High Court of KeralaSingle Judge2021-03-10Writ petition allowed; respondents directed to ...

T. P. Anto v. State of Kerala and Others

Case / Petition Number:WP(C).No.2297 of 2019

Neutral Citation:null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-03-10
Court Decision / Holding: The court allowed the petition, directing the respondents to release the entire balance pensionary benefits to the petitioner within two months from receipt of a copy of the judgment. The court did not grant interest on the delayed payment but left open the petitioner’s right to pursue such remedy through appropriate fora.
Final Disposition: Writ petition allowed; respondents directed to release entire balance pensionary benefits within two months of receipt of this judgment.

Parties to the Case

Appellants / Petitioners

T.P. Anto

Respondents

State of Kerala represented by the Secretary, General Education Department, Government Secretariat, Thiruvananthapuram-695001
Director of Public Instructions, Office of the Director of Public Instructions, Jagathy, Thiruvananthapuram-695014
Deputy Director of Education, Office of the Deputy Director of Education, Civil Station, Ayanthol, Thrissur-680003
District Education Officer, Irinjalakkuda, Thrissur-680121
Head Master, Bishop Vazhappilly Memorial High School, Kallettumkara, Thrissur-680683

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Sudhinkumar
• Sri P. Mohandas (Ernakulam)
• Sri S. Vibheeshanan
• Sri N.L. Bitto

Counsels for Respondents

• Sri Jestin Mathew - GP

Case Synopsis & Summary

The petitioner, T.P. Anto, retired in May 2019 while serving as a clerk at Bishop Vazhappilly Memorial High School. His retiral benefits were withheld due to an audit objection regarding the fixation of higher grades (Time Bound Higher Grades) granted during his service as a temporary clerk in a leave vacancy from 8 June 1981 to 22 March 1984. He contends these increments were legally sanctioned and that the audits’ attempt to recover the earlier payments is unlawful, particularly since the grant was based on valid orders and the objected amounts were not tied to any fault on his part. He relies on the Supreme Court’s decision in State of Punjab and Others v. Rafiq Masih (White Washer) (2015) to argue that recovery of such benefits, when not attributable to misconduct by the employee, is impermissible. The government counters that the employee had given an undertaking on 29 December 2018 to refund any erroneous fixation and that, per Jaydev Singh ( supra ), such undertakings may justify recovery, albeit within a time-bound framework. The Kerala High Court distinguishes Jaydev Singh, noting that the undertaking cannot be invoked decades after retirement. It holds that the undertaking cannot empower recovery of valid benefits granted years earlier and that the concerned pensionary benefits should be released in full. The petition is allowed, with directions to pay the balance pensionary benefits within two months, and no interest is awarded on the withheld amount.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that retiral benefits have been or should be released because the Time Bound Higher Grade increments were rightly sanctioned based on his service as a temporary clerk in a past vacancy; the audit objection and recovery attempt are unjustified since the benefits were validly granted and there is no fault attributed to him. He relies on the Supreme Court’s Rafiq Masih decision to argue that recovery is impermissible where benefits were not obtained due to the employee’s fault. He also contends that an undertaking given near retirement cannot be used to retroactively claw back benefits long after they were validly granted.

Contentions of Respondents

The Government Pleader counters that the undertaking given on 29.12.2018 to refund erroneous fixation can justify recovery, citing Jaydev Singh ( supra ). They argue that, under that ruling, refunds may be required if fixation was irregular, though the extent is constrained by time. They submit that the petition should be dismissed or the undertaking enforced to recover the objected amounts.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Punjab & Others v. Rafiq Masih (White Washer) & Others	[(2015) 4 SCC 334]	Positive	The judgment is cited to support the principle that recovery of retiral benefits where no fault lies with the employee is impermissible.
High Court of Punjab & Haryana & Others v. Jaydev Singh	[(2016) 14 SCC 267]	Partly Overruled / Limited	Cited to discuss undertakings to refund and the limits of recovering such amounts; the Court distinguishes its application to prevent retroactive recovery decades after retirement.
W.P.(C) No. 22118/18	W.P.(C) No. 22118/18	Mentioned Only	A prior Kerala High Court judgment cited as Exhibit P14; referenced in the record but not central to the reasoning here.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** ## **WP(C).No.2297 OF 2019(J)** ## **PETITIONER:** **T.P. ANTO, AGED 55 YEARS** **CLERK, BISHOP VAZHAPPILLY MEMORIAL HIGH SCHOOL, KALLETUMKARA, THRISSUR-680683.** **BY ADVS.** **SRI.K.SUDHINKUMAR SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN SRI.N.L.BITTO** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, AYANTHOL, THRISSUR-680003.** - **4 DISTRICT EDUCATION OFFICER, IRINJALAKKUDA, THRISSUR-680121.** - **5 HEAD MASTER, BISHOP VAZHAPPILLY MEMORIAL HIGH SCHOOL, KALLETUMKARA, THRISSUR-680683.** ## **R1-4 BY GOVERNMENT PLEADER** ## **SRI.JESTIN MATHEW-GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2297 OF 2019 2** ## **JUDGMENT** The petitioner says that he has retired, on attaining the age of superannuation, from the services of 'Bishop Vazhappilly Memorial High School' in May 2019, but that his retiral benefits have been held up on account of an audit objection raised subsequent to the retirement, that the Time Bound Higher Grades - when he completed 10 years, 18 years, 23 years and 27 years in service – were granted illegally and that same is required to be refunded by him. 2. The petitioner says that grant of the afore Time Bound Higher Grades was made by the competent educational Authorities reckoning his service as a temporary Clerk in the same School in a leave vacancy, for a total period of 22 months and 1 day from 08.06.1981 to 22.03.1984; and therefore, that same can never be construed as being illegal, thus becoming evident that he was entitled to the said payments as per law. He submits that, however, ## **WP(C).No.2297 OF 2019 3** without taking this into account, the Auditors now trying to make it appear that the benefits granted to him validly are liable to be recovered, because the fixation in the Higher Grades was made irregularly and incorrectly. 3. The petitioner asserts that this action now proposed against him is completely unlawful, particularly in view of the judgment of the Hon'ble Supreme Court in _**State of**_ ## _**Punjab & Others v. Rafiq Masih (White Washer)**_ _**& Others [(2015) 4 SCC 334],**_ wherein it has been declared unequivocally that such a recovery is impermissible, especially when there is absolutely not even a whisper that the objected benefits were granted on account of any wrong that can be attributed to him. The petitioner, therefore, prays that Ext.P15, issued by the 3[rd] respondent, be quashed and his entire retiral benefits be directed to be disbursed. 4. When this matter was called today, **WP(C).No.2297 OF 2019 4** the learned counsel appearing for the petitioner - Shri.K.Sudhinkumar, submitted that, pending this _lis,_ his client's retiral benefits have been paid, except an amount of Rs.45,456/-, which is the objected portion and he prayed that same also be directed to be paid within a time frame to be fixed by this Court. 5. In response, the learned Government Pleader - Shri.Justin Mathew, submitted that the petitioner is not entitled to the benefits of the declarations in **Rafiq Masih** _**(**_ **Supra)** because, as has been stated in _**High Court of**_ _**Punjab & Haryana & Others v. Jaydev Singh**_ **[(2016) 14 SCC 267],** he is liable to refund the entire amounts since he has given an undertaking on 29.12.2018 that he will do so, a copy of which has been produced on record, along with a Memo dated 01.03.2021. The learned Government Pleader, therefore, prayed that this writ petition be dismissed. **WP(C).No.2297 OF 2019 5** 6. When I evaluate the afore submissions, it is rendered clear that the sole manner in which respondents are now seeking retainment of Rs.45,456/- from the petitioner as liability, is on the basis of his undertaking which he gave on 29.12.2018. However, it is luculent therefrom that this undertaking was given by the petitioner at the time when he was nearing superannuation and when the pensionary benefits were to be reckoned, to the effect that he will refund any amounts on account of any erroneous fixation of pay. However, what is important to be borne in mind is that, in **Jaydev Singh** _**(Supra),**_ the view taken by the Hon'ble Supreme Court is that if any fixation had been made on the strength of an undertaking of the employee at that relevant time, that if the same is found to be irregular in future it will be refunded. However, this does not mean, by any stretch of reasoning, that such an undertaking can be taken more than 30 years after the ## **WP(C).No.2297 OF 2019 6** benefits had been validly granted and particularly when the petitioner was retiring from service. 7. This is more so because, such undertakings are normally forced to be given by the employees at the time when their pension papers are processed but this cannot be used to recover what has been granted to them validly over two or three decades ago. This is not what the Hon'ble Supreme Court meant and this is not what was intended ## through **Jaydev Singh (Supra).** 8. In the afore circumstances, I have no doubt that merely because the petitioner had given an undertaking on 29.12.2018, which is few months before he retired from service on 31.05.2019, it would not enable the respondents to recover the amounts validly given to him more than 20 or 30 years ago; and that too, on the strength of valid and proper sanctions at that time. **WP(C).No.2297 OF 2019 7** 9. I am strongly persuaded to the afore view also for the reason that there is not even a whisper in the pleadings on record available in this case that the objected benefits had been granted to the petitioner for any fault that can be attributed to him or for any cause to which he had contributed; and therefore, that the declarations in **Rafiq Masih** _**(**_ **Supra)** would certainly apply in its full force. In the afore circumstances, I allow this writ petition and direct the respondents to release the entire balance pensionary benefits to the petitioner, within a period of two months from the date of receipt of a copy of this judgment. After I dictated this part of the judgment, Shri.K.Sudhinkumar requested that his client be granted interest for the delay in payment. However, since I have already directed **WP(C).No.2297 OF 2019 8** the respondents to pay the amounts within a period of two months, I do not think it would be justified for this Court to accede to this request; but I leave open such contentions to be pursued by the petitioner before an appropriate forum, if he is so interested. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** **MC/16.3.2021** **WP(C).No.2297 OF 2019 9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OPTION EXERCISED BY THE PETITIONER ON 7/8/2008** **EXHIBIT P2 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER IN THE HIGHER GRADE SANCTIONED IN G.O(P) NO.145/2006/FIN. DATED 25/3/2006.** **EXHIBIT P3 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER SANCTIONED IN G.O(P) NO.600/93/FIN. DATED 25/9/1993 AND G.O(P) NO.930/93(2) FIN DATED 8/12/1993.** - **EXHIBIT P4 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER SANCTIONED IN G.O(P) NO. 3000/98/FIN. DATED 25/11/1998.** - **EXHIBIT P5 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER IN THE SENIOR GRADE, SANCTIONED IN G.O(P) NO.145/2006/FIN DATED 25/3/2006.** - **EXHIBIT P6 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER INT HE SELECTION GRADE, SANCTIONED IN G.O(P) NO.145/2006/FIN. DATED 25/3/2006.** - **EXHIBIT P7 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER SANCTIONED IN G.O(P) NO.145/2006/FIN. DATED 25/3/2006.** - **EXHIBIT P8 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER SANCTIONED IN G.O(P) NO.85/2011/FIN DATED 26/2/2011.** - **EXHIBIT P9 TRUE COPY OF THE FOURTH TIME BOUND HIGHER GRADE PAY FIXATION STATEMENT DATED 1/11/2011 SANCTIONED IN G.O(P) NO.85/2011/FIN DATED 26/2/2011.** - **EXHIBIT P10 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY OF THE PETITIONER SANCTIONED IN G.O(P) NO.7/2016/FIN DATED 20/1/2016** **EXHIBIT P11 TRUE COPY OF THE ENTRY IN PAGE NO. 35 AND NO.36 OF THE SERVICE BOOK OF THE PETITIONER.** **WP(C).No.2297 OF 2019 10** **EXHIBIT P12 TRUE COPY OF THE LETTER NO. E3/1978/2017 ALONG WITH THE AUDIT OBJECTION RAISED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 17/1/2018.** **EXHIBIT P13 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 16/7/2018.** **EXHIBIT P14 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.22118/18 DATED 17/10/2018. EXHIBIT P15 TRUE COPY OF THE ORDER NO E3/1978/2017 DATED 12/12/2018 PASSED BY THE 3RD RESPONDENT.** **EXHIBIT P16 TRUE COPY OF THE RELEVANT PAGES OF THE G.O. (P) 600/93/FIN. DATED 25/9/1993.**