P. S. Ambika v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** # **WEDNESDAY, THE 09TH DAY OF DECEMBER 2020 / 18TH AGRAHAYANA, 1942** # **WP(C).No.4474 OF 2019(H)** ## **PETITIONER:** ## **P.S.AMBIKA** **AGED 56 YEARS** **W/O.SANKARAN, HEADMISTRESS, SRKGVMLP SCHOOL, PURANATTUKARA, THRISSUR DISTRICT, RESIDING AT CHITTATHUPARAMBIL HOUSE, P.O.PUZHAKKAL, MUTHUVARA, THRISSUR - 680 553.** **BY ADVS.** **SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON PRASANTH A.G** ## **RESPONDENTS:** - **1 STATE OF KERALA** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM - 695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR - 680 003.** - **4 THE ASSISTANT EDUCATIONAL OFFICER THRISSUR WEST, THRISSUR, PIN - 680 020.** - **5 THE MANAGER** - **SRKGVMLP SCHOOL, PURANATTUKARA, THRISSUR DISTRICT, PIN - 680 551.** **R1-4 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** ## **SRI. P.M MANOJ G.P** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.4474 OF 2019(H) 2 ## JUDGMENT ## This writ petition is filed seeking the following reliefs:- (i) Call for the records leading to the issuance of Exhibits P2 and P6 orders and quash the same by issuing a writ in the nature of certiorari or any other appropriate writ, order or direction. (ii) Declare that the Respondent are not entitled to re-fix the dates of grant of higher grades to the petitioner at this distance of time or to recovery any amount from the petitioner on the ground of irregular grant of higher grade. (iii) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction interdicting the respondents from re-fixing the dates of grant of Higher Grade, Senior Grade or Selection Grade to the petitioner. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The petitioner was appointed as Primary School Teacher in the 5[th] respondent school. The initial appointment of the petitioner was on 05.07.1984 in a short term vacancy. The details of appointments of the petitioner is as shown below:- WP(C).No.4474 OF 2019(H) 3 |No.|School/|From|To|Y|M|D| |---|---|---|---|---|---|---| |1|SRKGVMLPS – LPSA|05/07/84|28-8-84||1|24| |2|LPSA|16-10-84|30-11-84||1|15| |3|LPSA|03/06/85|21-2-86||8|19| |4|LPSA|22-2-86|14-7-86||4|23| |5|LPSA|15-7-86|31-1-878||6|17| |6|LPSA|01/02/87|14-7-87||5|14| |7|SRKGVMHS – UPSA|22-9-87|25-11-87||2|4| |8|SRKGVMLP Regular|26-11-87|29-4-95|7|5|4| ||service|||||| ||Total|||10|0|4| 4. It is submitted that after regular appointment in 1987, the petitioner continued in service and retired as Headmistress on 31.03.2019. She was granted time bound higher grades reckoning her service as primary teacher as also the prior spells of approved broken service put in by her by Ext.P1 in the year 1995. It is submitted that, thereafter, the petitioner had been granted the further higher grades also w.e.f 30.04.2003 and 30.04.2008 respectively. It is stated that long thereafter, an audit objection had been raised by Ext.P2 stating that there was a mistake in the calculation of the approved service of the petitioner and that WP(C).No.4474 OF 2019(H) 4 there was a difference of one day in the matter of grant of the higher grade to the petitioner. Though the petitioner took up the matter before the Government, the request of the petitioner was rejected by Ext.P6 and recoveries were sought to be effected from the salary already drawn by the petitioner. The learned counsel for the petitioner submits that after reckoning the two leap years, which come during the interregnum, there is only a difference of one day even going by the objections raised in Ext.P2. It is further submitted that Ext.P2 objection had been raised for the first time after 20 years of the grant of the benefits to the petitioner who was only a primary school teacher. It is submitted that the decision of the Apex Court in State of Punjab & Ors vs Rafiq Masih (White Washer) and others (2015 (4) SCC 334) covers the issue and that the amounts are not liable to be recovered, even if there is a mistake in the reckoning of the date of grant of higher grade to the petitioner, at this distance of time. It is submitted that it was not on account of any fault of the petitioner that the dates were erroneously reckoned, if at all, and that the amounts cannot be recovered WP(C).No.4474 OF 2019(H) **==> picture [8 x 9] intentionally omitted <==** from the petitioner after more than 20 years of the error occurring. 5. A counter affidavit has been placed on record by the 1[st] respondent. It is submitted that the mistake in reckoning the service of the petitioner for time bound higher grades occurred due to “the unnecessary splitting of service periods” and the time bound higher grade had been irregularly granted from 30.04.1995, 30.04.2003 and 30.04.2008 receptively. It is submitted that the actual dates of eligibility are 01.05.1995, 01.05.2003 and 01.05.2008 respectively. The learned counsel for the petitioner would contend that Ext.P10 Government Order shows that the leap years which have intervened during the period are liable to be taken into account and if that be so, there would be no irregularities in grant of higher grade to the petitioner w.e.f 30.04.1995, 30.04.2003 and 30.04.2008 respectively. 6. I have considered the contentions advanced on either side, it is apparent from Ext.P1 that the benefit of a reckoning of the broken periods of service and the grant of WP(C).No.4474 OF 2019(H) 6 the higher grade from 30.04.1995 had been approved by the educational authorities as early as on 10.10.1995. The petitioner had been granted the benefits of the 18 and 23 years higher grade also, taking note of Ext.P1 with effect from the corresponding dates. No objection was raised from any quarters when the benefits had been granted to the petitioner. It was only by Ext.P2 for the first time that an audit objection had been raised stating that the petitioner would be entitled to the benefits only from 01.05.1995 onwards. 7. The learned counsel for the petitioner had submitted Ext.P4 revision specifically pointed out that the grant of the first time bound higher grade on 30.04.1995 was in the year 1995 and that it was not liable to be recalled. The decision of the Apex Court in Rafiq Masih's case (supra) had also been specifically referred to. The learned counsel for the petitioner submits that Ext.P10 Government Order would also go to show that the petitioner would be entitled to count the two leap years which had occurred in 1988 and 1992 in the first ten years of the petitioner's service and if the said leap WP(C).No.4474 OF 2019(H) **==> picture [8 x 9] intentionally omitted <==** years are considered in the light of Ext.P10 Government Order, there would be no error in the grant of the benefit to the petitioner w.e.f 30.04.1995. 8. The Apex Court in Rafiq Masih's case (supra) has specifically considered the entire case law on the point and has specifically found that the recovery of the amounts wrongly paid from employees, after long periods of time even if there is an error in computation of benefits is completely unjustified. In the instant case also, the benefits has been granted by Ext.P1 in the year 1995. It is after 20 years by Ext.P2 the first audit objection has been raised. The petitioner admittedly had no role to play in the error, if any. The petitioner specifically contends that there is no error in Ext.P10 is reckoned for the purpose of calculating the 10 years of services by reckoning the leap years as well. 9. In any view of the matter, in the light of the declaration of law by the Apex Court that recoveries on account of erroneous payment shall not be effected on the basis of orders passed long years after the benefits had been WP(C).No.4474 OF 2019(H) **==> picture [8 x 9] intentionally omitted <==** granted and in view of the fact that the petitioner had been in service as a primary school teacher and had retired on 31.03.2019 as a primary school headmistress, I am of the opinion that this is a fit case where the recovery amounts from the petitioner already drawn on account of the erroneous fixation of pay in which the petitioner had no complicity is liable to be set side. The writ petition is, therefore, allowed. The impugned orders are set aside. There will be a direction to the respondents to sanction and disburse pensionary benefits due to the petitioner without further delay, taking note of the time bound higher grade granted to the petitioner. The amounts due shall be disbursed within a period of three months from the date of receipt of a copy of this judgment. Sd/- ## ANU SIVARAMAN JUDGE Bng/11.12.2020 WP(C).No.4474 OF 2019(H) 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER GRANTING HIGHER GRADE TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE AUDIT OBJECTION RAISED BY THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 22/9/2016 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE REVISION DATED 15/11/2017 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P5 TRUE COP OF THE JUDGMENT DATED 22/1/2018 IN W.P.(C) NO.2183/2018.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 25/10/2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED 22.8.2019 ISSUED BY THE HEADMISTRESS OF SRKGVMLPS, PURANATTUKARA IN CONTINUATION OF THE EXHIBITS PRODUCED ALONG WITH THE WRIT PETITION.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WA 146/16 DATED 17.7.2017 IN CONTINUATION OF THE EXHIBITS PRODUCED ALONG WITH THE WRIT PETITION.** - **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 26.11.2018 IN SLP NO.27604/2017 IN CONTINUATION OF THE EXHIBITS PRODUCED ALONG WITH THE WRIT PETITION.** **EXHIBIT P10 TRUE COPY OF THE GO(MS) 102/2019/FIN DATED 14.8.2019.**