Mini Kurian v State of Kerala and others (WP(C).34624/2019) and Binu Soman and others v State of Kerala and others (WP(C).35682/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943** ## **WP(C).No.34624 OF 2019(C)** ## **PETITIONER:** **MINI KURIAN, AGED 49 YEARS, W/O BINU JOY, U.P.S.A, ST. TERESAS HIGH SCHOOL, VAZHAPPALLY, CHANGANACHERRY-686 102, RESIDING AT MANKUZHY HOUSE, MOOLEDAM P.O., KOTTAYAM-686 012.** **BY ADVS. SRI.P.M.JOSEPH SRI.R.S.HARI KUMAR** ## **RESPONDENTS:** **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DIRECTOR GENERAL OF EDUCATION (ERSTWHILE D.P.I.), DIRECTORATE OF DIRECTOR GENERAL OF EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014.** - **3 THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM, PIN-686 001.** - **4 ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE. A.E.O., CHANGANASSERRY-686 101.** - **5 THE MANAGER, ST.TERESAS HIGH SCHOOL, VAZHAPPALLY, CHANGANACHERRY-686 102.** - **6 THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM, PIN-695 039.** **BY ADV.SRI.P.M.MANOJ – SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.03.2021, ALONG WITH WP(C).35682/2019(I), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C)Nos.34624 & 35682/2019** **-2-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943** **WP(C).No.35682 OF 2019(I)** ## **PETITIONERS:** |**1**|**BINU SOMAN, AGED 45 YEARS,**| |---|---| ||**S/O. SOMANATHAN NAIR, H.S.A,**| ||**ITHITHANAM H S S , MALAKKUNNAM P.O,**| ||**PIN - 686 535, KOTTAYAM,**| ||**RESIDING AT 'ABHISHEKAM' (BINDU BHAVAN),**| ||**MALAKKUNNAM P.O, CHANGANASSERRY-686 535,**| ||**KOTTAYAM DISTRICT.**| |**2**|**ASWATHY S, AGED 40 YEARS,**| ||**W/O. ABHILASH KUMAR N, H.S.A,**| ||**ITHITHANAM H S S , MALAKKUNNAM P.O,**| ||**PIN - 686 535, KOTTAYAM,**| ||**RESIDING AT NAMBIYANATH HOUSE,**| ||**FATHIMAPURAM P.O, PIN 686 102,**| ||**KOTTAYAM DISTRICT.**| |**3**|**ASHA K, AGED 41 YEARS,**| ||**W/O. BINU SOMAN, H.S.A, ITHITHANAM H S S,**| ||**MALAKKUNNAM P.O, PIN 686 535, KOTTAYAM,**| ||**RESIDING AT 'ABHISHEKAM' (BINDU BHAVAN),**| ||**MALAKKUNNAM P.O, CHANGANASSERRY -686 535,**| ||**KOTTAYAM DISTRICT.**| |**4**|**SUJATHA, AGED 48 YEARS,**| ||**W/O. SURESH KUMAR I.B, H.S.A,**| ||**ITHITHANAM H S S , MALAKKUNNAM P.O,**| ||**PIN - 686 535, KOTTAYAM,**| ||**RESIDING AT SANTHOSH BHAVAN, MALAKKUNNAM P.O,**| ||**CHANGANASSERRY-686 535, KOTTAYAM DISTRICT.**| **WP(C)Nos.34624 & 35682/2019** **-3-** - **5 JAYALEKSHMI V.J, AGED 40 YEARS, W/O. BINU K, H.S.A, ITHITHANAM H S S, MALAKKUNNAM P.O, PIN -686 535, KOTTAYAM, RESIDING AT NANDANAM, MALAKKUNNAM P.O, CHANGANASSERRY -686 535, KOTTAYAM DISTRICT.** - **6 PRIYA R NAIR, AGED 47 YEARS, W/O. SURESH G, H.S.A, ITHITHANAM H S S , MALAKKUNNAM P.O, PIN- 686 535, KOTTAYAM, RESIDING AT KIZHAKKETHIL, KAVUMBHAGOM P.O, THIRUVALLA, PIN 689 102, PATHANAMTHITTA DISTRICT.** - **7 LEKHA K.G, AGED 44 YEARS, W/O. K.P ANILKUMAR, H.S.A, ITHITHANAM H S S, MALAKKUNNAM P.O, PIN - 686 535, KOTTAYAM, RESIDING AT KOLLAMATTATHIL HOUSE, MALAKKUNNAM P.O, CHANGANASSERRY - 686 535, KOTTAYAM DISTRICT.** - **8 KERALA PRADESH SCHOOL TEACHERS ASSOCIATION (KPSTA), REPRESENTED BY ITS SECRETARY, DISTRICT OFFICE, OPP. M.T SEMINARY H.S.S, KOTTAYAM - 686 001.** **BY ADVS. SRI.P.M.JOSEPH SRI.R.S.HARI KUMAR** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 DIRECTOR GENERAL OF EDUCATION, DIRECTORATE OF DIRECTOR GENERAL OF EDUCATION, JAGATHI, THIRUVANANTHAPURAM - 695 001.** **WP(C)Nos.34624 & 35682/2019** **-4-** - **3 THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE D.D.E, KOTTAYAM - 686 001.** - **4 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE D.E.O, KOTTAYAM - 686 001.** - **5 THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM, PIN - 695 039. BY ADV.SRI. P.M.MANOJ -SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.03.2021, ALONG WITH WP(C).34624/2019(C), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C)Nos.34624 & 35682/2019** **-5-** ## **JUDGMENT** ## **[ WP(C).34624/2019, WP(C).35682/2019 ] Dated this the 22nd day of March 2021** The petitioners in these two cases are stated to have been working as Aided School Teachers in various schools under the Educational Department; and say that they were engaged as Enumerators for the 'census program' in April 2010 to May 2010. 2. According to the petitioners, for the work they had so completed as Enumerators, they were entitled to Earned Leave as per Rule 81 read with Rule 12(vii) of Part I of the Kerala State Rules (KSR) and that this was sanctioned by the Government also through an order bearing number G.O.(Ms)171/2010/P.Adn. dated 30.04.2010. They assert that they had worked for over 24 days and that, as per the afore provisions of the KSR, they were entitled to half such days as Earned Leave. They say that they were thus granted Earned Leave **WP(C)Nos.34624 & 35682/2019** **-6-** for a period of twelve days validly and that such payments were made as early as in the year 2010 itself. 3. The petitioners, thereafter, submitted that, while so, they were served with an order by the Deputy Director of Education (DDE) asking each of them to return certain amounts, along with interest, on the allegation that they had been granted higher Earned Leave than what was eligible to them and that this order was sought to be justified relying on the Government Order dated 20.04.2013 - a copy of which has been produced as Ext.P2 in WP(C)No.35682/2019 and Ext.P6 in WP(C)No.34624/2019. 4. The petitioners contend that the impugned order is egregiously improper because it has unilaterally concluded that the work of enumeration ought to have been completed by the teachers in 16 days and therefore, that they are ## **WP(C)Nos.34624 & 35682/2019** **-7-** entitled only to eight days Earned Leave, as per the afore provisions of the KSR; but that since they have been granted such benefits for 12 days, the excess amounts will have to be recovered. They say that the Government - being presumably aware of the improper nature of this order – had issued another order on 14.05.2013 - a copy of which has been produced on record as Ext.P3 in WP(C)No.35682/2019 and as Ext.P7 in WP(C)No.34624/2019 – freezing it and thus mandating that no further recovery be made against any teacher. They submit that it is disregarding this, that the impugned order has been issued and recovery ordered against them. 5. Sri.P.M.Joseph - learned counsel for the petitioners in both these cases, added to the afore submissions by saying that even in law, the recovery now sought for against his clients is not possible because of the declaration of the **WP(C)Nos.34624 & 35682/2019** **-8-** Honourable Supreme Court in **State of Punjab v.** **Rafiq Masih (White Washer)** [2015(4) SCC 334]. He submitted that the benefits now sought to be recovered were validly offered to his clients in the year 2010 and the recovery which is sought more than 9 years later is impermissible going by **Rafiq Masih** (supra), particularly because all his clients have now either retired or are nearing the age of superannuation. He, therefore, prayed that these Writ Petitions be allowed as prayed for and that respondents be directed to grant his clients all benefits, including their retiral benefits. 6. The learned Senior Government Pleader – Sri.P.M.Manoj, appearing for the official respondents, in response, submitted that the impugned orders are not in error because the petitioners had drawn more than what they were entitled to, since Government had only sanctioned eight days earned leave. He submitted that in ## **WP(C)Nos.34624 & 35682/2019** **-9-** spite of this, petitioners were granted 12 days earned leave and therefore that, the Deputy Director had no other option but to issue orders to recover it as per law. He, therefore, prayed that these writ petitions be dismissed. 7. I have evaluated the afore submissions and have also gone through the materials available on record. 8. The petitioners specifically contend that they had been engaged as Enumerators in the year 2010 and they had been given the benefit of earned leave as per Rule 81 of Part I KSR; and that this was offered to them on the strength of valid orders, without any misrepresentation or reasons that can be attributed against them. 9. They say that, therefore, merely because Government now says that the process of Enumeration could have been done in 16 days and therefore that, teachers are entitled only to 8 ## **WP(C)Nos.34624 & 35682/2019** **-10-** days of earned leave, the Deputy Director could not have recovered any amount from them on such basis. **==> picture [377 x 13] intentionally omitted <==** because, Government themselves have issued an order dated 14.05.2013 freezing their earlier order directing recovery; and that this is still in force. 11. As a corollary adjunct to the afore contentions, petitioners say that even if any recovery is possible, same is impermissible at this time on account of the ratio of the Hon'ble Supreme Court in **Rafiq Masih** (Supra) and that therefore, the impugned orders be set aside. **==> picture [377 x 12] intentionally omitted <==** **==> picture [426 x 12] intentionally omitted <==** account of the impugned orders, her Grade Promotion had been held up and that she had been denied all the benefits under it. She, ## **WP(C)Nos.34624 & 35682/2019** **-11-** additionally, therefore, prays that such benefits also be granted to her. 13. There can be no doubt that the ratio in **Rafiq Masih** (Supra) is unmistakable that unless a benefit has been obtained by an employee on account of any fault or error or reasons that can be attributed to him/her, such recovery is not possible after more than eight or nine years, as has been attempted in this case. 14. The declarations in **Rafiq Masih** (Supra) make it indubitable that the recovery ordered against persons who are nearing retirement, with respect to benefits that were given to them under valid and legal orders cannot be recovered merely on the ground that such sanctions were in error at the time when they were issued. 15. I am, therefore, of the firm view that the affirmative ratio in **Rafiq Masih** (Supra) ## **WP(C)Nos.34624 & 35682/2019** **-12-** would apply in all its force to the facts of this case and this is more so because, Government through Ext.P2 in W.P.(C)No.35682 of 2019 (which is the same as Ext.P6 in W.P.(C)No.34624 of 2019) merely says that the work of Enumeration should have been completed within 16 days; and therefore that, they are entitled to only eight days earned leave, thus being not entitled to the balance four days of earned leave which had earlier been granted to them. 16. I am afraid that this stand in the aforementioned Government Order cannot appeal to this Court at all since, for one, there is no reason shown in said order as to why Government have taken a view that the enumeration ought to have been completed within a period of 16 days, when it really took 24 days; and that for the second, it does not show how recovery is possible, particularly because benefits have been granted to ## **WP(C)Nos.34624 & 35682/2019** **-13-** the petitioners under valid orders and no fault can be cited against them. 17. That apart, as rightly stated by Sri.P.M.Joseph – learned counsel for the petitioners, Government itself issued an order dated 14.05.2013 (Ext.P3 in W.P.(C)No.35682 of 2019 and Ext.P7 in 34624 of 2019), whereby, its instructions to effect recovery had been withdrawn. There is noting on record to show that the subsequent order had been vacated, and as matters now stand, it appears that Government has not insisted on any recovery based on its earlier order. In the above circumstances, I allow these writ petitions and set aside the impugned orders; with a consequential direction to the competent respondent to ensure that all the service and retiral benefits of the petitioners are granted to them _de hors_ the orders impugned in these writ ## **WP(C)Nos.34624 & 35682/2019** **-14-** petitions. The afore exercise shall be done by the competent Authority, as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. **Sd/DEVAN RAMACHANDRAN JUDGE** RR/akv **WP(C)Nos.34624 & 35682/2019** **-15-** ## **APPENDIX OF WP(C) 34624/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF SERVICE AND PAYROLL ADMINISTRATIVE REPOSITORY FOR KERALA EMPLOYEE DATA SHEET** **EXHIBIT P2 TRUE COPY OF APPOINTMENT ORDER NO J1 11279/09 DATED 20.3.2010 ISSUED BY THE TAHSILDAR, KOTTAYAM** - **EXHIBIT P3 TRUE COPY OF IDENTITY CARD ISSUED BY THE CENSUS AUTHORITY** - **EXHIBIT P4 TRUE COPY OF LETTER NO VI/6162/2019 DATED 24.10.2019 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM TO THE HEADMASTER, ST. TERESAS G.H.S VAZHAPPILLY.** - **EXHIBIT P5 TRUE COPY OF STATEMENT OF FIXATION OF PAY ORDER NO C/1468/12/K.DIS DATED 1.6.2012** - **EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER NO GO(MS) 142/2013/G.EDN DATED 20.4.2013 ISSUED BY THE 1ST RESPONDENT** - **EXHIBIT P7 TRUE COPY OF CIRCULAR NO 42076/G3/2010/G.EDN DATED 14.5.2013.** **EXHIBIT P8 TRUE COPY OF THE PROPOSAL SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT THROUGH HEADMASTER DATED NIL** ## **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE **WP(C)Nos.34624 & 35682/2019** **-16-** ## **APPENDIX OF WP(C) 35682/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO. E2/16765/2018 12-11-2019 ISSUED BY THE 3RD RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE GOVERNMENT ORDER NO. GO(MS) 142/2013/G.EDN DATED 20-04-2013 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE CIRCULAR NO. 42076/G3/2010/G.EDN DATED 14-05-2013 ISSUED BY THE 1ST RESPONDENT** ## **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE