P. P. Ouseph v. The Principal, Marthoma College for Women, Perumbavoor; Deputy Director of Collegiate Education, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** ## **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** ## **WP(C).No.30276 OF 2012(H)** ## **PETITIONER:** **P.P.OUSEPH LIBRARY ASSISTANT, MARTHOMA COLLEGE FOR WOMEN PERUMBAVOOR - 683 542** **BY ADVS. SRI.SIBY MATHEW SRI.B.PREMNATH (E) SRI.PHILIP J.VETTICKATTU** ## **RESPONDENTS:** **1 THE PRINCIPAL, MARTHOMAS COLLEGE FOR WOMEN PERUMBAVOOR - 683 542** - **2 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION ERNAKULAM - 682 011.** - **R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA** - **R2 BY GOVERNMENT PLEADER R1 BY ADV. SMT.K.S.SANTHI R1 BY ADV. SMT.LATHA SUSAN CHERIAN** - **GP- SRI. MATHEW GEORGE VADAKKEL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.30276 OF 2012(H)** **2** ## **JUDGMENT** ## **Dated this the 11th day of March 2020** The writ petition has been filed challenging Ext.P11 order issued by the Deputy Director of Collegiate Education, whereby it was directed that if the petitioner has not passed the Attenders Test, he should be reverted. 2. The petitioner was appointed as a peon in Marthoma College for Women, Perumbavoor on 30.06.1983 as per Ext.P1. The appointment was approved on 13.09.1983. The petitioner's probation was declared on 30.06.1984 as per Ext.P2. The petitioner was promoted as Library Attender on 01.01.1986 as per Ext P3. From Ext.P4 dated 04.10.1986, it can be seen that the promotion of the petitioner was provisional, subject to the condition that the incumbent should pass Attenders Test within four consecutive chances. The said condition is also in accordance with Statutes 13 and 14 of the Kerala University Act and Statute. The petitioner was given the first higher grade with effect from 1.1.1996 on which day he completed one year of service as Library Attender as per Ext.P5 dated **WP(C).No.30276 OF 2012(H)** **3** 31.08.1998. When a request was made for the 27 years grade promotion, the Principal of the College was directed to ascertain whether the petitioner has passed the Attender test and he was also directed to take steps for reversion in case the petitioner has not passed the Attenders test. Later by Ext.P11, the request for the promotion increment in the post of Library Attender was sent back with the service book, with the direction to take action to revert the petitioner, if he has not passed the Attenders test. The writ petition was filed challenging Ext.P11 at a time when the petitioner was in service. The petitioner has retired since then. 3. The second respondent has filed a counter affidavit. Along with the counter affidavit, Ext.R2(b) circular issued by Director of Collegiate Education has been produced. It can be seen from Ext R2(b) that the Attenders Test had been conducted on 23.07.1983, 4.5.1985, 15.4.1989, 31.10.1992, 28.9.1996 and thereafter in the years 2002, 2006 and 2008. As can be seen from Ext.P3 the petitioner was promoted as Library Attender on 1.1.1986. Next four opportunities he had for passing the **WP(C).No.30276 OF 2012(H)** **4** attenders test were in 1989, 1992, 1996 and 2002. Admittedly, the petitioner has not cleared the examination. Ext.R2(b) which has been issued on 20.07.2002 clearly directs the concerned officers to take steps for reversion and report about the same. The case of the petitioner is that no steps have been taken for reverting him while he was in service. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The learned counsel for the petitioner fairly admits that the steps for reversion ought have been taken, since admittedly the petitioner has not passed the Attenders Test. However, he submits that the consequences of the reversion may not follow for the reason that the continuance in service as Library Attender was not due to any positive action on the part of the petitioner or due to any fraud played by him. He has worked in the said post and earned the remuneration that has payable for the said post throughout the period that he was in service. The learned counsel relies on the decision of the Hon'ble Supreme Court in **State of Punjab v. Rafiq Masih (White** **WP(C).No.30276 OF 2012(H)** **5** **Washer)** reported in **[2015 (1) KLT 429]** in support of his arguments. The Hon'ble Supreme Court has in the above said decision considered the entire case law on the issue. In paragraph 4 of the Judgment, the court has formulated the question that has to be decided as “whether all the private respondents, against whom an order of recovery (of the excess amount) has been made, should be exempted in law, from the reimbursement of the same to the employer.” After referring to the case law, the court has in paragraph 12 summarized its findings and directions as follows: “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 herein above, we may, as a ready reference, summarise 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) **WP(C).No.30276 OF 2012(H)** **6** (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 a higher post, and has been paid accordingly, eventhough 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 extent, as would far outweigh the equitable balance of the employer's right to recover.” 6. The court has laid down that recovery would be impermissible in law in cases where the employees belonging to class -III and class -IV service or retired employees or employees who are due to retire within one year, of the order of recovery, or employees when the **WP(C).No.30276 OF 2012(H)** **7** excess payment has been made for a period in excess of five years, or employee who had wrongfully been required to discharge duties of a higher post and had been paid accordingly, even though he should have rightfully been required to work against an inferior post, are concerned. Another category of employees which has been specified by the court are persons in whose cases, it 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. 7. As far as the petitioner is concerned, he squarely comes under all the categories which have been enumerated. On reversion, he would be in the post of peon. He has already retired from service. He has been given the payments wrongly for more than five years and he has also been wrongly required to discharge the duties for the higher post of Library Attender. In the light of the above legal position, this writ petition is partly allowed. The petitioner is liable to be reverted to the post of peon since he did not acquire the test qualification as prescribed in the University Statues. **WP(C).No.30276 OF 2012(H)** **8** The remuneration received by the petitioner while he was in service is not liable to be recovered from him in the light of the decision of the Hon'ble Supreme Court in **2015 (1) KLT 429 State of Punjab v. Rafiq Masih (White Washer).** However, the State is at liberty to re-fix the petitioner's pension on the basis of the pay that would have been admissible to him in the reverted post taking due consideration of the higher grades that he would have been entitled in the post of peon, and, the payments of the future pension will be on the basis of such determination. No orders as to costs. ## **Sd/-** **T.R.RAVI** **JUDGE** lmp //TRUE COPY// PA TO JUDGE **WP(C).No.30276 OF 2012(H)** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF APPOINTMENT ORDER ISSUED BY THE MANAGER OF MAR THOMA COLLEGE FOR WOMEN.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 29.6.1984 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE PROMOTION ORDER ISSUED BY THE MANGER OF THE MAR THOMAS COLLEGE.** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO.ESST.E.5-76288/1986 DATED 4.10.1986 BY 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE ORDER NO.B43511/98 DATED 31.8.1998 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE REVISED STAFF FIXATION ORDER DATED 30.1.2009 OF THE COLLEGE.** - **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION LETTER DATED 29.5.2012.** - **EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 6.7.2012 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE EXPLANATION DATED 17.7.2012 BEFORE THE 1ST RESPONDENT BY THE PETITIONER.** - **EXHIBIT P10 TRUE COPY OF THE ORDER NO.SRO.664/93 DATED 15.1.1993 ISSUED BY THE GOVERNMENT.** - **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 19.11.2012 ISSUED BY THE 2ND RESPONDENT.** **WP(C).No.30276 OF 2012(H)** **10** ## **RESPONDENT'S EXHIBITS:** |**EXHIBIT R1**|**NIL**| |---|---| |**EXHIBIT R2**|**NIL**| |**EXHIBIT R2(A)**|**TRUE COPY OF THE LETTER**| ||**NO.E5/29809/20/2012/COLL.EDN.**| ||**DATED 23.8.2012 OF THE DIRECTOR**| ||**OF COLLEGIATE EDUCATION,**| ||**THIRUVANANTHAPURAM.**| |**EXHIBIT R2(B)**|**TRUE COPY OF THE CIRCULAR NO.F.2-**| ||**50328/00/COLL.EDN. DATED**| ||**20.7.2002 OF THE DIRECTOR OF**| ||**COLLEGIATE EDUCATION,**| ||**THIRUVANANTHAPURAM.**| |**EXHIBIT R2(C)**|**TRUE COPY OF THE CIRCULAR DATED**| ||**9.11.1987.**| |**EXHIBIT R2(D)**|**TRUE COPY OF THE ORDER DATED**| ||**4.2.2012 OF THE MANAGER,**| ||**S.D.COLLEGE, ALAPPUZHA.**| //TRUE COPY// PA TO JUDGE