Usha Kumari U.R. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ``` WP(C) NO. 1903 OF 2020 ``` ## **`PETITIONER:`** ``` USHA KUMARI U.R. AGED 58 YEARS, W/O. B. PRASANNAKUMAR, RETIRED PRINCIPAL, IQBAL HIGHER SECONDARY SCHOOL, AJANUR, KOLAVAYAL P. O., KASARAGOD DIST., PIN - 671 531, RESIDING AT 'SIVAGANGA', ANANDASHRAM P.O., KANHANGAD, KASARAGOD DIST., PIN - 671 531. BY ADV MURALI PALLATH ``` ## **`RESPONDENTS:`** ``` 1THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT (ANNEX II), THIRUVANANTHAPURAM, PIN - 695 001. 2THE DIRECTOR OF GENERAL EDUCATION JAGATHI P. O., THIRUVANANTHAPURAM, PIN - 695 014. 3THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION REGIONAL OFFICE, KANNUR, KANNUR DIST., PIN - 671 002. 4THE ACCOUNTANT GENERAL (A & E) KERALA, THIRUVANANTHAPURAM, PIN - 695 001. BY ADV.SMT.NISHA BOSE, SR. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.1903/2020 **2** **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.1903 of 2020 ---------------------------------------------Dated this the 07[th ] day of March, 2023** ## **JUDGMENT** Petitioner commenced service as Higher Secondary School Teacher (Junior) in Malayalam on 02.09.1991 in Iqbal HSS, Ajanur and retired from service on 31.05.2017. She was promoted to the cadre of Principal on 01.04.2010 and she was declared to have completed the period of probation satisfactorily in the cadre of Principal. It is the case of the petitioner that she attained 50 years of age on 20.05.2011. On completion of 50 years of age, it is submitted that she was declared to have completed probation and was authorised annual increments in the scale of Principal treating as permanently exempted from passing obligatory departmental tests. She drew monthly pay from 2011 onwards at the following rate: WP(C).No.1903/2020 **3** 01.07.2011 : Rs.32,110/- (Rs.22360 - 37940) 01.07.2012 : Rs.32,860/- ” 01.07.2013 : Rs.33,680/- ” 01.07.2014 : Rs.70,350/- (45800 - 89000) 01.07.2015 : Rs.72,000/- ” 2. It is the case of the petitioner that she drew Rs.72000/- as the last pay on retirement from service on 31.05.2017. According to the petitioner, she is eligible to draw basic pay at Rs.73800/- with increment on 01.07.2016. But the 3[rd] respondent did not sanction increment due on 01.07.2016 is the submission. The petitioner forwarded her pension book to the 3[rd] respondent in the month of March 2017. She had submitted pension book claiming the pensionary benefits as shown below: - Qualifying service 25 years, 8 months 30 days - Rounded to 26 years - Last pay Rs. 72,000/Monthly Pension Rs. 31,200/DCRG Rs. 10,48,320/- WP(C).No.1903/2020 **4** 3. Ext.P1 is the relevant pages of the pension book. The 4[th] respondent sanctioned pensionary benefits with the particulars given below: Monthly Pension : Rs. 26,625/DCRG : Rs. 9,10,575/Commutation : Rs. 14,18,580/Last Pay : Rs. 63,900/Qualifying service : 25 years 4. Ext.P2 is the verification report issued by the 4th respondent. It is the case of the petitioner that in Ext.P2 the pensionary benefits are sanctioned at lower rate than the rate claimed. The qualifying service and pensionary benefits claimed and the rate of pensionary benefits sanctioned are also mentioned in the writ petition in A chart, which is extracted hereunder: |Sl.|Particulars|Pensionary|Pensionary|Difference| |---|---|---|---|---| |No.||benefits|benefits|| |||claimed|admitted|| |1.|Qualifying service|26 years|25 years|1 year| |2.|Monthly Pension|Rs. 31,200/-|Rs. 26,625/-|Rs. 4575/-| |3.|DCRG|Rs.10,48,320/-|Rs. 9,10,575/-|Rs.1,37,745/| WP(C).No.1903/2020 **5** 4. Commutation (40%) Rs. 1418588/- 5. Family Pension Rs. 21600/Rs. 19170/Rs. 2430/(normal rate) 5. It is submitted by the petitioner that, she came to know that the 3[rd] respondent unilaterally reduced her pay by cancelling all the increments authorised from 2011 onwards and also made consequential reduction in the pensionary benefits. It is the case of the petitioner that the 3[rd] respondent did so without any notice or hearing the petitioner. The action of the 3[rd] respondent in cancelling the annual increments authorised from 2011 onwards, reducing the qualifying service and reducing other benefits is arbitrary, erroneous and unjustifiable is the submission. It is submitted that the pensionary benefits are granted based on the revised pay that she accrued on 01.07.2010. It is the definite case of the petitioner that she has not been given at least the benefit of HSST while sanctioning pensionary benefit. 6. It is also submitted by the petitioner that on WP(C).No.1903/2020 **6** enquiry with the 3[rd] respondent, she got the oral reply that the said reduction is for the reason of non-acquisition of departmental tests by the petitioner for the post of Principal. It is the definite case of the petitioner that she is entitled for permanent exemption from passing the departmental tests on attaining the age of 50 years. It is submitted that as per special rules, the departmental tests are not prescribed as essential qualification for the post of Principal. It is submitted that the petitioner attained 50 years of age on 20.05.2011 and became eligible for permanent exemption from passing the tests as per the existing law. It is also submitted that her probation in the cadre of Principal was declared by exempting her from passing the tests on attaining 50 years age. It is further submitted that in a similar situation, the Government, as per Ext.P4 order, extended the probation declaring the same in respect of Smt. Mercy Kunchandy. The submission of the petitioner is that she is WP(C).No.1903/2020 **7** entitled for counting the entire service rendered by her for pensionary benefits. It is also submitted that the petitioner is legally entitled for reckoning 26 years as qualifying service and she was in continuous service since 02.09.1991. It is also submitted that the 3[rd] respondent has reduced one year and allowed only 25 years as qualifying service. On this, the petitioner was informed that that service as HSST (Part time) was on consolidated pay and shall not be counted for pension. It is submitted that the service rendered as HSST on consolidated pay was prior to the introduction of special rules and should be counted as qualifying service as per the Kerala Higher Secondary Education Subordinate Service Rules. It is submitted that in the case of several similarly situated persons, the benefits of reckoning service on consolidated pay as qualifying service and authorisation of increments after 50 years of age by exempting from passing departmental tests were given and hence there is high WP(C).No.1903/2020 **8** discrimination to the petitioner is the submission. It is submitted that the 3[rd] respondent as per Ext.P6 raised audit objection and directed the Principal of Iqbal HSS, Ajanur to submit excess drawal statement of salary drawn by the petitioner from 01.07.2011 onwards. It is the definite case of the petitioner that her liability towards alleged excess drawal is after retirement. The petitioner relied on the judgment of the Apex Court in **State of Punjab and Others v. Rafiq Masih (White Washer) [2014 KHC 4818]** and contended that, if the excess amount paid is due to no fault of the employee, there cannot be any recovery. It is also contended that recovery of retired employees and employees who are to retire within one year is not permissible. It is submitted that the 3[rd] respondent sanctioned annual increments to her from 2011 onwards and there is no wrong or any fault on the part of the petitioner. It is also submitted that the petitioner was given DCRG without interest. Ext.P9 is the WP(C).No.1903/2020 **9** letter issued by the 3[rd] respondent communicating the petitioner that an amount of Rs.3,18,223/- is fixed as her liability. It is submitted that the petitioner retired from service on 31.05.2017 and she had submitted the pension proposal before her retirement. The delay caused for sanctioning the pensionary benefits is due to the illegal and irrational attitude and action taken by the 3[rd] respondent is the submission. It is further submitted that in the light of Ext.P8 bond submitted by the petitioner on 23.03.2018, the 3rd respondent is duty bound to release 90% of DCRG amount immediately on receiving the bond as per ruling No.3 under Rule 116, Part – III, KSR. It is submitted that, this Court, as per Ext.P11 interim order directed to disburse admitted amount of DCRG to the petitioner and the petitioner received Rs.5,92,352/towards DCRG amount on 12.09.2018. but the petitioner received the said amount as the balance amount arrived at by reducing the liability from the sanctioned amount. WP(C).No.1903/2020 **10** Subsequently, this Court, as per Ext.P12 judgment, directed the Government to consider Ext.P10 appeal. The 1[st] respondent rejected the appeal as per Ext.P13. Aggrieved by the same, this writ petition is filed. According to the petitioner, she was given exemption from passing departmental tests on attaining 50 years of age and was authorized full increments. It is also submitted that in similar issue, the Government passed Ext.P4 order and has given the benefit of exemption from passing the departmental tests on attaining 50 years of age to one Smt.Mercy Kunchandy. Moreover, it is also submitted that if the probation of the petitioner was not declared on attaining 50 years of age and her increments not authorized for the said reason in 2010, she would have appeared for the test and passed the same. As she already got exemption from passing the test in 2011, she never thought of acquiring the test is the submission. It is also submitted that it is highly irrational to raise WP(C).No.1903/2020 **11** objection at the fag end of her retirement and reduce her pay from Rs.72000/- to Rs.63900/- and reduce all consequential benefits. According to the petitioner, if the petitioner not promoted as Principal and continued as HSST, she would have drawn increments in the scale of HSST and her pay would be at Rs.70,350/- as on the date of retirement. The same is not considered by the Government in Ext.P13 is the submission. Hence this writ petition is filed with following prayers: - i. issue a writ of certiorari calling for records leading to Ext.P6, Ext.P9, Ext.P13 and set aside the same. - ii. issue a writ of mandamus commanding the 3[rd] respondent to restore the pay of the petitioner at the rate she actually drew before retirement and also direct the 3[rd] respondent to authorize annual increment due on 01.07.2016 raising pay at Rs.73800/- and allow consequential revision of pensionary of benefits. - iii. issue a writ of mandamus commanding the 3[rd] and 4[th] respondents to treat her qualifying service as 26 years instead of 25 years revise the pensionary benefits. - iv. issue a writ of mandamus directing the 3[rd] and 4[th] WP(C).No.1903/2020 **12** respondents to release the withheld amount of DCRG of Rs.318223/-(Rupees three lakhs eighteen thousand two hundred and twenty three only) with interest @ 12% for delayed payment from 01.06.2017 to the date of actual payment. v. declare that the audit objection raised in Ext.P6 and liability fixed in Ext.P9 are not legally maintainable and declare that recovery towards alleged excess drawal is not permissible. vi. issue orders declaring that the petitioner is entitled for declaration of probation in the cadre of Principal on the date of completion of 50 years by exempting from passing departmental tests. vii. issue orders directing the 1[st] respondent to allow interest @12% for delayed payment of DCRG for Rs.592352/-(five lakhs ninety two thousand three hundred and fifty two only) from 01.06.2017 to 11.09.2018. viii. any other writ or order as this Hon'ble Court may deem fit in this case. ## _(SIC)_ 7. Heard the learned counsel for the petitioner and the learned Government Pleader. 8. The counsel for the petitioner submitted that, in the light of the principles laid down by this Court in WP(C).No.1903/2020 **13** **Regional Cancer Centre (RCC) and Others v. Ganga Devi C. and Others [2022 (5) KHC 123]** and in **State of Kerala and Another v. Suresh Chandran and Others [2021 KHC 359]** , the impugned orders in this case will not stand. It is submitted that re-fixing of pay after retirement and to recover excess amount allegedly paid to the employee from her terminal benefits based on a rectification committee report is arbitrary and unsustainable. The counsel also relied on the judgment of this Court in **Rafiq Masih (White Washer)’s case** (supra) to contend that there cannot be any recovery. 9. The Government Pleader relied on the judgment of this Court in **Administrator & another v. Aravindan P.C. & Another [2021 (4) KLJ 407]** in which it is stated that though it would be highly illegal and improper to order recovery of excess pay and allowances paid to employee on account of wrong promotion, in as much as the action has only after the expiry of long 15 years after WP(C).No.1903/2020 **14** the granting of promotion. It is submitted that this Court also observed that that does not imply that employee can legally claim that he is entitled to get his pensionary benefits including pension and gratuity, etc treating the last pay as on the date of her retirement. 10. This Court considered the contentions of the petitioner and the Government Pleader. On a reading of the judgments in **Rafiq Masih (White Washer)’s case** (supra), **Suresh Chandran’s case** (Supra) and **Regional Cancer Centre (RCC)’s case** (supra), it is clear that recovery of excess amount drawn by an employee after refixing his/her pay after retirement is unsustainable. Therefore I am of the considered opinion that, in the light of the dictum laid down in the above judgment, the recovery of the excess amount drawn by the petitioner after re-fixation of pay is unsustainable especially in the light of the fact that the recovery is after the retirement of the petitioner. Moreover, the recovery is based on a WP(C).No.1903/2020 **15** wrong fixation of pay found out subsequently. But in the light of the decision relied on by the Government Pleader in **Administrator‘ case** (supra), I think there is some force in the argument of the Government Pleader that the pensionary benefits including pension and gratuity etc cannot be disbursed treating the last pay drawn by the petitioner, which, according to the Department, is a wrong fixation. According to the department, the petitioner has not acquired test qualification and therefore she is not entitled the pay of principal. As observed by the Division Bench, the retiral benefits can be lawfully claimed by the petitioner only on the basis of the legally due last pay. If such corrective steps are not taken at least at that stage, the Division Bench observed that, it will amount to disbursing pensionary benefits on the basis of the wrongly fixed last pay through out the life time of the petitioner and later to the family pension beneficiary. It will be better to extract the relevant portion of the judgment in WP(C).No.1903/2020 **16** ## **Administrator‘ case** (supra): 14. After hearing both sides, we are of the view that we need not get into the task of resolving the above said factual contentions raised by the writ petitioner and those are all matters which should engage the serious consideration and examination of the competent authority of the appellant Guruvayoor Devaswom Board. The fact of the matter is that, the petitioner had not secured test qualification and thus he was not eligible or entitled to be considered for promotion to the post of Additional Health Supervisor or Health Supervisor when he was so promoted to those posts on 15-03-2002 and 01-06-2003 respectively. The crucial fact of the matter is that, the petitioner became legally eligible and entitled to be considered for promotion to those posts only on 10-05-2008, which is the day on which he secured exemption test qualification on completing 25 years of service. Though it would be highly illegal and improper to order the recovery of the alleged excess pay and allowances paid to the petitioner on account of the above said wrong promotion, inasmuch as the action has been only after the expiry of long 15 years after the granting of the promotions. That does not imply that the petitioner can legally claim that he is entitled to get his pensionary benefits including pension and gratuity, etc. by treating the last pay as on the date of his retirement as if he was not promoted to the post of Additional WP(C).No.1903/2020 **17** Health Supervisor and Health Supervisor on 15-03-2002 and 01-06-2003 respectively. There cannot be any dispute that the petitioner became lawfully entitled to be considered for promotion to those posts only on 10-052008. Though no recovery of the alleged excess pay and allowances is permissible in this case, the retiral benefits can be lawfully claimed by the petitioner only on the basis of the legally due last pay. If such corrective steps are not taken, it will amount to disbursing pensionary benefits on the basis of the wrongly fixed last pay throughout the life time of the pensioner and later to the family pension beneficiary.” 11. In this case also the petitioner has not acquired the test qualification. As per the existing law, there is no dispute to the fact that the exemption for the employees from passing departmental test on attainment of 50 years of age is not applicable to the Aided Higher Secondary School Principals. Same is the facts in **Administrator‘ case** (supra). There also the petitioner was not test qualified and it is found that the fixation of pay is wrong. But there can not be any recovery for the excess pay drawn by the petitioner. But the pension, gratuity etc can WP(C).No.1903/2020 **18** not be assessed based on the last pay drawn by the petitioner because the petitioner is not entitled for the pay of the Principal. 12. But, according to me, there is force in the argument of the petitioner on another aspect. It is an admitted fact that the petitioner was promoted as Principal and her probation was also declared. Thereafter the pay was re-fixed after her retirement because the petitioner has not test qualified for promotion. According to the petitioner, if the probation of the petitioner was not declared on attaining 50 years of age and her increment was not authorised for the said reason in 2010, she would have been appeared for the test and passed the same. There is also force in the argument of the petitioner that as she already got the pay of principal, she never thought of acquiring the test. Hence it is submitted that it is highly irrational to raise objection at the fag end of her retirement and reduce her pay from Rs.72,000/- to WP(C).No.1903/2020 **19** Rs.63,900/- and reduce all consequential benefits. There is force in this argument also. But in the light of the principle laid down by this Court in **Administrator‘ case** (supra), the gratuity, pension etc. can not be assessed based on the last pay drawn by the petitioner because the same amounts to disbursing pensionary benefits on the basis of wrongly fixed last pay through out the life of the petitioner and later to the family pension beneficiary also. 13. At this stage, the counsel for the petitioner relied on the circular No.87135/Rules/72/PD dated 17.01.1973 in which it is stated that, a probationer does not acquire the status of an approved probationer beyond the maximum period up to which his probation can be extended under general Rule 21. It is also stated in that circular that, even after the expiry of the above period, his probation can be terminated and he can be discharged from service or reverted to his previous post as the case may be, if he is found unsuitable for full membership. It WP(C).No.1903/2020 **20** is the case of the petitioner that, if the petitioner is not promoted as Principal and continued as HSST, she would have drawn increments in the scale of HSST and her pay would be at Rs.70,350/- as on the date of retirement. The Government has not considered this aspect while passing Ext.P13. I think there is force in this argument. If the petitioner is not entitled for promotion, she ought to have been reverted to the post of HSST so that she would have get the pay of Rs.70,350/- instead of Rs.63,900/now reckoned as per Ext.P2. I am of the considered opinion that the Government should consider this aspect and redress the grievance of the petitioner to give justice to the petitioner. Therefore the recovery for the wrong fixation can be set aside and the Government can be directed to reconsider, whether the petitioner can be reverted back to the post of HSST and fix her pay in the scale of HSST based on the circular No.87135/Rules/72/PD dated 17.01.1973. To facilitate WP(C).No.1903/2020 **21** the Government to pass fresh order, the impugned Ext.P13 order in this case can be set aside. Therefore, this writ petition is allowed in the following manner: i. Exts. P13 is set aside and it is declared that there can not be any recovery from the petitioner based on the wrong fixation. It is also declared that the petitioner is not entitled for pension, gratuity etc., by treating the last pay drawn in the post of Principal. ii. The 1[st] respondent is directed to consider whether the petitioner can be reverted back to the HSST post and fix her pay in the scale of HSST in the light of the circular No.87135/Rules/72/PD dated 17.01.1973 or treating it as a special case, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. iii. Based on the above decision, consequential WP(C).No.1903/2020 **22** benefits, if any, shall be extended to the petitioner forthwith. iv. The claim of the petitioner to get interest for the delayed payment of DCRG is left open and the petitioner is free to take appropriate steps in accordance with law. Sd/- JV/DM **P.V.KUNHIKRISHNAN JUDGE** WP(C).No.1903/2020 **23** ## **`APPENDIX OF WP(C) 1903/2020`** ## `PETITIONER EXHIBITS` |`EXHIBIT P1`|`TRUE COPY OF RELEVANT PAGES OF PENSION`| |---|---| ||`BOOK DATED 25.3.2017 OF THE`| ||`PETITIONER.`| |`EXHIBIT P2`|`TRUE COPY OF VERIFICATION REPORT`| ||`NO.P.R.2101788370/P-2/2/1017366902`| ||`DATED 27.12.2017 ISSUED BY THE 4TH`| ||`RESPONDENT.`| |`EXHIBIT P3`|`TRUE COPY OF RELEVANT PAGES OF THE`| ||`SERVICE RECORD OF THE PETITIONER.`| |`EXHIBIT P4`|`TRUE COPY OF GO(RT) NO.670/2017/G.EDN.`| ||`DATED 9.3.2017.`| |`EXHIBIT P5`|`TRUE COPY OF KERALA HIGHER SECONDARY`| ||`EDUCATION SUBORDINATE SERVICE RULES`| ||`2001.`| |`EXHIBIT P6`|`TRUE COPY OF LETTER NO.A8/669/2018`| ||`DATED 6.2.2018 ISSUED BY THE 3RD`| ||`RESPONDENT.`| |`EXHIBIT P7`|`TRUE COPY OF GRATUITY PAYMENT ORDER`| ||`NO.121797844 DATED 27.12.2017 ISSUED`| ||`BY THE 4TH RESPONDENT.`| |`EXHIBIT P8`|`TRUE COPY OF BOND DATED 23.3.2018`| ||`EXECUTED BY THE PETITIONER.`| |`EXHIBIT P9`|`TRUE COPY OF LETTER NO.A8/1998/2017`| ||`DATED 16.5.2018 ISSUED BY THE 3RD`| ||`RESPONDENT.`| |`EXHIBIT P10`|`TRUE COPY OF APPEAL PETITION DATED`| ||`6.12.2018 SUBMITTED BY THE PETITIONER.`| |`EXHIBIT P11`|`TRUE COPY OF INTERIM ORDER DATED`| ||`29.6.2018 IN WP(C) NO.16263 OF 2018.`| |`EXHIBIT P12`|`TRUE COPY OF JUDGMENT DATED 9.10.2018`| ||`OF THE HON'BLE HIGH COURT IN WP(C)`| ||`NO.16263 OF 2018.`| |`EXHIBIT P13`|`TRUE COPY OF GO(RT) NO.1248/2019/GEDN`| ||`DATED 1.4.2019.`|