A. & Another	2016(1) KHC 260	Mentioned Only	Cited in appendix; used for background context rather than decisive reasoning.

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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 MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** ## **WP(C) NO. 12510 OF 2017** **PETITIONER:** JESSY M.JOHN W/O.REJI THOMAS P.,PANJIKKATTIL HOUSE,VELIYANADU P.O., ARAKKUNNAM,ERNAKULAM - 682 313 (HEAD MISTRESS (RETIRED)ST.PAULS HIGH SCHOOL, VELIYANADU) BY ADV SRI.S.SUBHASH CHAND **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE DIRECTOR OF PUBLIC INSTRUCTION OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION,THIRUVNANTHAPURAM 695 001. 3 THE DEPUTY DIRECTOR (EDUCATION) OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,ERNAKULAM 682 030. 4 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,MUVATTUPUZHA 686 661. 5 THE ACCOUTANT GENERAL (A & E) KERALA, OFFICE OF THE ACCOUNTANT GENERAL KERALA,M.G.ROAD, SHANTHI NAGAR, PULIMOODU,THIRUVANANTHAPURAM 695 001. BY ADV GOVERNMENT PLEADER SRI. P.M.MANOJ - SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 12510 OF 2017** **2** ## **JUDGMENT** The petitioner says that she retired from the services of “St.Pauls High School”, Veliyanadu, as Headmistress on 31.05.2016; but that when her pension papers and connected documents were sent to the office of the 3[rd] respondent – Deputy Director of Education, Ernakulam (DDE), same were returned citing that there is an error in her pay fixation pertaining to the 2009 Pay Revision, with effect from 21.07.2011. 2. The petitioner says that, consequently, the 4[th] respondent was directed by the DDE to re-fix her salary and allowances and effect recovery of the alleged excess amount drawn with effect from 21.07.02011 and that this was done solely because 3[rd] respondent did not count her broken periods of service from 15.09.1992 to 19.03.1996 for weightage; and she alleges that, therefore, Ext.P2 Pay Fixation was erroneous. She further says that even though she submitted Ext.P4 explanation before the respondent, it was rejected even without giving her an **WP(C) NO. 12510 OF 2017** **3** opportunity of being heard, through Ext.P5 order; and she thus contends that both Exts.P3 and P5 are contrary to law and issued in violation of the judgments of this Court in _**Kadeeja.A vs. State of Kerala & Another**_ [2014 (4) KLT 349], _**Lilly.V.A. vs. State of Kerala & others**_ [2016 (2) KLT 649], _**Havvaumma.K.V. vs. State of Kerala & others**_ [2016 (4) KLT 895], as also Exts.P6, P7 and P8 judgments. 3. The petitioner also has a case that the recovery sought to be made against her is contrary to the declarations made by the Hon’ble Supreme Court in _**State of Punjab & others vs. Rafiq Masih & others**_ [(2015) 4 SCC 334] and she, therefore, prays that impugned orders be set aside. 4. Sri.Subhash Chand – learned Counsel appearing for the petitioner, submitted that, in fact, pending this lis, certain recoveries were made against his client illegally; but that on account of her rather vulnerable position at that time, she was unable to object to the same. He then added that a learned Judge of this Court has already considered the issues identical to the **WP(C) NO. 12510 OF 2017** **4** ones projected in this case in _**Sabu Mathew & others vs. State of Kerala & others**_ [2017(4) KLT 501], which has been confirmed by a learned Division Bench of this Court in _**State of Kerala & others vs. Sabu Mathew & others**_ [2019 (3) KHC 972], based on which, the Government came out with another order, bearing No.G.O.(MS) 401/2019/fin. Dated 28.10.2019, ordering that no shall be made from teacher in similar recovery any circumstances, who had retired before 01.08.2018. Sri.Subhash Chand submitted that since his client retired on 31.05.2016, she is fully entitled to the benefits of the said Government Order. He consequently prayed that Exts.P3 and P5 be set aside and the 3[rd] respondent – Deputy Director of Education be directed to issue appropriate orders granting the benefits of all broken service of the petitioner from the year 1987, thus re-fixing her pensionary benefits and to return to her the amounts already deducted. He prayed that this writ petition be ordered in such terms. 5. The learned Senior Government Pleader – Sri.P.M.Manoj, appearing on behalf of the official respondents, **WP(C) NO. 12510 OF 2017** **5** submitted that since the petitioner is now relying upon G.O(M.S) No.401/2019/Fin. dated 28.10.2019, the matter will have to be reconsidered by the 3[rd] respondent, taking note of all her contentions, including the impact of the judgments in _**Sabu Mathew (supra).**_ He prayed that this Court may, therefore, grant liberty to the 3[rd] respondent to do so, however, without making any declaration in her favour. 6. The afore submissions of Sri.Subhash Chand certainly are to the effect that petitioner is entitled to have broken periods of service from the year 1987 counted and to have her Pension Fixation orders re-fixed accordingly. His accusation against the respondent is that, pending this lis, an amount of Rs.31,081/- has been recovered and that this has been done illegally. 7. However, since, as rightly stated by the learned Senior Government Pleader, 3[rd] respondent had issued Exts.P3 and P5 prior to the judgment in _**Sabu Mathew (supra)**_ and before the Government had issued GO(MS) No.401/2019/Fin. I am of the firm opinion that petitioner’s case will have to be considered by **WP(C) NO. 12510 OF 2017** **6** the 3[rd] respondent appropriately, without any avoidable delay. In the afore circumstances, I set aside Exts.P3 and P5; with a resultant direction to the 3[rd] respondent to re-consider the case of the petitioner, including for reckoning the broken periods of service from the year 1987 and for refund of the amounts allegedly recovered from her, adverting to _**Sabu Mathew (supra)**_ and take a decision strictly within the contours of GO(MS) No.401/2019/Fin. dated 28.10.2019 – if the same is applicable to the petitioner factually – after affording her an opportunity of being heard – either physically or through video conferencing – thus culminating in an appropriate order thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. Needless to say, if, after the afore exercise, 3[rd] respondent is to find in favour of the petitioner, then all other benefits, including those relating to the broken periods of service, as also the amounts earlier recovered, shall be made available to her without any avoidable delay but not later than two months from **WP(C) NO. 12510 OF 2017** **7** the date of receipt of a copy of the order resultant to these directions. This writ petition is thus ordered. Sd/- ## **DEVAN RAMACHANDRAN** **JUDGE** SAS/26/07/2021 **WP(C) NO. 12510 OF 2017** **8** ## **APPENDIX OF WP(C) 12510/2017** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE| ||BOOK OF THE PETITIONER INDICATING THE ABOVE| ||BROKEN PERIODS OF SERVICE IN DIFFERENT SPELLS| ||AND ATTESTED BY RESPONDENT NO.4| |EXHIBIT P2|TRUE COPY OF THE STATEMENT OF FIXATION OF PAY| ||IN THE REVISED SCALE SANCTIONED UNDER 2009| ||PAY REVISION WITH EFFECT FROM 21/7/2011| |EXHIBIT P3|TRUE COPY OF THE PROCEEDINGS DATED 1/8/2016| ||ISSUED BY RESPONDENT NO.3 TO RESPONDENT NO.4| |EXHIBIT P4|TRUE COPY OF THE REPRESENTATION SUBMITTED BY| ||THE PETITIONER BEFORE RESPONDENT NO.3 ON| ||22/12/2016| |EXHIBIT P5|TRUE COPY OF THE PROCEEDINGS DATED 22/1/2017| ||ISSUED BY RESPONDENT NO.3 TO RESPONDENT NO.4| |EXHIBIT P6|TRUE COPY OF THE RULING IN KADEEJA A. VS.| ||STATE OF KERALA & ANOTHER (2014 (4) KHC| ||5037 : 2014(4) KLT 349| |EXHIBIT P7|TRUE COPY OF THE RULING IN LILLY V.A.| ||VS.STATE OF KERALA & OTHERS (2016 KHC 414:| ||2016(2) KLT 649)| |EXHIBIT P8|TRUE COPY OF THE RULING OF THIS HON'BLE COURT| ||IN HAVVVAUMMA K.V. VS.STATE OF KERALA &| ||OTHERS (2016(5) KHC 880:2016(4) KLT 895)| |EXHIBIT P9|TRUE COPY OF THE RULING REPORTED AS KASARAGOD| ||DISTRICT CO-OPERATIVE BANK LTD & ANOTHER| ||VS.RADHA K.A. & ANOTHER (2016(1) KHC 260)| |EXHIBIT P10|TRUE COPY OF THE JUDGMENT DATED 14.8.2017 IN| ||W.P.(C)NO.30167 OF 2016 (U)| P.A. TO JUDGE