Rajalakshmi N S and others v. State of Kerala and others

WP(C) NO. 25367 OF 2021 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943** ## **WP(C) NO. 25367 OF 2021** ## **PETITIONERS:** 1 RAJALAKSHMI N S AGED 46 YEARS HIGH SCHOOL TEACHER, V.S.S.H. S., KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA TALUK, ALAPPUZHA DISTRICT, PIN-690510. ( W/O SAJEEV G, AGED 46, NALUTHENGIL, KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA, ALAPPUZHA DISTRICT, PIN-690510). 2 SHEEJA MATHEW HIGH SCHOOL TEACHER, V. S. S.H. S., KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA TALUK, ALAPPUZHA DISTRICT, PIN-690510, (W/O PHILIP K.KOSHY, AGED 48, NELLICOMATHU PUTHEN VEEDU, VETTICODE P.O, (VIA), PALLICKAL, ALAPPUZHA DISTRICT, PIN-690503). 3 ZEENA SUDEVAN HIGH SCHOOL TEACHER, V. S. S. H. S., KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA TALUK, ALAPPUZHA DISTRICT, PIN-690510,( W/O REJITH APPAN, AGED 41, KATHAK, NORTH ANJILIMOODU, PUTHUPALLY NORTH, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN-690505. 4 SREEKALA S. HIGH SCHOOL TEACHER, V. S. S .H. S., KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA TALUK, ALAPPUZHA DISTRICT, PIN-690510. (W/O RAJEEV KUMAR K, AGED 55, BHAKTHIVILASAM, KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA, ALAPPUZHA DISTRICT, PIN-690510). 5 SREEKUMAR K. HIGH SCHOOL TEACHER, V. S. S. H. S., KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA TALUK, ALAPPUZHA WP(C) NO. 25367 OF 2021 2 DISTRICT, PIN-690510, (S/O KUMARAN VAIDHYAN, AGED 55, BHAKTHIVILASAM, KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA , ALAPPUZHA DISTRICT, PIN-690510, 6 USHA R. U. P. SCHOOL TEACHER, V. S. S. H. S., KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, ALAPPUZHA DISTRICT, PIN-690510, (W/O AJITHKUMAR P, AGED 53, KALEECKAL GREEZHMAN, KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA TALUK, ALAPPUZHA DISTRICT, PIN-690510). 7 JAYASREE P. U. P. SCHOOL TEACHER, V. S. S. H. S., KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA TALUK, ALAPPUZHA DISTRICT, PIN-690510, (W/O MURALEEDHARAN NAIR, AGED 53, SATHI BHAVANAM, PELA, THATTARAMBALAM P.O, MAVELIKARA, ALAPPUZHA DISTRICT, PIN-690103. 8 VINEETH T.N. U. P. SCHOOL TEACHER, V. S. S. H. S., KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O, MAVELIKARA TALUK, ALAPPUZHA DISTRICT, PIN-690510, (S/O NARAYANAN NAMBIATHIRI, AGED 46, THANNIYIL ILLAM, KAITHA NORTH, CHETTIKULANGARA P.O, MAVELIKARA, ALAPPUZHA DISTRICT, PIN-690106). 9 A SREENATHA KUMAR U. P. SCHOOL TEACHER, S. V. H. S., KAYAMKULAM, ALAPPUZHA DISTRICT, PIN-690502, (S/O R. A ANANTHA PAI, AGED 52, ALUVARAN KIZHAKKATHIL, S.V.WARD, KAYAMKULAM, ALAPPUZA DISTRICT, PIN-690502). BY ADVS. V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR WP(C) NO. 25367 OF 2021 3 NITHEESH.M ## **RESPONDENTS:** |1|THE STATE OF KERALA,| |---|---| ||REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL| ||EDUCATION DEPARTMENT, SECRETARIAT, ANNEX-II,| ||THIRUVANANTHAPURAM DISTRICT, PIN-695001).| |2|THE DIRECTOR OF GENERAL EDUCATION| ||JAGATHI, THIRUVANANTHAPURAM DISTRICT, PIN-695010.| |3|THE DIRECTOR OF CENSUS OPERATIONS| ||DIRECTORATE OF CENSUS OPERATIONS, KERALA, CGO COMPLEX,| ||PONKULAM, THIRUVANANTHAPURAM DISTRICT, PIN-695522.| |4|THE DEPUTY DIRECTOR OF EDUCATION| ||ALAPPUZHA, ALAPPUZHA DISTRICT, PIN-688001.| |5|THE DISTRICT EDUCATIONAL OFFICER| ||MAVELIKARA, ALAPPUZHA DISTRICT, PIN-690101.| |6|THE ASSISTANT EDUCATIONAL OFFICER| ||MAVELIKARA, ALAPPUZHA DISTRICT, PIN-690101.| |7|THE ASSISTANT EDUCATIONAL OFFICER| ||KAYAMKULAM, ALAPUZHA DISTRICT, PIN-690502.| |8|THE HEADMISTRESS| ||V S S H S, KOIPALLIKARANMA, OLAKETTIYAMBALAM P.O,| ||MAVELIKARA, ALAPPUZA DISTRICT, PIN-690510.| |9|THE HEAD MISTRESS| ||S V H S, KAYAMKULAM, ALAPPUZHA DISTRICT, PIN-690502.| SRI BIJOY CHANDRAN SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 25367 OF 2021 4 ## The petitioners 1 to 5 are stated to have been working as High School Teachers and the petitioners 6 to 8 are stated to have been working as U.P. School Teachers in the V.S.S.H.S., Koipallikarnanma, an aided school managed by the 6th respondent. The 9th petitioner on the other hand has been working as U.P.School teacher at S.V.H.S., Kayamkulam, an aided school managed by the 7th respondent. The petitioners have approached this Court being aggrieved by the order issued by the respondents directing them to return the amounts paid to them for undertaking the enumerator work in connection with the preparation of the National Population Register (NPR) on the ground that they had been granted Higher Earned Leave than what was eligible to them. 2. It is the case of the petitioners that they had undertaken the enumerator work in connection with the preparation of the WP(C) NO. 25367 OF 2021 5 NPR on the basis of the list prepared by the District Administration. They were issued with letters by the revenue authorities and they were directed to report for the Census Training Programme. After completion of the training, they had undertaken the census operation from April and May 2010. They surrendered 24 earned leave and obtained allowance for the same. According to the petitioners, Ext.P2 has now been issued by the 4th respondent directing the petitioners to refund the earned leave allowance received by the petitioners 1 to 8. On receipt of Ext.P2, the petitioners 1 to 8 are stated to have submitted Ext.P3 representation and the 9th petitioner is stated to have submitted Ext.P4 representation before the Headmistress. It is contended that without considering the representation submitted by the petitioners, Ext.P5 order has been passed demanding that the petitioners refund the excess amounts paid to them as Earned Leave surrender allowance. 3. The petitioners contend that the Government based on the recommendation of the Census Department had issued an WP(C) NO. 25367 OF 2021 6 order dated 14.10.2009 prescribing the conditions for engaging teachers for the purpose of conducting census. The Government had issued an order stating that teachers who are engaged in Census duty and similar works are eligible for proportionate earned leave for the period during which they are prevented from availing vacation as provided in Rule 81 Part I of the KSR and the earned leave should be sanctioned to those teachers who engage in such works during vacation time. It is further contended that later by order dated 20.4.2013, the Government turned around and ordered that Earned Leave Surrender can be granted only for eight days proceeding on the premise that the house listing work can be completed in 16 days. Much later, the Government came out with Ext.P1 order dated 14.5.2013 and had issued directions to the respondents not to implement G.O. (MS) No.142/2013/Gen.Edn. Dated 20.4.2011. 4. According to the petitioners, after several years, steps are being taken to recover the amount granted to them. The petitioner contends that the aided school teachers in Ernakulam WP(C) NO. 25367 OF 2021 7 District had occasion to approach this Court being aggrieved by the recovery of the amounts and this Court by judgment dated 31.3.2021 placed on record as Exhibit P6 had interfered with the orders of the Deputy Director and interdicted the recovery of the Earned Leave amount. It is in the afore circumstances that the petitioners are before this Court seeking the following reliefs: (i) Issue a writ in the nature of certiorari or any other appropriate writ or order quashing Exhibits P2 and P5 after calling for the records leading thereto. (ii) Issue a writ in the nature of mandamus or any other appropriate writ or order directing the respondents to provide all the service and retiral benefits of the petitioners de hors Exhibits P2 and P5; 5. I have heard Dr. V.N.Sankarjee, the learned counsel appearing for the petitioner and Smt. Nisha Bose, the learned senior Government Pleader. 6. I have considered the submissions advanced and have perused the records. The materials placed on record reveal that the petitioners were engaged as enumerators and after WP(C) NO. 25367 OF 2021 8 undergoing training had conducted house listing and housing census operations in connection with the preparation of NPR. The records made available before this Court would reveal that after being granted the benefit of earned leave, the said benefit is sought to be withdrawn. There is no case for the respondents that any benefit was obtained by the petitioners on account of any fault or error or reasons that can be attributed to him/her so as to initiate recovery of the amount which is stated to have been paid in excess. 7. I find that an identical issue was raised by teachers in various schools under the Education Department in Ernakulam District and a learned Single Judge of this Court relying on the declaration of law in **State of Punjab v. Rafiq Masih (White Washer)** (2015(4)SCC 334)had interfered with the orders passed by the Deputy Director. While disposing of the writ petition, this Court had occasion to observe as follows in paragraph Nos. 8 to 13 of the judgment in W.P.(C) No. 9205/2020. WP(C) NO. 25367 OF 2021 9 “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 days of earned leave, the Deputy Director could not have recovered any amount from them on such basis. 10. They say that this is more so because the 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, the 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. 12. 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. 13. The declarations in Rafiq Masih (Supra) make it further indubitable that the recovery ordered against persons who are WP(C) NO. 25367 OF 2021 10 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.” 8. I respectfully concur with the observations and findings of the learned Single Judge. The issue involved in the instant case is exactly the same as considered in Ext.P6 and in that view of the matter, I find no reason to refuse the prayer sought for by the petitioners. 9. In that view of the matter, the petitioners are entitled to succeed. The writ petition will stand allowed. Exts.P2 and P5 will stand quashed. There will be a direction to the respondents to provide all the service and retiral benefits to the petitioners dehors Exts.P2 and P5. There will be no order as to costs. **Sd/-** **RAJA VIJAYARAGHAVAN V, JUDGE** AJ WP(C) NO. 25367 OF 2021 11 ## **APPENDIX OF WP(C) 25367/2021** ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE ORDER| |---|---| ||NO.42076/G3/2010/GEN.EDN DATED 14.05.2013| ||ISSUED BY THE 1ST RESPONDENT.| |Exhibit P2|TRUE COPY OF THE RELEVANT PAGES OF THE AUDIT| ||REPORT TOGETHER WITH THE LETTER| ||NO.E3/8203/2021 DATED 29.06.2021 ISSUED BY| ||THE 4TH RESPONDENT TO THE 8TH RESPONDENT.| |Exhibit P3|TRUE COPY OF THE REPRESENTATION DATED| ||24.09.2021 SUBMITTED BY PETITIONERS 1 TO 8 TO| ||THE 8TH RESPONDENT.| |Exhibit P4|TRUE COPY OF THE REPRESENTATION DATED| ||31.08.2021 SUBMITTED BY THE 9TH PETITIONER TO| ||THE 9TH RESPONDENT.| |Exhibit P5|TRUE COPY OF THE LETTER NO.E3/16166/2020| ||DATED 22.09.2021 ISSUED BY THE 4TH RESPONDENT| ||TO THE 9TH RESPONDENT.| |Exhibit P6|TRUE COPY OF THE JUDGMENT DATED 31.03.2021 IN| ||WPC NO.9205/2020 PASSED BY THIS HONOURABLE| ||COURT.|