Jose C.C. v. State of Kerala & Others

WP(C) NO. 27821 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944** ## **WP(C) NO. 27821 OF 2022** ## **PETITIONER/S:** JOSE C.C. AGED 57 YEARS S/O.CHACKO C.K., THEYKKANATH CHERPPUKARAN (H), ARIMBUR P.O., THRISSUR DISTRICT - 680 620. BY ADVS. LINDONS C.DAVIS SWATHY A.P.(K/001801/2021) E.U.DHANYA ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695 001. 2 DIRECTOR OF GENERAL EDUCATION DPI JUNCTION, JAGATHY, THIRUVANANTHAPURAM - 695 014. 3 DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, THRISSUR - 680 003. 4 DISTRICT EDUCATIONAL OFFICER THRISSUR, PALACE ROAD, THRISSUR - 680 003. 5 PRINCIPAL ACCOUNTANT GENERAL (A&E) OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL, A.G'S COMPLEX, STATUE, PALAYAM, THIRUVANANTHAPURAM - 695 001. WP(C) NO. 27821 OF 2022 2 ## **OTHER PRESENT:** SMT.NISHA BOSE, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27821 OF 2022 3 ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) No. 27821 of 2022 -------------------------------------Dated this the 10[th] day of March, 2023** ## **JUDGMENT** ## The above writ petition is filed with following prayers : _i) “to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to disburse DCRG, Pension along with arrears and leave surrender to the petitioner without deducting the amount as per Exts P1, P2 and P5, within a time frame fixed by this Hon’ble Court._ _ii) to issue a writ of Certiorari or any other appropriate writ, order or direction quashing Exts P1, P2 and P5 as unjust and illegal;_ _iii) to declare that the respondents shall not recover the excess pay alleged in Exts P1, P2 and P5; iv) to declare that the petitioner is eligible to draw salary, pension and other benefits untrammelled by Exts P1, P2 and P5;_ _v) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to disburse_ WP(C) NO. 27821 OF 2022 4 _the interest at the rate fixed by this Hon’ble Court towards delayed payment of DCRG, Pension and Leave surrender benefits to the petitioner, within a time fixed by this Hon’ble Court._ _vi) to dispense with the production of English translation of vernacular documents;_ vii) to grant such other appropriate writ or further relief as deemed fit and proper by this Hon’ble Court on the facts and circumstances of the case.” [SIC] 2. The petitioner retired as Clerk from Higher Secondary School, Amrimbur on 31.05.2021. It is submitted that there was an internal audit by the ministerial staff under the 3[rd] respondent and certain audit objection was raised as per Ext.P1 with respect to the fixation of the petitioner's salary in Time Bound Higher Grade. It is submitted that even though some audit objections were removed,the 3[rd] respondent has sustained the audit objection against the petitioner alone as per Ext.P2 letter dated 08.07.2021. The petitioner has filed a revision before the 1[st] respondent, which was dismissed as per Ext.P5. It is submitted that the only reason stated is that the clerks in the aided schools are not eligible for Time Bound Higher Grade in promotion posts. WP(C) NO. 27821 OF 2022 5 Moreover, it is also submitted that liability is not quantified and informed to the petitioner till date. It is also submitted that the salary was approved and disbursed by the 3[rd] respondent himself. It is also submitted that the petitioner has not misrepresented or committed any fraud to obtain higher scale of pay. The further submission is that the audit objection which leads to recovery is for the period from 03.05.2003 onwards. Therefore, the recovery of the excess payment is impermissible as per the judgment of the Apex Court in **State of Punjab v. Rafiq Masih** (White Washer) [ 2014 KHC 4818]. It is also submitted that as per Rule 7A of Chapter XXIV B of KER, the Rule regarding service conditions applicable to nonteaching staff in Government Schools for the time being in force, shall mutatis mutandis apply to non-teaching staff in aided schools. The petitioner also relied Ext.P6 Government Order to show that the petitioner's pay is fixed in accordance with the same. Therefore, this writ petition is filed challenging Exts.P1, P2 and P5. 3. Heard the learned counsel for the petitioner and the WP(C) NO. 27821 OF 2022 6 learned Government Pleader. 4. The counsel for the petitioner submitted that the petitioner retired from service on 31.05.2021 and the audit objection which leads to the recovery is for the period from 03.05.2003. The first notice is received by the petitioner on 16.07.2021. In such circumstances, according to me, the recovery from the petitioner is unsustainable in the light of the principle laid down by the Apex Court in **Rafiq Masih's** case (supra). But the petitioner has got a contention that in the light of Ext.P6 Government Order, the refixation of pay of the petitioner was in order. This aspect also is to be considered by the 1[st] respondent so that if the refixation is approved, there will be change in the pensionary benefits of the petitioner also. Therefore, this writ petition can be disposed of declaring that, there cannot be any recovery. The Government can be directed to decide whether the refixation is proper in the light of Ext.P6. To facilitate the Government to pass fresh orders, Ext.P5 can be set aside. The admitted DCRG amount without recovery should be disbursed to the WP(C) NO. 27821 OF 2022 7 petitioner forthwith. Therefore, this writ petition is disposed of with the following directions : - 1) Ext.P5 is set aside. - 2) The Government is directed to reconsider the matter in the light of Ext.P6 Government Order with notice to the petitioner as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment. - 3) The admitted DCRG shall be disbursed to the petitioner without recovery as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. - 4) The petitioner will produce a certified copy of this judgment and the copy of this writ petition before the respondents for compliance. **Sd/P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 27821 OF 2022 8 ## **APPENDIX OF WP(C) 27821/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE RELEVANT PAGES OF THE AUDIT REPORT SHOWING THE AUDIT OBJECTION AGAINST THE PETITIONER. - Exhibit P2 A COPY OF THE ORDER NO.G2/605/2019 DATED 08/07/2021 RECEIVED BY THE PETITIONER ON 16/07/2021. - Exhibit P3 A RUE COPY OF THE REVISION DATED 23/09/2021 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - Exhibit P4 A COPY OF THE REPRESENTATION DATED 22/01/2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - Exhibit P5 A TRUE COPY OF G.O.(RT) - NO.4106/2022/G.EDN. DATED 13/07/2022. - Exhibit P6 A COPY OF THE G.O.(MS) NO.96/73/S.EDN. DATED 22/6/1973. - Exhibit P7 A TRUE COPY OF THE RELEVANT PAGES OF PAY REVISION ORDER AS PER G.O.(P) NO.27/2021/FIN. DATED 10/02/2021. - Exhibit P8 A COPY OF THE JUDGMENT DATED 31.08.2022 IN WPC NO.3229/2016. RESPONDENT EXHIBITS Exhibit R3(a) A true copy of the Undertaking of petitioner while opting revised scale of Pay from 03-05-2003 Exhibit R3(d) A true copy of the judgement in WA-65- WP(C) NO. 27821 OF 2022 9 2022 dated 08-08-2022 Exhibit R3(e) A true copy of the consent letter of Petitioner26-01-2021 Exhibit R3 (b) A true copy of the judgement in WA-19872016 dated 16-12-2016 ExhibitR3(c) A true copy of the judgement in WA-14692016 Dated 06-10-2016