K. U. Abdul Kareem v State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 5TH DAY OF AUGUST 2013/14TH SRAVANA, 1935 WP(C).No.30431 of 2008 (W) ---------------------------- PETITIONER(S): - ------------- K.U. ABDUL KAREEM, S/O. K.M. USUF, AGED 55 YEARS, ARABIC TEACHER (RETD.) S.I.U.P. SCHOOL,KALOOR (RESIDING AT ROYAL GARDEN B.N.R.A.41 MAMANGALAM, POTTAKKUZHI ROAD, P.O. PALARIVATTOM KOZHI -25.) BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): -------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD, ERNAKULAM -30. 3. THE ASSISTANT EDUCATIONAL OFFICER, ERNAKULAM DISTRICT. 4. THE HEAD MASTER, S.I.U.P. SCHOOL, KALOOR, COCHIN -17. R4 BY ADV. SRI.T.K.SHAJAHAN R1 TO R3 BY GOVERNMENT PLEADER SRI.T.R.RAJESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.30431/08 ## APPENDIX PETITIONER'S EXHIBITS: P1:TRUE COPY OF THE ORDER NO.G-2300/99/K.DIS. OF THE ASST.EDL.OFFICER. - P2:TRUE COPY OF THE LETTER NO.L.DIS.24243/07/D5 OF THE DY.DIRECTOR OF EDN. - P3:TRUE COPY OF THE DECISION REPORTED IN I.L.R 2007(3) KER.105. P4:TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT IN W.A.NO.1578/2003. P5:TRUE COPY OF THE DECISION REPORTED IN 2008(3) K.L.T.188. - P6:TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C). NO.8560/2008-R. P7:TRUE COPY OF THE G.O.(RT)NO.4154/2008/G.EDN. OF THE GOVERNMENT. P8:TRUE COPY OF THE LETTER OF THE PETITIONER. - P9:TRUE COPY OF THE REPLY OF THE ASST.EDUCATIONAL OFFICER. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.30431 OF 2008 ==========================** Dated this the 5[th] day of August, 2013 ## **JUDGMENT** The petitioner who is a retiree from S.I.U.P school, Kaloor filed this writ petition seeking quashment of Exts.P2 and P7 which are respectively the orders passed by the Assistant Educational Officer and the Deputy Director of Education, interfering with the fixation of the petitioner's pay pursuant to 1997 pay revision based on senior junior pay fixation. The facts of the case, in succinct, are as follows:- The petitioner retired from the service of S.I.U.P.School, Kaloor as Arabic teacher, on 31.3.2008. He commenced his continuous service under the said school on 1.6.1976. One K.M.Kunjuhammed commenced his service under the same school on 28.7.1977. Pursuant to 1997 pay revision, in terms of G.O.(P).No.3000/98/Fin. dated **W.P.(C).30431/08** 2 25.11.1998 that was effected from 1.3.1997, the scale of pay of Arabic Teacher was revised from Rs.1350-2200 to Rs.4500-7000. The petitioner opted the revised scale of pay with effect from 1.3.1997 and his scale of pay was accordingly fixed in the revised scale of pay of Rs.4500-7000 with the next increment from 1.2.1998. The scale of pay of the aforesaid Kunjuhammed in the same cadre was fixed at Rs.4500 with effect from 1.3.1997 with next increment from 1.7.1997. Thereafter, taking into account the anomaly of the junior getting higher pay than the senior, the third respondent passed Ext.P1 order dated 16.2.1999 whereby senior junior fixation was allowed and the pay of the petitioner was raised to Rs.4600 with effect from 1.7.1997. Long later, Ext.P2 dated 22.9.2007 was passed by the second respondent. It is stated therein that the pay fixation as per Ext.P1 was not in order since the next increment date of the petitioner was extended to February, 1998 taking into account the leave without allowances availed by him from 16.7.1992 to 3.2.1997. In such circumstances, senior-junior fixation allowed and the increment **W.P.(C).30431/08** 3 authorised with effect from 1.7.1997 and further grade fixation and fixation of pay of 2004 pay revision were to be revised. Feeling aggrieved by the same, the petitioner took up the matter before the Government. Since no action was taken thereon, the petitioner approached this Court by filing W.P.(C).No.8560 of 2008. The said writ petition was disposed of as per Ext.P6 judgment. Pursuant to the directions in the said judgment, Ext.P7 order was passed by the Government on 17.9.2008 whereby the appeal preferred by the petitioner was rejected confirming Ext.P2 order passed by the Deputy Director of Education. It is in the said circumstances that this writ petition has been filed seeking quashment of Exts.P2 and P7 and for a declaration that fixation of pay of the petitioner as per Ext.P1 is legal and valid. 2. The third respondent has filed a counter affidavit in this writ petition. It is stated therein that the petitioner had availed leave without allowances for private affairs and therefore, the said period **W.P.(C).30431/08** 4 from 16.7.1992 to 3.2.1997 could not be counted for any service benefits. Admittedly, after the expiry of the period of LWA, the petitioner rejoined duty on 4.2.1997 and therefore, his next increment fell due only with effect from 1.2.1998. It is further stated that it is only the postponement of increment of the petitioner in the aforesaid circumstances that resulted in the situation where the petitioner is drawing lesser pay than his junior K.M.Kunjuhammed. It is also stated that in such circumstances, junior-senior fixation allowed as per Ext.P1 and the authorisation to get increment with effect from 1.7.1997 and further grade promotion as also fixation of pay, 2004 pay revision etc. granted to the petitioner are liable to be revised. 3. The contention of the petitioner is that prior to the availing of LWA and immediately after rejoining duty on expiry of the LWA, the petitioner was drawing higher pay than the said Kunjuhammed and that both the petitioner and Kunjuhammed were drawing salary in the same scale of pay. The factum of his availing LWA from **W.P.(C).30431/08** 5 16.7.1992 to 3.2.1997 is admitted and it is also admitted that pursuant to his rejoining duty on 4.2.1997, his next increment fell due only on 1.2.1998. The contention of the petitioner is that the senior-junior fixation as per Ext.P1 cannot be interfered with on account of efflux of time. It is further contended that the senior-junior pay fixation was effected as per Ext.P1 on 16.3.1999 and the said order was interfered with and the consequential directions were issued as per Ext.P2, only on 22.9.2007. The contention of the petitioner is that such a fixation of pay and the authorisation of increment with effect from 1.3.1997 were not on account of any mistake or fraud, committed by the petitioner and therefore, there is no reason for the respondents to interfere with the pay fixation effected as early as in 1999 after about 8 years in and vide Ext.P2. The learned counsel for the petitioner submitted that the said crucial aspect was not at all looked into while passing Ext.P1 order. Thus it is evident that, in essence, the pith of the argument is that even in case of holding senior-junior pay fixation effected as per Ext.P1 as bad, the same cannot have any adverse **W.P.(C).30431/08** 6 impact or effect on the petitioner. Per contra, the learned Government Pleader submitted that after availing LWA from 16.7.1992 to 3.2.1997, the petitioner rejoined duty only on 4.2.1997 and by virtue of the same, he was entitled to next increment only from 1.2.1998. When the said fact is indisputable and incontestable, the petitioner cannot challenge the orders in Exts.P2 and P7. The learned counsel for the petitioner sought to sustain Ext.P1 relying on the Division Bench decisions of this Court in **2012 (2) KLT 13 in Deputy Director of Education v. Chandran** and **State of Kerala v. Mahadevan Nair [2012 (4) KLT SN 46 (C.No.39)].** The learned Government Pleader resisting the said contention relied on the decision of the Hon'ble Supreme Court in **Chandi Prasad Uniyal v. State of Uttarakhand [(2012) 8 SCC 417]** . 4. The petitioner availed LWA from 16.7.1992 to 3.2.1997 and rejoined duty only on 4.2.1997. Consequently, he was entitled to draw his next increment only from February 1998. This factual **W.P.(C).30431/08** 7 position is not in dispute. Pay revision was ordered as per G.O.(P) 3000/98/Fin. Dated 25.11.1998 to the government employees and teachers only with effect from 1.3.1997. Evidently, the petitioner has rejoined duty prior to that. The impact of availing of LWA for a period from 16.7.1992 to 3.2.1997 is that it postponed his usual date of earning increment to February 1998. The question is, merely because the petitioner who was drawing higher pay in the same scale than the aforesaid Kunjuhammed before the availing of LWA and immediately thereafter for a couple of months, can be a reason for holding that he is entitled to a senior-junior pay fixation? Even if the answer is in the negative whether it can be said that on account of efflux of time the reason has fade into insignificance? As noticed hereinbefore, the decisions relied on by the petitioner in **Mahadevan Nair'** s case (supra) and **Chandran'** s case (supra) to substantiate and support the contentions of the petitioner that even in case of the said action is not in accordance with law on account of the efflux of time the excess pay based on a wrong fixation of pay could not be effected **W.P.(C).30431/08** 8 and consequently, the over payment could not be recovered. At the same time, it is to be noted that the Hon'ble Apex Court in **Chandi Prasad Uniyal's** case (supra) held that excess payment of public money is described as tax payer's money and it did not belong neither to the officer who have effected overpayment nor to the concerned recipient. Even if the situation of over payment occurred without any flaw on the part of the concerned recipient or even if the payer and the payee is equally at fault when once it is found that the payment have been effected without any authority of law and that the concerned recipient received the amount without any authority of law it could always be recovered barring few exceptions. It was held by the Hon'ble Apex Court that extreme hardship and undue delay are the exceptions to the general position of law. Relying on **Mahadevan Nair's** case (supra) and **Chandran** 's case (supra), this Court cannot interfere with Exts.P2 and P7. I have already adverted to the factual contentions. No provision was brought to my notice as to why the interference with the said senior-junior pay fixation effected as per **W.P.(C).30431/08** 9 Ext.P1 by respondents 1 and 2 respectively, as per Exts.P2 and P7 should be interfered with. It is evident that both the petitioner and the said Kunjuhammed opted the revised pay pursuant to 1997 pay revision with effect from 1.3.1997 and their pay was fixed at Rs.4500 with effect from 1.3.1997 and in the case of said Kunjuhammed he happened to obtain higher pay in the same scale only on account of the fact that his date of increment fell on 1.7.1997. When admittedly the date of increment of the petitioner fell due only in February 1998 on account of his availing LWA from 16.7.1992 to 3.2.1997, he should not have been authorised to get increment with effect from 1.7.1997 solely based on senior-junior fixation. The impact of availing of LWA cannot be nullified solely alleging anomaly of junior getting higher pay that the senior. The anomaly of the junior to get higher pay than the senior may occur on account of various reasons. There cannot be an inviolable position that in all circumstances wherein the junior is getting higher pay than the senior, parity in payment should be brought about by resorting to junior-senior pay fixation. In this case, **W.P.(C).30431/08** 10 the petitioner should not have contended that the situation wherein the said Kunjuhammed happened to obtain higher pay than the petitioner occurred solely on account of pay fixation. It happened on account of the fact that after their opting to the revised scales of pay pursuant to 1997 pay revision, due date for next increment in the case of said Kunjuhammed fell on 1.7.1997 and he became entitled to Rs.4600 in the scale of pay Rs.4500-7000. The petitioner should not have been authorised to get his increment with effect from 1.7.1997 because on account of his availing LWA his due date for next increment fell only with effect from February 1998. As per Ext.P2, the third respondent corrected only the said mistake and the first respondent confirmed the action on the part of the second respondent in an vide Ext.P7. In such circumstances, Exts.P2 and P7 cannot be said to be illegal. In fact, the petitioner did not have a case that Exts.P2 and P7 are legally wrong. The case put forth by the petitioner is that by the efflux of time, the amount received by the petitioner cannot be recovered and it is to substantiate the same that the petitioner relied on the decisions in **W.P.(C).30431/08** 11 **Mahadevan Nair's** case (supra) and **Chandran'** s case (supra). In this context, it is relevant to refer to paragraph 14 in **Chandi Prasad Uniyal's** case (supra). It reads thus:- “Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.” 5. It is evident from the said decision that the Apex Court carved out two exceptions to the law laid down thereunder namely the extreme hardship and undue delay. The mere fact that such orders would create inconveniences to a party cannot be taken as extreme hardship as invariably in all cases wherein over payment is sought to be recovered it would not be in the interest of the party concerned and he/she may feel inconvenience. No case has been made out to hold **W.P.(C).30431/08** 12 that extreme hardship would be caused to the petitioner, in this case. In **Chandi Prasad Uniyal** 's case (supra), concerned persons were receiving higher pay with effect from 1.7.2001 and the anomaly was rectified by passing appropriate orders on 24.10.2009. As in the case of **Chandi Prasad Uniyal's** case (supra), in this case, there was a lapse of about 8 years in rectifying the anomaly. Even then in **Chandi Prasad Uniyal's** case (Supra), the Hon'ble Apex Court held that the case of the appellants therein would not fall under any of the exceptions. At the same time, taking into account the inconveniences that made cause to the concerned parties it was ordered that the excess payment should be effected from the salary of the appellants in 12 equal monthly instalments starting from October 2012. The Apex Court also held that excess payment could be recovered from salary/pension. In the light of the said position I am not inclined to hold that the amount received by the petitioner in excess is not to be recovered. Taking into account the fact the the petitioner herein became a pensioner on 31.3.2008, the recovery shall be effected only **W.P.(C).30431/08** 13 in instalments. Accordingly, while upholding Exts.P2 and P7, I am inclined to order that the excess payment after its quantification shall be recovered from the petitioner's pension only in 24 monthly instalments commencing after a period of one month from such quantification. Needless to say that such quantification shall be made within two months from the date of receipt of a copy of this judgment. When faced with such situation the learned counsel for the petitioner submitted that the petitioner should be given a chance for reopting based on 1997 and other pay revisions. It is contended that considering the fact that if the objection to Ext.P1 was raised at the appropriate time without any delay it would have enabled him to exercise right of re-option. Since the same was interfered with only after a long period of eight years, according to the petitioner, he is entitled to get the right to re-opt to 1997 pay revision and subsequent pay revisions. It will be open to the petitioner to make a request to the first respondent in that regard and in case of such a request from the petitioner it shall be taken up and considered along with the question **W.P.(C).30431/08** 14 of quantification to be made in tune with the earlier direction. To enable such consideration, in case the petitioner is desirous to make such a request, it shall be made within two weeks from the date of receipt of a copy of this judgment. Disposed of accordingly. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).30431/08** 15 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).30431/08** 16