State of Kerala and Deputy Director of Education, Government Secretariat, Thiruvananthapuram vs Ravindran N., PD Teacher, GVHSS (Boys), Koyilandy; Accountant General (A&E), Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY, THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939 **OP(KAT).No. 107 of 2018** AGAINST THE ORDER IN OA (EKM) 510/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 22-02-2017 ## **PETITIONER(S)/RESPONDENTS 1 & 2 IN O.A.** 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GENERAL EDUCATION, DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. BY SR. GOVERNMENT PLEADER SRI. A.J. VARGHESE ## **RESPONDENT(S)/APPLICANT & 3RD RESPONDENT IN O.A. :** 1. RAVINDRAN N., PD TEACHER, GVHSS (BOYS), KOYILANDY, RESIDING AT SHALOM, P.0. KOLLAM, KOYILANDY, KOZHIKODE DISTRICT, PIN-673307. 2. THE ACCOUNTANT GENERAL (A & E), OFFICER OF THE ACCOUNTANT GENERAL (A & E), THIRUVANANTHAPURAM-695001. R1 BY SRI.R.K.MURALEEDHARAN THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 21-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 107 of 2018 2 OP(KAT).No. 107 of 2018 (Z) APPENDIX ## **PETITIONER(S)' EXHIBITS** EXHIBIT P1 TRUE COPY OF THE OA 510/15 ALONG WITH ANNEXURES. EXHIBIT P2 PHOTOCOPY OF THE REPLY STATEMENT DATED 27.01.2017. EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 22.02.2017 IN OA (EKM) NO. 510/2015. ## K. SURENDRA MOHAN & ANNIE JOHN, JJ. - - - - - - - - - - - - - - - - - ## O.P.(KAT) No. 107 of 2018 - - - - - - - - - - - - - - - - - Dated this the 21[st] day of March, 2018 ## JUDGMENT ## Surendra Mohan, J. This Original Petition is filed by the State challenging Ext.P3 order of the Kerala Administrative Tribunal ('KAT' for short) allowing O.A.(Ekm) No. 510 of 2015. The first respondent is the applicant in the O.A. 2. The first respondent joined service as a PD Teacher on 1.6.1987. While continuing in service, he complained that his junior was drawing a higher pay than him. Accordingly a Junior-Senior fixation was done with effect from 1.4.1997. Thereafter, the annual increments of the first respondent were being sanctioned with effect from the 1[st] of April of the succeeding years. He was granted Senior Grade on completion of 18 years of service on 22.10.2002. Thereafter, he was granted his next increment on 1.4.2003, which O.P.(KAT). 107/2018. 2 according to the State was erroneous. He would have been entitled to the next increment only on 22.10.2003. However, the above error was not noticed at that time. 3. In the above circumstances, in the year 2011, an audit objection was raised as per Annexure A7. A consequential direction to correct the mistake and to recover the excess amount paid was also issued as per Annexure A7. On receipt of Annexure A7, the first respondent preferred his objections and sought for exercising a re-option in accordance with Annexure A8 Government Order dated 6.8.2005. He also preferred an appeal. However, the appeal was rejected by Annexure A9. It was challenging Annexures A7 and A9 that the first respondent had approached the KAT. 4. It was contended on behalf of the first respondent that the Senior Grade had been granted to him by the authorities themselves and was not on the basis of any overt act on his behalf. The audit objection raised after a long time was time barred. The first respondent had a further 3 O.P.(KAT). 107/2018. contention that at any rate he should have been permitted to exercise a re-option and to go back to the date of 1[st] April. 5. The contentions of the first respondent were disputed by the State. It was contended that, the first respondent would have been eligible for drawing his next increment only in October, 2003. However, he had drawn the next increment on 1.4.2003. Therefore, the excess amount drawn had to be refunded and the matter had to be regularized. 6. The KAT considered the respective contentions, found that this was a case in which the decision of the Apex Court in State of Punjab v. Rafiq Masih (While Washer) [(2015) 4 SCC 334] was applicable. Going by the dictum in the said decision, it was found that the State was not entitled to recover any amount from the first respondent. The KAT has also directed the first respondent to be granted an opportunity to exercise his re-option. The State is aggrieved by the said directions. We have heard the respective counsel. O.P.(KAT). 107/2018. 4 7. The facts in this case are not in dispute. It is not in dispute that, pursuant to the Junior-Senior fixation of pay granted to the first respondent, the date of his annual increment had been fixed as 1.4.1998. Thereafter, for the succeeding years, he had been granted his annual increments on the first of April of each year. On completion of 18 years, he was granted Senior Grade with effect from 22.10.2002. Thereafter he was also granted his next annual increment on 1.4.2003 though it would have fallen due only on completion of one year on 22.10.2003. It is the said defect that had been pointed out in Annexure A7, after a number of years. The explanation is that the authorities had not noticed the error. 8. Be that as it may, the fact remains that the error was not committed due to any overt act on behalf of the first respondent. There is also no allegation to the said effect. Therefore, this is a case in which, the dictum laid down by the Supreme Court in White Washer Case (supra) squarely applies. We do not find any infirmity in the finding of the KAT that no O.P.(KAT). 107/2018. 5 recovery of the excess pay drawn by the first respondent is possible, in the above circumstances. 9. The other question that arises for consideration is whether the first respondent should be granted an opportunity to exercise a re-option in terms of Annexure A8 Government Order dated 6.8.2005. It is contended by the learned Senior Government Pleader Sri. A.J. Vargehse that the said Government Order would not help the first respondent since there was no reduction in his pay. The Government Order was intended to apply only in cases where there was reduction in pay. However, we are not satisfied that the said contention has any substance. In the light of the audit objection Annexue A7, there is a direction to recover the excess amount that had been drawn by the first respondent. It therefore follows that, the first respondent has apparently received excess amounts. Since such excess payment was not made on the basis of any overt act on the part of the first respondent, the said amount is not recoverable as already held O.P.(KAT). 107/2018. 6 above. It is also a fact that, no recovery of excess amount would have been necessary, if there was no reduction in pay. Since excess amount had been ordered to be recovered, it is apparent that there would be a reduction in the pay of the first respondent, when the audit objection is regularized. It is in such cases that Annexure A8 order is to apply. The above being the position, we find no infirmity in the direction of the KAT that the first respondent should be granted an opportunity to exercise his re-option. However, the order of the KAT has proceeded in paragraph 8 thereof to observe that the first respondent was entitled to a re-option with effect from 1.4.2003. As rightly pointed out by the learned Government Pleader, such right of re-option arises only on 1.4.2004. Since the Senior Grade was granted on 23.10.2002, the next increment would be due only after one year, that is, after 23.10.2003. Therefore, the right of re-option that has been ordered to be granted by the order of the KAT, Ext.P2, has to be exercised with effect from 1.4.2004 and 1.4.2008 O.P.(KAT). 107/2018. 7 respectively. 10. Apart from issuing the above clarification, we find no ground to interfere with the impugned order Ext.P3. The Original Petition is accordingly disposed of as above. In view of the modified direction issued, the first respondent shall submit a fresh re-option within a period of three weeks of the date of receipt of a copy of this judgment. The second petitioner shall forward the pension papers of the first respondent within one month therefrom and the Accountant General shall ensure that payment orders are issued to him without further delay considering the fact that he had retired from service on 31.5.2015. Sd/- K. SURENDRA MOHAN JUDGE Sd/ANNIE JOHN JUDGE sb