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High Court of KeralaSingle JudgePetition allowed; Exts. P5 and P7 quashed; no c...

Rajmohan M. L. and others v. State of Kerala and others

Case / Petition Number:WP(C) NO. 26893 OF 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Raja Vijayaraghavan V
Judgment Date
2021-10-07
Court Decision / Holding
Writ petition allowed; Exts.P5 and P7 quashed; no order as to costs.
Final Disposition
Petition allowed; Exts. P5 and P7 quashed; no costs.

Parties to the Case

Appellants / Petitioners

  • Rajmohan M. L.
  • Shijna S.
  • Subair P.
  • Manoj Kumar A. K.
  • Santhosh C. V.
  • Krishnakumar T. K.
  • Bini K. L.
  • Mohanakrishnan N.
  • Radhakrishnan P.
  • Remadevi K. S.
  • Sankaranarayanan P.
  • Sreedharan P.
  • Girish V. S.
  • Jayaprakash P. V.
  • Abdurahiman P.
  • Sadick M. P.
  • P. Abdul Vahad
  • Sreevalson T. S.
  • Mini V. V.
  • Daly Varghese
  • Abdul Razak T. K.
  • Shaharb an A. M.
  • Aneesa Pulloodan
  • Muraleedharan Pillai D.
  • Vaheed M.
  • Muhammed T. K.
  • Rassak V.
  • Verengal House (verengal) residents
  • Sheenamole Lonappan
  • K. T. Jose
  • Rathnakumari V. P.
  • Prasanth R.
  • Chandrashekaran E. M.
  • Daggy C. T.
  • Sobhana A.
  • Madhu R.
  • Alfred Dyas J.
  • Felcy Premila A.
  • Zeenath N. U.
  • Mustafa P.
  • Sameema M.
  • Sunny Antony
  • Vijayan P.
  • Sasidharan C. N.
  • Pradeep K. M.
  • Vargheese M. U.
  • Rajeevkumar M. B.
  • Bindu P. Varghese
  • Abdulkareem P. H.
  • Rathna Kumari V. P.
  • Prasant R.
  • Chandrashekaran E. M.
  • Daggy C. T.
  • Sobhana A.
  • Madhu R.
  • Alfred Dyas J.
  • FELCY PREMILA A.
  • Zeenath N. U.
  • Mustafa P.
  • Sameema M.
  • Sunny Antony
  • Vijayan P.
  • Sasidharan C. N.
  • Pradeep K. M.
  • Vargheese M. U.

Respondents

  • The State of Kerala, Secretary to Government, General Education Department, Secretariat Annex II, Thiruvananthapuram
  • The Director of Census Operation, Kerala
  • The Director of General Education, Jagathy, Thiruvananthapuram
  • The Deputy Director of Education, Palakkad
  • The District Educational Officer, Palakkad
  • The District Educational Officer, Mannarkkad
  • The District Educational Officer, Ottappalam
  • The Assistant Educational Officers: Parli, Palakkad; Chittur; Kollangod; Alathur; Mannarkkad; Pattambi
  • Other listed educational authorities
  • Sri Bijoy Chandra n, Sr Government Pleader

Legal Representation & Advocates

Counsels for Petitioners

  • • V. Shankar

Counsels for Respondents

  • • Sri Bijoy Chandran

Case Synopsis & Summary

This writ petition (WP(C) 26893/2020) challenges the recovery of Earned Leave amounts paid to aided school teachers who served as enumerators for the National Population Register (NPR) in 2010. The petitioners, a multi-institution group of lower to higher secondary teachers across Palakkad district, were engaged as enumerators and trained for three days before conducting house listing and housing census from 12.04.2010 to 27.05.2010, reportedly working 45–48 days in total. Initially, they were granted Earned Leave under Rule 81 Part I of the Kerala Service Rules (KSR) based on government orders Ext.P1 (2010) and Ext.P2 (2010), with subsequent certification by revenue authorities. The government later issued Ext.P5 (2013) reducing the leave entitlement and Ext.P6 stating not to implement Ext.P5, but the petitioners faced recovery for the overpaid sums via Ext.P7. The petition contends that Ext.P5 is unlawful, that Ext.P6 stays its implementation, and that recovering long after disclosure of the benefits would violate the principles laid down in the Supreme Court’s decision in Rafiq Masih (White Washer). The court ultimately allows the petition, quashes Exts.P5 and P7, and declines costs, following a prior Kerala decision (W.P.(C) No. 9205/2020) and the Rafiq Masih principle.

Provisions of Law Cited

KSR Part I Rule 81

Legal Doctrines & Maxims

  • Rafiq Masih (White Washer) doctrine on recoveries of benefits obtained under valid orders and the principle that recovery after a long lapse is impermissible unless the employee is at fault

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that they were engaged as enumerators for NPR in 2010 and underwent three days of training before house listing and housing census. They were granted Earned Leave as per Rule 81, Part I of the KSR based on Exts.P1 and P2 and later certified by revenue authorities. They performed duties for about 48 days and were required to return excess payments upon reliance on Ext.P5 (2013). They argued Ext.P5 was issued long after the corresponding benefit had been granted, and Ext.P6 stayed Ext.P5; Ext.P3 clarified that Ext.P2 was not applicable to the vacation department. The petitioners relied on the law laid down in Rafiq Masih to prevent recovery of amounts already paid under valid orders, especially after several years, and on the Kerala High Court’s earlier decision in W.P.(C) No. 9205/2020.

Contentions of Respondents

The respondents argued that Ext.P5 restricted Earned Leave to eight days and that Ext.P2 allowed limited absence for census duties. They asserted that recoveries are legitimate when based on valid Government orders and that the later Ext.P5 did not retroactively nullify the earlier benefits. They contended that Ext.P6 clarified the position and that Ext.P7 was necessary to recover excess payment where overpayment occurred due to erroneous leave entitlements. They maintained that the period of service for enumerators fell under government policy and that recoveries are permissible if lawfully sanctioned, subject to due process.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
State of Punjab v. Rafiq Masih (White Washer)[(2015) 4 SCC 334]PositiveThe present judgment adopts the ratio from Rafiq Masih that recoveries of benefits provided under valid orders cannot be pursued after a long lapse, unless the beneficiary is at fault.
W.P.(C) No. 9205/2020W.P.(C) No. 9205/2020PositiveThe court expressly concurs with the observations and findings of the learned Single Judge in this earlier Kerala High Court petition, using it to support its own decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**WP(C) NO. 26893 OF 2020** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943** ## **WP(C) NO. 26893 OF 2020** **PETITIONERS:** 1 RAJMOHAN M. L. AGED 48 YEARS S/O. J. K. MOHANAN, UPSA, S.N.U.P. SCHOOL, KODUNTHIRAPPULLY, PALAKKAD - 678 004, RESIDING AT SHARON, CHAITRA NAGAR, MAMBRA, KODUNTHIRAPPULLY, PALAKKAD - 678 004. 2 SHIJNA S. AGED 33 YEARS W/O. AFSAL, LPST, K.K.M.LOWER PRIMARY SCHOOL, WEST KATTUSSERY, ALATHUR P. O., PALAKKAD - 678 541, RESIDING AT KATTUSSERY HOUSE, WEST KATTUSSERY, ALATHUR P. O., PALAKKAD - 678 541. 3 SUBAIR P. AGED 53 YEARS S/O. MOIDU P., HST SOCIAL SCIENCE, KALLADI HIGHER SECONDARY SCHOOL, KUMARAMPUTHUR P. O., MANNARKKAD COLLEGE, PALAKKAD - 678 583, RESIDING AT PADINHARAPALLA P. O., VATTAMANNAPURAM, EDATHANTTUKARA, PALAKKAD - 678 601. 4 MANOJ KUMAR A. K. AGED 50 YEARS S/O. KUMARAN A. K., LATE HST, KTM HIGH SCHOOL, MANNARKKAD, MANNARKKAD P. O., PALAKKAD - 678 582, RESIDING AT CHANDHANIKA, ARAKURUSSI, MANNARKKAD P. O., PALAKKAD - 678 582. 5 SANTHOSH C. V. AGED 53 YEARS S/O. VASUDEVAN, HSA, KTM HIGH SCHOOL, MANNARKKAD, MANNARKKAD P. O., PALAKKAD - 678 582, RESIDING AT SREYAS PERIMBADARI, MANNARKKAD P. O., PALAKKAD - 678 582. 6 KRISHNAKUMAR T. K. AGED 49 YEARS S/O.GOPALAKRISHNAN NAIR P. K. (LATE), HSA, KTM HIGH SCHOOL, MANNARKKAD, MANNARKKAD P. O., **WP(C) NO. 26893 OF 2020** **2** PALAKKAD - 678 582, RESIDING AT KANNADIKUZHIYIL HOUSE, ALANALLUR P. O., PALAKKAD - 678 601. 7 BINI K. L. AGED 50 YEARS S/O. SAJI E. J., UPST, ST. SEBASTIAN SENIOR BASIC SCHOOL, SULTHANPETTA, PALAKKAD - 678 001, RESIDING AT ENJODY HOUSE, AYODHYA NAGAR, KALLIKKAD, PALAKKAD - 678 006. 8 MOHANAKRISHNAN N. AGED 50 YEARS S/O. GOPALAN NAIR, HST, SOCIAL SCIENCE, KTM HIGH SCHOOL, MANNARKKAD, MANNARKKAD P. O., PALAKKAD - 678 582, RESIDING AT NECHULLI GOKULAM, PERIMBADARI P O., MANNARKKAD, PALAKKAD - 678 762. 9 RADHAKRISHNAN P. AGED 54 YEARS S/O. RAVUNNI GUPTAN (LATE), H. M., KTM HIGH SCHOOL, MANNARKKAD, MANNARKKAD P. O., PALAKKAD - 678 582, RESIDING AT PUTHIRATH HOUSE, ARAYANKODE, MANNARKKAD P. O., PALAKKAD - 678 582. 10 REMADEVI K. S. AGED 47 YEARS W/O. RADHAKRISHNAN P., HST, KTM HIGH SCHOOL, MANNARKKAD, MANNARKKAD P. O., PALAKKAD - 678 582, RESIDING AT PUTHIRATH HOUSE, ARAYANKODE, MANNARKKAD - 678 582. 11 SANKARANARAYANAN P. AGED 49 YEARS S/O. SANKARAN NAIR, HST, ENGLISH, KTM HIGH SCHOOL, MANNARKKAD, MANNARKKAD P. O., PALAKKAD - 678 582, RESIDING AT HARITHAM, KUNDURKUNNU P. O., MANNARKKAD VIA., PALAKKAD - 678 583. 12 SREEDHARAN P. AGED 52 YEARS S/O. GOVINDAN NAIR, HST, SOCIAL SCIENCE, K.A.H. HIGH SCHOOL, KOTTOPPADAM, MANNARKKAD, PALAKKAD DISTRICT - 678 583, RESIDING AT ANJALI, ALANALLUR, MANNARKKAD, PALAKKAD - 678 601. 13 GIRISH V. S. AGED 45 YEARS S/O. SANKARANKUTTY (LATE), HSA (SOCIAL SCIENCE), KTM HIGH SCHOOL, MANNARKKAD, MANNARKKAD P. O., PALAKKAD - 678 582, RESIDING AT GANGOTHRI, MANNARKKAD P. O., **WP(C) NO. 26893 OF 2020** **3** PALAKKAD - 678 583. 14 JAYAPRAKASH P. V. AGED 48 YEARS S/O. P. UNNIKRISHNAN, LPST, AM LOWER PRIMARY SCHOOL, ALANALLUR POST, PALAKKAD - 678 601, RESIDING AT PADINJARUVEETTIL, EDATHANATTUKARA POST, PALAKKAD - 678 601 15 ABDURAHIMAN P. AGED 53 YEARS S/O. MUHAMMED P., HSA, ARABIC, KALLADI HIGHER SECONDARY SCHOOL, MANNARKKAD COLLEGE P. O., PALAKKAD - 678 583, RESIDING AT PERUMANNIL, PALLIKKUNNU P. O., PALAKKAD - 678 583. 16 SADICK M. P. AGED 47 YEARS S/O. HAMZA, HSST MATHS, KAH HIGHER SECONDARY SCHOOL, KOTTOPADAM, PALAKKAD DIST. - 678 583, RESIDING AT MUNDAMPOKKIL, KOTTOPADAM POST, PALAKKAD DIST. - 678 583. 17 P. ABDUL VAHAD AGED 48 YEARS S/O. UNNEENKUTTY HAJI, UPST, PKHMO UPPER PRIMARY SCHOOL, EDATHANATTUKARA, NALUKANDAM, PALAKKAD - 678 601., RESIDING AT PALLIPETTA HOUSE, KODIYAMKUNNU, MOOCHIKAL, EDATHANATTUKARA P. O., PALAKKAD - 678 601. 18 SREEVALSON T. S. AGED 48 YEARS S/O. SANKARAN NAIR T. (LATE), UPST, CPA UPPER PRIMARY SCHOOL, THIRUVAZHAMKUNNU, PALAKKAD - 678 601, RESIDING AT SREENILAYAM, THIRUVAZHAMKUNNU, PALAKKAD - 678 601. 19 MINI V. V. AGED 50 YEARS W/O. JACOB AUGUSTINE, UPPER PRIMARY SCHOOL TEACHER, ST. SEBASTIANS SENIOR BASIC SCHOOL, PALAYAPETTA, PALAKKAD - 678 001. RESIDING AT VAZHAKKAMALAYIL HOUSE, ST. THOMAS NAGAR, NEAR VIMALA HRUDAYA CHURCH, KODUNTHIRAPULLY P. O., PALAKKAD - 678 004. 20 DALY VARGHESE AGED 48 YEARS W/O. REGI JOHN MENACHERY, LOWER PRIMARY SCHOOL **WP(C) NO. 26893 OF 2020** **4** TEACHER, ST. SEBASTIAN'S SENIOR BASIC SCHOOL, SULTANPET, PALAKKAD - 678 001, RESIDING AT 2/82, ALANVILLA, PRATHIBHA NAGAR, KUNNATHURMEDU P. O., KALMANDAPAM, PALAKKAD - 678 013. 21 ABDUL RAZAK T. K. AGED 50 YEARS S/O. HAMZA, HEAD MASTER, KMMAM LOWER PRIMARY SCHOOL, KARKITAMKUNNU KARKITAMKUNNNU P. O., PALAKKAD - 678 601, RESIDING AT THAZHATHE KALLADI, PULLISSERY P. O., PALAKKAD - 678 582. 22 SHAHARBAN A. M. AGED 51 YEARS W/O. T. K. MUHAMMED, ARABIC TEACHER, AMLP SCHOOL, ALANALLUR, ALANALLUR P. O., PALAKKAD - 678 601, RESIDING AT THORAKKATTIL HOUSE, EDETHANATTUKARA P. O., PALAKKAD - 678 601. 23 ANEESA PULLODAN AGED 48 YEARS W/O. MUHAMMED NAJEEB T., LPST, AMLP SCHOOL, ALANALLUR, ALANALLUR P. O., PALAKKAD - 678 601, RESIDING AT THOTTASSERI HOUSE, ALANALLUR P. O., PALAKKAD - 678 601. 24 MURALEEDHARAN PILLAI D. AGED 51 YEARS S/O. DAMODARAN PILLAI, HST, KALLADI HIGHER SECONDARY SCHOOL, KUMARAMPUTHUR, PALAKKAD - 678 583, RESIDING AT KALLUMPURAM PERIOD P. O., KOLLAM - 691 601. 25 VAHEED M. AGED 49 YEARS S/O. KUNCHAHAMMED, HST ARABIC, KALLADI HIGHER SECONDARY SCHOOL, KUMARAMPUTHUR, MANNARKKAD COLLEGE POST, PALAKKAD - 678 583, RESIDING AT ARIYOOR, POST MANNARKKAD COLLEGE, PALAKKAD - 678583 26 MUHAMMED T. K. AGED 55 YEARS S/O. T. K. ABU, HEAD MASTER, PKHMO UPPER PRIMARY SCHOOL, EDATHANATTUKARA, PALAKKAD - 678 601, RESIDING AT THORAKKATTIL HOUSE, EDATHANATTUKARA P. O., PALAKKAD - 678 601. 27 RASSAK V. AGED 45 YEARS S/O. MUHAMMED V., UPST, PKHMO UPPER PRIMARY SCHOOL, EDATHANATTUKARA, PALAKKAD - 678 601, RESIDING AT **WP(C) NO. 26893 OF 2020** **5** VERENGAL HOUSE, EDATHANATTUKARA P. O., ALANALLUR VIA, PALAKKAD - 678 601. 28 SHANIRBABU P. AGED 42 YEARS S/O. ABOOBACKER P., UPSA, PKHMO UPPER PRIMARY SCHOOL, EDATHANATTUKARA P.O, ALANALLUR, PALAKKAD - 678 601, RESIDING AT PADUVAN PADEN HOUSE, EDATHANATTUKARA P. O., ALANALLUR VIA, PALAKKAD - 678 601. **29** ABDULKAREEM P. H. AGED 46 YEARS S/O. HUSSAN P., HST ARABIC, MES HIGHER SECONDARY SCHOOL, MANNARKKAD COLLEGE P. O., PALAKKAD - 679 583, RESIDING AT PALLIPPETTA HOUSE, EDATHANATTUKARA P. O., PALAKKAD - 678 601. 30 RATHEE DEVI P. AGED 51 YEARS W/O. C. K. NARAYANAN, HEAD MISTRESS, ALPS KINAVALLUR, KINAVALLUR P. O., PALAKKAD - 678 612, RESIDING AT S. N. MANDIRAM, CHAVARKATTILLAM, PALAKKAD - 678 633. 31 SHEEBA P. M. AGED 40 YEARS W/O. PRAMOD KUMAR, LPST, AM LOWER PRIMARY SCHOOL, ALANALLUR, ALANALLUR P. O., PALAKKAD - 679 601, RESIDING AT VINOD VIHAR, ALANALLUR P. O., PALAKKAD - 678 601. 32 JAYACHANDRAN A. AGED 46 YEARS S/O. SIVARAMA GUPTAN., UPSA, CPA UPPER PRIMARY SCHOOL, THIRUVIZHAMKUNNU, PALAKKAD - 678 601, RESIDING AT AMBALATH HOUSE, CHETHALLUR, MANNARKKAD, PALAKKAD - 678 503. 33 ABDUL HAMEED KOMPATH AGED 52 YEARS S/O. ALI HAJI K., HST, K.A.H. HIGH SCHOOL, KOTTOPADAM P. O., MANNARKKAD, PALAKKAD - 679 583, RESIDING AT KOMPATH HOUSE, KODAKKAD P. O., MANNARKKAD COLLEGE VIA, PALAKKAD - 678 583. 34 K. P. RAJESH AGED 48 YEARS S/O. V. NARAYANAN, PRINCIPAL, AKNMMAM HIGHER SECONDARY SCHOOL, KATTUKULAM, KATTUKULAM SOUTH P. O., PALAKKAD - 679 514, RESIDING AT NILAVU, **WP(C) NO. 26893 OF 2020** **6** KATTUKULAM P. O., PALAKKAD - 670 514. 35 UMMER K. AGED 51 YEARS S/O. UNNEEN HAJI, HST, KAH HIGH SCHOOL, KOTTOPADAM, KOTTOPADAM POST, PALAKKAD - 678 583, RESIDING AT KANAKKANCHERY HOUSE, KACHERIPARAMBU POST, PALAKKAD - 678 601. 36 KUNHAYAMMU K. AGED 46 YEARS S/O. MUHAMMED K., HSA ENGLISH, KAH HIGH SCHOOL, KOTTOPADAM, KOTTOPADAM P.O., PALAKKAD - 678 583, RESIDING AT KOLOTHODY HOUSE, KACHERIPARAMBU P.O., PALAKKAD - 678 601. 37 ABUFAISAL K. P. AGED 40 YEARS S/O. KUNJUMOIDEEN, HST ARABIC, KTM HIGH SCHOOL, MANNARKKAD, MANNARKKAD P. O., PALAKKAD - 678 582, RESIDING AT KARINGAPPARA HOUSE, VATTAMBALAM, KUMARAMPUTUR P. O., MANNARKKAD, PALAKKAD - 678 583 38 UNNIAVARA K. AGED 54 YEARS S/O. KAMMAPPA HAJI, HST, KAH HIGHER SECONDARY SCHOOL, KOTTAPPADAM P. O., MANNARKKAD, PALAKKAD - 678 583, RESIDING AT KOLOTHODI HOUSE, BHEEMANAD P. O., ALANALLUR, PALAKKAD - 678 601. 39 T. J. HAREESH KUMAR AGED 50 YEARS S/O.THRIVIKRAMAN NAIR, HST, SARVAJANA HIGHER SECONDARY SCHOOL, PUTHUCODE, PUTHUCODE P. O., PALAKKAD - 678 687, RESIDING AT CHAITHRAM, TENS VIDHYANAGAR, 3RD STREET VELLANIKKARA, KERALA AGRICULTURE UNIVERSITY P. O., THRISSUR - 680 656. **40** SHEENAMOLE LONAPPAN AGED 49 YEARS W/O. JIMMY S. EDAKKARA, HSA ENGLISH, SARVAJANA HIGH SCHOOL, PUTHUCODE P. O., PALAKKAD - 678 687, RESIDING AT EDAKKARA HOUSE, R. MANGALAM, KANNAMBRA P. O., PALAKKAD - 678 686. 41 K. T. JOSE AGED 46 YEARS S/O. K. P. THOMAS, HST ENGLISH, SARVAJANA HIGH SCHOOL, PUTHUCODE, PUTHUCODE P. O., **WP(C) NO. 26893 OF 2020** **7** PALAKKAD - 678 687, RESIDING AT KALATHINAL PADAVIL HOUSE, THENIDUKKU, VAKADDENCHERRY P. O., PALAKKAD - 678 683. 42 RATHNAKUMARI V. P. AGED 49 YEARS W/O. P. VIJAYAKUMAR, HSA, SARVAJANA HIGHER SECONDARY SCHOOL, PUTHUCODE P. O., PALAKKAD - 678 687, RESIDING AT PADMALAYAM, PLAKKATTPARAMBIL LANE, PUNKUNNAM, THRISSUR - 680 002. 43 PRASANTH R. AGED 47 YEARS S/O. RAMAN N., UPST, SARVAJANA HIGHER SECONDARY SCHOOL, PUTHUCODE, PALAKKAD - 678 687, RESIDING AT KIZHAKKE VEEDU, KALLERY, KANNAMBRA P. O., PALAKKAD - 678 686. 44 CHANDRASHEKARAN E. M. AGED 52 YEARS S/O. MURUKAN N., HSA, SARVAJANA HIGHER SECONDARY SCHOOL, PUTHUCODE, PUTHUCODE P. O., PALAKKAD - 678 687, RESIDING AT AMBADY HOUSE, ALATHUR ROAD, PAZHAYANNUR POST, THRISSUR - 680 587. 45 DAGGY C. T. AGED 49 YEARS W/O. JOY C. JOSE, UPSA, SJ HIGHER SECONDARY SCHOOL, PUTHUCODE, PUTHUCODE P. O., PALAKKAD - 678 687, RESIDING AT CHIRIYANKANDATH HOUSE, KIZHAKKUMPATTIKARA, NEAR 3RD STREET, EAST FORT P. O., THRISSUR - 680 005. 46 SOBHANA A. AGED 47 YEARS W/O.PRASANTH R., UPST, SARVAJANA HIGHER SECONDARY SCHOOL, PUTHUCODE, PUTHUCODE P. O. - 678 687, RESIDING AT KIZHAKKEVEEDU, KALLERY, KANNAMBRA, PALAKKAD - 678 686. 47 MADHU R. AGED 50 YEARS S/O. RADHAKRISHNAN, HSA, SARVAJANA HIGHER SECONDARY SCHOOL, PUTHUCODE, PUTHUCODE P. O., PALAKKAD - 678 687, RESIDING AT POOLAKKAL PARAMBU HOUSE, KANNAMBRA P. O., PALAKKAD - 678 686. 48 ALFRED DYAS J. AGED 51 YEARS **WP(C) NO. 26893 OF 2020** **8** S/O. JAYASEELAN, LPSA, ME LOWER PRIMARY SCHOOL, PADAGIRI, KOLLENGODE, PALAKKAD - 678 506, RESIDING AT 35-A, KAMATCHI AMMAN KOVIL STREET RAMANATHA PURAM, COIMBATORE - 641 045. 49 FELCY PREMILA A. AGED 46 YEARS W/O. ALRED DYAS, LPSA, ME LOWER PRIMARY SCHOOL, PADAGIRI, KOLLENGODE, PALAKKAD - 678 506, RESIDING AT 35-A, KAMATCHI AMMAN KOVIL STREET RAMANATHA PURAM, COIMBATORE - 641 045. 50 ZEENATH N. U. AGED 46 YEARS W/O. P. ALI, UPST, PKHMO UPPER PRIMARY SCHOOL, EDATHANATTUKARA P. O., PALAKKAD DIST. - 678 601, RESIDING AT PADINJARAPALLA HOUSE, EDATHANATTUKARA P. O., ALANALLUR VIA, PALAKKAD - 678 601. 51 MUSTAFA P. AGED 55 YEARS S/O. POCKER P., UPST, PKHMO UPPER PRIMARY SCHOOL, EDATHANATTUKARA P. O., PALAKKAD DIST. - 678 601, RESIDING AT PARALIL HOUSE, PALAKKAZHI, KARKKIDAMKUNNU P. O., PALAKKAD - 678 601. 52 SAMEEMA M. AGED 39 YEARS W/O. ASHRAF T. K., ASSISTANT TEACHER, PKHMO UPPER PRIMARY SCHOOL, EDATHANATTUKARA, EDATHANATTUKARA P. O., PALAKKAD - 678 601, RESIDING AT THORAKKATTIL HOUSE, VELLIYENCHERI, PALAKKAD - 679 326. 53 SUNNY ANTONY AGED 55 YEARS S/O. N. O. ANTONY, DRAWING TEACHER, SN UPPER PRIMARY SCHOOL, KODUNTHIRAPULLY, PALAKKAD - 678 004, RESIDING AT NELLISSERY HOUSE, ST. THOMAS NAGAR, KODUNTHIRAPPULLY P. O., PALAKKAD - 678004. 54 VIJAYAN P. AGED 53 YEARS S/O. KUNJUNNI GUPTAN, UPSA, SABARI HIGHER SECONDARY SCHOOL, PALLIKURUP, PALLIKURUP P. O., PALAKKAD - 678 582, RESIDING AT PULLANGANI, KARUKURUSSI, PALAKKAD - 678 595. **WP(C) NO. 26893 OF 2020** **9** 55 SASIDHARAN C. N. AGED 46 YEARS S/O. C. NARAYANA GUPTAN, UPSA, SABARI HIGH SCHOOL, PALLIKURUP, PALLIKURUP P. O., PALAKKAD - 678 582, RESIDING AT CHTTIYAM KUNNATH HOUSE, PULAPPATTA P. O., PALAKKAD - 678 632. 56 PRADEEP K. M. AGED 53 YEARS S/O. RADHAKRISHNAN C., HEAD MASTER, KANNADI HIGH SCHOOL, KANNADI P. O., PALAKKAD - 678 701, RESIDING AT INGITHAM, MANALOOR, KANNADI, PALAKKAD - 678 701. 57 VARGHESE M. U. AGED 46 YEARS S/O. ULAHANNAN M. V., UPST, SABARI HIGH SCHOOL, PALLIKURUP, PALLIKURUP P. O., MANNARKKAD, PALAKKAD - 678 582, RESIDING AT MATTATHIL HOUSE, KOTTOPPADAM P. O., MANNARKKAD, PALAKKAD - 678 583. 58 RAJEEVKUMAR M. B. AGED 51 YEARS S/O. BHASKARAN NAIR, HSA MATHS, SABARI HIGHER SECONDARY SCHOOL, PALLIKURUP P. O., MANNARKKAD, PALAKKAD - 678 582, RESIDING AT SREERAGAM HOUSE, MANNARKKAD P. O., PALAKKAD - 678 582. 59 BINDU P. VARGHESE AGED 44 YEARS W/O. ABYMON P. ABRAHAM, UPST, CPA UPPER PRIMARY SCHOOL, THIRUVIZHAMKUNNU, THIRUVIZHAMKUNNU P. O., PALAKKAD - 678 601, RESIDING AT PUTHUVALMATTOM HOUSE, KACHERIPARAMBU P. O., KACHERIPARAMBU, ALANALLUR, PALAKKAD - 678 601. 60 ABDULKAREEM P. AGED 47 YEARS S/O. KAMMU, UPST, CPA UPPER PRIMARY SCHOOL, THIRUVIZHAMKUNNU, PALAKKAD - 678 582, RESIDING AT PADIKKAL HOUSE, THIRUVIZHAMKUNNU P. O., ALANALLUR VIA., , PALAKKAD - 678 601. 61 MANIKANDAN M. N. AGED 50 YEARS S/O. SANKARANARAYANAN K. P., HSA, SABARI HIGH SCHOOL, PALLIKURUP, MANNARKKAD, PALAKKAD - 678 582, RESIDING AT NELLIKUNNATH HOUSE, POMBRA P. O., KARAKURUSSI., PALAKKAD - 678 595. 62 MATHEW V. K. AGED 53 YEARS S/O. KOCHUMMANKUTTY, HSA, SABARI HIGHER SECONDARY **WP(C) NO. 26893 OF 2020** **10** SCHOOL, PALLIKURUP, MANNARKKAD, PALAKKAD - 678 582, RESIDING AT VILAYIL VEEDU, PALLIKURUP P. O., MANNARKKAD, PALAKKAD - 678 583. 63 PRADEEP K. AGED 49 YEARS S/O. K. A. PRABHAKARAN NAIR, LPSA, SABARI HIGH SCHOOL, PALLIKURUP, MANNARKKAD, PALAKKAD - 678 582, RESIDING AT RITHUPANJAMI HOUSE, THRIKKALOOR P. O., THACHAMPARA VIA, PALAKKAD - 678 593. 64 MOHAMMED C. K. AGED 54 YEARS S/O. ABUTTY, HST, SOCIAL SCIENCE, KALLADI HIGHER SECONDARY SCHOOL, KUMARAMPUTHUR P. O., PALAKKAD - 678 583, RESIDING AT CHERIKALLAM HOUSE, THENKARA P. O., MANALADI, PALAKKAD - 678 582. 65 RAJESH M. AGED 47 YEARS S/O. RAJAGOPAL K. C., HST MATHS, KALLADI HIGHER SECONDARY SCHOOL, KUMARAMPUTHUR P. O., PALAKKAD - 678 583, RESIDING AT MANJEERITHODI HOUSE, PALLIKURUP P. O., KARAKURISSI, PALAKKAD - 678 582. 66 PRADEEP M. AGED 49 YEARS S/O. N. GANGADHARAN, UPSA, UNITY AIDED UPPER PRIMARY SCHOOL, THENKARA, MANNADKKAD, PALAKKAD - 678 582, RESIDING AT GANGA NIVAS, THORAPURAM, MANNARKKAD, PALAKKAD - 678 582. BY ADV SHANKAR V. ## **RESPONDENTS:** 1 THE STATE OF KERALA SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II, THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR OF CENSUS OPERATION DIRECTORATE OF CENSUS OPERATIONS, KERALA, CGO COMPLEX, PONKULAM, THIRUVANANTHAPURAM - 695 522. **WP(C) NO. 26893 OF 2020** **11** - 3 THE DIRECTOR OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM - 695 014. - 4 THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD P. O., PALAKKAD - 678 001. - 5 THE DISTRICT EDUCATIONAL OFFICER PALAKKAD - 678 001. - 6 THE DISTRICT EDUCATIONAL OFFICER MANNARKAD, PALAKKAD DIST. - 678 582. - 7 THE DISTRICT EDUCATIONAL OFFICER OTTAPPALAM, PALAKKAD - 678 103. - 8 THE ASSISTANT EDUCATIONAL OFFICER PARLI, PALAKKAD - 678 611. - 9 THE ASSISTANT EDUCATIONAL OFFICER PALAKKAD - 678 001. - 10 THE ASSISTANT EDUCATIONAL OFFICER CHITTUR, PALAKKAD - 678 101. - 11 THE ASSISTANT EDUCATIONAL OFFICER KOLLANGOD, PALAKKAD - 678 506. - 12 THE ASSISTANT EDUCATIONAL OFFICER ALATHUR, PALAKKAD - 678 682. - 13 THE ASSISTANT EDUCATIONAL OFFICER MANNARKKAD, PALAKKAD - 678 582. - 14 THE ASSISTANT EDUCATIONAL OFFICER PATTAMBI, PALAKKAD - 679 303. SRI BIJOY CHANDRAN, SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 26893 OF 2020** **12** ## **JUDGMENT** The petitioners herein are aided school teachers serving in the Lower Primary, Upper Primary, High School and Higher Secondary sections under various managements in the Palakkad district. They 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 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 to be held on 5th -7th of April, 2010 in various centres in the Palakkad District. After completion of the training, they had undertaken the census operation from 12.4.2010 to 27.5.2010. All the petitioners are stated to have worked for 45 days after the training. The revenue authorities have certified that the petitioners have engaged themselves during the aforesaid period in connection with the Census duty as is evident from Exts.P4, P4(a) and P4(b) issued in respect of petitioners No.22 to 24. They contend that **WP(C) NO. 26893 OF 2020** **13** similar certificates have been issued to others as well. The Headmaster of the respective school has sanctioned Earned Leave Surrender for a period of 24 days and the same has been sanctioned by the concerned AEOs after verifying the original of the duty certificate. The petitioners assert that they had worked for 48 days during vacation including the three days’ training programme. 3. According to the petitioners, the Government on the recommendation of the Census Department had issued an order dated 14.10.2009 prescribing the conditions for engaging teachers for the purpose of conducting census. They contend that based on requests from various organizations, the Government had issued Ext.P1 order which states 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 above Earned Leave should be sanctioned to those teachers who engage in such works during vacation time. Later, Ext.P2 order was issued by the Government ordering that the workers, the details of which are mentioned therein, who are appointed as supervisors/enumerators will be allowed the concession of absenting themselves from the institution/office on census duty for half day either in the forenoon or in the afternoon on 32 working days from 12.4.2010 to 27.5.2010 or the full day for 16 working days between 12.4.2010 to 27.5.2010 or the full day for 16 working days between 12.4.2010 to 27.5.2010 for the house listing and housing census and preparation of NPR. **WP(C) NO. 26893 OF 2020** **14** 4. It is further contended that later by Ext.P5 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. According to the petitioners, Ext.P5 order was passed about three years after Ext.P1 order. It is further submitted that Ext.P2 order is not applicable to teachers of the vacation department and the same has been clarified by the census department by Ext.P3 letter. 5. The petitioners state that having worked for 45 days and undergone training for three days, they could not have been denied the rights which were granted to them by Exts.P1 and P2 orders. They contend that the Government, after considering the grievance of the petitioners, had issued Ext.P6 order and had directed the respondents not to implement Ext.P5 Government Order until further notice. 6. According to the petitioners, after about 7 years, steps are being taken to recover the amount granted to them for a period of 16 days and Ext.P5 order is attempted to be enforced. The petitioners contend that the aided school teachers in Ernakulam District had occasion to approach this Court being aggrieved by the recovery of the amounts and this Court by judgment dated 31.3.2021 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 relief: **WP(C) NO. 26893 OF 2020** **15** “(i) issue a writ of certiorari or other appropriate writ order or direction setting aside Exhibit.P5 order and Exhibit P7 letter. (ii) issue such other order or direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case” 7. I have heard Sri. V. Shankar, the learned counsel appearing for the petitioners and Sri.Bijoy Chandran, the learned Senior Government Pleader. 8. I have considered the submissions. The materials placed on record reveal that the petitioners were engaged as enumerators and after undergoing training for three days they had conducted house listing and housing census operations in connection with the preparation of NPR from 12.04.2010 to 27.05.2010. Exhibit P1 would reveal that they have been granted the benefit of earned leave as per the relevant provisions of Part I of the KSR. 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. 9. 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 **WP(C) NO. 26893 OF 2020** **16** ## judgment in W.P.(C) No. 9205/2020. “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 nearing retirement, with respect to benefits that were given to them under valid **WP(C) NO. 26893 OF 2020** **17** and legal orders, cannot be recovered merely on the ground that such sanctions were in error at the time when they were issued.” 10. I respectfully concur with the observations and findings of the learned Single Judge. 11. In that view of the matter, the petitioners are entitled to succeed. The writ petition will stand allowed. Exts.P5 and P7 will stand quashed. There will be no order as to costs. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C) NO. 26893 OF 2020** **18** ## **APPENDIX OF WP(C) 26893/2020** PETITIONERS' EXHIBITS: EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.2851/2010/G.EDN. DATED 30.06.2010. EXHIBIT P2 TRUE COPY OF THE G.O.(MS) NO.171/2010/GAD DATED 30.04.2010. - EXHIBIT P3 TRUE COPY OF THE LETTER NO.T-CG/2/119/2010 DATED 16.11.2010. - EXHIBIT P3 (a) TYPED COPY OF EXHIBIT P3. - EXHIBIT P4 TRUE COPY OF THE DUTY CERTIFICATE NO.B19511/07 DATED 04.08.2010 ISSUED BY THE CHARGE CENSUS OFFICER / TAHASILDAR TO THE 22ND PETITIONER. - EXHIBIT P4 (a) TRUE COPY OF THE DUTY CERTIFICATE NO.B19511/07 DATED 04.08.2010 ISSUED BY THE CHARGE CENSUS OFFICER / TAHASILDAR, MANNARKKAD TO THE 23RD PETITIONER. - EXHIBIT P4 (b) TRUE COPY OF THE DUTY CERTIFICATE NO.B19511/07 DATED 04.08.2010 ISSUED BY THE CHARGE CENSUS OFFICER / TAHASILDAR, MANNARKKAD TO THE 24TH PETITIONER. - EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER G.O.(P) NO.142/2013/G.EDN. DATED 20.04.2013. - EXHIBIT P6 TRUE COPY OF THE LETTER - NO.42076/G3/2010/G.EDN. DATED 14.05.2013. - EXHIBIT P7 TRUE COPY OF THE LETTER NO.J3/25760/2014 DATED 28.10.2020 OF THE 4TH RESPONDENT. RESPONDENTS' EXHIBITS: NIL