Michael.K.U. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **FRIDAY, THE 8TH DAY OF AUGUST 2014/17TH SRAVANA, 1936** ## **WP(C).No. 7331 of 2013 (N)** ## **---------------------------** **PETITIONER:** **--------------------** ## **MICHAEL.K.U., HEADMASTER, VAYATHUR UPPER PRIMARY SCHOOL, P.O. ULIKKAL, KANNUR DISTRICT-670 705.** ## **BY ADV. SRI.POOVAMULLE PARAMBIL ABDUL KAREEM** **RESPONDENTS:** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR-670 001.** **3. THE ASSISTANT EDUCATIONAL OFFICER, IRIKKUR P.O., KANNUR DISTRICT-670 705.** **R1 TO R3 BY GOVERNMENT PLEADER SMT.A.LOWSY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** **WP(C).No. 7331 of 2013 (N)** **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **---------------------------------------** **EXHIBIT P1: TRUE COPY OF THE AUDIT OBJECTION ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2: TRUE COPY OF THE OPTION AND STATEMENT OF FIXATION OF PAY.** **EXHIBIT P3: TRUE COPY OF THE REPLY NO.81454/PRU1/11/FIN DATED 15.11.2012 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P4: TRUE COPY OF THE JUDGMENT DATED 28.7.2011 PASSED BY THIS HON'BLE COURT IN WPC NO.23957/2009.** **EXHIBIT P5: TRUE COPY OF THE GO(P) NO.365/05 (150)/FIN DATED 6.8.2005.** **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)7331 OF 2013** ......................................................................... **Dated this the 8[th] August, 2014** ## **J U D G M E N T** Steps taken by the respondents to recover the excess payment given to the petitioner, on wrong fixation of salary pursuant to 1997 Pay Revision, (based on the option exercised by the petitioner) is the subject matter of challenge in this writ petition. 2. The petitioner, while working as Headmaster of Vayathur AUP School, retired from the school on 31.03.2013. As a matter of fact, the petitioner was appointed against a regular vacancy as a UPSA on 01.06.1982. Higher Grade was sanctioned on 04.10.1991, followed by Sr.Grade and Sel.Grade on 04.10.1999 and 04.10.2004 respectively in connection with the Pay Revision, 1997. The petitioner submitted Ext.P2 option to have the pay fixed on the date of his increment, i.e. w.e.f. 01.10.1999. Pay of the petitioner was accordingly fixed at Rs.5000/- in the scale of pay of Rs.4500-7000/- accepting the option. Subsequently, pursuant to Ext.P1 Audit Objection issued by the second respondent /Dy.Director of Education, it was noted that fixation of pay was not correct as the same happened to be fixed at **W.P.(C)7331 OF 2013** **2** Rs.5000/- in the scale of pay of Rs.4500-7000/- under the wrong belief and impression that the petitioner had completed '18 years' of service on 01.10.1999 making him eligible for the relevant grade; whereas he had actually completed only '17 years' as on that date and that 18 years would have been completed only on 04.10.1999. By virtue of wrong fixation of pay of the petitioner, much excess payment had been resulted, which was sought to be recovered . 3. In response to the proceedings taken by the respondents, the petitioner submitted a representation seeking to permit him to submit a re-option in the light of Ext.P5 G.O. dated 06.08.2005. But the request was declined as per Ext.P3 reply dated 15.11.2012, referring to another G.O. pointing out that the option exercised once shall become final and that the time for submitting re-option was already over. The case of the petitioner is that, there is no default on the part of the petitioner and as such, no recovery is possible. The petitioner also seeks to place reliance on Ext.P4 judgment rendered under similar circumstances, whereby the request to have re-option has been permitted. The learned Counsel for the petitioner seeks for the ## **W.P.(C)7331 OF 2013** ## **3** benefit flowing from Ext.P4 judgment and to have the relief moulded accordingly. 4. The learned Government Pleader appearing for the 3rd respondent/AEO submits, on the basis of the contents of the counter affidavit, that the course pursued by the concerned respondent is perfectly within the four walls of law . It is pointed out that the factual position with regard to the eligible extent of service as on the relevant date is not disputed and as on '01.10.1999', the petitioner was having only '17' years of service for weightage, which included the whole broken period of service as well. The version of the respondents is discernible from paragraph 5 and 9 which are extracted below: _“5. It is submitted that the Deputy_ _Director of Education objected the pay fixation of the petitioner opted on 01.10.1999. His pay was fixed at Rs.5000/in the scale of pay of Rs.4500-7000. The second respondent pointed out that he was only eligible for Rs.4900/- on 01.10.1999. He wrongly calculated the weightage of 18 years instead of 17 years. The pay fixation of aided school teachers will be verified by Deputy Director of Education, Kannur, prior_ **4** ## **W.P.(C)7331 OF 2013** _to their retirement, each year. As usual the pay fixation checking conducted this year also . The pay revised and re-fixed at Rs.26520/-. Instead of Rs.27140/- and Deputy Director of Education admitted the pay as Rs.26520/- and directed the teacher to refund the excess amount._ ## _xxxxxxxx_ _9. As stated the objection is against the reckoning of one excess year for weightage. The petitioner had only 17 completed years of service on 01.10.1999. He would get 18 years only on 04.10.1999. Increment date is not a relevant factor for calculating completed years. In fixation the incumbent always file a declaration stating that they should refund excess drawal of salary if any happened due to irregular fixation of pay if found later in audit scrutiny. The petitioner also has filed a declaration agreeing to refund excess drawal . So he has to refund excess pay drawn due to the irregular pay fixation..”_ It is pointed out that pay fixation was audited only in the year 2011, as being done just before the retirement of the officer concerned and it was accordingly, that the defect/mistake was found out. The learned Government Pleader also points out that recovery of excess payment is possible in view of the law **5** ## **W.P.(C)7331 OF 2013** declared by this Court in _**State of Kerala vs. Mahadevan Nair**_ **(2012(4) KLT SN.46( Case No.39)]** 5. With regard to the reliance sought to be placed by the petitioner on the decision in _**Syed Abdul Qadir and others vs. State of Bihar & others**_ [ **(2009)3 SCC 475]** , it is to be noted that a finding was rendered therein that no recovery could be effected if there was no default on the part of the employee, in view of the admission made from the departmental authorities that there was a bonafide mistake on the part of the departmental officials. The factual position as such may not come to the rescue of the petitioner herein, for the admitted fact that fixation was done in the instant case on the basis of the version of the petitioner that he was actually having '18 years' of service so as to make him eligible to have Higher grade increment and to have fixation of pay w.e.f. 01.10.1999 granting the benefit of 1997 Pay Revision. It is true that the said claim was considered and countersigned by the Headmaster and also by the AEO/competent authority, as discernible from Ext.P2. Going by the pleadings and proceedings, it is seen that there was some contribution from the part of the petitioner as well, **6** ## **W.P.(C)7331 OF 2013** resulting in excess payment to the petitioner because of wrong fixation, as a result of which, much public money has already come to the hands of the petitioner, which necessarily has to be refunded. 6. However, it remains an admitted fact that the option was exercised by the petitioner as early as in 1999 and the alleged defect was found out only pursuant to Ext.P1 Objection i.e. about 12 years thereafter. By virtue of said exercise, the petitioner was not in a position to exercise the right of re-option within the time specified in the relevant G.O. Had the petitioner obtained a chance to have re-option in tune with the relevant G.O., the delay of 'three' days with regard to fixation ( i.e. changing the same from 01.10.1999 to 04.10.1999, on which date, the petitioner would have been eligible by completing 18 years of service)could be got over and the extent of recovery could be substantially scaled down. Since both sides have contributed to the mistake, this Court finds that an opportunity has to be given to the petitioner to have ' re-option' and to have a correct fixation, with liberty to the respondents to recover the excess amount, if any, pursuant to such re-fixation. This Court **7** ## **W.P.(C)7331 OF 2013** finds support also from Ext.P4 judgment passed in W.P.(C) 23957 of 2009 rendered under similar circumstances, which has attained finality. 7. In the said circumstance, Ext.P3 is set aside and the petitioner is set at liberty to submit 're-option' to have the pay fixed w.e.f. '04.10.1999' instead of 01.10.1999 (with regard to 1997 Pay Revision) and to have re-computation of the benefits accordingly. Such re-option shall be submitted within two weeks from the date of receipt of a copy of the judgment, upon which, re-computation shall be effected and the actual liability, if any, with regard to excess payment shall be worked out and intimated to the petitioner. If there is any excess payment, the same shall be satisfied by the petitioner within one month from the date of communication of the order. The writ petition is disposed of. ## **P.R.RAMACHANDRA MENON JUDGE** _lk_