Pathummakunju J., Sewing Teacher, M.M.H.S., Vilakudy, Punalur v. Government of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 WP(C).No. 29654 of 2010(F) -------------------------- PETITIONER(S): --------------- PATHUMMAKUNJU J., SEWING TEACHER, M.M.H.S., VILAKUDY, PUNALUR. BY ADV. SRI.S.ABDUL RAZZAK RESPONDENT(S): --------------- 1. GOVERNMENT OF KERALA, REP. BY SECRETARY, GENERAL EDUCATION (G) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-01. 2. THE DIST. EDUCATION OFFICER, PUNALUR-691305. 3. THE HEADMASTER, M.M.H.S., VILAKUDY, PIN-691508. GOVERNMENT PLEADER FOR R1,2 Smt. RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29654 of 2010 ## APPENDIX ## EXHIBITS EXT.P1PHOTOCOPY OF AUDIT ORDER DATED 5.5.2010 EXT.P2PHOTOCOPY OF 2ND RESPONDENT'S LETTER DATED 21.7.2010 WITH AUDIT ORDER EXT.P3PHOTOCOPY OF 3RD RESPONDENT'S ORDER NO.MMHV 24/10-11 DATED 15.9.2010 (True Copy) P.A.To Judge ## **T.R.RAMACHANDRAN NAIR,J.** ## **-------------------------------------** ## **W.P.(C)No.29654 Of 2010-F** **----------------------------------------------------DATED THIS THE 25th DAY OF MARCH, 2011** ## **J U D G M E N T** Aggrieved by the audit objection raised with regard to the pay fixation and the consequent recovery of excess salary, the petitioner has filed this Writ Petition. 2. The petitioner is a Sewing Teacher in M.M.H.S., Vilakudy which is an aided school. The initial appointment was approved, but full pay and vacation salary was not paid for three academic years 1977-78, 1978-79 and 1979-80 for want of KGTE Group Certificate. The petitioner acquired the qualification on 18.2.1980 and completed 18 years of qualified service on 1.7.1998. The pay revision for the year 1997 was introduced on 1.7.1998 on a retrospective basis from 1.3.1997. 3. Based on the option submitted by the petitioner, the re-fixation was made and higher pay was granted to her. It is stated that she was given 19 years of service weightage counting the qualified service alone. W.P.(C)No.29654/10 -2- 4. Exhibit P1 is the copy of the audit objection, based on which a reply was sought as per Exhibit P2 from the Headmaster. Finally, by Exhibit P3 proceedings, the petitioner was directed to remit an amount of Rs.43,547/- towards excess pay paid. 5. The learned counsel for the petitioner submitted that the petitioner is due to retire from service on 31.3.2011 and the mistake, if any, in the pay fixation statement cannot result in recovery, after a long lapse of time. Further, it is pointed out that as the petitioner was having qualified service from 18.2.1980 till 1.7.1998, it will result in a total qualifying service for a period of 18 years and five months and therefore also in the pay fixation taking it as 19 years cannot be said to be incorrect. 6. The stand taken by the respondents in the counter affidavit is that the pay revision proposal was submitted by counting 19 years of service weightage reckoning the broken approved service of the incumbent for the period from 7.6.1978 to 31.3.1979 and 6.6.1979 to 18.2.1980. But the above broken approved service period was not counted for normal increments W.P.(C)No.29654/10 -3- already sanctioned to the incumbent. As per Rule 4 Annexure III of the pay revision order G.O.(P)No.3000/98/Fin. dt.25.11.1998 service weightage is calculated only for the broken periods of service qualifying for normal increments in the scale of pay. Hence the broken period of service not reckoned for normal increment cannot be counted for service weightage. 7. The learned counsel for the petitioner disputed the version in paragraph No.3 of the counter affidavit that broken periods of service were counted for reckoning the weightage. It is pointed out that even by reckoning the qualifying service from 18.2.1980, the petitioner has got more than 18 years and five months and therefore the petitioner is entitled for the weightage of 19 years. It is also submitted that the said method alone was adopted while fixing the pay. 8. Evidently, the petitioner's pay fixation was approved for the pay revision year 1997 and the subsequent pay revision for the years 2002 and 2007 also have been implemented as far as the petitioner is concerned. The audit objection is raised only in the year 2010 as per Exhibit P1, i.e., on 5.5.2010. W.P.(C)No.29654/10 -4- 9. The learned counsel for the petitioner therefore invited my attention to the judgment of the Apex Court to the effect that even if the pay fixation was found to be irregular at a later point of time, unless and until it is found that it is due to any misrepresentation or fraud on the part of the parties concerned, **-** no recovery can be effected. In **Registrar of Co operative Societies** v. **Israil Khan** ( **2009 (4) KLT SN 61 (C.No. 53) SC),** the Apex Court has held thus: **“** Such relief, restraining recovery back of excess payment is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion, to relieve the employees, from the hardship that will be caused if recovery is implemented. A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he received for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery. What is important is recovery of excess payments from employees is refused only where the excess payment is made by the employer by applying a wrong method or principle for calculating the pay/allowance, or on a particular interpretation of the W.P.(C)No.29654/10 -5- applicable rules which is subsequently found to be erroneous. But where the excess payment is made as a result of any misrepresentation, fraud or collusion, courts will not use their discretion to deny the right to recover the excess payment.” Therefore, even if it is accepted that there was any defect or irregularity in fixing the scale of pay, in the light of the fact that the petitioner has not contributed anything by way of misrepresentation or fraud, the recovery of alleged excess pay cannot be effected. The question whether the period from 18.2.1980, i.e., 18 years and 5 months will enable the petitioner to get the benefit of 19 years weightage has also not been examined. The learned counsel for the petitioner submitted that the petitioner will be retiring from service on 31.3.2011. Therefore, the Writ Petition is allowed and it is directed that the recovery as against the petitioner will not be effected in terms of the orders passed. To that extent, Exhibit P3 is quashed. The competent among the respondents will examine whether the period from 18.2.1980 totalling to 18 years and five months will count for 19 years' weightage as contended by the learned counsel. The same W.P.(C)No.29654/10 -6- will be considered in the light of the relevant clauses of the pay revision order G.O.(P)No.3000/98/Fin. dt..25.11.1998. If for any reason it is found that the said period cannot be reckoned for qualifying weightate for finalising the pension and other benefits the refixed pay in Exhibit P3 will be taken. Appropriate orders as above will be passed within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is allowed to that extent. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn