K.P. Aleykutty v. District Educational Officer, Malappuram and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN &** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 17TH DAY OF JANUARY 2018 / 27TH POUSHA, 1939** **WA.No. 2591 of 2015 IN WPC. 17476/2013** **----------------------------------------** **AGAINST THE JUDGMENT IN WP(C) 17476/2013 of HIGH COURT OF KERALA DATED 10-02-2015** **APPELLANTS/ RESPONDENTS 1 TO 4 IN W.P.(C).** **------------------------------------------** **1 THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM.** **2 THE DEPUTY DIRECTOR OF EDUCATION,** **MALAPPURAM.** **3 THE STATE OF KERALA,** **REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **4 THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM -695 001.** **BY GOVERNMENT PLEADER SRI.A.J. VARGHESE** **RESPONDENTS/ PETITIONER IN W.P.(C):** **-----------------------------------** **K.P.ALEYKUTTY, HIGH SCHOOL ASSISTANT, SOCIAL STUDIES, NATIONAL HIGH SCHOOL, KOLATHUR, MALAPPURAM DISTRICT – 679 338** **BY DR.GEORGE ABRAHAM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RKM** ## **K. SURENDRA MOHAN & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **W.A.No. 2591 of 2015** =-=-=-=-=-=-=-=-=-=-= **Dated this the 17[th] day of January, 2018** ## **JUDGMENT** ## _**K. Surendra Mohan, J.**_ The State is in appeal challenging the judgment of the learned Single Judge dated 10.02.2015 in W.P.(C).No.17476 of 2013. The learned Single Judge has allowed the writ petition filed by the respondent and has directed the appellants to refix her pension and to pay the arrears within a period of three months from the date of receipt of a copy of the judgment. 2. The respondent is a retired teacher. She retired from service on 31.03.2013. She joined service as an Upper Primary School Assistant ('UPSA', for short) on 22.07.1983. On 17.08.1988, she was promoted as High School Assistant ('HSA', for short). When the Pay Revision was implemented with effect from 01.03.1997, one Moideenkutty, who was her junior was found to be drawing higher pay. Therefore, in accordance with the provisions in the Pay Revision order, a junior-senior fixation was effected by stepping up her pay to that of her junior. The fixation was done with effect from 01.06.1997. 3. In 1998, on completion of 10 years' service, the respondent became entitled to the first time bound higher grade since she W.A.No. 2591 of 2015 2 completed her 10 years' service on 16.08.1998. She was sanctioned her first higher grade from 17.08.1998. According to the appellants, she was sanctioned her next increment in August 1999 and the subsequent increments for the years 2000 and 2001 also were sanctioned in August. However, the Headmaster without any authority is alleged to have changed her date of increment from August to June. An entry to the said effect was made in her Service Book, which was approved by the District Educational Officer. On the said basis, she was sanctioned her 2[nd] higher grade also in 2006, with effect from 01.06.2006. In Ext.P1, an audit objection was raised to the effect that, though she became entitled to be sanctioned her higher grade only in August 1998, the same was sanctioned with effect from June. Therefore, her subsequent fixation of pay as per the Pay Revision of 2004 was also directed to be revised. The aggrieved respondent unsuccessfully challenged the proceedings before the authorities and finally in revision before the Government. By Ext.P6, the Government also rejected her contentions. It was aggrieved by the said order that the writ petition was filed. 4. According to the respondent, the date of her increment could be changed as per Ruling No. I of Rule 30 of Part I KSR. Therefore, the audit objection raised was only to be rejected. W.A.No. 2591 of 2015 3 It was also contended that the excess amount that she had drawn consequent to the shifting of her date of increment from August to June was already paid back. 5. The contentions of the respondent were refuted by the appellants. The 2[nd] respondent in the writ petition filed a counter affidavit contending that Ruling No.I of Rule 30 of Part I KSR on which reliance is placed by the respondent, has no application to the fixation of pay and for the said reason the objection was perfectly justified. The Headmaster had without any authority shifted the date of increment of the respondent from August to June. Since she had not completed the required period to entitle her to be sanctioned the higher grade, it was contended that the action granting the same was irregular. 6. The learned Single Judge considered the respective contentions, held that Ruling No.I of Rule 30 of Part I KSR was applicable and therefore, directed the pension and other service benefits of the respondent to be re-fixed. 7. According to the learned Government Pleader, who appears for the appellants, the learned Single Judge has seriously erred in finding that Ruling No.I of Rule 30 of Part I KSR applied to the case of the respondent. The respondent had admittedly completed 10 years' service only on 16.08.1998. It was only on the W.A.No. 2591 of 2015 4 said date that she became eligible to the sanction of her first time bound higher grade. The grade was sanctioned on 17.08.1998 also. Thereafter, increments were being paid to her every year in August. In the above circumstances, there was no justification for the change effected by the Headmaster, subsequently. The learned Government Pleader, therefore seeks interference with the judgment of the learned Single Judge. 8. Adv. Dr. George Abraham, who appears for the respondent. According to the learned counsel, though it is true that the Headmaster had shifted the date of increment of the respondent from August to June, the proposal had been approved by the District Educational Officer concerned. Thereafter, on the said basis, the Pay Revision of the year 2004 was implemented and she was paid all the benefits on the basis of such revision. Accordingly, she had retired from service on 31.03.2013. The audit objection has come only on 01.07.2011. Immediately on receipt of the said objection, the excess pay that was drawn by the respondent was made good to the Government. Thereafter, she sought for computation of all the service benefits due to her treating 01/08 as the date of her increment. It was the said request that was disallowed by the Government, without any justification. Therefore there are absolutely no grounds to interfere with the same, it is W.A.No. 2591 of 2015 5 contended. 9. Heard. On the admitted facts, it is clear that the respondent completed 10 years' service only on 16.08.1998. Therefore, she became entitled to her first time bound higher grade only on the said date. It is seen that, she was accordingly granted her higher grade with effect from 17.08.1998. Though the subsequent increments due to her were also sanctioned from August 1999, 2000 and 2001, the said date was later on changed to 01/06. We find no justification for the said change. Probably, the authorities were carried away by the fact that the stepping up of the respondent's pay had been sanctioned with effect from 01.06.1997. However, the fact remains that the change of the respondent's date of increment from August to June was approved by the educational authorities. The present audit objection has come only in the year 2011. 10. We have perused Ruling No.I of Rule 30, Part I KSR. We are not satisfied that the said Ruling has any application to the facts of the present case. This is a case, in which the date of increment of the respondent was changed from August to June by the Headmaster, who had no authority to do so. However, as already noticed above, the same was approved by the District Educational Officer also. Be that as it may, it is not in dispute that, W.A.No. 2591 of 2015 6 the correct date from which the respondent had become entitled to her higher grade was approved. Accordingly, she became entitled to her 2[nd] higher grade on 01.08.2006. Therefore, it is only appropriate that the mistake is corrected and the respondent is given all her service benefits, after conducting necessary re-fixation on the said basis. We take note of the fact that, immediately on the audit objection Ext.P1 being raised, the respondent had paid back the excess salary that she had drawn on the basis of the fixation effected with the first of June as the date of her increment. In view of the above, we do not find any infirmity in the directions issued by the learned Single Judge for re-fixation of the pension and other benefits due to the respondent. It is only necessary to clarify that such re-fixation shall be done treating the first of August as the date of increment as well as the date of sanction of higher grade to the respondent. 11. The learned counsel for the respondent expresses an apprehension that, upon such re-fixation, if she is found to have drawn any excess amount, there could be proceedings for recovery against her. Our attention is drawn to the decision of the Apex Court in _**State of Punjab and Others v. Rafiq Masih (White Washer) and Others [2015 (4) SCC 334]**_ to contend that, such recovery is impermissible, in view of the dictum therein. Paragraph W.A.No. 2591 of 2015 7 ## 18, relevant in the context is extracted hereunder. 18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law : (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. 12. Clauses (ii) and (iii) above are applicable to the case of the respondent. Therefore, in the event of re-fixation of the service benefits of the respondent, no recovery is permissible. W.A.No. 2591 of 2015 8 In the result, this appeal is disposed of directing the Deputy Director of Education, Malappuram to re-fix the pension of the respondent and to pay her arrears as well as all other benefits due upon such re-fixation, within a period of two months from the date of receipt of a copy of this judgment. Sd/- **K. SURENDRA MOHAN JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM