Pearlvy A. George v. State of Kerala and Others

WP(C) NO. 8042 OF 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944** **WP(C) NO. 8042 OF 2021** ## **PETITIONER/S:** PEARLVY A.GEORGE AGED 52 YEARS S/O.A.T.GEORGE, CLERK, ST.JOSEPHS AND ST CYRILS HIGHER SECONDARY SCHOOL, WEST MANGAD, TRICHUR - 680 542 RESIDING AT AYYAMKULANGARA HOUSE, THOZHIYOOR P.O., ANJOOR, VADAKKEKKAD, THRISSUR - 680 520. BY ADV U.BALAGANGADHARAN ## **RESPONDENT/S:** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY SECRETARY, GENERAL EDUCATION| ||DEPARTMENT, GOVERNMENT SECRETARIAT (ANNEX),| ||THIRUVANANTHAPURAM - 695 001.| |2|THE DIRECTOR OF GENERAL EDUCATION| ||(FORMER DIRECTORATE OF PUBLIC INSTRUCTIONS), HOUSING| ||BOARD BUILDINGS, SANTHINAGAR, THIRUVANANTHAPURAM -| ||695 001.| |3|THE DEPUTY DIRECTOR OF EDUCATION (D.D.E.)| ||CIVIL STATION, THRISSUR - 680 003.| |4|THE DISTRICT EDUCATIONAL OFFICER (D.E.O.)| ||CHAVAKKAD, THRISSUR - 680 003.| |5|THE MANAGER, ST.JOSEPHS ST.CYRILS HIGHER SECONDARY| ||SCHOOL| ||WEST MANGAD, TRICHUR - 680 542.| |6|THE HEADMISTRESS, ST.JOSEPHS AND ST.CYRILS HIGHER| ||SECONDARY SCHOOL| ||WEST MANGAD, TRICHUR - 680 542.| WP(C) NO. 8042 OF 2021 2 BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** SRI.K.M.FAISAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 8042 OF 2021 3 ## **P.V.KUNHIKRISHNAN, J** **---------------------------------------** ## **W.P.(C) No 8042 of 2021** **-------------------------------------Dated this the 14[th] day of February, 2023** ## **JUDGMENT** ## The above writ petition is filed with following prayers : 1. “Call for the records leading Ext.P.3, Ext.P.4 and Ext.P.5 and set aside the same by issuing writ in the nature of certiorari; 2. Writ in the nature of mandamus commanding the 4th respondent to refrain from revising pay fixation of the petitioner done as per Ext.P2 in the light of Ext.P.1 and drop all proceedings pursuant to Ext.P.3 to Ext.P.5; 3. Writ in the nature of mandamus commanding the 4th respondent to extent the benefit of Ext.P.1 Circular test exemption and permit him to draw pay and allowances as approved in Ext.P.2. 4. Declare that pay of the petitioner is not liable to be refixed in terms of Ext.P.3 to Ext.P.5 and the fixation as approved in Ext.P.2 is liable to be maintained in the eye of law. 5. Such other reliefs that the Hon'ble Court deem fit and proper in the facts and circumstances of the case.” [SIC] 2. The petitioner is a clerk in an aided school. The petitioner is aggrieved by an order to refund an amount of Rs. WP(C) NO. 8042 OF 2021 4 3,40,076/- alleging over payment by refixing the pay from 1998 onwards at different occasions namely 18 year 2[nd] Higher Grade, 2004 pay revision, 2009 pay revision, 23 year Higher Grade and 2014 pay revision. The petitioner has not acquired test qualification. Hence, the pay of the petitioner was fixed in the pay scale of Rs.1050-1660 which was standard Higher Scale and he was denied the scale of pay attached to the post of UDC as he has not acquired test qualification. It is the case of the petitioner that the Government decided to exempt all non teaching staff who joined service before 19.11.1994 from acquiring test qualification as per Ext.P1. Consolidated refixation of pay of the petitioner dated 03/2007 as approved by DEO is Exhibit P2. Subsequently, Ext.P3 objection was raised by the DEO, Chavakkad on 04.01.2019. The petitioner submitted his explanation. But the same was upheld by the Deputy Director as per Ext.P4. Aggrieved by Exts.P3 and P4, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. WP(C) NO. 8042 OF 2021 5 4. When this writ petition came up for consideration, both sides submitted that the point raised in this writ petition is covered in favour of the petitioner in the judgment dated 28.10.2021 in W.P.(C) No.9292/2021. If that is the case, the impugned orders in this writ petition can be quashed. It will be better to extract the relevant paragraph of the above judgment : 22. A perusal of the order would reveal that even without the sanctioned post of U.D. Clerk, Head Clerk, Junior Superintendent and Junior Superintendent (HG), the pay scales applicable to the said post can be granted to aided school clerks on the basis of the earlier Government Orders. This would cut the root of the argument of the learned Government Pleader about the lack of provisions in the Act and Rules for sanctioning promotion to Clerk in Aided schools as U.D. Clerk and Head Clerk. If Ext.P20 can hold the field from 1.4.2021 as contended by the learned Government Pleader, there is no reason why the benefits of the previous orders shall not be extended to the petitioner. 23. In view of the discussion above, I am of the considered opinion that Ext.P6 order cannot be sustained. 24. Even otherwise, I am of the considered opinion that recovery of amounts paid in excess about two decades back and thereafter would be grossly iniquitous. In the case on hand, the petitioner had entered service on 1.12.1987 and had WP(C) NO. 8042 OF 2021 6 superannuated on 30.4.2021. It was when the pension proposal was submitted to the office of the 3rd respondent on 12.9.2020 for sanction of pension and other terminal benefits that Ext.P6 order was passed on 12.2.2021 on the ground that the 1st Time Bound Higher Grade granted to the petitioner on 13.8.1999 was irregular. After finding so, the 4th respondent was directed to recover the alleged excess payment of salary granted to the petitioner and to furnish a fresh fixation statement by fixing the scale as Rs.3350-5275 with effect from 13.8.1999. 25. In Rafiq Masih (Supra), the Apex Court had occasion to postulate the situations of hardship that would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of his entitlement. After balancing the conflicting claims and the hardship that is likely to be caused, the Hon’ble Supreme Court had summarised the situations wherein recovery of the amounts by the employers would be impermissible under law. It was held as follows in paragraph No. 18 of the judgment. 18. 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 hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery. (iii) Recovery from the 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, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the court arrives at the WP(C) NO. 8042 OF 2021 7 conclusion, that recovery if made from the employee, 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. 26. There is no dispute that the petitioner falls in the lower rung of the service and the recovery is being effected for excess payment made initially about two decades back and thereafter. This is not a case wherein the petitioner had knowledge that the payment received was in excess of what was due. There is no case that there was any misrepresentation or fraud on the part of the petitioner. As held by the Apex Court, when payments have been made for a long duration of time, the logic of recovery of the excess amount paid would be iniquitous, arbitrary, violative of Article 14 of the Constitution of India. There cannot be any doubt that it would be next to impossible for a person such as the petitioner to bear the financial burden of a refund of payment received wrongfully for a long span of time as he would have spent the emoluments that he would have received for the upkeep of his family under the bonafide belief that he is entitled to the said amount. In that view of the matter, recovery of amounts ordered as per Ext.P6 at this point of time after the petitioner has retired from service would result in extremely harsh consequences. 27. The reliance placed by the learned Government Pleader on the aw laid down in Jagdev Singh (supra), has to fail as even according to the respondents, what was issued by the petitioner as Annexure-R3(c) is an undertaking as per G.O.(P) No.169/2019/FIN dated 13.12.2019 and the same is dated 22.6.2020. The learned Government Pleader has filed a memo producing the undertakings given by the petitioner and contends that those undertakings were given at the time of grant of higher grades and pay revisions. The question essentially is whether at WP(C) NO. 8042 OF 2021 8 the time of grant of first time bound higher grade in the scale of UDC on 13.8.1999, any undertaking was given by the petitioner. None of the documents produced by the learned Government Pleader would enable the court to come to a conclusion that such an undertaking was given. A Division Bench of this Court in State of Kerala and Ors v. Vinod Kumar C.R. [2020 (4) KLT 230], relying on Syed Abdul Qadir & ors. v. State of Bihar & ors. [(2009) 3 SCC 475], Rafiq Masih (supra) and a judgment of another Division Bench of this Court in Kasaragod District Cooperative Bank Ltd. and another v. Radha K.A [2006 (1) KHC 260] had occasion to observe the failure of the respondents to communicate the objections as regards excess payment within a reasonable time after the grant of benefits would be iniquitous. Resultantly, this writ petition will stand allowed. Ext.P6 will stand quashed and it is held that the scale of Rs.4000-6090 granted to the petitioner with effect from 13.8.1999 at the time of 1st Time Bound Higher Grade is in order. The 3rd respondent is directed to sanction the terminal benefits due to the petitioner by adverting to the salary last drawn by the petitioner and forward the same to the Accountant General for approval. The respondents are interdicted from initiating any steps to recover the alleged excess receipt of salary as a pre-condition for sanctioning the regular pension and other terminal benefits.” In the light of the above judgment, I think the impugned orders in this case will not stand. Therefore, this writ petition is allowed in the following manner : WP(C) NO. 8042 OF 2021 9 - 1) Exts.P3 and P4 are set aside. - 2) The petitioner is entitled all consequential benefits. ## **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 8042 OF 2021 10 ## **APPENDIX OF WP(C) 8042/2021** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE CIRCULAR DATED 29/7/2006 ISSUED BY THE GOVERNMENT OF KERALA. EXHIBIT P2 A TRUE COPY OF STATEMENT OF RE-FIXATION OF PAY OF THE PETITIONER AS APPROVED BY THE DEO DATED 3/2007. EXHIBIT P3 A TRUE COPY OF LETTER OF 4TH RESPONDENT TO THE 3RD RESPONDENT DATED 4/1/2019. EXHIBIT P4 A TRUE COPY OF LETTER OF 3RD RESPONDENT TO 4TH RESPONDENT DATED 27/2/2019. - EXHIBIT P5 A TRUE COPY OF LETTER OF P.A.IN THE OFFICE OF 4TH RESPONDENT TO THE 6TH RESPONDENT WITH STATEMENT. Exhibit P6 A TRUE COPY OF JUDGEMENT DATED 06/01/2022 IN WA.9 OF 2022.