K. Vijayan v. State of Kerala and The Assistant Educational Officer, Payyannur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** ## **WP(C).No.27819 OF 2011(B)** ## **PETITIONER:** **K.VIJAYAN, HEADMASTER, K.K.R.NAIR MEMORIAL L.P.SCHOOL, KARIVELLUR, KANNUR DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.ARUN CHANDRAN** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE ASSISTANT EDUCATIONAL OFFICER, PAYYANNUR-670 307, KANNUR DISTRICT.** **R1 -2 BY SR.GP.T.K.SHAJAHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.27819 OF 2011 2 ## **JUDGMENT** ## **Dated this the 12th day of March 2020** The petitioner had initial broken spells of service as L.P.S.A. for a period of two months and nineteen days from 1.7.1985 to 19.9.1985. The petitioner was appointed as L.P.S.A. on regular basis with the approval of the department on 02-06-1986. 2. While continuing as L.P.S.A., the petitioner was promoted as Head Master w.e.f. 17-11-1990, and as per order dated 19-03-2001 of the A.E.O., Payyannur, primary school head master's scale of pay was sanctioned to the petitioner w.e.f. 19-12-1997. Objection was raised against the sanction of headmaster's scale on the premise that, scale of pay of headmaster can be sanctioned only on completion of fifteen years of service as L.P.S.A. 3. Though the petitioner approached this Court by filing O.P.No. 20891/1999, contending WP(C).No.27819 OF 2011 3 that the scale was fixed reckoning the temporary service of the petitioner prior to his regular service and as such, the objection is unsustainable, the original petition was dismissed upholding the objection. Thereupon, the order sanctioning primary school headmaster's scale w.e.f. 19-12-2007 was cancelled and the eligibility date was re-fixed as 13-03-2001. Consequent to the modification, petitioner was directed to refund the excess salary drawn and the same was complied with. 4. Later, finding that the petitioner would complete fifteen years of service only by 02-06-2001 and re-assignment of the date as 13- 03-2001 was wrong, the A.E.O., Payyannur, cancelled the subsequent order also and re-fixed the eligibility date for grant of primary school headmaster's scale of pay as 02-06-2001. 5. Consequent upon such re-assignment, increment was sanctioned to the petitioner from 01-06-2002 onwards and the petitioner was WP(C).No.27819 OF 2011 **==> picture [7 x 8] intentionally omitted <==** directed to refund the excess pay drawn from 02-03-2001 to 30-06-2001, 01-03-2002 to 30-06-2002, 01-03-2003 to 30-06-2003, 01-03-2004 to 30-06-2004, 01-03-2005 to 30-06-2005 and 01-03-2006 to 30-11-2010. 6. Aggrieved by the order the petitioner filed WP(C) No.3404/2011 with a prayer to permit the petitioner to re-opt the dates with respect to the pay revisions of 2004 and 2007 as 01-06-2006 and 01-06-2007 instead of 01-03-2006 and 01-03-2007. The writ petition was disposed of under Exhibit P5-judgment, directing the Government to take a decision on the representation submitted by the petitioner, requesting permission for re-option within three months and to keep in abeyance further proceedings pursuant to Exhibit P2 by which the petitioner was directed to refund the amounts as mentioned above. 7. Exhibit P6 is the order issued by the Government, in compliance of the direction WP(C).No.27819 OF 2011 5 contained in Exhibit P5 judgment. The Government found that re-option is not an alternative to escape from re-fund of the salary received in excess. That, option once exercised is final and re-option is permissible only in cases involving retrospective revision or change of scale of pay that takes effect on a date prior to the date of option exercised by the employee under the concerned pay revision. 8. Heard the learned counsel for the petitioner and the learned Government Pleader. 9. The learned counsel for the petitioner submits that the mistakes, which had resulted in the petitioner being forced to refund the salary already drawn, were not attributable to the petitioner. It is submitted that the mistake was on the part of the departmental officials, and that the petitioner had to exercise his option based on that date. That, the mistake having been corrected subsequently, it is only just and proper to permit the petitioner to exercise re- WP(C).No.27819 OF 2011 6 option in accordance with the correction. 10. Reliance is placed on Exhibit P4(a) judgment to contend that, under similar circumstances, this Court had permitted reoption to be exercised. It is contended that the legal position is settled to the effect that excess pay drawn by an employee due to a mistake on the part of the statutory authorities cannot be recovered, unless such excess payment was the result of a fraudulent claim raised by the employee. 11. The decisions cited are : State of Bihar and Others v. Pandey Jagdishwar Prasad [2009 (1) KHC 512] and State of Punjab and others v. Rafiq Masih (White Washer)(2014 KHC 4818) of the Supreme Court of India and Deputy Director of Education and Others v. Chandran V.P. and others [2012 (1) KHC 818] of this Court. 12. I find substantial force in the contentions urged on behalf of the petitioner that the wrong fixation of scale of pay from an WP(C).No.27819 OF 2011 7 earlier date, is not in any manner attributable to the petitioner. It is an admitted fact that, pursuant to the judgment of this Court in O.P.No.20891/1999, the petitioner was called upon to re-fund the excess salary drawn by him pursuant to Ext.P1 and he had readily complied with the direction. 13. The request of the petitioner is only to permit him to exercise the right of re-option in accordance with the corrected date from which he became entitled for the primary school headmaster scale of pay. The department itself having corrected the date of entitlement as 02-06-2001, equity demand that the petitioner be permitted to exercise his option in terms of the corrected date. 14. The learned Government Pleader submits that under Exhibit P6-order, the Government had granted liberty to the petitioner to re-fund excess salary in twelve equal monthly installments and therefore this Court need not WP(C).No.27819 OF 2011 8 interfere with Ext.P6. 15. The departmental officials alone are responsible for fixing the petitioner's pay scale from an earlier date and the respondents having corrected the mistake, it would be sheer injustice to refuse permission to the petitioner to correct the wrong option exercised by him, based on the wrong fixation of pay scale. 16. In the result, the writ petition is allowed and Ext.P6 is quashed. The respondents are directed to accept the re-option submitted by the petitioner and to regulate his pay accordingly. The needful shall be done within three months of receipt of a copy of this judgment. The parties shall suffer their respective costs. ## **Sd/-** ## **V.G.ARUN JUDGE** SSK/12/03 WP(C).No.27819 OF 2011 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 27-11-2004 OF THE 2ND RESPONDENT.** **EXHIBIT P1(A) TRUE COPY OF THE COMMUNICATION NO.A/2667/2009 DATED 10-11-2009 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER, PAYYANNUR, THE 2ND RESPONDENT HEREIN. EXHIBIT P2 TRUE COPY OF THE ORDER NO. A/2667 DATED 1012-2010. EXHIBIT P3 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN O.P. NO. 21833 OF 2001 DATED 28-08-2003. EXHIBIT P4(A) TRUE COPY OF THE JUDGMENT IN O.P. NO. 12457 OF 2001 DATED 05-06-2003. EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN WP(C) NO. 3404 OF 2011 DATED 02-02-2011. EXHIBIT P6 TRUE COPY OF THE G.O.(RT).NO.3811/11/G.EDN, DATED 05-09-2011.** ## **RESPONDENT'S EXHIBITS:NIL** SSK //TRUE COPY// PA TO JUDGE