Stanly George v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V ``` ``` TUESDAY, THE 14[TH]DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, 1943 ``` ## **`WP(C) NO. 20690 OF 2017`** ## **`PETITIONER/S:`** ``` STANLY GEORGE AGED 51 YEARS AGED 51 YEARS S/O.T.A. GEORGE, HEAD MASTER, HOLY CROSS L.P.S.KALATHOOR, KOTTAYAM DISTRICT, RESIDING AT PAKALOMATTOM THADATHIL,KURICHITHANAM(PO), KOTTAYAM DISTRICT,PIN-686634. ``` ``` BY ADVS. SRI.SIJI ANTONY SRI.P.S.SAJEEV CHIRAYIL ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DEPUTY DIRECTOR OF EDUCATION KOTTAYAM, O/O. D.D.E.KOTTAYAM, VYASKARAKUNNU,KOTTAYAM DISTRICT, ``` W.P.(C).No. 20690/2017 2 ``` PIN-686001. ``` ``` 3ASSISTANT EDUCATIONAL OFFICER A.E.O.OFFICE,MINI CIVIL STATION, KURAVILANGAD.P.O,PIN-686633. ``` ``` 4THE ACCOUNTANT GENERAL (A&E) KERALA THIRUVANANTHAPURAM,PIN-695039. ``` ``` BY SMT. NISHA BOSE, SR. GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON14.12.2021,THECOURTONTHESAMEDAY DELIVERED THE FOLLOWING: ``` W.P.(C).No. 20690/2017 3 ## **JUDGMENT** On the premise that the grant of the Second Time Bound Higher Grade (‘TBHG’ for short) and the Selection Grade, albeit notionally, on completion of 18 and 23 years of service respectively by reckoning the previous provisional Government Service of about one year was not proper, a revised statement of fixation of pay has been issued and the amount in excess received by the petitioner has been ordered to be refunded. The said orders are under challenge in this Writ Petition. 2. The factual matrix of the case as pleaded are as under: (a) The petitioner entered into regular service as U.P.S.A on 01.06.1989 in the Holy Cross U.P. School, Mattathippara under the Corporate Educational Agency of the Diocese of Pala. The petitioner acquired the requisite test qualifications and he was promoted to the post of Head Master with effect from 1.6.2004. The entire service details are borne out from Exhibit P1 Employee Data Sheet. (b) It is undisputed that before entering into regular service as an aided school teacher, the petitioner had provisional service in various W.P.(C).No. 20690/2017 4 Government Schools for a period of 1 year 1 month and 19 days, in two spells. He was also having broken service of 11 months and 23 days in various aided Schools under the Corporate Educational Agency of the Diocese of Pala. (c) The records reveal that the First TBHG was granted with effect from 19.04.1997, the 2nd TBHG with effect from 19.4.2005 (notionally) and Selection Grade was granted with effect from 19.04.2010 (notionally) to the petitioner. He became eligible for Higher Grade (HG) post as Headmaster on completion of 8 years service and he was granted the same with effect from 01.06.2012. Reliance is placed on Exhibit P2 Pay Fixation Order and it is contended that the controlling officer has sanctioned the benefits in terms of the orders passed by the Government and taking note of the Higher grades granted to the petitioner. (d) While so, an audit objection was raised from the office of the 4th respondent on the ground that the Time Bound Higher Grade granted to the petitioner was not proper. As per the audit objection, the provisional service rendered during the period from 01.07.1985 to 09.10.1987 (totalling 1 year 1 month and 19 days) ought not have been reckoned for W.P.(C).No. 20690/2017 5 grant of TBHG. The petitioner submitted Exhibit P4 explanation and contended that the petitioner had only received the benefits which were legally due to him and in terms of Exhibit P5 circular issued by the Government. The explanation submitted by the petitioner was accepted and by Exts. P6 and P7 communications, the AEO was informed by the Senior Audit Officer that there was no reason to pursue the matter against the petitioner any further and the directions were issued to close the inspection reports for the period from 2005-2006, 2006-2007 and 2007-2009. (e) However, ignoring Exhibits P6 and P7, Exhibit P8 communication was issued by the AEO informing the petitioner that Exhibit P5 Circular issued by the Government, on the basis of which TBHG was granted to the petitioner has been cancelled by a subsequent circular vide No. 29065/J2/98/G/Edn. dated 8.05.2001 and in view of the above, the senior grade and selection grade granted to the petitioner on 19.4.2005 and 19.4.2010 respectively was not proper. The petitioner was informed that the petitioner would not be able to avail any further benefits on the basis of provisional service rendered by him on the basis of Exhibit P5. On receipt of W.P.(C).No. 20690/2017 6 Exhibit P8, Exhibit P9 objection was submitted by the petitioner. However, ignoring his objections, he was served with Exhibit P10 letter issued by the 2nd respondent whereby he was informed that steps would be taken to restructure the Senior Grade and Selection Grade and he was also called upon to refund the excess pay drawn by him as a result. In view of Exhibit P10, the petitioner is not in a position to draw his salary in the existing pay scale. The petitioner relies on Exhibit P11 statement of fixation of pay and it is contended that the rescheduling of pay as aforesaid would mean that the petitioner would be at a loss of pay and he also would have to refund the portion of the amounts already received by him. According to the petitioner, he is due to superannuate on 31.5.2022 and the issuance of Exhibits P8 and P10 on the verge of his retirement, ignoring Exhibits P5 to P7 is illegal and would be violative of the law laid down by the Apex Court in **State of Punjab v. Rafiq Masih (White Washer)** [2015 (4) SCC 334]. It is in the aforesaid circumstances that the petitioner is before this Court seeking to quash Exhibits P8 and P10 and for issuance of directions to the 2nd respondent to recall Exhibit P8 audit objection and for incidental reliefs. W.P.(C).No. 20690/2017 7 3. In the Counter affidavit filed by the 2nd respondent, it is stated that though as per Exhibit P5 circular dated 6.3.1998, it was permissible to reckon the provisional service including broken periods on regular appointment as qualifying service for grade promotions, by a subsequent circular vide No 29065/J2/98/G/Edn. dated 8.05.2001, the earlier circular was cancelled and it was ordered that the circular would be applicable only if the qualification and method of appointment are the same. However, the provisional service of 1 year 1 month and 19 days was reckoned as qualifying service for fixation of pay in the revised scale in subsequent pay revisions and for fixation of grades other than the First Higher Grade of the petitioner. It is further submitted that the petitioner had also suppressed certain details from the sanctioning authority and has obtained the benefit of reckoning provisional service. 4. I have considered the submissions advanced by Sri. Siji Antony, the learned counsel appearing for the petitioner and Smt. Nisha Bose, the learned Government Pleader. 5. The records would reveal that the petitioner was appointed to the post of UPSA with effect from 1.6.1989. Before entering continuous W.P.(C).No. 20690/2017 8 service, he had 2 spells of provisional service in Government Schools and 2 spells of broken service in Aided Schools. The first TBHG was sanctioned to the petitioner reckoning the provisional service of One year one month and 19 days in Government Schools and another spell of 11 months and 23 days of service rendered in aided schools. The records reveal that this was objected to by the office of the Accountant General. However, the objection report was closed taking note of Exhibit P5 circular issued by the Government on 6.3.1998 which states that provisional service including broken periods of service on regular appointment can be reckoned as qualifying service for grade promotions even if such services could not be reckoned for increments owing to change of scale of pay. Admittedly, the said order has become final. 6. Much later, the Government came up with circular vide No. 29065/J2/98/G/Edn. dated 8.05.2001, whereby the earlier circular was cancelled and it was ordered that the circular would be applicable only if the qualification and method of appointment are the same. It is on the basis of the subsequent circular that the respondents have now taken the stand that the provisional service rendered in Government Schools cannot 9 W.P.(C).No. 20690/2017 be reckoned as qualifying service for fixation of pay in the higher scale in subsequent pay revisions and for fixation of grade other than the First Higher Grade of the petitioner. 7. I find that the petitioner is due to attain superannuation on 31.5.2022. The provisional service rendered by the petitioner was reckoned for the first TBHG in view of Exhibit P5 Government order. After having calculated the first TBHG on the basis of Exhibit P5, there is no justification on the part of the respondents to revisit the grant of 2nd TBHG and the selection grade on the basis of a subsequent Government order. Without doubt, it would take an adverse toll on the benefits which the petitioner had acquired in view of his long service. It was taking note of these aspects that the Office of the Accountant General had dropped the audit report drawn up against the petitioner. I am also of the firm view that the stand taken by the respondents that the provisional services rendered by the petitioner can be taken only for the First TBHG and that the same shall not be reckoned for further grades and for fixation of pay would work out gross injustice, particularly in the peculiar facts of this case. It would also be grossly iniquitous to recover the amounts which were received by the 10 W.P.(C).No. 20690/2017 ## petitioner over a long period of time on the above basis. 8. 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 W.P.(C).No. 20690/2017 11 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 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. 9. 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. The petitioner is due to retire soon and the amounts have been paid in excess of five years. 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 teacher 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 W.P.(C).No. 20690/2017 12 that view of the matter, recovery of amounts ordered as per Ext.P8 and P10 at this point of time when the petitioner is on the verge of his retirement would lead to extremely harsh consequences. Resultantly, this writ petition will stand allowed. Exts. P8 and P10 will stand quashed. The petitioner shall be entitled to all benefits dehors Exhibits P8 and P10 issued by the concerned respondent. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** avs W.P.(C).No. 20690/2017 13 ## **`APPENDIX OF WP(C) 20690/2017`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1A TRUE COPY OF THE EMPLOYEE DATE SHEET BEARING PERMANENT EMPLOYEE NUMBER(PEN)499200 ``` ``` EXHIBIT P2A TRUE COPY OF ORDER OF FIXATION NO.C/746/2016 DATED 23.03.2016 ``` ``` EXHIBIT P3A TRUE COPY OF THE RELEVANT PAGE OF AUDIT REPORT BY SPL.CELL(HQ)II/II/13-4235/645 OF THE 4TH RESPONDENT DATED 04.01.2010 ``` - `EXHIBIT P4 A TRUE COPY OF THE EXPLANATION LETTER SUBMITTED TO THE 4TH RESPONDENT DATED 02.06.2012` - `EXHIBIT P5 A TRUE COPY OF THE CIRCULAR NO.52373/J2/98/G.EDN.DATED 06.03.1998` - `EXHIBIT P6 A TRUE COPY OF THE COMMUNICATION OF THE 4TH RESPONDENT ADDRESSING THE 3RD RESPONDENT DATED 08.08.2012` - `EXHIBIT P7 A TRUE C0PY OF THE COMMUNICATION OF THE 4TH RESPONDENT ADDRESSING THE 3RD RESPONDENT DATED 24.08.2012` ``` EXHIBIT P8A TRUE COPY OF THE LETTER NO.A/2228/14 ALONG WITH RELEVANT PAGE OF AUDIT OBJECTION OF THE 2ND RESPONDENT DATED 03.11.2016 EXHIBIT P9A TRUE COPY OF THE COMMUNICATION BY THE PETITIONER TO THE 2ND RESPONDENT DATED 21.11.2016 EXHIBIT P10A TRUE COPY OF THE LETTER NO.K3/9398/2014 DATED 30.01.2017 ``` ## W.P.(C).No. 20690/2017 14 ``` EXHIBIT P11 ``` ``` A TRUE COPY OF THE STATEMENT OF FIXATION OF PAY ISSUED BY THE 3RD RESPONDENT DATED 06.05.2005. ```