V.M. JOSEPH v. STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933** **WP(C).No. 15325 of 2006(Y)** **-----------------------------------------** ## **PETITIONER(S):** - **-----------------------** **V.M. JOSEPH, RETIRED HEADMASTER, ST.THERESA'S HIGH SCHOOL, MANAPPURAM, VATTAMPILLIL HOUSE, SHINE ROAD, VYTTILA, COCHI- 682 019.** **BY ADV. SRI.K.MOHANAKANNAN, SMT.PRAVITHA A.R.** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE ACCOUNTANT GENERAL (A&E), THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA.** **4. THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA.** **BY GOVT. PLEADER MR.NOBLE MATHEW.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **WP(C).No. 15325 of 2006(Y)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE PROCEEDINGS NO.12/1376/05 DATED 31/01/2005 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** **EXT.P2: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 15/02/2006.** **EXT.P2(a): COPY OF THE CHALLAN DATED 10/03/2005 OF SUB TREASURY, ERNAKULAM ISSUED TO THE PETITIONER.** **EXT.P3: COPY OF THE PENSION SANCTIONING ORDER DATED 26/04/2005 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT.** **EXT.P4: COPY OF THE COMMUNICATION NO.G1/1317/05 DATED 08/03/2006 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** **EXT.P5: COPY OF THE PROCEEDINGS NO.B6/10510/99/K.DIS. DATED 07/12/1999 ISSUED TO THE PETITIONER BY DEO, ERNAKULAM.** **EXT.P6: COPY OF THE DECISION OF THE DIVISION BENCH OF THIS HONOURABLE COURT REPORTED IN 2005 (4) KLT SHORT NOTE CASE NO.97.** **EXT.P7: COPY OF THE PROCEEDINGS NO.B39634/04 DATED 28/03/2006 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT.** **RESPONDENT'S EXHIBITS:NIL.** **//TRUE COPY//** ## **P.A. TO JUDGE** **rs** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.15325 of 2006 ---------------------------------------------Dated this the 8[th] day of November, 2011 ## **JUDGMENT** The petitioner retired from service as a Headmaster of the Education Department of the Government of Kerala on 31.5.2005. After retirement, Ext.P1 audit objection was raised on the ground that the petitioner is liable to refund excess amount drawn by him on account of the re-option, which has to be recovered from the petitioner’s DCRG. It is under the above circumstances, the petitioner has filed this writ petition challenging Ext.P1 seeking the following reliefs: “i) To issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P-1 and quash the same. ii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to revise and re-fix the pensionary claims of the petitioner in accordance with Exts.P-5 and P-7 and to release the same within a time frame to be fixed by this Hon'ble Court. iii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to release the DCRG sanctioned as per Ext.P-3 with 18% interest from the date of sanction till the date of disbursement.” W.P.(C)No.15325/06 2 The petitioner’s contention is that the petitioner re-opted, as per Government Order dated 5.2.99, on 10.3.1999 with option date as 1.7.1997. The petitioner submits that the petitioner is not liable to refund any amount as stated in Ext.P1. According to him, the issue is squarely covered by a Division Bench decision of this Court in _**State of Kerala and others**_ v. _**Lissy Joseph M**_ [2006(1) KLJ 566]. The petitioner submits that the petitioner has already refunded the excess amount drawn by him as per the earlier fixation by Ext.P2 (a) chalan for Rs.4,977/-. Therefore, no further amount is liable to be recovered from the DCRG due to the petitioner, is the contention raised. 2. A counter affidavit has been filed by the respondents seeking to controvert the contentions of the petitioner. 3. I have considered the rival contentions. In **Lissy Joseph’s** case (supra), the Division Bench of this Court has held as follows: '5. Along with Writ Appeal No.186 of 2004, Annexure A-III Circular dated 2-12-2003 was produced by the Government. It was issued while implementing the impugned Judgment. W.P.(C)No.15325/06 3 Paragraphs 5 and 7 of the above Circular read as follows: “Now, it has come to the notice of Govt. that several Writ Petitions were filed in the High Court quoting the Govt. letter 4[th] cited and the Hon'ble Court have delivered judgment on the basis of the letter vide the common judgment 7[th] cited. As stated above, it is the consistent stand of Govt. that the arrears are payable to the employees only with effect from the date of filing re-option and excess has to be adjusted against this arrear. The Govt. letter 4[th] cited above does not reflect the correct stand of the consistent stand taken by the Govt. Since the letter 4[th] cited is a deviation from the consistent stand taken by the Govt. from the very inception of the scheme of re-option, if the same is allowed to stand it will open a flood gate of request for re-option and the financial implication will be huge, which the Govt. cannot resist, in the present stringent financial position.” xx xx xx 7. It is once again clarified and emphasised that arrears of pay on account of filing re-option and not from the date of effect of re-option.” It is very unfortunate to notice that after a considered judgment of the learned single Judge passed after hearing both sides, Government overrules the above decision by way of a circular. The above Circular nullify the Government orders dated 5-12-1995, 28-6-1997 and 5-4-2003 apart from overruling the findings of the learned single Judge. Annexure II Government Order dated 5-42003 very clearly says that re-option date will be shifted to the date of effect of re-option and not the date of exercise of re-option. By a Government Circular, Government Orders, benefits cannot be retrospectively taken away and petitioner gave re-option on the basis of orders existing at that time. The impugned judgment was passed on 20-12-2002 following the judgment in O.P.No.20280 of 2001 which was implemented by W.P.(C)No.15325/06 4 G.O. dated 5-4-2003 clearly stating that the date of effect of re-option is the relevant date for granting benefit subject to the restriction that if there is excess amount after adjustment will be refunded only with effect from the date of filing reoption. The amount due prior to the date of exercise of re-option will only be adjusted against the excess drawn by the employee. Therefore, excess of amount due after calculating the same from the date of effect of re-option can be entitled to set off against the refunds due from the employee and the amount due, if any, arising after the date of re-option alone need be refunded to the Government. Annexure III Circular in so far as it overrules the judgment of the learned single Judge impugned in these appeals are nonest and illegal. In fact, appeals are not filed against all cases covered by the common impugned judgment. We fully agree with the view of the learned single Judge.' ## 4. Ext.P1 reads as follows: “On the pay fixation checking in respect of Sri. V.M. Joseph, Headmaster, St. Theresa's HS Manappuram. It is seen that the incumbent has exercised re-option in terms of G.O.(P)399(178)99 fin. dt. 5.2.99. Since the monetary benefits of the above re-option is only from the date of filing of option, the excess amount drawn upto that date is to be refunded. But on examining the service book. The excess amount drawn from 1.12.96 to 10.3.99 is not seen refunded so far eventhough the fact was informed vide the reference cited above. In the above circumstances the eligible pay of the incumbent fixed at Rs.9350/- with effect from 1.4.2004 in the scale of Rs.6675/- 10550/- is admitted. The pension of the incumbent shall be revised as and when producing the refund particulars. Hence you are requested to take urgent step to submit the refund particulars and excess drawal statement.” W.P.(C)No.15325/06 5 I am of opinion that Ext.P1 is squarely against the Division Bench decision. Accordingly, Ext.P1 is quashed. 5. In the above circumstances, no amounts can be recovered from the DCRG due to the petitioner towards any amount paid to the petitioner on account of the re-fixation of pay as per the re-option submitted by the petitioner. By interim order dated 12.7.2006, this Court had directed the disbursal of admitted amounts of DCRG less liability, if any, within two weeks from the date of receipt of a copy of the said order. The learned counsel for the petitioner admits that the admitted DCRG has been paid. In the above circumstances, I dispose of this writ petition with a direction to the respondents to disburse the amount withheld from the petitioner’s DCRG consequent upon Ext.P1, as expeditiously as possible, at any rate, within two months form the date of receipt of a copy of this judgment. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.15325/06 6 W.P.(C)No.15325/06 7