High Court of KeralaSingle Judge2015-04-10Writ petition allowed; impugned orders quashed;...

K.V. Vidyaltha v. Assistant Educational Officer, Valappad; Deputy Director of Education, Thrissur; State of Kerala

Case / Petition Number:WP(C).No. 21158 of 2012 (T)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.V. Ramakrishna Pillai
Judgment Date: 2015-04-10
Court Decision / Holding: The impugned orders are quashed. The writ petition is allowed. It is declared that the petitioner’s pay is not liable to be refixed at this time and no amount should be recovered from the monthly pension for the alleged wrong fixation while in service at East U.P. School Nattika. Exts. P2–P6 and P8–P10 are quashed.
Final Disposition: Writ petition allowed; impugned orders quashed; pay not refixed; no recovery from pension.

Parties to the Case

Appellants / Petitioners

K.V. Vidyaltha

Respondents

Assistant Educational Officer, Valappad
The Deputy Director of Education, Thrissur
State of Kerala, represented by its Secretary, Department of General Education

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K.B. Gangesh
• Smti. Smitha Chathanaramath

Counsels for Respondents

• Sri. Rafee V.K

Case Synopsis & Summary

This writ petition challenges the fixation of pay under time-bound higher grades granted to the petitioner during service and a consequent demand for recovery of excess pay. K.V. Vidyaltha, retired as Headmistress of East U.P. School Nattika (an aided school), contends that fixation of higher grades in 1987, 1997 and 2000 was irregular and that the appropriate fixation should have been as of 27.11.1987, 27.11.1997 and 27.11.2000 respectively. The respondents allege irregular fixation based on taking into account 28 days of medical leave in 1982 and rely on a declaration signed by the petitioner agreeing to refund any excess drawn if later found. Although pensionary benefits were disbursed after retirement (30.04.2006), the petitioner argues that recoveries from service emoluments are governed by rules that permit recovery only within a four-year window before retirement (Rule 3C, Chapter I, Part III, KSR) and that such recovery cannot be enforced after a long lapse. The court references the Supreme Court’s State of Panjab v. Rafiq Masih (White Washer) to illustrate permissible recoveries and concludes that the impugned orders cannot stand. Ultimately, the writ petition is allowed, Exts. P2–P6 and P8–P10 are quashed, and it is declared that the petitioner’s pay should not be refixed and no recovery from pension should be pursued.

Provisions of Law Cited

Rule 3C of Chapter I, Part III KSRRule 117(a) of the Pension Rules

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the fixation of time-bound higher grades in 1987, 1997 and 2000 was irregular and should have been fixed strictly with the dates 27.11.1987, 27.11.1997 and 27.11.2000. She asserts that including 28 days of medical leave in 1982 as a basis for higher-grade fixation is inappropriate, especially since medical-leave fixation is distinct from other leave. She points to the four-year limitation for recovery under Rule 3C of the KSR, arguing that recoveries beyond four years before retirement are impermissible; she had disclosed a willingness to refund excess if later required, but argues that recovery from pension is untenable since the bank of errors occurred long ago and she did not contribute to the misfixation. She also notes that pension benefits were already disbursed, and the state’s attempt to recover is punitive years after retirement. Respondents’ arguments emphasize that the fixation was based on the medical-leave period and that the petitioner signed a declaration to refund excess, with recoveries governed by Rule 3C and related Pension Rules; they contend the relief sought is not warranted given improper fixations and the legal framework.

Contentions of Respondents

The respondents submit that fixation in 1987, 1997 and 2000 relied on 28 days of medical leave in 1982, rendering the fixations irregular, and that the petitioner’s fixation required correction. They rely on the petitioner’s own declaration to refund excess if later discovered and argue that recoveries are allowed within the four-year rule under Rule 3C and applicable Pension Rules. They argued that despite pension disbursement, the proper legal recourse remains to rectify the erroneous fixation and recover the excess.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Panjab v. Rafiq Masih (White Washer)	2015 (1) KLT 429 (SC)	Positive	Cited and applied to support the proposition that recovery from retired employees may be impermissible in certain circumstances, and the petitioner's case falls within the described criteria (clause (iii)) in the Masih decision.

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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 A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 10TH DAY OF APRIL 2015/20TH CHAITHRA, 1937** ## **WP(C).No. 21158 of 2012 (T)** **----------------------------** ## **PETITIONER:** ## **-------------------** **K.V.VIDYALATHA, HEADMISTRESS (RETD.), EAST U.P.SCHOOL NATTIKA, THALIKKULAM P.O. - 680569. (PULIPPARAMBIL HOUSE) ENGANDIYOOR P.O., ETHAYI, PALLIKKADAVU ROAD, THRISSUR-680615.** ## **BY ADVS.SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH** **RESPONDENT(S): -------------------------** **1. ASSISTANT EDUCATIONAL OFFICER, VALAPPAD, PIN - 680568.** **2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR - 680003.** ## **3. STATE OF KERALA,** - **REPRESENTED BY ITS SECRETAY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-01.** ## **BY GOVERNMENT PLEADER SRI.RAFEEK.V.K** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-04-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 21158 of 2012 (T) --------------------------------------** ## **APPENDIX** **PETITIONER(S) EXHIBITS: -------------------------------------** **EXHIBIT-P1. TRUE COPY OF THE STATEMENT FOR FIXATION OF PAY IN HIGHER GRADE WITH EFFECT FROM 1.3.2006 SUBMITTED BY THE PETITIONER THROUGH THE HEADMISTRESS OF EAST U.P.SCHOOL NATTIKA ON 7.9.2009. EXHIBIT-P2. TRUE COPY OF LETTER DATED 12.4.2010 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT-P3. TRUE COPY OF LETTER DATED 6.5.2010 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT-P4. TRUE COPY OF ORDER DATED 30.9.2010 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT-P5. TRUE COPY OF THE ORDER DATED 29.6.2011 ISSUED BY THE 3RD RESPONDENT. EXHIBIT-P6. TRUE COPY OF LETTER DATED 2.3.2012 ISSUED BY THE 1ST RESPONDENT. EXHIBIT-P7. TRUE COPY OF REPRESENTATION DATED 27.4.2012 PREFERRED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT-P8. TRUE COPY OF ORDER DATED 2.7.2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P9. TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT ON 2.7.2012. EXHIBIT-P10. TRUE COPY OF LETTER DATED 27.7.2012 ISSUED BY THE 1ST RESPONDENT.** **RESPONDENTS' EXHIBITS: - NIL --------------------------------------/TRUE COPY/** **P.S. TO JUDGE** **mbr/** **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 21158 of 2012 -------------------------------------------------Dated this the 10[th] day of April, 2015** ## **J U D G M E N T** Exts.P2 to P6 & P8 to P10 orders passed by the respondents are under challenge. 2. The petitioner alleges that by the impugned orders, her pay, pursuant to sanction of various time bound higher grades, has been fixed erroneously and accordingly, she is directed to refund the excess amount. 3. The petitioner demitted her office as Headmistress of East U.P. School Nattika, which is an aided school, on 30.04.2006. Pensionary benefits due to her have been sanctioned and disbursed to her. The petitioner is aggrieved by the action of the respondents as they have alleged that fixation of higher, senior and selection grades of the petitioner in 1987, 1997 and 2000 are irregular and the same ought to have been granted only on 27.11.1987, 27.11.1997 and 27.11.2000 W.P.(C) No. 21158 of 2012 **==> picture [20 x 8] intentionally omitted <==** respectively; and therefore, her salary has to be refixed. Accordingly, she will have to refund the excess amount received. The petitioner points out that the recovery could be effected only within four years after the retirement. It is with this background, the petitioner has come up before this Court. 4. In the counter affidavit filed by the 2[nd] respondent, they have admitted that the petitioner has continuous service from 07.06.1978 as LPSA. According to them, the ten years higher grade was sanctioned to the petitioner by excluding the period of leave without allowance availed for the period from 03.03.1982 to 30.03.1982. It was contended that the period of leave without allowance not supported by medical certificate would be deemed as un-qualifying service, has to be excluded from service for service benefits including grade fixations. According to the 2[nd] respondent, the erroneous fixation of pay was made on the basis of a duly signed declaration of the petitioner agreeing to refund the W.P.(C) No. 21158 of 2012 **==> picture [20 x 8] intentionally omitted <==** excess drawn if found later on further scrutiny. According to them, though the petitioner had demitted her office on 30.04.2006 and the pensionary benefits have been released, the petitioner had consented in the pension book prepared and submitted in terms with Rule 117(a) that she would refund any amount, which she is not entitled. 5. Arguments have been heard. 6. According to the respondents, sanction of time bound higher grades to the petitioner in 1987, 1997 and 2000 are irregular as much as the same have been sanctioned taking into account 28 days of medical leave availed by her in 1982. According to the learned counsel for the petitioner, such a stand is irregular as availing of leave without allowance on medical grounds cannot be equated with availing leave without allowance for other reasons. Leave without allowance on medical grounds shall not be exempted for sanction of time bound higher grades; so submitted the learned counsel for the W.P.(C) No. 21158 of 2012 ..4.. petitioner. I see valid force in the submission. 7. Even if the objection raised by the respondents is accepted, the same cannot be enforced at this distant point of time. As per Rule 3C of Chapter I, Part III KSR, pay to an officer is recoverable only if such payments fall within a period of four years before his retirement. In this case, admittedly, mistaken pay fixations have been made in the years 1987, 1997 and 2000, which are beyond four years prior to the petitioner's retirement. The requisition for refund made by the respondents in the circumstances is illegal, arbitrary and is liable to be interfered with. 8. It is settled law that recovery on account of wrong pay fixation shall not be effected from the emoluments of an employee if the employee had no role in the wrong fixation of pay. In this case, the petitioner has not in any way misled the authorities to obtain the present fixations of her pay. Mistake, if any, has been committed by the concerned authorities. W.P.(C) No. 21158 of 2012 **==> picture [20 x 8] intentionally omitted <==** Therefore, the petitioner cannot be penalized for the same at this point of time. 9. The apex court has occasion to consider the question of recovery of payment mistakenly given to the employee in **State of Panjab** v. **Rafiq Masih (White Washer)** [2015 (1) KLT 429 (SC)]. The apex court summarized the following few situations, wherein recoveries by the employers would be impermissible in law; “(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from 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 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 W.P.(C) No. 21158 of 2012 ..6.. recover.” The petitioner's case falls squarely within Clause (iii) referred to above. Viewed in that profile also, the petitioner is entitled to succeed. On a consideration of the entire materials now placed on record, this Court is of the view that the impugned orders shall not be allowed to stand. In the result, the writ petition is allowed. - Exts.P2 to P6 and P8 to P10 are quashed. - It is hereby declared that the petitioner's pay is not liable to be refixed at this point of time and no amount need be refunded from the monthly pension of the petitioner on account of the wrong fixation of her pay while she was in service of East U.P. School Nattika. Sd/- **A.V. RAMAKRISHNA PILLAI JUDGE** bka/-