Lorance Mathew v. Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram; 2 Director of Public Instructions; 3 District Educational Officer, Thalipparamba; 4 District Educational Officer, Kannur; 5 Head Master, Sacred Heart High School, Payyavoor; 6 Head Master, Maryland High School, Madampam; 7 Corporate Manager, Corporate Educational Agency of Schools, Diocese of Kottayam; 8 Deputy Director of Education, Kannur

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 31[ST]DAY OF AUGUST 2022 / 9TH BHADRA,1944 ``` ``` WP(C) NO. 175 OF 2021 ``` ## **`PETITIONER/S:`** ``` LORANCE MATHEW AGED 60 YEARS CLERK (RETIRED), SACRED HEART HIGH SCHOOL, PAYYAVUUR, KANNUR DISTRICT, R/O.PALAMOOTTIL HOUSE, PAYYAVOOR, KANNUR DISTRICT, PIN - 670 633. BY ADVS. A.LOWSY SRI.VIJU ABRAHAM ``` ## **`RESPONDENT/S:`** ``` 1SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM - 695 014. 3DISTRICT EDUCATIONAL OFFICER THALIPARAMBA, KANNUR - 670 501. 4DISTRICT EDUCATIONAL OFFICER KANNUR - 670 501. 5THE HEAD MASTER SACRED HEART HIGH SCHOOL, PAYYAVUUR, KANNUR - 670 633. 6THE HEAD MASTER MARYLAND HIGH SCHOOL, MADAMPAM, KANNUR - 670 007. ``` W.P.(C) No.175 of 2021 2 ``` 7THE CORPORATE MANAGER THE CORPORATE EDUCATIONAL AGENCY OF SCHOOLS, DIOCESE OF KOTTAYAM, THALLAKAM P.O., KOTTAYAM - 686 630. 8THE DEPUTY DIRECTOR OF EDUCATION KANNUR - 670002. ``` ``` BY ADV GOVERNMENT PLEADER ``` ``` SMT ANIMA M GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.175 of 2021 3 ## **JUDGMENT** The petitioner, while working as a Clerk in the Sacred Heart High School, Payyavoor, attained superannuation on 29.02.2016. He has approached this Court, challenging Ext.P13 proceedings dated 04.01.2019, issued by the 4th respondent by which the Time Bound Higher Grade granted to the petitioner on completion of 18 years of service was found to be irregular. Pursuant to Ext.P13 proceedings, the 4th respondent has initiated steps and has recovered the excess amount which is stated to have been paid to the petitioner. The reliefs sought by the petitioner are as under: - i. Issue a writ of certiorari or any other appropriate writ order or direction calling for the records relating to Ext.P13 and quash the original of the same. - ii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 4th respondent to refund the excess amount recovered from the petitioner. 2. Short facts are as under: On 20.09.1982, the petitioner was appointed as a clerk in the Sacred Heart High School, Payyavoor in a leave vacancy and the said appointment stands approved. After the expiry of the leave vacancy, he was appointed as a Full-Time Menial in St. Michael's High School, Kaduthuruthy, W.P.(C) No.175 of 2021 4 another school under the same Corporate Management. The said appointment also stands approved. Thereafter, the petitioner was promoted to the post of Peon and was posted at St. Mary's High School, Kidangoor, by the Manager, and the said appointment also was approved by the educational authorities. The petitioner was thereafter promoted as a clerk with effect from 10.09.1990 and worked as such till the date of his superannuation. 3. While so, the 1st respondent issued Ext.P1 order detailing the manner and mode in which calculation of service of entry grade has to be done for granting Time Bound Higher Grade. As per Ext.P1, clerks in aided schools promoted from last grade service can be sanctioned the 2nd higher grade on completion of 10/18 years of service in the first promoted post or on completion of 20/18 years in the post of Last Grade and Clerk posts together, whichever is earlier. In terms of Ext.P1, the petitioner was granted second higher grade, as per Ext.P2 order taking his service of Full Time Menial and Peon together with service rendered by him in the category of Clerk. Consequently, the salary was also disbursed. According to the petitioner, the Government later came out with Ext.P3 and P4 orders enabling the grant of time-bound grade promotions to non-teaching staff in aided schools, colleges, and polytechnics and in tune with the same, the petitioner was entitled to third Time Bound Higher Grade on completion of 23 years of service. As the W.P.(C) No.175 of 2021 5 petitioner had completed 23 years of service on 01.07.2007, he submitted Ext.P5 application before the 3rd respondent. On receipt of Ext.P5, Ext.P6 communication was issued by the 3rd respondent pointing out that the petitioner was not eligible for grade promotion reckoning the service put in by him as Full-Time Contingent Menial (FTCM)/Peon as it was not the entry cadre of Clerk. The DEO was ordered that the proposal for selection grade can be considered only after the senior grade already sanctioned is revised. Orders were also issued to get a refund of the excess salary, if any, paid. Directions were issued to submit a revised proposal. 4. Ext.P6 communication was challenged before this Court by the petitioner. By Ext.P7 judgment, this Court held that the objection raised by the DEO that FTM/Peon is not the feeder category of clerk and hence, the service as Peon/FTM cannot be reckoned for granting higher grade cannot be sustained. The letter was quashed and directions were issued to the DEO to consider the proposal for fixation of pay and to grant him all benefits, including those consequent to the subsequent pay revision orders. In terms of the directions so issued, the 3rd respondent issued Ext.P8 order and granted the benefits due to the petitioner. 5. Immediately thereafter, in respect of the petitioner, the Headmaster submitted a proposal to allow re-option for the pay revision 2009 W.P.(C) No.175 of 2021 6 in terms of the order dated 26/2/2011. In response to the proposal, the Deputy Director of Education, Kannur, informed the 3rd respondent by Exhibit P9 communication that the review of the sanction of selection grade to the petitioner on the ground that the scale of promotion post can be granted only if there is a promotion post available and not otherwise. In terms of the directions so issued, the 3rd respondent issued Exhibit P10, reviewing the earlier order. 6. Challenging Exhibit P10, the petitioner approached this Court and filed WP(C) No.36327/2018, and this Court, by Exhibit P12 judgment, quashed Exhibit P10 with directions to the 4th respondent to reconsider the matter and pass fresh orders in the light of the orders passed in the review petition filed by the State challenging Exhibit P7 judgment. In terms of the directions so issued, Exhibit P13 order was issued reiterating the stand taken in Exhibit P10. According to the 4th respondent, the grant of Time Bound Higher Grade granted to the petitioner on completion of service of 18 years is erroneous as there was no post in the direct line of promotion. Consequent to the order so passed, the respondents have initiated steps to recover the alleged excess amount paid to the petitioner. It is stated that the stand taken by the respondents cannot be sustained under law. The petitioner also relies on Exhibit P14, and it is pointed out that in similar circumstances, identical W.P.(C) No.175 of 2021 7 benefits have been granted to other teachers. 7. In the counter affidavit filed by the 3rd respondent, it is stated that it is in terms of the directions issued by the Deputy Director, Kannur, that the DEO had reviewed his earlier order sanctioning senior grade to the petitioner in terms of the 1997 pay revision Order. It is stated that a qualified incumbent will be granted scale of pay for the next promotion post as Time Bound Grade Promotion only if the post is in the direct line of promotion. The petitioner is therefore entitled to the scale of pay of Rs 4000-6090 on completion of 18 years of service and not Rs 4600-7125. 8. Smt. Lowsy, the learned counsel appearing for the petitioner, submitted that the stand taken by the 4th respondent cannot be sustained under law. She would contend that it was only after the retirement of the petitioner in the year 2016 that steps were taken by the respondents to refix the salary and to recover the alleged excess amount paid to the petitioner. According to the learned counsel, the petitioner falls into the category of a last-grade servant, and when the respondents have no case that the higher grade was granted and amounts were disbursed due to any misrepresentation on the part of the petitioner, no steps could have been taken to recover the excess amount alleged to have been disbursed. Relying on the principles laid down in **State of Punjab v. Rafiq Masih** (White Washer) [(2014) 8 SCC W.P.(C) No.175 of 2021 8 883], as clarified in **High Court of Punjab and Haryana and Ors. v. Jagdev Singh** [(2016) 14 SCC 267], it is contended that it would be iniquitous to permit recovery of excess payment made to an employee like the petitioner herein, particularly when the amounts were disbursed strictly in tune with the Government Orders. The learned counsel would then refer to Ext.P17 clarification letter dated 21.12.2002 issued by the Principal Secretary of Government (Finance Department), and it was argued that those clerks working in aided schools who had acquired test qualifications are entitled for grant of grades as in the case of clerks in the Government service. Placing reliance on Ext.P16 Government Order dated 25.11.1998, it is contended that the Government has ordered that even in cases where a particular category of post in the normal hierarchy of promotion post is not available in a department, the scale of pay of the normal promotion post only will be allowed as the higher grade. Reliance is also placed on Ext.P15 pay revision order, which is dated 10.2.2021, wherein it is stated that the non-teaching staff in aided schools, private colleges, and polytechnics which come under the scheme of direct payment of salary by the Government, will be eligible for Time-Bound Higher Grade promotion in the scales provided in the tables concerned. However, the clerk in those institutions will be eligible for the scale of pay applicable to the post of Senior Clerk, Head Clerk, Junior W.P.(C) No.175 of 2021 9 Superintendent, and Junior Superintendent (HG) on 1st, 2nd, 3rd and 4th TBHG subject to the general conditions. 9. Smt. Nisha Bose, the learned senior Government Pleader, reiterated the contentions in the counter affidavit. Placing reliance on a judgment dated 16.12.2016 of this Court in W.A.No.1987/2016, it is argued that only if a post of UD Clerk is available can a higher grade be sanctioned in the pay scale of UD Clerk. The Government Pleader contended in view of the judgment of the Apex Court in **High Court of Punjab and Haryana and Ors. v. Jagdev Singh** [(2016) 14 SCC 267], that the respondents have every authority to effect recovery from the employee. It is also submitted that the reliance placed by the petitioner on Ext.P15 pay revision order dated 10.2.2021 is unsustainable as the revised time-bound higher grade scheme will have effect only from 1.4.2021. Reliance is also placed on the declarations dated 10.8.2020 and 4.7.2006 submitted by the petitioner undertaking to refund the excess amount if any received by the petitioner. 10. I have considered the submissions advanced and have perused the records. By the impugned order, the senior grade granted to the petitioner in terms of the 1997 pay revision order stands reviewed on the ground that the scale of promotion post can be granted only if there is a promotion post, and there being none, the petitioner was eligible only for the table scale of W.P.(C) No.175 of 2021 10 the Time Bound Higher Grade. By holding so, the amounts allegedly paid in excess to the petitioner have been ordered to be refunded. 11. Ext.P20 is an order passed by the Government on 07.07.1980 based on representations made by service organizations of the employees of the Aided Schools, Private Colleges, etc. seeking extension of benefits to the non-teaching staff of Aided Schools, Private Colleges, etc. In paragraph No.2 of the order, it is stated thus: 2. Government, after examining the question in detail, are pleased to order that the benefit of higher grade promotion granted to government employees on completion of 13 years of service in the entry grade as per the Government Orders read above, shall be extended to the non teaching staff of the corresponding grades in Aided schools, Private Colleges and Private Polytechnics, who come under scheme of direct payment of salary by the Government, on the same terms and conditions specified therein. 12. It is thus evident from Ext.P7 that the benefit of higher grade promotion granted to Government employees in the stated circumstances has been extended to the non-teaching staff of the corresponding grades in the aided schools. 13. In Ext.P16 Government order, which is dated 25.11.1998 issued based on recommendations made by the pay revision committee, it is unequivocally stated that non-teaching staff in Aided Schools, Private colleges and Polytechnics who under the scheme of direct payments of salary by the W.P.(C) No.175 of 2021 11 Government are also eligible for time-bound grade promotion subject to the conditions stated in the order. 14. Ext.P17 is a letter issued by the Principal Secretary to the DEO, Kothamangalam, on 21.12.2002, clarifying the grant of TBHG to the clerks in Aided schools. Paragraph No. (iii) of Ext.P17 reads as follows: (iii) Since the post of L.D. Clerk in aided schools are filled up by promoting qualified last grade servants as per provision in the Kerala Education Rules, the entry grade of clerk promoted from Last grade Servants is Last Grade Servant and not clerk. Their eligibility for time bound Higher grade and its scale of pay is fixed with reference to Last Grade Servants. Thus the regular promotion post of Last Grade Servant is L.D. Clerk, U.D. Clerk, Head Clerk, Junior Superintendent etc. Thus the first promotion as L.D. Clerk within 10 years’ service in the Grade Service is equal to the first higher grade of Last Grade Servant and the second higher Grade granted in the scale of pay of U.D. Clerk on completion of 10/8 years’ service in the first promoted post of L.D. Clerk or 20/18 years’ service as Last Grade service and clerk together whichever is earlier is treated as second higher grade. The third higher grade on completion of 23 years service as Last Grade servant and clerk together is admissible in the scale of pay of Head Clerk only and not in the scale of pay of Junior Superintendent as claimed by the Association. 15. The above clarification shows that the last grade servants on getting promotion as Clerk and when they complete 10 years of service are entitled for the scale of pay granted to the petitioner as per Ext.P5 order. The said order also emphasizes that the post of L.D.Clerk, U.D.Clerk, Head Clerk W.P.(C) No.175 of 2021 12 and Junior Superintendent are regular promotion posts of last grade servants. 16. At this juncture, it would be relevant to take note of G.O.(P) No.145/2006/Fin. dated 25.3.2006, issued based on the report of the 8th Pay Revision Commission. In paragraph 14 of the order, it is stated thus: 14. Non-teaching staff in aided schools, Colleges and Polytechnics who under the scheme of direct payment of salary by Government are also eligible for time bound grade promotion, subject to these conditions. 17. These orders clearly go against the stand taken by the 3rd respondent in the counter that aided school clerks are only entitled to table scales of respective pay revision and not entitled to the TBHG of promotion posts. 18. Ext.P15 Government order issued based on the recommendations of the 11th Pay Revision Commission also supports the case of the petitioner. True, its application in the facts of the instant case is vehemently challenged by the learned Government Pleader on the ground that the said order became effective only from 1.4.2021. It would be apposite to consider paragraph No. 16 of the order. “16. Non-teaching staff in Aided Schools, Private Colleges and Polytechnics who come under the scheme of direct payment of salary by Government will be eligible for Time Bound Higher Grade promotions in the scales provided in the Tables concerned. However, Clerks in these institutions will be eligible for the scale of pay applicable to the posts of Senior Clerks, Head W.P.(C) No.175 of 2021 13 Clerks, Junior Superintendent and Junior Superintendent (HG) on 1st, 2nd, 3rd and 4th Time Bound Higher Grade, subject to the general conditions.” 19. A perusal of the order would reveal that even without the sanctioned post of U.D. Clerk, Head Clerk, Junior Superintendent and Junior Superintendent (HG), the pay scales applicable to the said post can be granted to aided school clerks on the basis of the earlier Government Orders. 20. Even otherwise, I am of the considered opinion that recovery of amounts paid in excess years back would be grossly iniquitous. In the case on hand, the petitioner had entered service on 13.07.1984. 21. In **Rafiq Masih** (Supra), the Apex Court had occasion to postulate the situations of hardship that would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of his entitlement. After balancing the conflicting claims and the hardship that is likely to be caused, the Hon’ble Supreme Court had summarised the situations wherein recovery of the amounts by the employers would be impermissible under law. It was held as follows in paragraph No. 18 of the judgment. 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, W.P.(C) No.175 of 2021 14 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. 22. There is no dispute that the petitioner falls in the lower rung of the service and the recovery is being effected for excess payment made decades back and thereafter. This is not a case wherein the petitioner had knowledge that the payment received was in excess of what was due. There is no case that there was any misrepresentation or fraud on the part of the petitioner. As held by the Apex Court, when payments have been made for a W.P.(C) No.175 of 2021 15 long duration of time, the logic of recovery of the excess amount paid would be iniquitous, arbitrary, and violative of Article 14 of the Constitution of India. There cannot be any doubt that it would be next to impossible for a person such as the petitioner to bear the financial burden of a refund of payment received wrongfully for a long span of time as he would have spent the emoluments that he would have received for the upkeep of his family under the bonafide belief that he is entitled to the said amount. 23. The respondents have placed on record the declarations submitted by the petitioner on 10.8.2020 and 4.7.2006 to justify the direction to refund the excess amount that was paid to the petitioner. A Division Bench of this Court in **State of Kerala and Ors v. Vinod Kumar C.R.** [2020 (4) KLT 230], relying on **Syed Abdul Qadir & ors. v. State of Bihar & ors.** [(2009) 3 SCC 475], **Rafiq Masih** (supra) and a judgment of another Division Bench of this Court in **Kasaragod District Co-operative Bank Ltd. and another v. Radha K.A** [2006 (1) KHC 260] had occasion to observe the failure of the respondents to communicate the objections as regards excess payment within a reasonable time after the grant of benefits would be iniquitous. The very same view has been taken by a Division Bench of this Court in the judgment dated 8.8.2022 in WA No 65 of 2022 as well. In view of the discussion above, the petitioner is entitled to succeed. W.P.(C) No.175 of 2021 16 Ext.P13 will stand quashed. There will be a direction to the competent among respondents to initiate steps to refund the amount recovered from the petitioner on the strength of Ext.P13 order. The needful shall be done expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** avs W.P.(C) No.175 of 2021 17 ## **`APPENDIX OF WP(C) 175/2021`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE ORDER NO. 81020/PRC.A3-2001/FIN. DATED 4/9/2001. ``` - `EXHIBIT P2 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER GRANTING SECOND HIGHER GRADE TO THE PETITIONER ON COMPLETION OF 18 YEARS OF SERVICE.` - `EXHIBIT P3 TRUE COPY OF THE RELEVANT EXTRACT OF THE G.O.(P) NO.145/2006/FIN. DATED 25/3/2006 ALONG WITH ANNEXURE-3.` - `EXHIBIT P4 TRUE COPY OF THE CIRCULAR NO.C-ORD II/10-97/VOL.I DATED 31/3/2006.` - `EXHIBIT P5 TRUE COPY OF THE STATEMENT OF FORM OF OPTION ALONG WITH THE STATEMENT OF FIXATION OF PAY.` - `EXHIBIT P6 TRUE COPY OF THE COMMUNICATION NO.B4/5888/2007 DATED 5/9/2007.` - `EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WP(C) NO.14038 OF 2009 DATED 15/1/2016.` - `EXHIBIT P8 TRUE COPY OF ORDER NO. B4/672/2014 DATED 16.06.2016` ``` EXHIBIT P9TRUE COPY OF THE SAID ORDER NO. O.A. II(4)/23394/2016 DATED 21.12.2016 ``` ``` EXHIBIT P10TRUE COPY OF THE ORDER NO.B4/4478/16 DATED 10.01.2017 ``` - `EXHIBIT P11 TRUE COPY OF THE ORDER IN R.P. NO. 827/2017 IN WRIT PETITION(C) NO. 14038/2009 DATED 24.11.2017` W.P.(C) No.175 of 2021 18 - `EXHIBIT P12` - `TRUE COPY OF THE JUDGMENT IN WPC NO. 36327/2018 DATED 12.11.2018` - `EXHIBIT P13 TRUE COPY OF THE ORDER NO.B5/7249/18 DATED 4.1.2019` - `EXHIBIT P14 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY ISSUED BY DISTRICT EDUCATIONAL OFFICER, PALA IN THE CASE OF CLERK A.K. BABU DATED 1.9.1999` - `Exhibit P15 RELEVANT EXTRACT OF G.O.(P) NO.27/2021/FIN DATED 10.02.2021.` - `Exhibit P16 RELEVANT EXTRACT OF THE G.O.(P) NO.3000/98/FIN DATED 25.11.1998.` - `Exhibit P17 TYPED COPY OF THE CLARIFICATION LETTER NO.92248/PRC.A3/02/FIN ISSUED BY THE PRINCIPAL SECRETARY OF GOVERNMENT (FINANCE DEPARTMENT) DATED 21.12.2002.` - `Exhibit P18 COPY OF G.O.(MS) NO.216/14/(192)/FIN DATED 11.06.2014.` - `Exhibit P19 TRUE COPY OF G.O.(MS) NO.96/73/S.EDN DATED 22.06.1973.` ``` Exhibit P20COPY OF G.O.(MS) NO.438/80/(212/)/FIN DATED 07.07.1980. ``` - `Exhibit P21 TRUE COPY OF THE JUDGMENT IN WPC NO;.9292/2021 DATED 28.10.2021.`